CERTIFICATE OF INCORPORATION
OF
INFOACTIV, INC.
Pursuant to the provisions of Section 102 of the General Corporation Law
of the State of Delaware, the undersigned hereby certifies as follows:
FIRST: The name of the corporation is InfoActiv, Inc. (the "Corporation").
SECOND: The address of the Corporation's registered office in the State of
Delaware is 9 East Loockerman Street, City of Dover, County of Kent, 19901, and
its registered agent at such address is National Registered Agents, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activities for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is fifty three million (53,000,000) which shall consist
of (i) fifty million (50,000,000) shares of common stock, $.001 par value per
share (the "Common Stock"), and (ii) three million (3,000,000) shares of
preferred stock, $.001 par value per share (the "Preferred Stock").
PART A
COMMON STOCK
1. Each share of Common Stock issued and outstanding shall be identical in
all respects one with the other, and no dividends shall be paid on any shares of
Common Stock unless the same dividend is paid on all shares of Common Stock
outstanding at the time of such payment.
2. Except for and subject to those rights expressly granted to the holders
of the Preferred Stock, or except as may be provided by the General Corporation
Law of the State of Delaware, the holders of Common Stock shall have exclusively
all other rights of stockholders including, but not by way of limitation, (i)
the right to receive dividends, when, as and if declared by the Board of
Directors out of assets lawfully available therefor, and (ii) in the event of
any distribution of assets upon liquidation, dissolution or winding up of the
Corporation or otherwise, the right to receive ratably and equally all the
assets and funds of the Corporation remaining after payment to the holders of
the Preferred Stock of the specific amounts which they are entitled to receive
upon such liquidation, dissolution or winding up of the Corporation as herein
provided.
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3. Each holder of shares of Common Stock shall be entitled to one vote for
each share of such Common Stock held by such holder, and voting power with
respect to all classes of securities of the Corporation shall be vested solely
in the Common Stock, other than as specifically provided in the Corporation's
Certificate of Incorporation, as it may be amended, or any resolutions adopted
by the Board of Directors pursuant thereto, with respect to the Preferred Stock.
PART B
PREFERRED STOCK
Authority is hereby vested in the Board of Directors of the Corporation to
provide for the issuance of Preferred Stock and in connection therewith to fix
by resolution providing for the issue of such series, the number of shares to be
included and such of the preferences and relative participating, optional or
other special rights and limitations of such series, including, without
limitation, rights of redemption or conversion into Common Stock, to the fullest
extent now or hereafter permitted by the General Corporation Law of the State of
Delaware.
Without limiting the generality of the foregoing paragraph, the authority
of the Board of Directors with respect to each series of Preferred Stock shall
include, without limitation, the determination of any of the following matters:
B. the number of shares constituting such series and the designation
thereof to distinguish the shares of such series from the shares of all
other series;
C. the rights of holders of shares of such series to receive
dividends thereon and the dividend rates, the conditions and time of
payment of dividends, the extent to which dividends are payable in
preference to, or in any other relation to, dividends payable on any other
class or series of stock, and whether such dividends shall be cumulative
or noncumulative;
D. the terms and provisions governing the redemption of shares of
such series, if such shares are to be redeemable;
E. the terms and provisions governing the operation of retirement or
sinking funds, if any;
F. the voting power of such series, whether full, limited or none;
G. the rights of holders of shares of such series upon the
liquidation, dissolution or winding up of, or upon distribution of the
assets of, the Corporation;
H. the rights, if any, of holders of shares of such series to
convert such shares into, or to exchange such shares for, any other class
of stock, or of any series thereof, and the prices or rates for such
conversions or exchanges, and any adjustments thereto; and
I. any other preferences and relative, participating, optional or
other special rights, qualifications, limitations or restrictions of such
series.
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The shares of each series of Preferred Stock may vary from the shares of
any other series of Preferred Stock as to any of such matters.
FIFTH: No owner or holder of a security of the Corporation shall be
entitled as a matter of right to purchase or receive any security of the
Corporation now or hereafter authorized except as and to the extent that the
Board of Directors in its absolute discretion may determine. Any security of the
Corporation may be disposed of by the Corporation to such persons and upon such
terms as may be specified by the Board of Directors or as may be specified
pursuant to authority granted by the Board of Directors. The word "security"
means a share of any class, any evidence of indebtedness, any right to purchase
or receive any such share or evidence of indebtedness or any instrument
convertible into or containing a right to purchase or receive any such share or
evidence of indebtedness, or, without limiting the generality of the foregoing,
any instrument commonly known at the time as a "security".
SIXTH: In furtherance and not in limitation of the power conferred by
statute, the Board of Directors is expressly authorized to make, alter, amend or
repeal the By-Laws of the Corporation, provided that any By-Laws made, altered,
amended or repealed by the Board of Directors may be altered, amended or
repealed, and any By-Laws may be made, by the stockholders of the Corporation.
SEVENTH: A director of the Corporation shall not in the absence of fraud
be disqualified by his office from dealing or contracting with the Corporation
either as a vendor, purchaser or otherwise nor in the absence of fraud shall a
director of the Corporation be liable to account to the Corporation for any
profit realized by him from or through any transaction or contract of the
Corporation by reason of the fact that he, or any firm of which he is a member
or any corporation of which he is an officer, director or stockholder, was
interested in such transaction or contract if such transaction or contract has
been authorized, approved or ratified in the manner provided in the General
Corporation Law of Delaware for authorization, approval or ratification of
transactions or contracts between the Corporation and one or more of its
directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest.
EIGHTH: 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 ss.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 ss.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.
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NINTH: The Corporation shall, to the fullest extent permitted by Section
145 of the Delaware General Corporation Law, as amended from time to time and
supplemented, indemnify any and all persons whom it shall have power to
indemnify under said section from and against any and all of the expense,
liabilities, or other matters referred to in or covered by said sections, and
the indemnification provided for herein shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under any By-Law,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his or her official capacity and as to acts in another capacity
while holding such office, and shall 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.
TENTH: The directors 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 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
any improper personal benefit. Any repeal or modification of the foregoing
sentence by the stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification with respect to acts or omissions occurring prior to
such repeal or modification.
ELEVENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF, the undersigned has subscribed this document on the
date set forth below and does hereby affirm, under the penalties of perjury,
that the statements contained therein have been examined by the undersigned and
are true and correct.
Date: November 27, 2000
INFOACTIV, INC.
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Name: Marc G. Rosenberg
Title: Sole Incorporator
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