EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
VOICE DIARY INC.
1. The name of the corporation is: Voice Diary Inc. (the "Corporation").
2. The address of its registered office in the State of Delaware is Corporation
Trust Center, 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.
3. 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 now or hereafter
be organized under the General Corporation Law of Delaware (the "Delaware Law").
The Corporation shall have all power that may now or hereafter be lawful for a
corporation to exercise under Delaware Law.
4. (a) The total number of shares of capital stock of all classes that the
Corporation shall have the authority to issue is 10,010,000 shares of Common
Stock ("Common Stock") which shall be divided into two classes as follows: (i)
10,000,000 shares of Class A Common Stock, par value $.01 per share ("Class A
Common Stock") and (ii) 10,000 shares of Class B Common Stock, par value $.01
per share.
(b) The designations, powers, preferences, rights, qualifications,
limitations and restrictions of the Common Stock are as follows:
(i) General. Except as otherwise provided herein or as otherwise
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provided by applicable law, all shares of Common Stock shall have identical
rights and privileges in every respect.
(ii) Dividends. The holders of shares of Class A Common Stock and Class
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B Common Stock shall participate ratably, as if all shares were of a single
class, in such dividends, whether in cash, stock or otherwise, as may be
declared by the Board of Directors from time to time out of funds of the
Corporation legally available therefore; provided, however, that (1) for
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purposes of determining the ratable participation in dividends of the respective
classes of Common Stock, each share of Class A Common Stock shall be deemed to
be one share of the single class and each share of Class B Common Stock shall be
deemed to be such number of shares of the single class as shall equal the number
of whole shares (rounded down) of Class A Common Stock into which such share of
Class B Common Stock is then convertible and (2) any dividends payable in shares
of Common Stock (or payable in rights to subscribe for or purchase shares of
Common Stock or securities or indebtedness convertible into or exchangeable for
shares of Common Stock) shall be declared and paid only in shares of Class A
Common Stock (or rights to subscribe for or to purchase shares of Class A Common
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Stock or securities or indebtedness convertible into or exchangeable for shares
of Class A Common Stock). Dividends payable under this Section 4(b)(ii) shall be
paid to the holders of record of the applicable class of the outstanding Common
Stock as their names shall appear on the stock register of the Corporation on
the record date fixed by the Board of Directors in advance of the declaration
and payment of each dividend. Any shares of Common Stock issued as a dividend
pursuant to this Section 4(b)(ii) shall, when so issued, be duly authorized,
validly issued, fully paid and non-assessable, and free of all liens and
charges. The Corporation shall not issue fractions of shares of Common Stock on
payment of such dividend but shall issue a whole number of shares to such holder
of shares of Common Stock rounded up or down in the Corporation's sole
discretion to the nearest whole number, without compensation to the stockholder
whose fractional share has been rounded down or from any stockholder whose
fractional share has been rounded up.
(iii) Voting. (A) The Class A Common Stock shall be voting stock, and,
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except as set forth in Section 4(b)(iii)(B), the holders of Class A Common Stock
shall vote on all matters submitted to a vote of the stockholders, with each
share of Class A Common Stock entitled to one vote.
(B) The holders of a majority of the outstanding shares of Class B Common
Stock, voting as a separate class, unilaterally shall be entitled to (1) elect
one (1) director of the Corporation (the "Class B Director") and (2) amend
Section 4(b)(iv)(A) hereof so as to decrease, but not increase, the number of
shares of Class A Common Stock into which each share of Class B Common Stock
shall be convertible (the "Section 4(b)(iv)(A) Amendment"). The right to elect
the Class B Director and to amend Section 4(b)(iv)(A) hereof may be exercised at
any annual meeting of the stockholders of the Corporation, at any special
meeting held in place of an annual meeting, or at a special meeting of the
holders of Class B Common Stock called to take such action or by the unanimous
written consent of the holders of Class B Common Stock.
At any time that special voting power is vested in the holders of Class B
Common Stock, the Secretary of the Corporation may, and at the written request
of holders of 5 percent or more of the shares of Class B Common Stock must, call
a special meeting of the holders of Class B Common Stock for the election of the
Class B Director and/or to approve a Section 4(b)(iv)(A) Amendment. The meeting
must be held within forty (40) days of the delivery of the request at the time
and place provided by law or in the bylaws of the Corporation for meetings of
stockholders of the Corporation; provided, however, that no meeting need be
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called if the request is delivered less than ninety (90) days before the date
fixed for the next annual meeting of the stockholders.
If at any meeting held when special voting power is vested in the holders
of Class B Common Stock, the holders of at least 50 percent of Class B Common
Stock then outstanding are present in person or by proxy, then the holders of
Class B Common Stock present by vote of at least 50 percent of those present
shall be entitled to elect the Class B Director and the holders of at least 50
percent of the outstanding shares of Class B Common Stock shall be required to
approve a Section 4(b)(iv)(A) Amendment. The Class B Director selected by the
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holders of Class B Common Stock shall replace the existing Class B Director, who
shall be deemed to have resigned. The Class B Director so elected by the holders
of Class B Common Stock shall serve until the next annual meeting of the
stockholders of the Corporation and until his successor is elected by the
holders of Class B Common Stock and shall have qualified.
