CERTIFICATE OF INCORPORATION
OF
BODYGUARD RECORDS. COM, INC.
The undersigned, a natural person over the age of 21, for the purpose of forming
a corporation under the Delaware General Corporation Law, hereby certifies as
follows:
FIRST: The name of this corporation (the "Corporation") shall be
BodyGuard Records. com, Inc.
SECOND: The registered office of the Corporation in the State of
Delaware is to be located at 1013 Centre Road, in the City of Wilmington, County
of New Castle 10805, and its registered agent at such address is Corporation
Service 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.
FOURTH: The authorized capital stock of the Corporation shall consist
of 20,000,000 shares of Common Stock, $.001 par value per share (hereinafter
referred to as either the "Common Shares" or "Common Stock") and 2,000,000
shares of Preferred Stock, $.01 par value per share (hereinafter referred to as
either the "Preferred Shares" or "Preferred Stock").
FIFTH: The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of Article Fourth, to provide for the
issuance of the shares of Preferred Stock in series, and by filing a certificate
pursuant to the applicable law of the State of Delaware, to establish from time
to time the number of shares to be included in each such series, and to fix the
designation, powers, preferences and rights of the shares of each such series
and the qualifications, limitations or restrictions thereof.
The authority of the Board with respect to each series shall include,
but not be limited to, determination of the following:
(a) The number of shares constituting that series and the
distinctive designation of that series;
(b) The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates, and the
relative rights of priority, if any, of payment of dividends on shares of that
series;
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(c) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
(d) Whether that series shall have conversion privileges, and, if
so, the terms and conditions of such conversion, including provision for
adjustment of the conversion rate in such events as the Board of Directors shall
determine;
(e) Whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including the date or
date upon or after which they shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary under different conditions
and at different redemption dates;
(f) Whether that series shall have a sinking fund for the redemption
or purchase of shares of that series, and, if so, the terms and amount of such
sinking fund;
(g) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
corporation, and the relative rights of priority, if any, of payment of shares
of that series; and
(h) Any other relative rights, preferences and limitations of that
series.
SIXTH: No shareholder of the Corporation shall have a preemptive right,
because of his other shareholdings, to have first offered to him or her any part
of any of the presently authorized or issued shares of the Corporation, or any
shares hereafter issued, optioned, or sold, or any part of any debenture, bonds,
notes, or securities of the Corporation convertible into shares hereafter
issued, optioned or sold by the Corporation. This provision shall operate to
defeat rights in all shares and classes of shares and securities convertible
into shares which the Corporation may be hereafter authorized to issue by an
amended certificate duly filed. Thus, any and all debentures, bonds, notes or
securities of the Corporation convertible into shares and any and all of the
shares of the Corporation convertible into shares and any and all shares of the
Corporation which may hereafter be authorized, and at any time be issued,
optioned, and contracted for sale, and/or should and disposed of by direction of
the Board of Directors of the Corporation to such persons, and upon such terms
and conditions as may to the Board of Directors seem proper and advisable,
without first offering the said shares or securities or any part thereof to
existing shareholders.
