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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
HUGO INTERNATIONAL TELECOM INC.
1. Name. The name of the corporation is Hugo International Telecom Inc.
(the "Corporation").
2. Address; Registered Agent. The address of the Corporation's
registered office is 1013 Centre Road, City of Wilmington, County of New Castle,
Delaware 19805-1297 and its registered agent at such address is CSC Networks.
3. Nature of Business; Purposes. The nature of the business and
purposes to be conducted or promoted by the Corporation are to engage in, carry
on and conduct any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware.
4. Number of Shares. The total number of shares of stock which the
Corporation shall have authority to issue is 50,000,000 shares of Common Stock,
$.0001 par value ("Common Stock"), and 1,000,000 shares of Series Preferred
Stock, $.0001 par value ("Series Preference Stock").
A statement of the designations and the powers, preferences and rights
of such classes of stock and the qualifications, limitations or restrictions
thereof, the fixing of which by the Certificate of Incorporation is desired, and
the authority of the Board of Directors to fix, by resolution or resolutions,
the designations and the powers, preferences and rights of such classes of stock
or the qualifications, limitations or restrictions thereof, which are not fixed
hereby, are as follows:
Part I. Provisions Applicable to All Series of Series Preference Stock.
(a) Shares of Series Preference Stock may be issued from time
to time in one or more series. The preferences and relative participating,
optional and other special rights of each series and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any and
all other series already outstanding; the terms of each series shall be as
specified in this Part I and in the resolution or resolutions hereinafter
referred to; and the Board of Directors of the Corporation is hereby expressly
granted authority to fix, by resolution or resolutions adopted prior to the
issuance of any shares of a particular series of Series Preference Stock, the
designations, preferences and relative participating, optional and other special
rights, or the qualifications, limitations or restrictions thereof, of such
series, including, but without limiting the generality of the foregoing, the
following:
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(i) The rate and times at which, and the terms and conditions
on which, dividends on the Series Preference Stock of such series shall
be paid;
(ii) The right, if any, of holders of Series Preference Stock
of such series to convert the same into, or exchange the same for,
other classes of stock of the Corporation and the terms and conditions
of such conversion or exchange;
(iii) The redemption price or prices and the time at which,
and the terms and conditions on which, Series Preference Stock of such
series may be redeemed;
(iv) The rights of the holders of Series Preference Stock of
such series upon the voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding up of the Corporation;
(v) The voting power, if any, of the Series Preference Stock
of such series; and
(vi) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Series Preference Stock of such
series.
(b) All shares of each series shall be identical in all respects to the
other shares of such series. The rights of the Common Stock of the Corporation
shall be subject to the preferences and relative participating, optional and
other special rights of the Series Preference Stock of each series as fixed
herein and from time to time by the Board of Directors as aforesaid.
Part II. Provisions Applicable to Common Stock.
(a) After the requirements with respect to preferential dividends upon
the Series Preference Stock of all classes and series thereof shall have been
met and after the Corporation shall have complied with all requirements, if any,
with respect to the setting aside of sums as a sinking fund or redemption or
purchase account for the benefit of any class or series thereof, then, and not
otherwise, the holders of Common Stock shall be entitled to receive such
dividends as may be declared from time to time by the Board of Directors.
(b) After distribution in full of the preferential amounts to be
distributed to the holders of all classes and series thereof of Series
Preference Stock then outstanding in the event of a voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders of the
Common Stock shall be entitled to receive all the remaining assets of the
Corporation available for distribution to its stockholders ratably in proportion
to the number of shares of Common Stock held by them respectively.
(c) Each holder of Common Stock shall have one vote in respect of each
share of such stock held by him.
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5. Name and Address of Incorporator. The name and address of the
incorporator is as follows:
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Name Address
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<S> <C>
Kay L. Kim Piper Marbury Rudnick & Wolfe LLP
1251 Avenue of the Americas
New York, NY 10020
</TABLE>
6. Election of Directors. Members of the Board of Directors may be
elected either by written ballot or by voice vote.
7. Adoption, Amendment and/or Repeal of By-Laws. In furtherance and not
in limitation of the powers conferred by the General Corporation Law of the
State of Delaware, the Board of Directors may from time to time make, alter or
repeal the by-laws of the Corporation; provided, however, that the Board of
Directors shall not make, alter or repeal any by-law pertaining to the number of
stockholders or directors required to constitute a quorum at meetings of
stockholders or directors.
8. Compromise or Arrangement. 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 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 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 the 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 this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as 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 this Corporation, as the case may be,
and also on this Corporation.
9. Liability of Directors; Indemnification. (a) No director of the
Corporation shall have any personal liability to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director of
the Corporation, except (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 the State of Delaware
or (iv) for any transaction from which the director derived an improper personal
benefit.
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(b) The Corporation shall indemnify any director or officer of the
Corporation and may indemnify any employee or agent of the Corporation who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person seeking
indemnification did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(c) The Corporation shall indemnify any director or officer of the
Corporation and may indemnify any employee or agent of the Corporation who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
(d) Any indemnification under paragraphs (b) or (c) of this Article 9
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in such paragraphs (b) and (c). Such
determination shall be made (i) by the Board of Directors of the Corporation by
a majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even
if obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by the stockholders of the
Corporation.
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(e) Expenses (including attorneys' fees) incurred by an officer,
director, employee or agent in defending any civil, criminal, administrative or
investigative action, suit or proceeding as provided herein may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation authorized in this Article 9. Such
expenses (including attorneys' fees) incurred by other employees and agents may
be so paid upon such terms and conditions, if any, as the Board of Directors of
the Corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other sections of this Article 9 shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any law, by-law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office.
(g) The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of Section 145 of the General Corporation
Law.
(h) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article 9 shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
10. Books of Corporation. The books of the Corporation may be kept
(subject to any provision contained in the General Corporation Law of the State
of Delaware) outside the State of Delaware at such place as may be designated
from time to time by the Board of Directors or the by-laws of the Corporation.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Incorporation on this 17th day of February, 2000.
/s/ Kay L. Kim
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Kay L. Kim
