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CERTIFICATE
OF INCORPORATION
OF
NEW PLANET RESOURCES, INC.
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ARTICLE I
Name
The name of the Corporation is New Planet Resources, Inc. (herein the
"Corporation").
ARTICLE II
Registered Office
and Agent
The
address of its registered office in the State of Delaware is The Corporation
Trust Center at 1209 Orange Street, in the City of Wilmington, County of
Newcastle, State of Delaware. The name of its registered agent at such address
is The Corporation Trust Company.
ARTICLE III
Powers
The
purpose for which the Corporation is organized is to transact all lawful
business for which corporations may be incorporated pursuant to the laws of the
State of Delaware. The Corporation shall have all the powers of a corporation
organized under the General Corporation Law of the State of Delaware.
ARTICLE IV
Term
The Corporation is to have perpetual existence.
ARTICLE V
Capital Stock
The
aggregate number of shares of all classes of capital stock which the Corporation
has authority to issue is 26,000,000 of which 25,000,000 are to be shares of
common stock, $.001 par value per share, and of which 1,000,000 are to be shares
of serial preferred stock, $.001 par value per share. The shares may be issued
by the Corporation from time to time as approved by the board of directors of
the Corporation without the approval of the stockholders except as otherwise
provided in this Article V or the rules of a national securities exchange if
applicable. The consideration for the issuance of the shares shall be paid to or
received by the Corporation in full before their issuance and shall not be less
than the par value per share. The consideration for the issuance of the shares
shall be cash, services rendered, personal property (tangible or intangible),
real property, leases of real property or any combination of the foregoing. In
the absence of actual fraud in the transaction, the judgment of the board of
directors as to the value of such consideration shall be conclusive. Upon
payment of such consideration such shares shall be deemed to be fully paid and
nonassessable. In the case of a stock dividend, the part of the surplus of the
Corporation which is transferred to stated capital upon the issuance of shares
as a stock dividend shall be deemed to be the consideration for their issuance.
A
description of the different classes and series (if any) of the
Corporation's capital stock, and a statement of the relative powers,
designations, preferences and rights of the shares of each class and series (if
any) of capital stock, and the qualifications, limitations or restrictions
thereof, are as follows:
A. Common Stock. Except as provided in this Certificate, the
holders of the common stock shall exclusively posses all voting power. Subject
to the provisions of this Certificate, each holder of shares of common stock
shall be entitled to one vote for each share held by such holders.
Whenever
there shall have been paid, or declared and set aside for payment, to the
holders of the outstanding shares of any class or series of stock having
preference over the common stock as to the payment of dividends, the full amount
of dividends and sinking fund or retirement fund or other retirement payments,
if any, to which such holders are respectively entitled in preference to the
common stock, then dividends may be paid on the common stock, and on any class
or series of stock entitled to participate therewith as to dividends, out of any
assets legally available for the payment of dividends, but only when and as
declared by the board of directors of the Corporation.
In
the event of any liquidation, dissolution or winding up of the Corporation,
after there shall have been paid, or declared and set aside for payment, to the
holders of the outstanding shares of any class having preference over the common
stock in any such event, the full preferential amounts to which they are
respectively entitled, the holders of the common stock and of any class or
series of stock entitled to participate therewith, in whole or in part, as to
distribution of assets shall be entitled, after payment or provision for payment
of all debts and liabilities of the Corporation, to receive the remaining assets
of the Corporation available for distribution, in cash or in kind.
Each
share of common stock shall have the same relative powers, preferences and
rights as, and shall be identical in all respects with, all the other shares of
common stock of the Corporation.
