CERTIFICATE OF INCORPORATION
OF
TRAVELNOW.COM INC.
The undersigned, in order to form a corporation pursuant to the General
Corporation Law of the State of Delaware, certifies:
FIRST: NAME. The name of the corporation is TravelNow.com Inc. (the
"Corporation").
SECOND: REGISTERED OFFICE; AGENT. The Registered Office of the Corporation
in the State of Delaware is located at 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: PURPOSE. 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 as presently in effect or as it may
hereafter be amended.
FOURTH: CAPITALIZATION. The aggregate number of shares of capital stock
authorized to be issued by this Corporation shall be 50,000,000 shares of common
stock, $0.01 par value per share (the "Common Stock"), and 25,000,000 shares of
preferred stock, $0.01 par value per share (the "Preferred Stock"). Each share
of issued and outstanding Common Stock shall entitle the holder thereof to one
vote on each matter with respect to which stockholders have the right to vote,
to fully participate in all stockholder meetings, and to share ratably in the
net assets of the Corporation upon liquidation or dissolution, but each such
share shall be subject to the rights and preferences of the Preferred Stock as
hereinafter set forth.
The Preferred Stock may be issued from time to time in one or more series
in any manner permitted by law, as determined from time to time by the Board of
Directors and stated in any resolution providing for the issuance of such shares
adopted by the Board of Directors pursuant to authority hereby vested in it,
each series to be appropriately designated, prior to the issuance of any shares
thereof, by some distinguishing letter, number or title. All shares of each
series of Preferred Stock shall be alike in every particular and of equal rank,
have the same powers, preferences and rights and be subject to the same
qualifications, limitations and restrictions, without distinction between the
shares of different series thereof, except in regard to the following
particulars, which may differ as to different series:
A. the annual rate of dividends payable and the dates from which such
dividend shall commence to accrue, if at all;
B. the amount payable upon a stock redemption and the manner in which
shares of a particular series may be redeemed;
C. the amount payable upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
D. the provisions of any sinking fund established with respect to the
shares of a series;
E. the terms and rates of conversion or exchange, if shares of a series are
convertible or exchangeable; and
F. the provisions as to voting rights, if any; provided that the shares of
any series of Preferred Stock having voting power shall not have more than one
vote per share.
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Before any shares of a particular series of Preferred Stock are issued, the
designations of such series and its terms in respect of the foregoing
particulars shall be fixed and determined by the Board of Directors in any
manner permitted by law and stated in a resolution providing for the issuance of
such shares adopted by the Board of Directors pursuant to authority hereby
vested in it. Such designations and terms shall be set forth in full or
summarized on the certificates for such series. The Board of Directors may
increase the number of such shares by providing that any unissued shares of
Preferred Stock shall constitute part of such series, or may decrease (but not
below the number of shares thereof then outstanding) the number of shares of any
series of Preferred Stock already created by providing that any unissued shares
previously assigned to such series shall no longer constitute part thereof. The
Board of Directors is hereby empowered to classify or reclassify any unissued
shares of Preferred Stock by fixing or altering the terms thereof in respect to
the referenced particulars and by assigning the same to an existing or newly
established series from time to time before the issuance of such shares.
The holders of shares of each series shall be entitled to receive, out of
any funds legally available therefor, when and as declared by the Board of
Directors, cash dividends at such rate per annum as shall be fixed by resolution
of the Board of Directors for such series, payable periodically on the dates
fixed by the Board of Directors for the series. Such dividends may be cumulative
or non-cumulative, deemed to accrue from day to day regardless of whether or not
earned or declared and may commence to accrue on each share of Preferred Stock
from such date or dates, and as may be determined and stated by the Board of
Directors prior to the issuance thereof. The Corporation shall make dividend
payments ratably upon all outstanding shares of Preferred Stock in proportion to
the amount of dividends thereon to the date of such dividend payment, if any.
