CERTIFICATE OF INCORPORATION
OF
PB ACQUISITION CORP.
I, the undersigned natural person acting as an incorporator of a
corporation (hereinafter called the "Corporation") under the General Corporation
Law of the State of Delaware, as amended from time to time, (the "DGCL"), do
hereby adopt the following Certificate of Incorporation for the Corporation:
FIRST: The name of this corporation is PB Acquisition Corp.
SECOND: The registered office of the Corporation in the State of
Delaware is located at Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, Delaware 19801, County of New Castle. The name of the registered
agent of the Corporation at such address is The Corporation Trust Company.
THIRD: The purpose for which the Corporation is organized is to engage
in any and all lawful acts or activity for which corporations may be organized
tinder the DGCL. The Corporation will have perpetual existence.
FOURTH: The Corporation shall have authority to issue two classes of
shares to be designated respectively, "Common Stock" and "Preferred Stock." The
total number of shares which the Corporation is authorized to issue is
50,000,000 shares of which 40,000,000 shall be Common Stock and 10,000,000 shall
be Preferred Stock. Each share of Common Stock shall have a par value of$.001,
and each share of Preferred Stock shall have a par value of $.00l.
The Preferred Stock authorized by this Certificate of Incorporation may
be issued from time to time in one or more series, each of which shall have such
designation(s) or title(s) as may be fixed by the Board of Directors prior to
the issuance of any shares thereof. The Board of Directors is hereby authorized
to fix or alter the dividend rates, conversion rights, rights and terms of
redemption, including sinking fund provisions, the redemption price or prices,
voting rights and 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. The rights, powers, preferences,
limitations and restrictions, if any, accompanying such shares of Preferred
Stock shall be set forth by resolution of the Board of Directors providing for
the issue thereof prior to the issuance of any shares thereof, in accordance
with the applicable provisions of the DGCL. Each share of any series of
Preferred Stock shall be identical with all other shares of such series, except
as to the date from which dividends, if any, shall accrue.
As a successor to a Massachusetts corporation reorganized pursuant to
its Amended Liquidating Plan of Reorganization dated October 2, 1998, as
confirmed by order of the United States Bankruptcy Court, District of
Massachusetts (Western Division) on November 2, 1998, the Corporation is
prohibited from issuing non-equity voting securities under Section 1123(a)(6) of
the United States Bankruptcy Code. If there are to be several classes of
securities issued in the future, all shall possess voting power, an appropriate
distribution of such power among such classes, including, in the case of any
class of equity securities having a preference over another class of equity
securities with respect to dividends, an adequate provision for the election of
directors representing such preferred class in the event of default in the
payment of such dividends. The provisions of this paragraph shall apply unless
and until the Corporation amends, alters, changes or repeals such provisions in
the manner now or hereafter set forth by the DGCL or this Certificate of
Incorporation.
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FIFTH: The name of the incorporator is Klara A. Albaral, and the
mailing address of such incorporator is 14160 Dallas Parkway, Suite 950, Dallas,
Texas 75240.
SIXTH: The number of directors constituting the initial board of
directors is one, and the name and address of the person who is to serve as
director until the first annual meeting of stockholders or until his successors
are elected and qualified is as follows:
Name Address City, State
---- ------- -----------
Timothy P. Halter 14160 Dallas Parkway, Suite 950 Dallas, Texas 75240
SEVENTH: Directors of the Corporation need not be elected by written
ballot unless the bylaws of the Corporation otherwise provide.
EIGHTH: The directors of the Corporation shall have the power to adopt,
amend and repeal the bylaws of the Corporation.
NINTH: No contract or transaction between the Corporation and one or
more of its directors, officers or stockholders, or between the Corporation and
any person (as used herein "person" means other corporation, partnership,
association, firm, trust, joint venture, political subdivision, or
instrumentality) or other organization in which one or more of its directors,
officers or stockholders are directors, officers or stockholders, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the board or committee which authorizes the contract or transaction, or solely
because his, her or their votes are counted for such purpose, if: (i) the
material facts as to his or her relationship or interest and as to the contract
or transaction are disclosed or are known to the board of directors or the
committee, and the board of directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified by the board of directors, a committee thereof, or the
stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of a committee
which authorizes the contract or transaction.
TENTH: The Corporation shall indemnify any person who was, is or is
threatened to be made a party to a proceeding (as hereinafter defined) by reason
of the fact that he or she (i) is or was a director or officer of the
Corporation or (ii) while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of another
foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, to the
fullest extent permitted under the DGCL, as the same exist or may hereafter be
amended. Such right shall be a contract right and as such shall run to the
benefit of any director or officer who is elected and accepts the position of
director or officer of the Corporation or elects to continue to serve as a
director or officer of the Corporation while this Article Tenth is in effect.
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Any repeal or amendment of this Article Tenth shall be prospective only and
shall not limit the rights of any such director or officer of the obligations of
the Corporation with respect to any claim arising from or related to the
services of such director or officer in any of the foregoing capacities prior to
any such repeal or amendment to this Article Tenth. Such right shall include the
right to be paid by the Corporation expenses incurred in defending any such
proceeding in advance or its final disposition to the maximum extent permitted
under the DGCL, as the same exists or may hereafter be amended. If a claim for
indemnification or advancement of expenses hereunder is not paid in full by the
Corporation within sixty (60) days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim, and if successful in
whole or in part, the claimant shall also be entitled to be paid the expenses of
prosecuting such claim. It shall be a defense to any such action that such
indemnification or advancement of costs of defense are not permitted under the
DGCL, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its board of directors or any
committee thereof, independent legal counsel, or stockholders) to have made its
determination prior to the commencement of such action that indemnification of,
or advancement of costs of defense to, the claimant is permissible in the
circumstances nor an actual determination by the Corporation (including its
board of directors or any committee thereof, independent legal counsel, or
stockholders) that such indemnification or advancement is not permissible shall
be a defense to the action or create a presumption that such indemnification or
advancement is not permissible, in the event of the death of any person having a
right of indemnification under the foregoing provisions, such right shall inure
to the benefit of his or her heirs, executors, administrators and personal
representatives. The rights conferred above shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute, bylaw,
resolution of stockholders or directors, agreement, or otherwise.
