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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
WAXS INC.
ARTICLE I
Name
The name of the corporation is WAXS INC.
ARTICLE II
Purposes
The purpose of the corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE III
Agent for Service
The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is Corporation Service Company.
ARTICLE IV
Capital Stock
The total number of shares of stock that the corporation shall have
authority to issue is fifty million (50,000,000), consisting of forty million
(40,000,000) shares of common stock, $.01 par value per share ("Common Stock"),
and ten million (10,000,000) shares of preferred stock, $.01 par value per share
("Preferred Stock").
The designation, relative rights, preferences and limitations of the
shares of each class are as follows:
The shares of Common Stock may be issued from time to time in one or
more series of any number of shares, provided that the aggregate number of
shares issued and not canceled of any and all such series shall not exceed the
total number of shares of Common Stock hereinabove authorized, and with
distinctive serial designations, all as shall hereafter be stated and expressed
in the resolution or resolutions providing for the issue of such shares of
Common Stock from time to time adopted by the Board of Directors pursuant to
authority so to do which is hereby vested in the Board of Directors, and each
series of shares of Common Stock may have such voting powers, full or limited,
or may be without voting powers as shall be stated in said resolution or
resolutions providing for the issue of such shares of Common Stock.
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The shares of Preferred Stock may be issued from time to time in one or
more series of any number of shares, provided that the aggregate number of
shares issued and not canceled of any and all such series shall not exceed the
total number of shares of Preferred Stock hereinabove authorized, and with
distinctive serial designations, all as shall hereafter be stated and expressed
in the resolution or resolutions providing for the issue of such shares of
Preferred Stock from time to time adopted by the Board of Directors pursuant to
authority so to do which is hereby vested in the Board of Directors. Each series
of shares of Preferred Stock (a) may have such voting powers, full or limited,
or may be without voting powers; (b) may be subject to redemption at such time
or times and at such prices; (c) may be entitled to receive dividends (which may
be cumulative or non-cumulative) at such rate or rates, on such conditions and
at such times, and payable in preference to, or in such relation to, the
dividends payable on any other class or classes or series of stock; (d) may have
such rights upon the dissolution of, or upon any distribution of the assets of,
the corporation; (e) may be made convertible into, or exchangeable for, shares
of any other class or classes or of any other series of the same or any other
class or classes of shares of the corporation at such price or prices or at such
rates of exchange and with such adjustments; (f) may be entitled to the benefit
of a sinking fund to be applied to the purchase or redemption of shares of such
series in such amount or amounts; (g) may be entitled to the benefit of
conditions and restrictions upon the creation of indebtedness of the corporation
or any subsidiary, upon the issue of any additional shares (including additional
shares of such series or of any other series) and upon the payment of dividends
or the making of other distributions on, and the purchase, redemption or other
acquisition by the corporation or any subsidiary of, any outstanding shares of
the corporation; and (h) may have such other relative, participating, optional
or other special rights, qualifications, limitations or restrictions thereof;
all as shall be stated in said resolution or resolutions providing for the issue
of such shares of Preferred Stock. Shares of Preferred Stock of any series that
have been redeemed (whether through the operation of a sinking fund or
otherwise) or that, if convertible or exchangeable, have been converted into or
exchanged for shares of any other class or classes shall have the status of
authorized and unissued shares of Preferred Stock of the same series and may be
reissued as a part of the series of which they were originally a part or may be
reclassified and reissued as part of a new series of shares of Preferred Stock
to be created by resolution or resolutions of the Board of Directors or as part
of any other series of shares of Preferred Stock, all subject to the conditions
or restrictions on issuance set forth in the resolution or resolutions adopted
by the Board of Directors providing for the issue of any series of shares of
Preferred Stock.
Subject to the provisions of any applicable law or of the Bylaws of the
corporation, as from time to time amended, with respect to the closing of the
transfer books or the fixing of a record date for the determination of
stockholders entitled to vote and except as otherwise provided by law or by the
resolution or resolutions providing for the issue of any series of shares of
Preferred Stock or any shares of a series of Common Stock as to which the voting
powers have been expressly limited by the resolution or resolutions providing
for the issuance of such series of Common Stock, the holders of outstanding
shares of Common Stock shall exclusively possess voting power for the election
of directors and for all other purposes, each holder of record of shares of
Common Stock being entitled to one vote for each share of Common Stock standing
in his or her name on the books of the corporation. Except as otherwise provided
by the resolution or resolutions providing for the issue of any series of shares
of Preferred Stock, the holders of shares of Common Stock shall be entitled, to
the exclusion of the holders of
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shares of Preferred Stock of any and all series, to receive such dividends as
from time to time may be declared by the Board of Directors. In the event of any
liquidation, dissolution or winding up of the corporation, whether voluntary or
involuntary, after payment shall have been made to the holders of shares of
Preferred Stock of the full amount to which they shall be entitled pursuant to
the resolution or resolutions providing for the issue of any series of shares of
Preferred Stock, the holders of shares of Common Stock shall be entitled, to the
exclusion of the holders of shares of Preferred Stock of any and all series, to
share, ratably according to the number of shares of Common Stock held by them,
in all remaining assets of the corporation available for distributions to its
stockholders.
