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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
MAGNACASH, INC.
A DELAWARE CORPORATION
(PURSUANT TO SECTIONS 228, 242 AND 245
OF THE DELAWARE GENERAL CORPORATION LAW)
ARTICLE I
The name of the corporation is Magnacash, Inc. (the "Corporation").
ARTICLE II
A. The address of the registered office of the Corporation in the State
of Delaware is 1209 Orange Street, in the City of Wilmington, 19801, County of
New Castle. The name of its registered agent at such address is The Corporation
Trust Company.
B. The name and mailing address of the sole incorporator is as follows:
Katherine R. Perkins
c/o Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105-2482
ARTICLE III
The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
ARTICLE IV
The Corporation is authorized to issue two classes of stock to be
designated common stock ("Common Stock") and preferred stock ("Preferred
Stock"). The number of shares of Common Stock authorized to be issued is
Seventy-Five Million (75,000,000), par value $0.001 per share. The number of
shares of Preferred Stock authorized to be issued is Ten Million (10,000,000),
par value $0.001 per share.
Prior to the earliest of (i) the date that is the first anniversary of the
date that Cybergold, Inc. ("Cybergold"), ceases to be the sole holder of
outstanding shares of Common Stock, (ii) the date the Securities and Exchange
Commission or successor organization declares effective a registration statement
on Form S-1 or Form S-3 or successor form regarding an offering of shares of
Common Stock the issuance of which would have the effect increasing the number
of shares of Common Stock outstanding by eighty percent (80%) or more, or (iii)
such
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date as determined by the board of directors of the corporation in its sole
discretion, Common Stock may not be, directly or indirectly, sold, transferred,
assigned, pledged, exchanged, hypotheticated, gifted or otherwise disposed of
except: (A) by Cybergold or its successor, in connection with the initial
distribution by Cybergold of Common Stock to the holders of Cybergold's common
stock, as of a record date prior to August 3, 2000, (B) from any holder of
Common Stock that is a natural person to (i) such stockholder's spouse or
children, (ii) to any trust solely for the benefit of such stockholder or the
children or spouse of such stockholder or (iii) to any party pursuant to
applicable laws of descent and distribution and (C) from any holder of Common
that is a corporation, limited liability company, limited partnership or general
partnership to any affiliate (as defined under Rule 405 of the Securities Act of
1933, as amended).
Preferred Stock may be issued from time to time in one or more series,
without further stockholder approval. The Board of Directors is hereby
authorized, in the resolution or resolutions adopted by the Board of Directors
providing for the issue of any wholly unissued series of Preferred Stock, within
the limitations and restrictions stated in this Certificate of Incorporation, to
fix or alter the dividend rights, dividend rate, conversion rights, voting
rights, preemptive rights, rights and terms of redemption (including sinking
fund provisions), the redemption price or prices, and the liquidation
preferences of any wholly unissued series of Preferred Stock, and the number of
shares constituting any such series and the designation thereof, or any of them,
and to increase or decrease the number of shares of any series subsequent to the
issue of shares of that series, but not below the number of shares of such
series then outstanding. In case the number of shares of any series shall be so
decreased, the shares constituting such decrease shall resume the status that
they had prior to the adoption of the resolution originally fixing the number of
shares of such series.
ARTICLE V
Except as otherwise provided in this Certificate of Incorporation, in
furtherance and not in limitation of the powers conferred by statute, the Board
of Directors is expressly authorized to make, repeal, alter, amend and rescind
any or all of the Bylaws of the Corporation.
ARTICLE VI
The number of directors which shall constitute the whole of the Board of
Directors shall initially be three (3). With the exception of the first Board
of Directors, which shall be elected by the incorporator, the number of
directors of the Corporation shall be fixed from time to time by a bylaw or
amendment thereof duly adopted by the Board of Directors.
ARTICLE VII
Elections of directors need not be by written ballot unless the Bylaws of
the Corporation shall so provide.
ARTICLE VIII
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Except as otherwise provided in this Certificate of Incorporation, any
action required or permitted to be taken by the stockholders of the Corporation
must be effected at an annual or special meeting of the stockholders of the
Corporation, and no action required to be taken or that may be taken at any
annual or special meeting of the stockholders of the Corporation may be taken by
written consent.
ARTICLE IX
A director of the Corporation shall, to the fullest extent permitted by
the General Corporation Law as it now exists or as it may hereafter be amended,
not be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (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 that involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the General Corporation Law, or (iv) for any transaction from which the director
derived any improper personal benefit. If the General Corporation Law is
amended, after approval by the stockholders of this Article, 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 General Corporation
Law, as so amended.
Any amendment, repeal or modification of this Article IX, or the adoption
of any provision of this Certificate of Incorporation inconsistent with this
Article IX, by the stockholders of the Corporation shall not apply to or
adversely affect any right or protection of a director of the Corporation
existing at the time of such amendment, repeal, modification or adoption.
ARTICLE X
In addition to any vote of the holders of any class or series of the stock
of the Corporation required by law or by this Certificate of Incorporation, the
affirmative vote of the holders of a majority of the voting power of all of the
then outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to amend or repeal any provision of this Certificate of
Incorporation not specified in the preceding sentence.
ARTICLE XI
To the fullest extent permitted by applicable law, the Corporation is
authorized to provide indemnification of (and advancement of expenses to) agents
of the Corporation (and any other persons to which General Corporation Law
permits the Corporation to provide indemnification) through bylaw provisions,
agreements with such agents or other persons, vote of stockholders or
disinterested directors or otherwise, in excess of the indemnification and
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advancement otherwise permitted by Section 145 of the General Corporation Law,
subject only to limits created by applicable General Corporation Law (statutory
or non-statutory), with respect to actions for breach of duty to the
Corporation, its stockholders, and others.
Any amendment, repeal or modification of the foregoing provisions of this
Article XI shall not adversely affect any right or protection of a director,
officer, agent, or other person existing at the time of, or increase the
liability of any director of the Corporation with respect to any acts or
omissions of such director, officer or agent occurring prior to, such amendment,
repeal or modification.
I, the undersigned, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make this certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and,
accordingly, have hereunto set my hands this 1st day of August, 2000.
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Katherine R. Perkins
Sole Incorporator
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