EXHIBIT 3.1(a)
CERTIFICATE OF INCORPORATION
OF
MARKTECH INTERNATIONAL INC.
1. NAME.
The name of this corporation is Marktech International Inc. (the
"Corporation").
2. REGISTERED OFFICE AND AGENT.
The address of the registered office of the Corporation in the State of
Delaware is 1013 Centre Road, Wilmington, Delaware 19805 in the County of New
Castle. The registered agent of the Corporation at such address shall be
Corporation Service Company.
3. PURPOSE AND POWERS.
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware General
Corporation Law.
4. CAPITAL STOCK.
4.1. AUTHORIZED SHARES.
The total number of shares of all classes of stock that the Corporation
shall have the authority to issue is 55,000,000 shares, of which 5,000,000
shares shall be Preferred Stock, having a par value of $0.001 per share
("Preferred Stock"), and 50,000,000 shares shall be classified as Common
Stock, having a par value of $0.001 per share ("Common Stock"). A description
of the respective classes of stock and a statement of designations, powers,
preferences and rights, and the qualifications, limitations or restrictions
thereof, are set forth below.
4.2. COMMON STOCK.
(a) RELATIVE RIGHTS.
The Common Stock shall be subject to and qualified by all of the rights,
privileges, preferences and priorities of the Preferred Stock. Each share of
Common Stock shall have the same relative rights as and be identical in all
respects to all the other shares of Common Stock.
(b) VOTING RIGHTS.
Each holder of shares of Common Stock shall be entitled to attend all
special and annual meetings of the stockholders of the Corporation and, share
for share and without regard to class, to cast one vote for each outstanding
share of Common Stock so held upon any matter or thing (including, without
limitation, the election of one or more directors) properly considered and
acted upon by the stockholders. Except as otherwise provided in this
Certificate of Incorporation or by applicable law, holders of shares of
Common Stock shall vote together as a single class on all matters with the
holders of any other class or series of stock of the Corporation. The
holders of Common Stock shall have no right to cumulate votes in the
election of directors of the Corporation.
(c) DIVIDENDS.
The holders of record of the Common Stock shall be entitled to receive
dividends in equal amounts per share, when, as, and if declared by the Board
of Directors, out of any assets legally available for the payment of
dividends thereon, subject to any preferential rights of any other class of
stock of the Corporation.
(d) DISSOLUTION, LIQUIDATION, WINDING UP.
In the event of any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of record of the
Common Stock then outstanding, and all holders of any class or series of
stock entitled to participate therewith, in whole or in part, as to
distribution of assets, shall become entitled to participate in the ratable
distribution of any assets of the Corporation remaining after the Corporation
shall have paid, or set aside for payment, to the holders of any class of
stock having preference over the Common Stock in the event of dissolution,
liquidation or winding up, the full preferential amounts (if any) to which
they are entitled, and shall have paid or provided for payment of all debts
and liabilities of the Corporation.
4.3. PREFERRED STOCK.
The Board of Directors is expressly authorized, subject to limitations
prescribed by the Delaware General Corporation Law and the provisions of this
Certificate of Incorporation, to provide, by resolution and by filing a
certificate of designations pursuant to the Delaware General Corporation Law,
for the issuance from time to time of the shares of Preferred Stock in one or
more series, to establish from time to time the number of shares to be
included in each such series, and to fix the designation, powers, preferences
and other rights of each such series and to fix the qualifications,
limitations and restrictions thereof, including, but without limiting the
generality of the foregoing, the following:
(a) the number of shares constituting that series and the
distinctive designation of that series;
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(b) the dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates, and the
relative rights of priority, if any, of payment of dividends on shares of
that series;
(c) whether that series shall have voting rights, in
addition to the voting rights provided by law, and, if so, the terms of such
voting rights;
(d) whether that series shall have conversion privileges,
and, if so, the terms and conditions of such conversion, including provision
for adjustment of the conversion rate in such events as the Board of
Directors shall determine;
(e) whether or not the shares of that series shall be
redeemable and, if so, the terms and conditions of such redemption, including
the dates upon or after which they shall be redeemable, and the amount per
share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
(f) whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the terms and
amount of such sinking fund;
(g) the rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment of
shares of that series; and
(h) any other relative powers, preferences, and rights of
that series, and qualifications, limitations or restrictions on that series.
