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Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
EDWARD MERGER SUBSIDIARY, INC.
ARTICLE I
The name of this Corporation is: Edward Merger Subsidiary, Inc.
ARTICLE II
The registered office of the Corporation in the State of Delaware is
located at Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle
County, Delaware 19801. The Registered Agent at such address is The Corporation
Trust Company.
ARTICLE III
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.
ARTICLE IV
A. The total number of shares of capital stock which the Corporation shall
have authority to issue is 145,000,000, of which (i) 25,000,000 shares shall be
preferred stock, of the par value of $.000001 per share (hereinafter referred to
as "Preferred Stock"), and (ii) 120,000,000 shares shall be common stock, of the
par value of $.000001 per share (hereinafter referred to as "Common Stock"). All
shares of Common Stock and Preferred Stock shall be fully paid up when issued
and shall be non-assessable.
B. The preferences, limitations, and relative rights of the shares of each
class of capital stock of the Corporation shall be as follows:
1. Preferred Stock.
a. Division into Series. The Board of Directors shall have
authority to divide the Preferred Stock into as many series as the
Board of Directors shall from time to time determine, and to issue the
Preferred Stock in such series. The Board of Directors shall determine
the number of shares comprising each series, which number may, unless
otherwise provided by the Board of Directors in creating such series,
be increased or decreased from time to time by action of the Board of
Directors. Each series shall be so designated as to distinguish the
shares thereof from the shares of all other series.
b. Authority of Board of Directors to Determine Preferences,
Limitations, and Relative Rights. The Board of Directors shall have
authority to determine, except as otherwise prescribed in this Article
IV or by law, the preferences, limitations, and relative rights,
including voting rights, of the shares of Preferred Stock before the
issuance of any shares of such class or the
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preferences, limitations, and relative rights, including voting
rights, of the shares of any series of Preferred Stock before the
issuance of any shares of such series. All shares of any such series
shall have preferences, limitations, and relative rights, including
voting rights, identical with those of other shares of the same series
and, except to the extent otherwise provided in the description of
such series, of those of other series of the Preferred Stock.
2. Common Stock.
Subject to the preferences, limitations, and relative rights of the
Preferred Stock, or any series thereof, the holders of Common Stock shall
have all rights of stockholders, including, without limitation, (i)
unlimited voting rights on all corporate matters on the basis of one vote
per share, except as such voting rights may be limited or required to be
shared together with another class or series as provided by law, and (ii)
the right to receive the net assets of the corporation upon dissolution.
Shares of Common Stock may be issued from time to time as the Board of
Directors shall determine and on such terms and for such consideration as
shall be fixed by the Board of Directors.
3. Denial of Preemptive Rights.
No stockholder shall have any preemptive right to acquire additional
shares of this Corporation, whether of shares originally authorized or
other shares which may subsequently be authorized.
ARTICLE V
A. Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of
stockholders, and may not be effected by any consent in writing by such
stockholders, unless such consent is unanimous.
B. Except as otherwise required by law and subject to the rights, if any,
of the holders of Preferred Stock or any series thereof, special meetings of the
stockholders of the Corporation may be called only by the Chairman of the Board
of Directors, the President of the Corporation or the Board of Directors
pursuant to a resolution approved by a majority of the whole Board of Directors.
ARTICLE VI
A. The Corporation shall indemnify and hold harmless, to the fullest
extent permitted by applicable law as it presently exists or may hereafter be
amended, any person who was or is made or is threatened to be made a party or is
otherwise involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding") by reason of the fact that he
or she, or a person for whom he or she is the legal representative, is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, limited liability company, joint venture,
trust, enterprise or nonprofit entity, including service with respect to
employee benefit plans (an "Indemnitee"), against all liability and loss
suffered and
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expenses (including attorneys' fees) incurred by such person. The Corporation
shall be required to indemnify a person in connection with a proceeding (or part
thereof) initiated by such person only if the proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation.