Subject to the provisions of this Certificate of Incorporation and
except as otherwise provided by law, the stock of the corporation, regardless of
class, may be issued for such consideration and for such corporate purposes as
the Board of Directors may from time to time determine.
ARTICLE V
Incorporator
The name and mailing address of the incorporator is as follows:
NAME MAILING ADDRESS
Robert C. Hussle, Esq. Rogers & Hardin LLP
2700 International Tower,
Peachtree Center
229 Peachtree Street, N.E.
Atlanta, Georgia 30303
ARTICLE VI
Directors
The powers of the incorporator shall terminate upon the filing of this
Certificate of Incorporation. The initial Board of Directors of the Corporation
shall consist of six (6) mem- bers, who shall serve as the Directors of the
Corporation until the first meeting of the stockholders or until their
successors are elected and qualified. Thereafter, the number of directors shall
be fixed as set forth in Article IX. The names and addresses of the initial
members of the Board of Directors are as follows:
NAME ADDRESS
Steven A. Odom 945 E. Paces Ferry Road
Suite 2240
Atlanta, Georgia 30326
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NAME ADDRESS
Hensley E. West 945 E. Paces Ferry Road
Suite 2240
Atlanta, Georgia 30326
Stephen J. Clearman 945 E. Paces Ferry Road
Suite 2240
Atlanta, Georgia 30326
William P. O'Reilly 945 E. Paces Ferry Road
Suite 2240
Atlanta, Georgia 30326
John D. Phillips 945 E. Paces Ferry Road
Suite 2240
Atlanta, Georgia 30326
Steven E. Raville 945 E. Paces Ferry Road
Suite 2240
Atlanta, Georgia 30326
ARTICLE VII
Duration
The corporation is to have perpetual existence.
ARTICLE VIII
Action by Stockholders
No action required or permitted to be taken by the stockholders of the
corporation at any annual or special meeting of the stockholders of the
corporation may be taken without a meeting, and the power to consent in writing,
without a meeting, to the taking of any action is specifically denied.
ARTICLE IX
Management
1. The business and affairs of the corporation shall be managed
by or under the direction of a Board of Directors.
(a) The Board of Directors shall consist of not fewer
than three (3) members and not more than twelve (12) members, the exact
number of authorized directors within such range to be fixed from time
to time by a resolution of the Board of Directors
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adopted by the affirmative vote of at least a majority of the total
number authorized directors most recently fixed by the Board of
Directors.
(b) The directors of the corporation shall be divided
into three classes for the purpose of determining their terms of
office. Each such class shall consist, as nearly as possible, of
one-third of the total number of directors fixed by the Board of
Directors. At the annual meeting of stockholders of the corporation
held in 1998, one class of directors (designated as Class I) shall be
elected for a term expiring at the annual meeting of stockholders of
the corporation held in 1999, one class of directors (designated as
Class II) shall be elected for a term expiring at the annual meeting of
stockholders of the corporation held in 2000, and one class of
directors (designated as Class III) shall be elected for a term
expiring at the annual meeting of stockholders of the corporation held
in 2001. At each succeeding annual meeting of stockholders of the
corporation, beginning in 1999, successors to the class of directors
whose term expires at that annual meeting shall be elected for a term
expiring at the annual meeting of stockholders of the corporation held
in the third year of their election.
(c) If the number of directors is changed, then any
increase or decrease in such number shall be apportioned by the Board
of Directors among the classes of directors so as to maintain as nearly
as possible an equal number of directors in each class. No reduction in
the authorized number of members of the Board of Directors shall have
the effect of removing any director from office before the director's
term of office expires.
(d) Vacancies on the Board of Directors and newly created
directorships resulting from an increase in the authorized number of
members of the Board of Directors may be filled only by a majority of
the directors then in office, although less than a quorum, or by a sole
remaining director.
(e) Each director, including a director elected to fill a
vacancy or a newly created directorship, shall hold office until the
next election of the class of directors to which such director belongs
and until his or her successor is elected and qualified or until his or
her earlier death, resignation, or removal from office for cause.
(f) Any director or the entire Board of Directors may be
removed from office at any time but only for cause and only by the
affirmative vote of the holders of at least a majority of the voting
power of all outstanding shares of capital stock of the corporation
then entitled to vote in an election of directors of the corporation,
voting as a single class.
(g) A majority of total directors shall constitute a
quorum for the transaction of business.
