EXHIBIT 3.1
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CERTIFICATE OF INCORPORATION
OF
USARadio.com, Inc.
FIRST: The name of the corporation is
USARadio.com, Inc. (the "Corporation").
SECOND: The address of the registered office of the
Corporation in the State of Delaware is Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle 19801. 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 Delaware
("DGCL").
FOURTH: The aggregate number of shares of all classes
of stock which the Corporation shall have authority to issue
is Thirty Five Million (35,000,000) shares, consisting of
(A) Thirty Million (30,000,000) shares of common stock, par
value $0.001 per share (the "Common Stock"), and (B) Five
Million (5,000,000) shares of preferred stock, par value
$0.001 per share (the "Preferred Stock").
The designations, powers, preferences and relative,
participating, optional and other special rights, and the
qualifications, limitations and restrictions thereof with
respect to the Common Stock and the Preferred Stock are as
follows:
(A) Common Stock. Each holder of the Common Stock of the
Corporation shall be entitled to one vote for every share of
Common Stock outstanding in his name on the books of the
Corporation. Except for and subject to those rights
expressly granted to the holders of the Preferred Stock or
except as may be provided by the laws of the State of
Delaware, the holders of Common Stock shall have exclusively
all other rights of stockholders including, without
limitation, (i) the right to receive dividends, when and as
declared by the Board of Directors out of assets legally
available therefor, and (ii) in the event of any
distribution of assets upon liquidation, dissolution or
winding up of the Corporation or otherwise, the right to
receive ratably and equally with all holders of all Common
Stock all the assets and funds of the Corporation remaining
after the payment to the holders of the Preferred Stock of
the specific amounts that they are entitled to receive upon
such liquidation, dissolution or winding up of the
Corporation, if any.
(B) Preferred Stock. Preferred Stock may be issued from
time to time in one or more series, each of such series to
have such terms as stated in the resolution or resolutions
providing for the establishment of such series adopted by
the Board of Directors of the Corporation as hereinafter
provided. Except as otherwise expressly stated in the
resolution or resolutions providing for the establishment of
a series of Preferred Stock, any shares of Preferred Stock
that may be redeemed, purchased or acquired by the
Corporation may be reissued except as otherwise expressly
provided by law. Different series of Preferred Stock shall
not be construed to constitute different classes of stock
for the purpose of voting by classes unless expressly
provided in the resolution or resolutions providing for the
establishment thereof. The Board of Directors of the
Corporation is hereby expressly authorized to issue, from
time to time, shares of Preferred Stock in one or more
series, and, in connection with the establishment of any
such series by resolution or resolutions, to determine and
fix the number of shares constituting that series and the
distinctive designation of that series and to determine and
fix such voting powers, full or limited, or no voting
powers, and
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such other powers, designations, preferences and
relative, participating, optional and other rights, and the
qualifications, limitations and restrictions thereof,
including, without limitation, dividend rights, conversion
rights, redemption privileges and liquidation preferences,
as shall be stated in such resolution or resolutions, all
to the fullest extent permitted by the DGCL. Without
limiting the generality of the foregoing, the resolution or
resolutions providing for the establishment of any series
of Preferred Stock may, to the extent permitted by law,
provide that such series shall be superior to, rank equally
with or be junior to the Preferred Stock of any other
series. Except as otherwise expressly provided in the
resolution or resolutions providing for the establishment
of any series of Preferred Stock, no vote of the holders of
shares of Preferred Stock or Common Stock shall be a
prerequisite to the issuance of any shares of any series of
the Preferred Stock authorized by and complying with the
conditions of this Certificate of Incorporation.
FIFTH: For the management of the business and for
the conduct of the affairs of the Corporation, and in
further definition, limitation and regulation of the powers
of the Corporation and of its directors and stockholders, it
is further provided:
(A) Powers and Authorities of Board of Directors.
In furtherance and not in limitation of the powers
conferred by the laws of the State of Delaware, the
Board of Directors is expressly authorized and
empowered:
(i) to make, alter, amend or repeal the
Bylaws in any manner not inconsistent with the
laws of the State of Delaware or this Certificate
of Incorporation;
(ii) without the assent or vote of the
stockholders, to authorize and issue securities
and obligations of the Corporation, secured or
unsecured, and to include therein such provisions
as to redemption, conversion or other terms
thereof as the Board of Directors in its sole
discretion may determine, and to authorize the
mortgaging or pledging, as security therefor, of
any property of the Corporation, real, personal or
mixed, including after-acquired property;
(iii) to determine whether any, and if
any, what part, of the net profits of the
Corporation or of its surplus shall be declared in
dividends and paid to the stockholders, and to
direct and determine the use and disposition of
any such net profits or such surplus; and
(iv) to fix from time to time the amount of
net profits of the Corporation or of its surplus
to be reserved as working capital or for any other
lawful purpose.
In addition to the powers and authorities herein
or by statute expressly conferred upon it, the Board of
Directors may exercise all such powers and do all such
acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the provisions
of the laws of the State of Delaware, this Certificate
of Incorporation and the Bylaws of the Corporation.