B. The right to indemnification conferred by this ARTICLE VI shall be
presumed to have been relied upon by the Indemnitee and shall be enforceable as
a contract right. The Corporation may enter into contracts to provide
individual Indemnitees with specific rights of indemnification to the fullest
extent permitted by applicable law and may create trust funds, grant security
interests, obtain letters of credit, purchase and maintain insurance or use
other means to ensure the payment of such amounts as may be necessary to effect
the rights provided in this ARTICLE VI or in any such contract. The right to
indemnification conferred by this ARTICLE VI shall be in addition to any other
similar rights to indemnification which may be provided by contract, the Bylaws
of the Corporation or applicable law.
C. Upon making a request for indemnification, the Indemnitee shall be
presumed to be entitled to indemnification under this ARTICLE VI and the
Corporation shall have the burden of proof to overcome that presumption in
reaching any contrary determination. Such indemnification shall include the
right to receive payment in advance of any expenses incurred by the Indemnitee
in connection with any Proceeding, consistent with the provisions of applicable
law.
ARTICLE VII
A. The number of Directors of this Corporation shall not be less than
three nor more than twelve as may be determined from time to time by the
affirmative vote of the majority of the Board of Directors. The Directors shall
be divided into three classes, designated Class I, Class II and Class III. Each
class shall consist, as nearly as may be possible, of one-third of the total
number of Directors constituting the entire Board of Directors. At the
organizational meeting of the sole incorporator of this Corporation, Class I
Directors shall be elected for a one-year term, Class II Directors shall be
elected for a two-year term and Class III Directors shall be elected for a
three-year term. At each annual meeting of stockholders, beginning in 2001,
successors to the class of Directors whose term expires at that annual meeting
shall be elected for a three-year term. A Director shall hold office until the
annual meeting for the year in which his or her term expires and until his or
her successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office.
If the number of Directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of Directors in each
class as nearly equal as possible, and any additional Director of any class
elected to fill a vacancy resulting from an increase in such class shall hold
office for a term that shall coincide with the remaining term of that class, but
in no case will a decrease in the number of Directors shorten the term of any
incumbent Director. Any Director elected to fill a vacancy not resulting from
an increase in the number of Directors shall have the same remaining term as
that of his or her predecessor. Any vacancy on the Board of Directors that
results from an increase in the number of Directors may be filled by the
affirmative vote of a majority of the Board of Directors then in office, and any
other vacancy occurring on the Board of Directors may be filled by the
affirmative vote of a
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majority of the Directors then in office, although less than a quorum, or by a
sole remaining Director.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect Directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation applicable thereto, and such
Directors so elected shall not be divided into classes pursuant to this ARTICLE
VII unless expressly provided by such terms.
B. There shall be no qualifications for election as a Director of the
Corporation; except that no person shall be eligible to stand for election as a
Director if such person has been convicted of a felony by a court of competent
jurisdiction where such conviction is no longer subject to direct appeal.
C. Except to the extent prohibited by law, the Board of Directors shall
have the right (which, to the extent exercised, shall be exclusive) to establish
the rights, powers, duties, rules and procedures that from time to time shall
govern the Board of Directors and each of its members, including without
limitation the vote required for any action by the Board of Directors, and that
from time to time shall affect the Directors' power to manage the business and
affairs of the Corporation; and no Bylaw shall be adopted by stockholders which
shall impair or impede the implementation of the foregoing.
D. A Director may be removed only for cause, and only by the affirmative
vote of the holders of a majority of shares of stock entitled to vote in an
election of Directors. No Director so removed may be reinstated so long as the
cause for removal continues to exist. For purposes of this Section D of this
ARTICLE VII, "cause" shall be limited to: (i) conviction of a felony; (ii)
declaration of unsound mind by order of a court; (iii) gross dereliction of
duty; (iv) commission of a crime involving moral turpitude; or (v) commission of
an action which constitutes intentional misconduct or a knowing violation of law
if such action in either event results both in an improper substantial personal
benefit to the Director and a material injury to the Corporation.