4.4. ADJUSTMENTS OF AUTHORIZED STOCK.
Except as provided to the contrary in the provisions establishing a
class or series of stock, the number of shares of the authorized stock of the
Corporation of any class or classes may be increased or decreased (but not
below the number then outstanding) by the affirmative vote of a majority of
the outstanding shares of capital stock of the Corporation.
5. INCORPORATOR.
The name and mailing address of the incorporator (the "Incorporator") is
Michael V. Bales, c/o Greenberg Glusker Fields Claman & Machtinger LLP, 1900
Avenue of the Stars, Suite 2100, Los Angeles, CA 90067-4590.
6. BOARD OF DIRECTORS.
6.1. CLASSIFICATION.
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Except as otherwise provided in this Certificate of Incorporation or a
certificate of designations relating to the rights of the holders of any
class or series of Preferred Stock, voting separately by class or series, to
elect additional directors under specified circumstances, the number of
directors of the Corporation shall be as fixed from time to time by or
pursuant to the Bylaws of the Corporation. Elections of directors need not
be by written ballot unless the Bylaws of the Corporation shall so provide.
The directors, other than those who may be elected by the holders of any
class or series of Preferred Stock voting separately by class or series,
shall be classified, with respect to the time for which they severally hold
office, into three classes, Class I, Class II and Class III, which shall be
as nearly equal in number as possible, and shall be adjusted from time to
time in the manner specified in the Bylaws of the Corporation to maintain
such proportionality. Each initial director in Class I shall hold office for
a term expiring at the 2001 annual meeting of stockholders, each initial
director in Class II shall hold office initially for a term expiring at the
2000 annual meeting of stockholders, and each initial director in Class III
shall hold office for a term expiring at the 1999 annual meeting of
stockholders. Notwithstanding the foregoing provisions of this Section 6.1,
each director shall serve until such director's successor is duly elected and
qualified or until such director's earlier death, resignation or removal. At
each annual meeting of stockholders, the successors to the class of directors
whose term expires at that meeting shall be elected to hold office for a term
expiring at the annual meeting of stockholders held in the third year
following the year of their election and until their successors have been
duly elected and qualified or until any such director's earlier death,
resignation or removal.
6.2. CHANGE OF AUTHORIZED NUMBER.
In the event of any increase or decrease in the authorized number of
directors, the newly created or eliminated directorships resulting from such
increase or decrease shall be apportioned by the Board of Directors among the
three classes of directors so as to maintain such classes as nearly equal as
possible. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
6.3. DIRECTORS ELECTED BY HOLDERS OF PREFERRED STOCK.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred 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 be governed by the
terms of this Certificate of Incorporation or a certificate of designations
applicable thereto, and such directors so elected shall not be divided into
classes pursuant to this Section 6 unless expressly provided by the
certificate of designations.
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6.4. LIMITATION OF LIABILITY.
To the extent permitted by the Delaware General Corporation Law, no
director of the Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty as a
director, provided that this provision shall not eliminate or limit the
liability of a director: (a) for any breach of the director's duty of loyalty
to the Corporation or its stockholders; (b) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law; (c)
for the types of liability set forth in Section 174 of the Delaware General
Corporation Law; or (d) for any actions or omissions from which the director
received any improper personal benefit. Any repeal or modification of this
Section 6.4 by the stockholders of the Corporation shall be prospective only,
and shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification with respect to
acts or omissions occurring prior to such repeal or modification.
7. INDEMNIFICATION.
To the extent permitted by law, the Corporation shall fully indemnify
any person who was or is a party or is threatened to be made a party to or is
otherwise involved in any threatened, pending or completed action, suit or
proceeding (whether civil, criminal, administrative or investigative) by
reason of the fact that such person is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses,
liabilities and losses (including attorneys' fees, judgments, fines,
penalties and amounts paid in settlement) actually and reasonably incurred by
such person in connection with such action, suit or proceeding.
