EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
WEBONE
FIRST: The name of the corporation is WEBONE, INC. (the "Corporation")
SECOND: The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, Wilmington, Delaware 19801 in the
county of New Castle. The name of the Corporation's registered
agent is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware
(the "GCL").
FOURTH: The total number of shares of capital stock which the Corporation
shall have authority to issue is 200 shares of common stock, par
value of $.01 per share.
FIFTH: The name and mailing address of the Corporation's incorporator is:
Name Mailing Address
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Forrest Walpole 2323 45th Avenue
Greeley, CO 80634
SIXTH: The Board of Directors of the Corporation is expressly authorized
to adopt amend or repeal the by-laws of the Corporation (the
"By-Laws").
SEVENTH: Elections of directors need not be by written ballot unless
otherwise provided in the By-Laws.
EIGHTH: 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 on the
application of any receiver or receivers appointed for this
Corporation under the provisions of Section 291 of Title 8 of the
GCL or on the application of trustees in dissolution or of any
receiver or receivers appointed for the Corporation under the
provisions of Section 279 of Title 8 of the GCL 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 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 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
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 the
Corporation, as the case may be, and also on this Corporation.
NINTH: The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by the GCL.
TENTH: The Corporation shall:
(a) indemnify, to the fullest extent permitted by the GCL, any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation) by reason of the
fact that such person is or was a director of the Corporation, or is
or was serving at the request of the Corporation as a director of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees ),
judgements, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
such person's conduct was unlawful. The termination of any action,
suit or proceeding by judgement order, settlement conviction, or
upon a plea of nolo contendere or its equivalent shall not of
itself, create a presumption that the person did not act in good
faith and in a manner which such person reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause
to believe that such person's conduct was unlawful; and
(b) Indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that such person is or was a director
of the Corporation, or is or was serving at the request of the
Corporation as a director of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if
such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of
the Corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Corporation unless and only
to the extent that the Court of Chancery or the court in which such
action or suit was brought shall determine upon application that
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper; and
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(c) indemnify any director against expenses (including attorneys'
fees) actually and reasonably incurred by such person in
connection therewith, to the extent that a director of the
Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred in Article
TENTH (a) and (b), or in defense of any claim, issue or matter
therein; and
(d) make any indemnification under Article TENTH (a) and (b)
(unless ordered by a court) only as authorized in the specific
case upon a determination that indemnification of the director is
proper in the circumstances because such director has met the
applicable standard of conduct set forth in Article TENTH (a) and
(b). Such determination shall be made (1) by the board of
directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (2)
if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders of
the Corporation; and
(e) pay expenses incurred by a director in defending a civil or
criminal action, suit or proceeding in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director to repay such amount
if it shall ultimately be determined that such director is not
entitled to be indemnified by the Corporation as authorized in
this Article TENTH; and
(f) not deem the indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of
this Article TENTH exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be
entitled under any by-law, agreement vote of stockholders or
disinterested directors or otherwise, both as to action in a
director's official capacity and as to action in another capacity
while holding such office; and
(g) have power to purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of
such persons's status as such, whether or not the Corporation
would have the power to indemnify such person against such
liability under the provisions of this Article TENTH; and
(h) deem the provisions of this Article TENTH to be a contract
between the Corporation and each director who serves in such
capacity at any time while this Article TENTH is in effect and
any repeal or modification of this Article TENTH shall not affect
any rights or obligations then existing with respect to any state
of facts then or theretofore existing or any action, suit or
proceeding theretofore or thereafter brought or threatened based
in whole or in part upon such state of facts. The provisions of
this Article TENTH shall not be deemed to be a contract between
the Corporation and the directors of any other Corporation (the
"Second
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Corporation") which shall merge into or consolidate with this
Corporation when this Corporation shall be the surviving or
resulting Corporation, and any such directors of the Second
Corporation shall be indemnified to the extent required under the
GCL only at the discretion of the board of directors of this
Corporation; and
(i) continue the indemnification and advancement of expenses
provided by, or granted pursuant to, this Article TENTH unless
otherwise provided when authorized or ratified, as to a person
who has ceased to be a director of the Corporation and shall
inure to the benefit of the heirs, executors and administrators
of such a person.
The undersigned incorporator hereby acknowledges that the foregoing
certificate of incorporation is such incorporator's act and deed and that the
facts stated therein are true.
Dated: August 21, 1998
/s/ Forrest Walpole
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Forrest Walpole
2323 45th Avenue
Greeley, CO 80634
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