B. Serial Preferred Stock. Except as provided in this Certificate,
the board of directors of the Corporation is authorized, by resolution or
resolutions from time to time adopted, to provide for the issuance of serial
preferred stock in series
and to fix and state the powers, designations, preferences and relative,
participating, optional or other special rights of the
shares of each such series, and the qualifications, limitation or restrictions
thereof, including, but not limited to determination
of any of the following:
(1) the distinctive serial designation and the number of shares
constituting such series;
(2) the rights in respect of dividends, if any, to be paid on the
shares of such series, whether dividends
shall be cumulative and, if so, from which date or dates, the payment or
date or dates for dividends, and the participating
or other special rights, if any, with respect to dividends;
(3) the voting powers, full or limited, if any, of the shares of such
series;
(4) whether the shares of such series shall be redeemable and, if
so, the price or prices at which, and the
terms and conditions upon which such shares may be redeemed;
(5) the amount or amounts payable upon the shares of such series in
the event of voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
(6) whether the shares of such series shall be entitled to the benefits
of a sinking or retirement fund to be
applied to the purchase or redemption of such shares, and, if so entitled,
the amount of such fund and the manner of its
application, including the price or prices at which such shares may be redeemed
or purchased through the application of such
funds;
(7) whether the shares of such series shall be convertible into, or
exchangeable for, shares of any other class
or classes or any other series of the same or any other class or classes of
stock of the Corporation and, if so convertible
or exchangeable, the conversion price or prices, or the rate or rates of
exchange, and the adjustments thereof, if any, at
which such conversion or exchange may be made, and any other terms and
conditions of such conversion or exchange;
(8) the subscription or purchase price and form of consideration
for which the shares of such series shall be
issued; and
(9) whether the shares of such series which are redeemed or converted
shall have the status of authorized but
unissued shares of serial preferred stock and whether such shares may be
reissued as shares of the same or any other series
of serial preferred stock.
Each
share of each series of serial preferred stock shall have the same relative
powers, preferences and rights as, and shall be identical in all respects with,
all the other shares of the Corporation of the same series, except the times
from which dividends on shares which may be issued from time to time of any such
series may begin to accrue.
ARTICLE VI
Preemptive
Rights
No
holder of any of the shares of any class or series of stock or of options,
warrants or other rights to purchase shares of any class or series of stock or
of other securities of the Corporation shall have any preemptive right to
purchase or subscribe for any unissued stock of any class or series, or any
unissued bonds, certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock or carrying any right to purchase
stock may be issued pursuant to resolution of the board of directors of the
Corporation to such persons, firms, corporations or associations, whether or not
holders thereof, and upon such terms as may be deemed advisable by the board of
directors in the exercise of its sole discretion.
ARTICLE VII
Repurchase
of Shares
The
Corporation may from time to time, pursuant to authorization by the board of
directors of the Corporation and without action by the stockholders, purchase or
otherwise acquire shares of any class, bonds, debentures, notes, scrip,
warrants, obligations, evidences or indebtedness, or other securities of the
Corporation in such manner, upon such terms, and in such amounts as the board of
directors shall determine; subject, however, to such limitations or
restrictions, if any, as are contained in the express terms of any class of
shares of the Corporation outstanding at the time of the purchase or acquisition
in question or as are imposed by law.
ARTICLE VIII
Meetings of
Stockholders; Cumulative Voting
A.
No action that is required or permitted to be taken by the stockholders of the
Corporation at any annual or special meeting of stockholders may be effected by
written consent of stockholders in lieu of a meeting of stockholders, unless the
action to be effected by written consent of stockholders and the taking of such
action by such written consent have expressly been approved in advance by the
board of directors of the Corporation.
B.
Special meeting of the stockholders of the Corporation for any purpose or
purposes may be called at any time by the board of directors of the Corporation,
or by a committee of the board of directors which as been duly designated by the
board of directors and whose powers and authorities, as provided in a resolution
of the board of directors or in the bylaws of the Corporation, include the power
and authority to call such meetings but such special meetings may not be called
by another person or persons.
C. There shall be no cumulative voting by stockholders of any class or
series in the election of directors of the
Corporation.
D. Meetings of stockholders may be held at such place as the bylaws may
provide.
ARTICLE IX
Notice for
Nominations and Proposals
A.