At such time, if any, as there are no shares of Class B Common Stock
outstanding, the term of office of the person elected as the Class B Director by
the holders of Class B Common Stock shall immediately terminate. If the office
of the Class B Director is vacant due to resignation, removal or death during
the time that special voting power is vested in the holders of Class B Common
Stock, a special meeting of the holders of Class B Common Stock shall be called
and the vacancy filled at that meeting.
(C) In addition to the rights provided in Section 4(b)(iii)(B) or by law,
the holders of Class B Common Stock shall be entitled to vote on all matters as
to which holders of Class A Common Stock shall be entitled to vote (including,
but not limited to, the election of directors of the Corporation), in the same
manner and with the same effect as such holders of Class A Common Stock, except
as set forth in Section 4(b)(iii)(B), voting together with the holders of Class
A Common Stock as one class. Each share of Class B Common Stock shall entitle
the holder thereof to such number of votes as shall equal the number of whole
shares (rounded down) of Class A Common Stock into which such share is then
convertible.
(D) The holders of Common Stock are not entitled to cumulate votes in the
election of any directors.
(iv) Conversion of Class B Common Stock.
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(A) Each share of Class B Common Stock shall be convertible at any time at
the option of the holder or holders thereof and for no additional consideration
into such number of fully paid and non-assessable shares of Class A Common Stock
as shall equal the quotient obtained by dividing (1) the number of shares of
Class A Common Stock outstanding at the close of business on the day immediately
preceding the date the Conversion Notice (as such term is defined in Section
4(b)(iv)(B)) is received by the Corporation, by (2) 7600.
(B) Conversion Procedure.
At the time of a conversion pursuant to Section 4(b)(iv)(A), the holder or
holders of Class B Common Stock shall deliver to the office of the Corporation
or any transfer agent for the Common Stock (1) the certificate or certificates
representing the shares of Class B Common Stock to be converted, duly endorsed
in blank or accompanied by duly executed proper instruments of transfer and (2)
written notice (the "Conversion Notice") to the Corporation stating that such
holder or holders elect(s) to convert such share or shares and stating the
number of shares of Class B Common Stock to be converted, and the name and
address in which each certificate for shares of the Class A Common Stock issued
upon such conversion is to be issued. Conversion shall be deemed to have been
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effected at the time and date when such delivery is made to the Corporation or
the transfer agent of the shares to be converted, and the person exercising such
conversion shall be deemed to be the holder of record of the number of shares of
Class A Common Stock issuable upon such conversion at such time.
(C) Issuance of Conversion Shares.
As promptly as practicable following any holder's conversion of shares of
Class B Common Stock, the Corporation shall issue and deliver to the converting
holder one or more certificates (as such holder may request) evidencing the
shares of Class A Common Stock issuable upon conversion thereof and, if the
certificates surrendered by the converting holder evidence more shares of Class
B Common Stock than the holder has elected to convert, one or more certificates
(as such holder may request) evidencing the shares of Class B Common Stock that
have not been converted. Pending the issuance and delivery of the foregoing
certificates, the certificate or certificates evidencing the shares of Class B
Common Stock that have been surrendered for conversion shall be deemed to
evidence the shares of Class A Common Stock issuable upon such conversion.
(D) Treatment of Dividends. Any dividends declared and not paid on shares
of Class B Common Stock prior to their conversion as provided above shall be
paid, on the payment date, to the holder or holders entitled thereto on the
record date for such dividend payment, notwithstanding such conversion;
provided, however, that such holder or holders shall not be entitled to receive
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the corresponding dividends declared but not paid on the shares of Class A
Common Stock issuable upon such conversion.
(E) Reservation of Shares. The Corporation shall at all times reserve and
keep available out of its authorized but unissued shares of Class A Common Stock
solely for the purpose of effecting the conversions provided for herein, such
number of shares of Class A Common Stock as shall from time to time be
sufficient to effect the conversions provided for herein and shall take all such
corporate action as may be necessary to assure that such shares of Class A
Common Stock shall be validly issued, fully paid and non-assessable upon
conversion of all of the outstanding shares of Class B Common Stock. In
addition, if at any time the number of authorized but unissued shares of Class A
Common Stock shall not be sufficient to effect the conversions provided for
herein, the Corporation shall take such corporate action as may be necessary to
increase its authorized but unissued shares of Class A Common Stock to such
number of shares as shall be sufficient for such purpose.
(F) No Combinations, Subdivisions or Splits and of Class B Common Stock.
Without the unanimous approval of the holders of all outstanding shares of Class
A Common Stock, the Corporation shall not effect a combination, subdivision or
split of the Class B Common Stock.