(B) Director or Officer Removal. Any director or
any officer elected or appointed by the stockholders or
by the Board of Directors may be removed at any time in
such manner as shall be provided in the Bylaws of the
Corporation.
(C) Amendment to Certificate of Incorporation.
From time to time any of the provisions of this
Certificate of Incorporation may be altered, amended or
repealed, and other provisions authorized by the laws
of the State of Delaware at the time in force may be
added or
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inserted, in the manner and at the time prescribed by
said laws, and all rights at any time conferred upon
the stockholders of the Corporation by this Certificate
of Incorporation are granted subject to the provisions
of this paragraph (C).
SIXTH: No director of the Corporation shall be
personally liable to the Corporation or any of its
stockholders for monetary damages for breach of fiduciary
duty as a director of the Corporation; PROVIDED, HOWEVER,
that the foregoing is not intended to eliminate or limit the
liability of a director of the Corporation for (i) any
breach of a director's duty of loyalty to the Corporation or
its stockholders, (ii) acts or omissions not in good faith
or which involve intentional misconduct or a knowing
violation of law, (iii) a violation of Section 174 of the
DGCL, or (iv) any transaction from which the director
derived an improper personal benefit. If the DGCL is
hereafter amended to authorize corporate action further
eliminating or limiting 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
DGCL, as so amended. No amendment to or repeal of this
Article SIXTH shall apply to or have any effect on the
liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment or repeal.
SEVENTH: The Corporation shall, to the fullest extent
permitted by Section 145 of the DGCL, as that Section may be
amended and supplemented from time to time, indemnify any
director or officer of the Corporation (and any director,
trustee or officer of any corporation, business trust or
other entity to whose business the Corporation shall have
succeeded) which it shall have power to indemnify under that
Section against any expenses, liabilities or other matter
referred to in or covered by that Section. The
indemnification provided for in this Article SEVENTH
(a) shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under any Bylaw,
agreement or vote of stockholders or disinterested directors
or otherwise, both as to action in their official capacities
and as to action in another capacity while holding such
office, (b) shall continue as to a person who has ceased to
be a director or officer and (c) shall inure to the benefit
of the heirs, executors and administrators of such a person.
To assure indemnification under this Article of all such
persons who are determined by the Corporation or otherwise
to be or to have been "Fiduciaries" of any employee benefit
plan of the Corporation that may exist from time to time and
that is governed by the Act of Congress entitled "Employee
Retirement Income Security Act of 1974," as amended from
time to time, such Section 145 shall, for the purposes of
this Article, be interpreted as follows: an "other
enterprise" shall be deemed to include such an employee
benefit plan; the Corporation shall be deemed to have
requested a person to serve an employee benefit plan where
the performance by such person of his duties to the
Corporation also imposes duties on, or otherwise involves
services by, such person to the plan or participants or
beneficiaries of the plan; excise taxes assessed on a person
with respect to an employee benefit plan pursuant to such
Act of Congress shall be deemed "fines;" and action taken or
omitted by a person with respect to an employee benefit plan
in the performance of such person's duties for a purpose
reasonably believed by such person to be in the interest of
the participants and beneficiaries of the plan shall be
deemed to be for a purpose that is not opposed to the best
interests of the Corporation.
EIGHTH: Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the
affirmative vote of at least 66 2/3% of the outstanding
shares of the Common Stock of the Corporation shall be
required to amend or repeal Article SIXTH, SEVENTH or EIGHTH
of this Certificate of Incorporation or to adopt any
provision inconsistent therewith. Further, the affirmative
vote of at least 66 2/3% of the outstanding shares of the
Common Stock of the Corporation shall be required to amend
or repeal the Bylaws of the Corporation, if the stockholders
of the Corporation are required by the DGCL, the Certificate
of Incorporation or the Bylaws to vote thereon.
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NINTH: Except as provided herein, the Corporation
reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation in
the manner now or hereafter prescribed by the laws of the
State of Delaware, and all rights herein conferred are
granted subject to this reserve power. Notwithstanding the
foregoing, the provisions set forth in Articles SIXTH,
SEVENTH and EIGHTH of this Certificate of Incorporation may
not be repealed or amended in any respect unless such repeal
or amendment is approved as specified in Article EIGHTH
herein.
TENTH: 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
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 the 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 the Corporation, as the case may be, to be
summoned in such manner as 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: Meetings of stockholders may be held within
or without the State of Delaware as the Bylaws may provide.
The books of the Corporation may be kept (subject to any
provision contained in the DGCL) outside the State of
Delaware at such place or places as may be designated form
time to time by the Board of Directors or in the Bylaws of
the Corporation.
TWELFTH: The Corporation elects not to be governed by
Section 203 of the DGCL.
THIRTEENTH: The name and mailing address of the
Incorporator of the Corporation is J. David Washburn, c/o
Arter & Hadden LLP, 1717 Main Street, Suite 4100, Dallas,
Texas 75201.
IN WITNESS WHEREOF, I have hereunto set my hand this
10th day of April, 2000, and affirm the statements contained
therein as true under penalties of perjury.
/s/ J. DAVID WASHBURN
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J. David Washburn
Incorporator
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