To the extent permitted by law, the Corporation may fully indemnify any
person who was or is a party or is threatened to be made a party or is
otherwise involved in to any threatened, pending or completed action, suit or
proceeding (whether civil, criminal, administrative or investigative) by
reason of the fact that such person is or was an employee or agent of the
Corporation, or is or was serving at the request of the Corporation as an
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses, liabilities and
losses (including attorneys' fees, judgments, fines, penalties and amounts
paid in settlement) actually and reasonably incurred by such person in
connection with such action, suit or proceeding.
The Corporation may advance expenses (including attorneys' fees)
incurred by a director or officer in advance of the final disposition of such
action, suit or proceeding upon the receipt of an undertaking by or on behalf
of the director or officer to repay such amount if it shall ultimately be
determined, by final judicial decision from which there is no further right
to appeal, that such director or officer is not entitled to indemnification.
The Corporation may advance expenses (including attorneys' fees) incurred by
an employee or agent in advance of the final disposition of such action, suit
or proceeding upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
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8. ACTIONS BY STOCKHOLDERS.
Following the effectiveness of the registration of any class of stock of
the Corporation pursuant to the requirements of the Securities Act of 1933,
as amended, any action required or permitted to be taken by the stockholders
of the Corporation must be effected at a duly called annual or special
meeting of stockholders, and may not be effected by any consent in writing by
such stockholders.
9. SPECIAL MEETINGS OF STOCKHOLDERS.
Special meetings of the stockholders of the Corporation may be called at
any time but only by (a) the President and Chief Executive Officer of the
Corporation or (b) a majority of the directors in office, although less than
a quorum.
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10. COMPROMISE OR ARRANGEMENT CLAUSE.
Whenever a compromise or arrangement is proposed between the Corporation
and its creditors or any class of them and/or between the Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of the
Corporation or of any creditor or stockholder thereof or on the application
of any receiver or receivers appointed for the Corporation under Section 291
of the Delaware General Corporation Law or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation
under Section 279 of the Delaware General Corporation Law order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, to be summoned in such
manner as such court directs. If a majority in number representing three
fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, such
compromise or arrangement and such reorganization shall, if sanctioned by the
court to which such application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders of the Corporation, as the case may be, and also on the
Corporation.
11. AMENDMENT OF CERTIFICATE OF INCORPORATION.
Notwithstanding other provision of this Certificate of Incorporation or
the Bylaws of the Corporation (and notwithstanding the fact that a lesser
percentage may be specified by law, this Certificate of Incorporation or the
Bylaws of the Corporation), the affirmative vote of 66-2/3% of the total
number of votes of the then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to amend or repeal, or to adopt
any provision inconsistent with the purpose or intent of Sections 6, 7, 8 and
9 hereof, and this Section 11. Notice of any such proposed amendment, repeal
or adoption shall be contained in the notice of the meeting at which it is to
be considered. Subject to the provisions set forth herein, the Corporation
reserves the right to amend, alter, repeal or rescind any provision contained
in this Certificate of Incorporation in the manner now or hereafter
prescribed by law.
12. AMENDMENT OF BYLAWS.
In furtherance and not in limitation of the powers conferred by the
Delaware General Corporation Law, the Board of Directors is expressly
authorized and empowered to adopt, amend and repeal the Bylaws of the
Corporation, subject to the right of the stockholders entitled to vote with
respect thereto to amend or repeal Bylaws adopted by the Board of Directors
as provided for in this Certificate of Incorporation or in the Bylaws of the
Corporation.
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IN WITNESS WHEREOF, the undersigned, being the Incorporator hereinabove
named, for the purpose of forming a corporation pursuant to the Delaware General
Corporation Law, hereby certifies that the facts hereinabove stated are truly
set forth, and accordingly executes this Certificate of Incorporation this 14th
day of May, 1998.
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Michael V. Bales, Incorporator
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