(G) Liquidation. In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Corporation, after all creditors of the
Corporation shall have been paid in full and after payment of all sums payable
in respect of Preferred Stock, if any, the holders of the Common Stock shall
share ratably as if all shares were of a single class in all distributions of
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assets pursuant to such voluntary or involuntary liquidation, dissolution, or
winding-up of the Corporation. For purposes of determining the ratable
participation of the respective classes of Common Stock in such distributions,
each share of Class A Common Stock shall be deemed to be one share of the single
class and each share of Class B Common Stock shall be deemed to be such number
of shares of the single class as shall equal the number of whole shares (rounded
down) of the Class A Common Stock into which such shares of Class B Common Stock
is then convertible.
For the purposes of this Section 4(b)(iv)(G), neither the merger nor the
consolidation of the Corporation into or with another entity or the merger or
consolidation of any other entity into or with the Corporation, or the sale,
transfer, or other disposition of all or substantially all the assets of the
Corporation, shall be deemed to be a voluntary or involuntary liquidation,
dissolution, or winding-up of the Corporation.
5. The name and mailing address of the sole incorporator is as follows:
NAME MAILING ADDRESS
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Jay Weil Shustak Jalil & Heller
545 Madison Avenue
New York, NY 10022
6. The Corporation is to have perpetual existence.
7. No contract or transactions between the Corporation and one or more of its
directors, officers, or stockholders or between the Corporation and any person
(as used herein "person" means other corporation, partnership, limited liability
company, association, firm, trust, joint venture, political subdivision or
instrumentality) or other organization in which one or more of its directors,
officers or stockholders are directors, officers, or stockholders, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board of Directors or committee that authorizes the contract or transaction,
or solely because his, her, or their votes are counted for such purpose, if: (a)
the material facts as to his or her relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors or
the committee, and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; (b) the material facts as to his or her relationship or interest and as
to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specially approved
in good faith by vote of the stockholders; or (c) the contract or transaction is
fair as to the Corporation as of the time it is authorized, approved, or
ratified by the Board of Directors or a committee that authorizes the contract
or transaction. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
that authorizes the contract or transaction.
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8. The Corporation shall indemnify any person who was, is, or is threatened to
be made a party to a proceeding (as hereinafter defined) by reason of the fact
that he or she (a) is or was a director or officer of the Corporation or (b)
while a director or officer of the Corporation, is or was serving at the request
of the Corporation as a director, officer, partner, venturer, proprietor,
trustee, employee, agent, or similar functionary of another foreign or domestic
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan, or other enterprise, to the fullest extent permitted under
Delaware Law, as the same exists or may hereinafter be amended. Such right shall
be a contract right and as such shall run to the benefit of any director or
officer who is to serve as a director or officer of the Corporation while this
Article 8 is in effect. Any repeal or amendment of this Article 8 shall be
prospective only and shall not limit the rights to any such director or officer
or the obligations of the Corporation with respect to any claim arising from or
related to the services of such director or officer in any of the foregoing
capacities prior to any such repeal or amendment to this Article 8. Such right
shall include the right to be paid by the Corporation expenses incurred in
defending any such proceeding in advance of its final disposition to the maximum
extent permitted under Delaware Law, as the same exists or may hereafter be
amended. If a claim for indemnification or advancement of expenses hereunder is
not paid in full by the Corporation within 60 days after a written claim has
been received by the Corporation, the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim, and if
successful in whole or in part, the claimant shall also be entitled to be paid
the expenses of prosecuting such claim. It shall be a defense to any such action
that such indemnification or advancement of costs of defense are not permitted
under Delaware Law, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors or any committee thereof, independent legal counsel, or stockholders)
to have made its determination prior to the commencement of such action that
indemnification of, or advancement of costs of defense to, the claimant is
permissible in the circumstances nor an actual determination by the Corporation
(including its Board of Directors or any committee thereof, independent legal
counsel, or stockholders) that such indemnification or advancement is not
permissible shall be a defense to the action or create a presumption that such
indemnification or advancement is not permissible. In the event of the death of
any person having a right of indemnification under the foregoing provisions,
such right shall inure to the benefit of his or her heirs, executors,
administrators, and personal representatives. The rights conferred above shall
not be exclusive of any other right that any person may have or hereafter
acquire under any statute, bylaw, resolution of stockholders or directors,
agreement, or otherwise.
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by Delaware Law, as the same exists
or may hereafter be amended.
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
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9. Elections of directors need not be by written ballot unless the by-laws of
the Corporation shall provide.
10. 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 a consequence of such compromise or arrangement, the said
compromise or arrangement and 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.
11. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (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) under Section 174 of the Delaware General Corporation Law,
or (d) for any transaction from which the director derived any improper personal
benefit.
THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this Certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly has hereunto set my hand this 26th day of February, 2002.
/s/ Jay Weil
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Jay Weil
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