Without limiting the generality of the foregoing, to the extent
permitted by then applicable law, the grant of mandatory indemnification
pursuant to this Article Tenth shall extend to proceedings involving the
negligence of such person.
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by law.
As used herein, the term "preceding" means any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
arbitrative or investigative, any appeal in such an action, suit or proceeding,
and any inquiry or investigation that could lead to such an action, suit or
proceeding.
The Corporation shall have power to 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 Section 145 of the DGCL.
ELEVENTH: A director of the Corporation shall 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
directors duty of loyalty to the Corporation or its stockholders, (ii) or acts
or omissions not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper benefit. Any repeal or
amendment of this Article Eleventh by the stockholders of the Corporation shall
be prospective only, and shall not adversely affect any limitation on the
personal liability of a director of the Corporation arising from an act or
omission occurring prior to the time of such repeal or amendment. In addition to
the circumstances in which a director of the Corporation is not personally
liable as set forth in the foregoing provisions of this Article Eleventh, a
director shall not be liable to the Corporation or its stockholders to such
further extent as permitted by any law hereafter enacted, including, without
limitation, any subsequent amendment to the DGCL.
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TWELFTH: Cumulative voting with respect to the election of directors is
expressly prohibited.
THIRTEENTH: The Corporation expressly elects not to be governed by
Section 203 of the DGCL.
I, the undersigned, for the purpose of forming the Corporation under
the laws of the State of Delaware, do make, file and record this Certificate of
incorporation and do certify that this is my act and deed and that the facts
stated herein are true and, accordingly, I do hereunto set my hand on this 29th
day of March, 1999.
/s/ Klara A. Albaral
---------------------------
Klara A. Albaral
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STATE OF DELAWARE
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION
FIRST: That pursuant to the provisions of Section 141(f) of the
Delaware General Corporation Law (the "Act") the Board of Directors of PB
Acquisition Corp. duly adopted resolutions setting forth proposed amendments of
the Certificate of Incorporation, of said corporation, declaring said amendments
to be advisable. The resolutions setting forth the proposed amendments are as
follows:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by changing the Article FIRST thereof so that, as amended, said Article
shall be and read as follows:
FIRST: The name of this corporation is TTTTickets Holding Corp.
RESOLVED, that the Certificate of Incorporation of this Corporation be
amended by changing the Article FOURTH so that, as amended, said Article shall
be and read as follows:
FOURTH: The Corporation shall have authority to issue two classes of
shares to be designated respectively, "Common Stock" and "Preferred Stock." The
total number of shares which the Corporation is authorized to issue is Fifty
Million (50,000,000) shares, of which Forty Million (40,000,000) shall be Common
Stock and Ten Million (10,000,000) shall be Preferred Stock. Each share of
Common Stock shall have a par value of $0.001, and each share of Preferred Stock
shall have a par value of $0.001. Upon the amendment of this Article, every
issued and outstanding share of Common Stock $0.001 par value per share ("Old
Common Stock"), shall be automatically and without any action on the part of the
Stockholders converted into and reconstituted as two (2) shares of Common Stock
$0.001 par value per share ("New Common Stock"), subject to the treatment of
fractional interests as described below. Each holder of a certificate or
certificates which immediately prior to the Amendment of the Certificate of
Incorporation becoming effective, pursuant to the Delaware General Corporation
Law (the "Effective Date"), represented outstanding shares of Old Common Stock
shall be entitled to receive a certificate for the number of shares of New
Common Stock they own by presenting their old certificate(s) to the
Corporation's transfer agent for cancellation and exchange.
No scrip or fractional certificates will be issued. In lieu of
fractional shares, the Corporation will issue one additional share of New Common
Stock. The ownership of a fractional interest will not give the holder thereof
any voting, dividend or other rights except the right to receive payment
therefore as described herein.
The Preferred Stock authorized by this Certificate of Incorporation may
be issued from time to time in one or more series, each of which shall have such
designation(s) or title(s) as may be fixed by the Board of Directors prior to
the issuance of any shares thereof. The Board of Directors is hereby authorized
to fix or alter the dividend rates, conversion rights, rights and terms of
redemption, including sinking fund provisions, the redemption price or prices,
voting rights and 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. The rights, powers, preferences,
limitations and restrictions, if any, accompanying such shares of Preferred
Stock shall be set forth by resolution of the Board of Directors providing for
the issue thereof prior to the issuance of any shares thereof, in accordance
with the applicable provisions of the Act. Each share of any series of Preferred
Stock shall be identical with all other shares of such series, except as to the
date which dividends, if any, shall accrue.
SECOND: That thereafter, pursuant to resolution of the Board of
Directors, a special meeting of the stockholders was duly called and held upon
notice in accordance with Section 222 of the Act at which meeting the necessary
number of shares as required by statute were voted in favor of the amendments.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the Act.
FOURTH: That the capital of said corporation, shall not be reduced
under or by reason of said amendment.
By: ______________________
Cecil McGough
President
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