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EXHIBIT 2(a)
CERTIFICATE OF INCORPORATION
OF
UNITED NETWORK MARKETING SERVICES, INC.
FIRST: The name of the Corporation is: UNITED NETWORK MARKETING
SERVICES, INC.
SECOND: The address of the Corporation's registered office in the State
of Delaware is 1013 Centre Road, in the City of Wilmington, County of New
Castle, 19805-1297. The name of 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 a corporation may be organized under the laws of the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares of capital stock which the
Corporation shall have authority to issue is twenty one million (21,000,000)
shares, of which twenty million (20,000,000) shares shall be Common Stock, par
value $.001 per share, and one million (1,000,000) shares shall be Preferred
Stock, par value $.001 per share.
The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors of the Corporation is
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hereby expressly authorized to provide, by resolution or resolutions duly
adopted by it prior to issuance, for the creation of each such series and to
fix the designation and the powers, preferences, rights, qualifications,
limitations and restrictions relating to the shares of each such series. The
authority of the Board of Directors with respect to each series of Preferred
Stock shall include, but not be limited to, determining the following:
(a) the designation of such series, the number of shares to
constitute such series and the stated value if different from the par
value thereof;
(b) whether the shares of such series shall have voting
rights, in addition to any voting rights provided by law, and, if so,
the terms of such voting rights, which may be general or limited;
(c) the dividends, if any, payable on such series, whether any
such dividends shall be cumulative, and, if so, from what dates, the
conditions and dates upon which such dividends shall be payable, and
the preference or relation which such dividends shall bear to the
dividends payable on any shares of stock of any other class or any
other series of Preferred Stock;
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(d) whether the shares of such series shall be subject to
redemption by the Corporation, and, if so, the times, prices and other
conditions of such redemption;
(e) the amount or amounts payable upon shares of such series
upon, and the rights of the holders of such series in, the voluntary or
involuntary liquidation, dissolution or winding up, or upon any
distribution of the assets, of the Corporation;
(f) whether the shares of such series shall be subject to the
operation of a retirement or sinking fund and, if so, the extent to and
manner in which any such retirement or sinking fund shall be applied to
the purchase or redemption of the shares of such series for retirement
or other corporate purposes and the terms and provisions relating to
the operation thereof;
(g) whether the shares of such series shall be convertible
into, or exchangeable for, shares of stock of any other class or any
other series of Preferred Stock or any other securities and, if so, the
price or prices or the rate or rates of conversion or exchange and the
method, if any, of adjusting the same, and any other terms and
conditions of conversion or exchange;
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(h) the limitations and restrictions, if any, to be effective
while any shares of such series are outstanding upon the payment of
dividends or the making of other distributions on, and upon the
purchase, redemption or other acquisition by the Corporation of, the
Common Stock or shares of stock or any other class or any other series
of Preferred Stock;
(i) the conditions or restrictions, if any, upon the creation
of indebtedness of the Corporation or upon the issue of any additional
stock, including additional shares of such series or of any other
series of Preferred Stock or of any other class; and
(j) any other powers, preferences and relative, participating,
optional and other special rights, and any qualifications, limitations
and restrictions, thereof.
The powers, preferences and relative, participating, optional and other
special rights of each series of Preferred Stock, and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any and
all other series at any time outstanding. All shares of any one series of
Preferred Stock shall be identical in all respects with all other shares of such
series, except that shares of any one series
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issued at different times may differ as to the dates from which dividends
thereof shall be cumulative.
FIFTH: The name and address of the sole incorporator is as follows:
NAME ADDRESS
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Ralph D. Mosley, Jr. 405 Lexington Avenue
New York, New York 10174
SIXTH: Unless required by law or determined by the chairman of the
meeting to be advisable, the vote by stockholders on any matter, including the
election of directors, need not be by written ballot.
SEVENTH: The Corporation reserves the right to increase or decrease its
authorized capital stock, or any class or series thereof, and to reclassify the
same, and to amend, alter, change or repeal any provision contained in the
Certificate of Incorporation under which the Corporation is organized or in any
amendment thereto, in the manner now or hereafter prescribed by law, and all
rights conferred upon stockholders in said Certificate of Incorporation or any
amendment thereto are granted subject to the aforementioned reservation.
EIGHTH: The Board of Directors shall have the power at any time, and
from time to time, to adopt, amend and repeal any and all By-laws of the
Corporation.
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NINTH: 1. Indemnification
The Corporation shall, and does hereby, indemnify to the fullest extent
permitted or authorized by the Delaware General Corporation Law or judicial or
administrative decisions, as the same exists or may hereafter be amended or
interpreted differently in the future (but, in the case of any such amendment or
interpretation, only to the extent that such amendment or interpretation permits
the Corporation to provide broader indemnification rights than permitted prior
thereto), each person (including the current and future heirs, beneficiaries,
personal representatives and estate of such person) who was or is a party, or is
threatened to be made a party, or was or is a witness, to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding") and whether the basis of such
Proceeding is an allegation of an action in an official capacity of such person
related to the Corporation or any other capacity while such person is serving as
an officer, director, employee or agent of the Corporation, against any
liability (which for purposes of this Article shall include any judgment,
settlement, penalty or fine) or cost, charge or expense (including attorneys'
fees) asserted against him or incurred by him by reason of the fact
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that such indemnified person (1) is or was a director, officer or employee of
the Corporation or (2) is or was an agent of the Corporation as to whom the
Corporation, by action of its Board of Directors, has agreed to grant such
indemnity or (3) is or was serving, at the request of the Corporation, as a
director, officer or employee of another corporation, partnership, joint
venture, trust or other enterprise (including serving as a fiduciary of any
employee benefit plan) or (4) is or was serving as an agent of such other
corporation, partnership, joint venture, trust or other enterprise described in
clause (3) hereof as to whom the Corporation, by action of its Board of
Directors, has agreed to grant such indemnity. Each director, officer, employee
or agent of the Corporation to whom indemnification rights under this Section 1
of this Article have been granted shall be referred to as an "Indemnified
Person."