(h) Notwithstanding the foregoing, whenever the holders
of any one or more classes or series of stock issued by the corporation
shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the
election, term of office, filling of vacancies and other features of
such directorships shall
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be governed by the terms of this Certificate of Incorporation
applicable thereto, such directors so elected shall not be divided into
classes pursuant to this Article IX, and the number of such directors
shall not be counted in determining the maximum number of directors
permitted under the foregoing provisions of this Article IX, in each
unless expressly provided by such terms.
2. Nominations of persons for election to the Board of Directors
may be made at a meeting of stockholders of the corporation either by or at the
direction of the Board of Directors or by any stockholder of record entitled to
vote in the election of directors at such meeting who has complied with the
notice procedures set forth in this Paragraph 2. A stockholder who desires to
nominate a person for election to the Board of Directors at a meeting of
stockholders of the corporation and who is eligible to make such nomination must
give timely written notice of the proposed nomination to the secretary of the
corporation. To be timely, a stockholder's notice given pursuant to this
Paragraph 2 must be received at the principal executive office of the
corporation not less than one hundred twenty (120) calendar days in advance of
the date which is one year later than the date of the proxy statement of the
corporation released to stockholders in connection with the previous year's
annual meeting of stockholders of the corporation; provided, however, that if no
annual meeting of stockholders of the corporation was held in the previous year
or if the date of the forthcoming annual meeting of stockholders has been
changed by more than thirty (30) calendar days from the date contemplated at the
time of the previous year's proxy statement or if the forthcoming meeting is not
an annual meeting of stockholders of the corporation, then to be timely such
stockholder's notice must be so received not later than the close of business on
the tenth day following the earlier of (a) the day on which notice of the date
of the forthcoming meeting was mailed or given to stockholders by or on behalf
of the corporation or (b) the day on which public disclosure of the date of the
forthcoming meeting was made by or on behalf of the corporation. Such
stockholder's notice to the secretary of the corporation shall set forth (a) as
to each person whom the stockholder proposes to nominate for election or
re-election as a director (i) the name, age, business address and residence
address of such person, (ii) the principal occupation or employment of such
person, (iii) the class and number of shares of capital stock of the corporation
which then are beneficially owned by such person, (iv) any other information
relating to such person that is required by law or regulation to be disclosed in
solicitations of proxies for the election of directors of the corporation, and
(v) such person's written consent to being named as a nominee for election as a
director and to serve as a director if elected and (b) as to the stockholder
giving the notice (i) the name and address, as they appear in the stock records
of the corporation, of such stockholder, (ii) the class and number of shares of
capital stock of the corporation which then are beneficially owned by such
stockholder, (iii) a description of all arrangements or understandings between
such stockholder and each nominee for election as a director and any other
person or persons (naming such person or persons) relating to the nomination
proposed to be made by such stockholder, and (iv) any other information required
by law or regulation to be provided by a stockholder intending to nominate a
person for election as a director of the corporation. At the request of the
Board of Directors, any person nominated by or at the direction of the Board of
Directors for election as a director of the corporation shall furnish to the
secretary of the corporation the information concerning such nominee which is
required to be set forth in a stockholder's notice of a proposed nomination. No
person shall be eligible for election as a director of the corporation unless
nominated in compliance with the procedures set forth in this Paragraph 2. The
chairman of a meeting of stockholders of the corporation shall
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refuse to accept the nomination of any person not made in compliance with the
procedures set forth in this Paragraph 2, and such defective nomination shall be
disregarded.
3. The power to adopt, amend or repeal the Bylaws of the
corporation may be exercised by the Board of Directors of the corporation.
4. Notwithstanding any provision of this Certificate of
Incorporation or the Bylaws of the corporation to the contrary, the affirmative
vote of the holders of at least seventy-five percent (75%) of the voting power
of all outstanding shares of capital stock of the corporation then entitled to
vote in an election of directors of the corporation, voting as a single class,
shall be required to alter, amend or repeal this Article IX or to adopt any
provision of this Certificate of Incorporation or the Bylaws of the corporation
which is inconsistent with this Article IX.
ARTICLE X
Limitation of Liability
The personal liability of the directors of the corporation is hereby
eliminated to the fullest extent permitted by paragraph (7) of subsection (b) of
ss. 102 of the General Corporation Law of the State of Delaware, as the same may
be amended and supplemented.
ARTICLE XI
Indemnification
The corporation shall, to the fullest extent permitted by ss. 145 of
the General Corporation Law of the State of Delaware, as the same may be amended
and supplemented, indemnify any and all persons whom it shall have power to
indemnify under said section from and against any and all of the expenses,
liabilities, or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any Bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
ARTICLE XII
Amendment
From time to time any of the provisions of this Certificate of
Incorporation may be amended, altered, or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the corporation by this
Certificate of Incorporation are granted subject to the provisions of this
Article XII.
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I, the undersigned, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, hereby declaring and certifying
that this is my act and deed and the facts stated herein are true, and
accordingly have hereunto set my hand on the 20th day of February, 1998.
/s/ Robert C. Hussle
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Robert C. Hussle, Incorporator
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