Exhibit 3.1
STATE OF DELAWARE PAGE 1
OFFICE OF THE SECRETARY OF STATE
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I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "NETGATEWAY, INC.", FILED IN THIS OFFICE ON THE TWELFTH DAY
OF MAY, A.D. 1999, AT 3 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ Edward J. Freel
[SEAL] ------------------------------------
EDWARD J. FREEL, SECRETARY OF STATE
3042135 8100
AUTHENTICATION: 9742954
991190779
DATE: 05-13-99
CERTIFICATE OF INCORPORATION OF NETGATEWAY, INC.
FIRST. The name of the corporation is Netgateway, Inc. (the
"Corporation").
SECOND. The address, including street, number, city, and county of the
Corporation's registered office in the State of Delaware is 1209 Orange
Street, in the City of Wilmington, county of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
THIRD. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH. A. The aggregate number of shares which the Corporation shall
have authority to issue is 45,000,000, par value $.001 per share, of which
40,000,000 shares shall be designated Common Shares and 5,000,000 shares
shall be designated Preferred Shares.
B. Authority is hereby expressly granted to the Board of Directors of
the Corporation (or a Committee thereof designated by the Board of Directors
pursuant to the by-laws of the Corporation, as from time to time amended (the
"By-Laws")) to issue the Preferred Shares from time to time as Preferred
Shares of any series and to declare and pay dividends thereon in accordance
with the terms thereof and, in connection with the creation of each such
series, to fix by the resolution or resolutions providing for the issue of
shares thereof, the number of such shares, the designations, powers,
preferences, and rights (including voting rights), and the qualifications,
limitations, and restrictions, of such series, to the full extent now or
hereafter permitted by the laws of the State of Delaware.
FIFTH. The name and mailing address of the incorporator is Kim
Lefkowitz, c/o Brock Silverstein LLC, One Citicorp Center, 153 East 53rd
Street, 56th Floor, New York, New York 10022.
SIXTH. Election of directors need not be by written ballot.
SEVENTH. The Board of Directors is authorized to adopt, amend, or repeal
By-Laws of the Corporation.
EIGHTH. A. Each person who was or is made a party or is threatened to be
made a party to or is otherwise involved in any action, suit, or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a director,
officer, employee, or agent of the Corporation or any of its direct or
indirect subsidiaries or is or was serving at the request of the Corporation
as a director, officer, employee, or agent of any other corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to an employee benefit plan (hereinafter an "indemnitee"), whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee, or agent or in any other capacity while serving
as a director, officer, employee, or agent, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the Delaware
General Corporation Law, as the same exists or may hereafter be amended (but,
in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than
permitted prior thereto), against all expense, liability, and loss (including
attorneys' fees, judgments, fines, excise taxes or penalties under the
Employee Retirement Income Security Act of 1974, as amended, and amounts paid
in settlement) reasonably incurred or suffered by such indemnitee in
connection therewith, and such indemnification shall continue as to an
indemnitee who has ceased to be a director, officer, employee, or agent and
shall inure to the benefit of the indemnitee's heir, executors, and
administrators; provided, however, that, except as provided in Paragraph C of
this Article EIGHTH with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation.
B. The right to indemnification conferred in Paragraph A of this
Article EIGHTH shall include the right to be paid by the Corporation the
expenses incurred in defending any proceeding for which such right to
indemnification is applicable in advance of its final disposition
(hereinafter an "advancement of expense"); PROVIDED, HOWEVER, that, if the
Delaware General Corporation Law requires, an advancement of expenses
incurred by an indemnitee in his or her capacity as a director or officer
(and not in any other capacity in which service was or is rendered by such
indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay
all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal (hereinafter
a "final adjudication") that such indemnitee is not entitled to be
indemnified for such expenses under this Article EIGHTH or otherwise.