Notwithstanding the foregoing, except as specified in Section
3 of this Article, the Corporation shall not be required to indemnify an
Indemnified Person in connection with a Proceeding (or any part thereof)
initiated by such Indemnified Person unless such authorization for such
Proceeding (or any part thereof) was not denied by the Board of Directors of the
Corporation prior to sixty (60) days after receipt of notice
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thereof from such Indemnified Person stating his intent to initiate such
Proceeding and only upon such terms and conditions as the Board of Directors may
deem appropriate.
2. Advance of Costs, Charges and Expenses
Costs, charges and expenses (including attorneys' fees) incurred by an
officer, director, employee or agent who is an Indemnified Person in defending a
Proceeding shall be paid by the Corporation to the fullest extent permitted or
authorized by the Delaware General Corporation Law or judicial or administrative
decisions, as the same exists or may hereafter be amended or interpreted
differently in the future (but, in the case of any such future amendment or
interpretation, only to the extent that such amendment or interpretation permits
the Corporation to provide broader rights to advance costs, charges and expenses
than permitted prior thereto), in advance of the final disposition of such
Proceeding, upon receipt of an undertaking by or on behalf of the Indemnified
Person to repay all amounts so advanced in the event that it shall ultimately be
determined by final judicial decision that such person is not entitled to be
indemnified by the Corporation as authorized in this Article and upon such other
terms and conditions, in the case of an agent as to whom the Corporation has
agreed to grant
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such indemnity, as the Board of Directors may deem appropriate. The Corporation
may, upon approval of the Indemnified Person, authorize the Corporation's
counsel to represent such person in any Proceeding, whether or not the
Corporation is a party to such Proceeding. Such authorization may be made by the
Board of Directors by majority vote, including directors who are parties to such
Proceeding. 3. Procedure for Indemnification
Any indemnification or advance under this Article shall be made
promptly and in any event within sixty (60) days upon the written request of the
Indemnified Person (except in the case of a claim for an advancement of costs,
charges or expenses, in which case the applicable period shall be twenty (20)
days). The right to indemnification or advances as granted by this Article shall
be enforceable by the Indemnified Person in any court of competent jurisdiction
if the Corporation denies such request under this Article, in whole or in part,
or if no disposition thereof is made within sixty (60) days or twenty (20) days,
as may be applicable. Such Indemnified Person's costs and expenses incurred in
connection with successfully establishing his right to indemnification or
advancement of costs, charges or expenses, in whole or in part, in any such
action shall also be
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indemnified by the Corporation. It shall be a defense to any such action that
the claimant has not met the standard of conduct, if any, required by the
Delaware General Corporation Law or judicial or administrative decisions, as the
same exists or may hereafter be amended or interpreted differently in the future
(but, in the case of any such future amendment or interpretation, only to the
extent that such amendment or interpretation does not impose a more stringent
standard of conduct than permitted prior thereto), but the burden or proving
such defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors or any committee thereof, its independent
legal counsel, and its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant or advancement
for the claimant is proper in the circumstances because he has met the
applicable standard of conduct, if any, nor the fact that there has been an
actual determination by the Corporation (including its Board of Directors or any
committee thereof, its independent legal counsel, or its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
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4. Non-Exclusivity; Survival of Indemnification
The indemnification and advancement provided by this Article shall not
be deemed exclusive of any other rights to which those Indemnified Persons may
be entitled under any agreement, vote of stockholders or disinterested directors
or recommendation of counsel or otherwise, both as to actions in such person's
official capacity and as to actions in any other capacity while holding such
office or position, and shall continue as to an Indemnified Person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, beneficiaries, personal representatives and the estate of
such person. All rights to indemnification and advancement under this Article
shall be deemed to be a contract between the Corporation and each Indemnified
Person who serves or served in such capacity at any time while this Article is
in effect. Any repeal or modification of this Article or any repeal or
modification of relevant provisions of the Delaware General Corporation Law or
any other applicable laws shall not in any way diminish any rights to
indemnification of such Indemnified Person, or the obligations of the
Corporation arising hereunder, for claims relating to matters occurring prior to
such repeal or modification.
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5. Insurance
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 as the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise (including serving as a fiduciary of an employee benefit plan)
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 this Article or the applicable provisions of the Delaware General
Corporation Law.
6. Savings Clause
If this Article or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify and advance costs to each Indemnified Person as to
costs, charges and expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any Proceeding, including an
action by or in the right of the Corporation, to the full extent permitted by
any applicable portion of this Article
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that shall not have been invalidated and as permitted by the Delaware General
Corporation Law.
TENTH: No director of the Corporation shall be personally liable to the
Corporation or its stockholders for any monetary damages for breaches of
fiduciary duty as a director, provided that this provision shall not eliminate
or limit the liability of a director (i) for any breach of the director's duty
of loyalty 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. No repeal or amendment of this Article shall
adversely affect any rights of any person pursuant to this Article TENTH which
existed at the time of such repeal or amendment with respect to acts or
omissions occurring prior to such repeal or amendment.
The undersigned incorporator hereby affirms that the
statements made herein are true under penalties of perjury, and is hereby
executing this Certificate of Incorporation this 15th day of September, 1998.
/s/ Ralph D. Mosley, Jr. (L.S.)
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Ralph D. Mosley, Jr.
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