SEVENTH: (a) The number of directors constituting the entire Board
shall be not less than three nor more than nine as fixed from time to time by
vote of a majority of the entire Board, provided, however, that the number of
directors shall not be reduced so as to shorten the term of any director at the
time in office, and provided further, that the number of directors constituting
the entire Board shall be three until otherwise fixed by a majority of the
entire Board. Each director shall be the record owner of one or more shares of
Common Stock of the Corporation;
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(b) The Board of Directors may be divided into three classes, as
nearly equal in numbers as the total number of directors constituting the entire
Board permits with the term of office of one class expiring each year. The Board
of Directors, acting by a majority of directors, subject to ratification by the
shareholders at an Annual Meeting of Shareholders or otherwise, may elect
directors of the first class to hold office for a term expiring at the next
succeeding annual meeting, directors of the second class may be elected to hold
office for a term expiring at the second succeeding annual meeting and directors
of the third class may be elected to hold office for a term expiring at the
third succeeding annual meeting. Any vacancies in the Board of Directors for any
reason, and any directorships resulting from any increase in the number of
directors, may be filled by the Board of Directors, acting by a majority of the
directors then in office, although less than a quorum, and any directors so
chosen shall hold office until the next election of the class for which such
directors shall have been chosen and until their successors shall be elected and
qualified. Notwithstanding the foregoing, and except as otherwise required by
law, whenever the holders of any one or more series of Preferred Stock shall
have the rights, voting separately as a class, to 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. Subject to
the foregoing and the election by the Board to institute classes of directors,
at each annual meeting of stockholders the successors to the class of directors
whose term shall then expire shall be elected to hold office for a term expiring
at the third succeeding annual meeting.
(c) Notwithstanding the other provisions of this Certificate of
Incorporation or the By-Laws of the corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, this Certificate of
Incorporation or the By-Laws of the corporation), any director or 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 51% or more 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, and except as otherwise required by law, whenever
the holders of any one or more series of Preferred Stock shall have the right,
voting separately as a class, to elect one or more directors of the Corporation,
the provisions of this Article shall not apply with respect to the director or
directors elected by such holders of Preferred Stock.
EIGHTH: A Director of this corporation shall not be liable for the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director, except as provided in Paragraph Ten hereof and to the extent
such exemption from liability or limitation thereof is not permitted under the
Delaware General Corporation Law as the same exists or may hereafter be amended.
Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the corporation
existing hereunder with respect to any act or omission occurring prior to such
repeal or modification.
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NINTH: In the absence of fraud, no contract or other transaction
between this Corporation and one or more of its directors, officers or any other
corporation, partnership, association or entity in which any director or officer
of the Corporation is financially or otherwise interested or is a director or
officer of such other corporation, partnership, association, or entity, shall be
affected or invalidated because of such relationship or interest, provided that
the existence and nature of any such interest of such director of officer shall
be disclosed or shall have been known to the directors present at any meeting of
the Board of Directors at which action on any such contract or transaction shall
have been taken, and provided further that the fact of such relationship is
disclosed or known to the shareholders entitled to vote and they authorize,
approve, or ratify the contract or transaction by vote or written consent, and
the contract or transaction is fair and reasonable to the Corporation. Any
interested director may be counted in determining the existence of a quorum and
may vote at any meeting of the Board of Directors for the purpose of authorizing
any such contract or transaction with like force and effect as if he were not so
interested or were not a director, member of officer of such other corporation,
firm, association or partnership.
TENTH: Pursuant to applicable state law, each director, officer,
employee, fiduciary or agent of the Corporation (and his heirs, executors and
administrators) shall be indemnified by the Corporation against expenses
reasonably incurred by or imposed upon him in connection with or arising out of
any action, suit or proceeding in which he may be involved or to which he may be
made a party by reason of his being or having been a director, officer,
employee, fiduciary or agent of the Corporation, or at its request of any other
corporation of which it is a shareholder or creditor and from which he is not
entitled to be indemnified (whether or not he continues to be a director,
officer, employee, fiduciary or agent at the time of imposing or incurring such
expenses), except in respect of matters as to which he shall be finally adjudged
in such action, suit or proceeding to be liable for negligence or misconduct.
Subject to applicable state law, in the event of a settlement of any such
action, suit or proceeding, indemnification shall be provided only in connection
with such matters covered by the settlement as to which the Corporation is
advised by counsel that the person to be indemnified did not commit a breach of
duty. The foregoing right of indemnification shall not be exclusive of other
rights to which he may be entitled under applicable state law.
IN WITNESS WHEREOF, the undersigned, being the incorporator hereinbefore named,
has executed this Certificate and affirm the truth hereof under penalties of
perjury this 10th day of November 10, 1999.
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Eugene Foley
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