E. Advance notice of nominations for the election of Directors other than
nominations made by the Board of Directors or a committee thereof, as well as
advance notice of any proposals or other matters to be presented at any meeting
of the Corporation's stockholders, shall be given to the Corporation in the
manner provided in the Bylaws.
ARTICLE VIII
In discharging the duties of their respective positions, the Board of
Directors and/or a committee or committees of the Board and/or individual
Directors (collectively or individually, as the case may be, a "Director" or
"Directors") when evaluating any Acquisition Proposal (as defined below) or
presenting any related matter to the stockholders of the Corporation, shall, in
connection with the exercise of such Directors' judgment in determining what is
in the best interests of the Corporation as a whole, be authorized to give due
consideration to such factors as the Directors determine to be relevant,
including without limitation:
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1. the consideration being offered in the Acquisition Proposal in
relation to such Directors' estimate of: (i) the current value of the
Corporation and/or its equity securities (or relevant portion of such
equity securities) and/or its assets (or relevant portion of its assets) in
a freely negotiated or independent transaction, whether in the form of a
merger, consolidation, sale of assets or securities, reorganization,
recapitalization, or any combination of the foregoing; (ii) the current
value of the Corporation and/or its equity securities (or relevant portion
of such equity securities) and/or its assets (or relevant portion of its
assets) if orderly liquidated in a complete or partial liquidation; (iii)
the future value of the Corporation and/or its equity securities (or
relevant portion of such equity securities) and/or its assets (or relevant
portion of its assets) over a period of years if the Corporation remained
an independent entity, in each case discounted to current value at a
discount rate reflective of the relevant risk or risks involved; (iv)
premiums over market prices for the equity securities of other corporations
in similar transactions; (v) the future prospects of the Corporation, the
earnings potential and growth in asset value of the Corporation over a
period of years, the Corporation's short-term and/or long-term plans and/or
the likelihood of increasing or enhancing any or all of the foregoing if
such short-term and/or long-term plans are achieved; (vi) other
alternatives that may be available to the Corporation for increasing the
current or future value of the Corporation and/or its equity securities (or
relevant portion of its equity securities) and/or its assets (or relevant
portion of its assets); and (vii) opinions or advice rendered by investment
bankers, appraisers and other valuation professionals retained by the
Corporation with respect to such of the matters set forth in (i)-(vi) above
as may be relevant;
2. then existing political, economic and other factors bearing on
security prices or asset values generally or the current market value of
the Corporation's securities or assets in particular;
3. whether the Acquisition Proposal might violate federal, state or
local laws;
4. social, legal and economic effects on any or all groups affected,
including, without limitation, stockholders, employees, suppliers,
customers, creditors and others having similar relationships with the
Corporation, and the communities in which the Corporation conducts its
businesses;
5. the financial condition and earning prospects of the Person (as
defined below) making the Acquisition Proposal including such Person's
ability to service its debts and other existing or likely financial
obligations;
6. the competence, experience, integrity, intent and conduct (past,
stated and potential) of the Person (as defined below) making the
Acquisition Proposal;
7. the short-term and long-term interests of the Corporation,
including without limitation benefits that may accrue to the Corporation
from its short-term and/or long-term plans and the possibility that these
interests may be best served by the continued independence of the
Corporation; and
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8. all other pertinent factors.
In considering the foregoing factors, including any other pertinent factors
not listed above, such Directors shall not be required, in considering the best
interests of the Corporation, to regard any corporate interest or the interest
of any particular group affected by such action, including, without limitation,
the interests of stockholders of the Corporation, as a dominant or controlling
interest or factor.
For the purposes of this ARTICLE VIII, the term "Acquisition Proposal"
shall mean a proposal or offer of any Person (it being understood that a
"Person" shall mean any individual, firm, corporation or other entity): (a) to
make a tender offer, exchange offer or other comparable offer for any equity
security of the Corporation; (b) to effect a merger, consolidation,
reorganization or recapitalization with or involving another Person (as defined
above); (c) to effect any purchase, sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of transactions)
of all or substantially all of the assets or equity securities of the
Corporation with or involving another Person (as defined above); (d) to effect a
complete or partial liquidation or dissolution of the Corporation; or (e) to
effect a "business combination" (as defined in Section 203(c)(3) of the General
Corporation Law of Delaware, as amended from time to time).