As long as any shares of Preferred Stock shall remain outstanding, no
dividend (other than a dividend payable in shares ranking junior to such
Preferred Stock with respect to the payment of dividends or liquidated assets)
shall be declared or paid upon, nor shall any distribution be made or ordered in
respect of, shares of the Common Stock or any other class of shares ranking
junior to the shares of such Preferred Stock as to the payment or dividends of
liquidating assets, nor shall any monies (other than the net proceeds received
from the sale of shares ranking junior to the shares of such Preferred Stock as
to the payment of dividends or liquidating assets) be set aside for or applied
to the purchase or redemption (through a sinking fund or otherwise) of shares of
the Common Stock or of any other class of shares ranking junior to the shares of
such Preferred Stock as to dividends or assets unless:
(a) all dividends on the shares of Preferred Stock of all series for past
dividend periods shall have been paid and the full dividend on all outstanding
shares of Preferred Stock of all series for the then current dividend period
shall have been paid or declared and set apart for payment; and
(b) the Corporation shall have set aside all amounts, if any, required to
be set aside as and for sinking funds, if any, for the shares of Preferred Stock
of all series for the then current year, and all defaults, if any, in complying
with any such sinking fund requirements in respect of previous years shall have
been cured.
The Corporation, at the option of the Board of Directors, may at any time
redeem the whole, or from time to time any part, of any series of Preferred
Stock, subject to such limitations as may be adopted by the Board authorizing
the issuance of such shares, by paying therefor in cash the amount which shall
have been determined by the Board of Directors, in the resolution authorizing
such series, to be payable upon the redemption of such shares at such time.
Redemption may be made of the whole or any part of the outstanding shares of any
one or more series, in the discretion of the Board of Directors; but if the
redemption shall be effected only with respect to a part of a series, the shares
to be redeemed may be selected by lot, or all of the shares of such series may
be redeemed pro rata, in such manner as may be prescribed by resolution of the
Board of Directors.
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Subject to the foregoing provisions and to any qualifications, limitations,
or restrictions applicable to any particular series of Preferred Stock which may
be stated in the resolution providing for the issuance of such series, the Board
of Directors shall have authority to prescribe from time to time the manner in
which any series of Preferred Stock shall be redeemed.
Upon any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the shares of Preferred Stock of each series shall be
entitled, before any distribution shall be made with respect to shares of Common
Stock or to any other class of shares junior to the shares of Preferred Stock as
to the payment of dividends or liquidating assets, to be paid the full
preferential amount fixed by the Board of Directors for such series as herein
authorized. If upon such liquidation or dissolution of the Corporation, whether
voluntary or involuntary, the net assets of the Corporation shall be
insufficient to permit the payment to all outstanding shares of Preferred Stock
of all series of the full preferential amounts to which they are respectively
entitled, the entire net assets of the Corporation shall be distributed ratably
to all outstanding shares of Preferred Stock in proportion to the full
preferential amount to which each such share is entitled.
FIFTH: INCORPORATOR. The name and mailing address of the incorporator are
Victoria R. Westerhaus, Esq., c/o Shook, Hardy & Bacon L.L.P., 1010 Grand
Boulevard, 5th Floor, P.O. Box 15607, Kansas City, Missouri, 64106-0607.
SIXTH: WRITTEN BALLOT. Election of Directors of the Corporation need not be
by written ballot unless the Bylaws so provide.
SEVENTH: BYLAWS. In furtherance and not in limitation of the powers
conferred by the laws of the State of Delaware, the Board of Directors of the
Corporation is authorized and empowered to make, alter, amend and repeal the
Bylaws of the Corporation in any manner not inconsistent with the laws of the
State of Delaware.
EIGHTH: INDEMNIFICATION. The Corporation shall, to the fullest extent
permitted by Section 145 of the General Corporation Law of the State of Delaware
as presently in effect or as it may hereafter be amended, indemnify all persons
whom it may indemnify pursuant thereto and advance expenses of litigation to
Directors and Officers in accordance with the procedures and limitations set
forth in the Bylaws of the Corporation.
NINTH: DIRECTOR LIABILITY. To the fullest extent permitted by the General
Corporation Law of the State of Delaware as presently in effect or as it may
hereafter be amended, a Director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director.
TENTH: COMPROMISES OR ARRANGEMENTS WITH CREDITORS OR STOCKHOLDERS. 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
Title 8 of the Delaware Code or on the application of trustees in dissolution or
of any receiver or receivers appointed for the Corporation under 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 the
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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 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 the Corporation, as the case
may be, and also on the Corporation.
ELEVENTH: AMENDMENT OF CERTIFICATE. The Corporation reserves the right to
amend, alter, change or repeal any provision contained in this Certificate in
the manner now or hereafter prescribed by law, and all rights and powers
conferred herein on stockholders, Directors and Officers are subject to this
reserved power.
IN WITNESS WHEREOF, I have executed, signed and acknowledged this
Certificate of Incorporation this _____ day of October, 2000.
/s/ Victoria R. Westerhaus
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Victoria R. Westerhaus
Sole Incorporator
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