Nominations for the election of directors and proposals for any new business to
be taken up at any annual or special meeting of stockholders may be made by the
board of directors of the Corporation or by any stockholder of the Corporation
entitled to vote generally in the election of directors. In order for a
stockholder of the Corporation to make any such nominations and/or proposals at
an annual meeting or such proposals at a special meeting, he or she shall give
notice thereof in writing, delivered or mailed by first class United States
mail, postage prepaid, to the Secretary of the Corporation of less than thirty
days nor more than sixty days prior to any such meeting; provided, however, that
if less than forty days' notice of the meeting is given to stockholders,
such written notice shall be delivered or mailed, as prescribed, to the
Secretary of the Corporation not later than the close of the tenth day following
the day on which notice of the meeting was mailed to stockholders. Each such
notice given by a stockholder with respect to nominations for the election of
directors shall set forth (1) the name, age, business address and, if known,
residence address of each nominee proposed in such notice, (2) the principal
occupation or employment of each such nominee, and (3) the number of shares of
stock of the Corporation which are beneficially owned by each such nominee. In
addition, the stockholder making such nomination shall promptly provide any
other information reasonably requested by the Corporation.
B.
Each such notice given by a stockholder to the Secretary with respect to
business proposals to bring before a meeting shall set forth in writing as to
each matter: (1) a brief description of the business desired to be brought
before the meeting and the reasons for conducting such business at the meeting;
(2) the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business; (3) the class and number of shares of the
Corporation which are beneficially owned by the stockholder; and (4) any
material interest of the stockholder in such business. Notwithstanding anything
in this Certificate to the contrary, no business shall be conducted at the
meeting except in accordance with the procedures set forth in this Article.
C.
The Chairman of the annual or special meeting of stockholders may, if the facts
warrant, determine and declare to such meeting that a nomination or proposal was
not made in accordance with the foregoing procedure, and, if he should so
determine, he shall so declare to the meeting and the defective nomination or
proposal shall be disregarded and laid over for action at the next succeeding
adjourned, special or annual meeting of the stockholders taking place thirty
days or more thereafter. This provision shall not require the holding of any
adjourned or special meeting of stockholders for the purpose of considering such
defective nomination or proposal.
ARTICLE X
Directors
A.
Number; Vacancies. The number of directors of the Corporation shall be
such number, not less than one nor more than 15 (exclusive of directors, if any,
to be elected by holders of preferred stock of the Corporation), as shall be
provided from time to time in a resolution adopted by the board of directors,
provided that no decrease in the number of directors shall have the effect of
shortening the term of any incumbent director, and provided further that no
action shall be taken to decrease or increase the number of directors from time
to time unless at least two-thirds of the directors then in office shall concur
in said action. Exclusive of directors, if any, elected by holders of preferred
stock, vacancies in the board of directors of the Corporation, however caused,
and newly created directorships shall be filled by a vote of two-thirds of the
directors then in office, whether or not a quorum, and any director so chosen
shall hold office for a term expiring at the annual meeting of stockholders at
which the term of the class to which the director has been chosen expires and
when the director's successor is elected and qualified. The board of
directors shall be classified in accordance with the provisions of Section B of
this Article X.
B.
Classified Board. The board of directors of the Corporation (other than
directors which may be elected by the holders of preferred stock), shall be
divided into three classes of directors which shall be designated Class I, Class
II and Class III. The members of each class shall be elected for a term of three
years and until their successors are elected and qualified. Such classes shall
be as nearly equal in number as the then total number of directors constituting
the entire board of directors shall permit, exclusive of directors, if any,
elected by holders of preferred stock, with the terms of office of all members
of one class expiring each year. Should the number of directors not be equally
divisible by three, the excess director or directors shall be assigned to
Classes I or II as follows: (1) if there shall be an excess of one directorship
over the number equally divisible by three, such extra directorship shall be
classified in Class I; and (2) if there be an excess of two directorships over a
number equally divisible by three, one shall be classified in Class I and the
other in Class II. At the organizational meeting of the Corporation, directors
of Class I shall be elected to hold office for a term expiring at the first
annual meeting of stockholders, directors of Class II shall be elected to hold
office for a term expiring at the second succeeding annual meeting of
stockholders and directors of Class III shall be elected to hold office for a
term expiring at the third succeeding annual meeting thereafter. Thereafter, at
each succeeding annual meeting, directors of each class shall be elected for
three year terms. Notwithstanding the foregoing, the director whose term shall
expire at any annual meeting shall continue to serve until such time as his
successor shall have been duly elected and shall have qualified unless his
position on the board of directors shall have been abolished by action taken to
reduce the size of the board of directors prior to said meeting.