ARTICLE IX
No Director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty by such Director as a Director; provided, however, that this ARTICLE IX
shall not eliminate or limit the liability of a Director to the extent provided
by applicable law: (i) for any breach of the Director's duty of loyalty to the
Corporation or its stockholders; (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (iii) under
Section 174 of the General Corporation Law of Delaware; or (iv) for any
transaction from which the Director derived an improper personal benefit. No
amendment to or repeal of this ARTICLE IX 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.
ARTICLE X
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 (relating to the General Corporation
Law of the State of Delaware) 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 (relating to the
General Corporation Law of the State of Delaware) 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 such court directs. If a majority in number representing three-
fourths in value of the creditors or class of creditors,
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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, such
compromise or arrangement and such reorganization shall, if sanctioned by the
court to which such 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.
ARTICLE XI
A. The original Bylaws of this Corporation shall be adopted in any manner
provided by law.
B. In furtherance, and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, adopt, alter,
amend or repeal the Bylaws of the Corporation by the vote of not less than a
majority of the whole Board of Directors.
C. Notwithstanding any other provisions in this Certificate of
Incorporation or the Bylaws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law), the stockholders of the
Corporation shall also have the power, to the extent such power is at the time
in question conferred on them by applicable law, to make, adopt, alter, amend or
repeal the Bylaws of the Corporation only upon the affirmative vote of two-
thirds (66.6%) or more of the combined voting power of the then outstanding
shares of stock of all classes and series of the Corporation entitled to vote
generally in the election of directors ("Voting Stock"), voting together as a
single class.
ARTICLE XII
A. In addition to any requirements of any other provisions of this
Certificate of Incorporation (and notwithstanding the fact that a lesser
percentage may be specified by law or this Certificate of Incorporation), the
affirmative vote, at an annual or special meeting of the stockholders, of the
holders of two-thirds (66.6%) or more of the combined voting power of the then
outstanding shares of Voting Stock (as defined in Section C of ARTICLE XI),
voting together as a single class, shall be required to amend, alter or repeal,
or adopt any provision inconsistent with, ARTICLES V, VII, VIII and XI.
B. In addition to any requirements of any other provisions of this
Certificate of Incorporation (and notwithstanding the fact that a lesser
percentage may be specified by law or this Certificate of Incorporation), the
affirmative vote, at an annual or special meeting of the stockholders, of the
holders of two-thirds (66.6%) or more of the combined voting power of the then
outstanding shares of Voting Stock voting together as a single class shall be
required to amend, alter or repeal, or adopt any provision in this Certificate
of Incorporation inconsistent with the Bylaws of the Corporation.
C. In addition to any requirements of any other provisions of this
Certificate of Incorporation (and notwithstanding the fact that a lesser
percentage may be specified by law or this Certificate of Incorporation), none
of Sections A or B of this ARTICLE XII may be amended, altered or repealed, nor
may any provision inconsistent therewith be adopted, unless the respective
percentage or more of the combined voting power specified therein of the
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outstanding shares of Voting Stock, voting together as a single class, votes in
favor thereof, nor may this Section C of this ARTICLE XII be amended, altered or
repealed, nor may any provision inconsistent herewith be adopted unless the
holders of two-thirds (66.6%) or more of the combined voting power of the then
outstanding shares of Voting Stock, voting together as a single class, vote in
favor thereof.
IN WITNESS WHEREOF, this Certificate of Incorporation has been executed on
behalf of the Corporation by its Incorporator as of May 5, 2000, and each of
them does hereby affirm and acknowledge that this Certificate of Incorporation
is the act and deed of the Corporation and that the facts stated herein are
true.
/s/ John A. Granda
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John A. Granda, Incorporator
1201 Walnut, Suite 2800
Kansas City, Missouri 64106
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