C. The rights to indemnification and to the advancement of expenses
conferred in Paragraphs A and B of this Article EIGHTH shall be contract
rights. If a claim under Paragraph A or B of this Article EIGHTH is not paid
in full by the Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement
of expenses, in which case the applicable period shall be twenty days, the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in
any such suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by an
indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (ii) any suit by the Corporation to recover an advancement
of expenses pursuant to the terms of an undertaking, the Corporation shall be
entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth
in the Delaware General Corporation Law. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or
its stockholders) to have made a determination prior to the commencement of
such suit that indemnification of the indemnitee is proper in the
circumstances because the indemnitee has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the indemnitee has not
met such applicable standard of conduct, shall create a presumption that the
indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden
of proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article EIGHTH or otherwise, shall be on
the Corporation. D. The rights to indemnification and to the advancement of
expenses conferred in this Article EIGHTH shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute, this
certificate of incorporation, by-law, agreement, vote of stockholders or
disinterested directors, or otherwise. E. The Corporation may maintain
insurance, at the Corporation's expense, to protect itself and any director,
officer, employee, or agent of the Corporation or another corporation,
partnership, joint venture, trust, or other enterprise against any expense,
liability, or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability, or loss under the
Delaware General Corporation Law. F. The Corporation's obligation, if any, to
indemnify any person who was or is serving as a director, officer, employee,
or agent of any director or indirect subsidiary of the Corporation or, at the
request of the Corporation, of any other corporation or of a partnership,
joint venture, trust, or other enterprise shall be reduced by any amount such
person may collect as indemnification from such other corporation,
partnership, joint venture, trust, or other enterprise. G. Any repeal or
modification of the foregoing provisions of this Article EIGHTH shall not
adversely affect any right to protection hereunder of any person in respect
of any act or omission occurring prior to the time of such repeal or
modification.
NINTH. No director of the Corporation shall be liable to the Corporation
or any of its stockholders for monetary damages for breach of fiduciary duty
as a director, provided that this provision does not eliminate the liability
of the director (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of Title 8 of the Delaware Code, or (iv) for any
transaction from which the director derived an improper personal benefit. For
purposes of the prior sentence, the term "damages" shall, to the extent
permitted by law, include without limitation, any judgment, fine, amount paid
in settlement, penalty, punitive damages, excise or other tax assessed with
respect to an employee benefit plan, or expense of any nature (including,
without limitation, counsel fees and disbursements). Each person who serves
as a director of the Corporation while this Article NINTH is in effect shall
be deemed to be doing so in reliance on the provisions of this Article NINTH,
and neither the amendment or repeal of this Article NINTH, nor the adoption
of any provision of this Certificate of Incorporation inconsistent with this
Article NINTH, shall apply to or have any effect on the liability or alleged
liability of any director or the Corporation for, arising out of, based upon,
or in connection with any acts or omissions of such director occurring prior
to such amendment, repeal, or adoption of an inconsistent provision. The
provisions of this Article NINTH are cumulative and shall be in addition to
and independent of any and all other limitations on or eliminations of the
liabilities of directors of the Corporation, as such, whether such
limitations or eliminations arise under or are created by any law, rule,
regulation, by-law, agreement, vote of shareholders or disinterested
directors, or otherwise.
TENTH. Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
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 this Corporation or of any creditor or stockholder thereof or
on the application of any receiver or receivers appointed for this
Corporation under the provisions of Section 291 of Title 8 of the Delaware
Code or on the application of trustees in dissolution or of any receiver or
receivers appointed for this Corporation under the provisions of Section 279
of Title 8 of the Delaware Code, order a meeting of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said
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 this Corporation, as the case may be, agree to any compromise
or arrangement and to any reorganization of this Corporation as consequence of
such compromise or arrangement, the said compromise or arrangement and the
said reorganization shall, if sanctioned by the court to which the said
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 this
Corporation, as the case may be, and also on this Corporation.
IN WITNESS WHEREOF, I have made, signed, and sealed this Certificate of
Incorporation this 12th day of May 1999.
/s/ Kim Lefkowitz
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Kim Lefkowitz
INCORPORATOR