Should
the number of directors of the Corporation be reduced, the directorship(s)
eliminated shall be allocated among classes as appropriate so that the number of
directors in each class is as specified in the position(s) to be abolished.
Notwithstanding the foregoing, no decrease in the number of directors shall have
the effect of shortening the term of any incumbent director. Should the number
of directors of the Corporation be increased, other than directors which may be
elected by the holders of preferred stock, the additional directorships shall be
allocated among classes as appropriate so that the number of directors in each
class is as specified in the immediately preceding paragraph.
Whenever
the holders of any one or more series of preferred stock of the Corporation
shall have the right, voting separately as a class, to elect one or more
directors of the Corporation, the board of directors shall include said
directors so elected and not be in addition to the number of directors fixed as
provided in this Article X. Notwithstanding the foregoing, and except as
otherwise may be required by law, whenever the holders of any one or more series
of preferred stock of the Corporation elect one or more directors of the
Corporation, the terms of the director or directors elected by such holders
shall expire at the next succeeding annual meeting of stockholders.
ARTICLE XI
Removal of
Directors
Notwithstanding
any other provision of this Certificate or the bylaws of the Corporation, any
director or all the directors of a single class (but not the entire board of
directors) of the Corporation may be removed, at any time, but only for cause
and only by the affirmative vote of the holders of at least 75% of the voting
power of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this purpose as one
class) cast at a meeting of the stockholders called for that purpose.
Notwithstanding the foregoing, whenever the holders of any one or more series of
preferred stock of the Corporation shall have the right, voting separately as a
class, to elect one or more directors of the Corporation, the preceding
provisions of this Article XI shall not apply with respect to the director or
directors elected by such holders of preferred stock.
ARTICLE XII
Approval of
Certain Business Combinations
The
stockholder vote required to approve Business Combinations (as hereinafter
defined) shall be as set forth in this section.
A.
(1) Except as otherwise expressly provided in this Article XII, and in addition
to any other vote required by law, the affirmative vote required by law, the
affirmative vote of the holders of (i) at least 75% of the voting power of the
outstanding shares entitled to vote thereon (and, if any class or series of
shares is entitled to vote thereon separately the affirmative vote of the
holders of at least 75% of the outstanding shares of each such class or series),
and (ii) at least a majority of the outstanding shares entitled to vote thereon,
not including shares deemed beneficially owned by a Related Person (as
hereinafter defined), shall be required in order to authorize any of the
following:
(a) any merger or consolidation of the Corporation or a subsidiary
of the Corporation with or into a
Related person (as hereinafter defined);
(b) any sale, lease, exchange, transfer or other disposition,
including without limitation, a mortgage
or pledge, of all or any Substantial Part (as hereinafter defined) of
the assets of the Corporation (including without
limitation any voting securities of a subsidiary) or of a subsidiary, to a
Related Person;
(c) any merger or consolidation of a Related Person with or into
the Corporation or a subsidiary of
the Corporation;
(d) any sale, lease, exchange, transfer or other disposition of
all or any Substantial Part of the assets of a Related Person to the
Corporation or a subsidiary of the Corporation;
(e) the issuance of any securities of the Corporation or a subsidiary
of the Corporation to a Related
Person other than on a pro rata basis to all holders of capital stock of
the Corporation of the same class or classes held
by the Related person, pursuant to a stock split, stock dividend or
distribution or warrants or rights, and other than in
connection with the exercise or conversion of securities exercisable
for or convertible into securities of the Corporation
or any of its subsidiaries which securities have been distributed pro
rata to all holders of capital stock of the
Corporation;
(f) the acquisition by the Corporation or a subsidiary of the
Corporation of any securities of a
Related Person;
(g) any reclassification of the common stock of the Corporation, or
any recapitalization involving the
common stock of the Corporation or any similar transaction (whether or
not with or into or otherwise involving a Related
Person) that has the effect directly or indirectly, of increasing by more
than 1% the proportionate share of the outstanding
shares of any class of equity or convertible securities of the
Corporation or any subsidiary that are directly or indirectly
owned by any Related Person; and
(h) any agreement, contract or other arrangement providing for
any of the transactions described in
this Article XII.
(2) Such affirmative vote shall be required notwithstanding any
other provision of this Certificate, any
provision of law, or any agreement with any regulatory agency or national
securities exchange which might otherwise permit a lesser
vote or no vote; provided, however, that in no instance shall the provisions
of this Article XII require the vote of greater than 85%
of the voting power of the outstanding shares entitled to vote thereon for the
approval of a Business Combination.
(3) The term "Business Combination" as used in this Article XII shall
mean any transaction which is referred to
in any one or more of subparagraphs A(1)(a) through (h) above.
B.
The provisions of paragraph A shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such affirmative
vote as is required by any other provision of this Certificate, any provision of
law, or any agreement with any regulatory agency or national securities
exchange, if the Business Combination shall have been approved in advance by a
two-thirds vote of the Continuing Directors (as hereinafter defined; provided,
however, that such approval shall only be effective if obtained at a meeting at
which a continuing Director Quorum (as hereinafter defined) is present.
C. For the purposes of this Article XII the following definitions apply:
(1) The term "Related Person" shall mean and include (i) any individual,
corporation, partnership or other person or entity which together with its
"affiliates" or "associates" (as those terms are defined in
the Act) "beneficially owns" (as that there is defined in the Act) in
the aggregate 10% or more of the outstanding shares of the common stock of the
Corporation; and (ii) any "affiliate" or "associate" (as
those terms are defined in the Act) of any such individual, Corporation,
partnership or other person or entity; provided, however, that the term
"Related Person" shall not include the Corporation, any subsidiary of
the Corporation, any employee benefit plan, employee stock plan of the
Corporation or of any subsidiary of the Corporation, or any trust established by
the Corporation in connection with the foregoing, or any person or entity
organized, appointed, established or holding shares of capital stock of the
Corporation for or pursuant to the terms of any such plan, nor shall such term
encompass shares of capital stock of the Corporation held by any of the
foregoing (whether or not held in a fiduciary capacity or otherwise). Without
limitation, any shares of the common stock of the Corporation which any Related
Person has the right to acquire pursuant to any agreement, or upon exercise or
conversion rights, warrants or options, or otherwise, shall be deemed
"beneficially owned" by such Related Person.
(2) The term "Substantial Part" shall mean more than 25% of the total
assets of the entity at issue, as of the end of its most recent fiscal year
ending prior to the time the determination is made.
(3) The term "Continuing Director" shall mean any member of the board of
directors of the Corporation who is unaffiliated with and who is not the Related
Person and was a member of the board prior to the time that the Related Person
became a Related Person, and any successor of a Continuing Director who is
unaffiliated with and who is not the Related Person and is recommended to
succeed a Continuing Director by a majority of Continuing Directors then on the
board.
(4) The term "Continuing Director Quorum" shall mean two-thirds
of the Continuing Directors capable of exercising the powers conferred on them.
ARTICLE XIII
Evaluation
of Business Combinations
In
connection with the exercise of its judgment in determining what is in the best
interests of the Corporation and of the stockholders, when evaluating a Business
Combination (as defined in Article XII) or a tender or exchange offer, the board
of directors of the Corporation shall, in addition to considering the adequacy
of the amount to be paid in connection with any such transaction, consider all
of the following factors and any other factors which it deems relevant; (A) the
social and economic effects of the transaction on the Corporation and its
subsidiaries, employees and customers, creditors and other elements of the
communities in which the Corporation and its subsidiaries operate or are
located; (B) the business and financial condition and earnings prospects of the
acquiring person or entity, including, but not limited to, debt service and
other existing financial obligations, financial obligations to be incurred in
connection with the acquisition and other likely financial obligations of the
acquiring person or entity and the possible effect of such conditions upon the
Corporation and its subsidiaries and the other elements of the communities in
which the Corporation and its subsidiaries operate or are located; and (C) the
competence, experience, and integrity of the acquiring person or entity and its
or their management.
ARTICLE XIV
Indemnification
Any
person who was or is a party or is or is threatened to be made a party to any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (whether or not by or in the right of
the corporation) by reason of the fact that he is or was a director, officer,
incorporator, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, incorporator, employee,
partner, trustee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise (including an employee benefit plan), shall be
entitled to be indemnified by the corporation to the full extent then permitted
by law against expenses (including counsel fees and disbursements), judgments,
fines (including excise taxes assessed on a person with respect to an employee
benefit plan), and amounts paid in settlement incurred by him in connection with
such action, suit, or proceeding. Such right of indemnification shall inure
whether or not the claim asserted is based on matters which antedate the
adoption of this Article XIV. Such right of indemnification shall continue as to
a person who has ceased to be a director, officer, incorporator, employee,
partner, trustee, or agent and shall inure to the benefit of the heirs and
personal representatives of such a person. The indemnification provided by this
Article XIV shall not be deemed exclusive of any other rights which may be
provided now or in the future under any provision currently in effect or
hereafter adopted of the bylaws, by any agreement, by vote of stockholders, by
resolution of disinterested directors, by provisions of law, or otherwise.
ARTICLE XV
Limitations
on Directors' Liability
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: (A) for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (B) for acts or omissions that are not in
good faith or that involve intentional misconduct or a knowing violation of law,
(C) under Section 174 of the General Corporation Law of the State of Delaware,
or (D) for any transaction from which the director derived any improper personal
benefit. If the General Corporation law of the State of Delaware is amended
after the date of filing of this Certificate to further eliminate or limit the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the General Corporation Law of the State of Delaware, as so amended.
Any
repeal or modification of the foregoing paragraph by the stockholders of the
Corporation shall not adversely affect any right or protection of a director of
the Corporation existing at the time of such repeal or modification.
ARTICLE XVI
Amendment of
Bylaws
In
furtherance and not in limitation of the powers conferred by statute, the board
of directors of the Corporation is expressly authorized to adopt, repeal, alter,
amend and rescind the bylaws of the Corporation by a vote of two-thirds of the
board of directors. Notwithstanding any other provision of this Certificate or
the bylaws of the Corporation, and in addition to any affirmative vote required
by law (and notwithstanding the fact that some lesser percentage may be
specified by law), the bylaws shall be adopted, repealed, altered, amended or
rescinded by the stockholders of the Corporation only by the vote of the holders
of not less than 75% of the voting power of the outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the stockholders
called for that purpose (provided that notice of such proposed adoption, repeal,
alteration, amendment or rescission is included in the notice of such meeting),
or, as set forth above, by the board of directors.
ARTICLE XVII
Amendment of
Certificate of Incorporation
Subject
to the provisions hereof, the Corporation reserves the right to repeal, alter,
amend or rescind any provision contained in this Certificate in the manner now
or hereafter prescribed by law, and all rights conferred on stockholders herein
are granted subject to this reservation. Notwithstanding the foregoing at any
time and from time to time, the provisions set forth in Articles VIII, IX, X,
XI, XII, XIII, XIV, XV, XVI and this Article XVII may be repealed, altered,
amended or rescinded in any respect only if the same is approved by the
affirmative vote of the holders of not less than 75% of the voting power of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as a single
class) cast at a meeting of the stockholders called for that purpose (provided
that notice of such proposed adoption, repeal, alteration, amendment or
rescission is included in the notice of such meeting).
ARTICLE XVIII
The name and address of the incorporator is:
Danyel Owens
770 South Post Oak Lane
Suite 435
Houston, Texas 77056
I,
THE UNDERSIGNED, being the incorporator, for the purpose of forming a
corporation pursuant to the General Corporation Law of Delaware, does make and
file this Certificate of Incorporation, hereby declaring and certifying that the
facts herein stated are true, and accordingly have hereunto set my hand this
26th day of March, 1999.
/s/Danyel Owens
-----------------------------------
Danyel Owens
