CERTIFICATE OF INCORPORATION
OF
DARBY ACQUISITION CORPORATION
The undersigned, in order to form a corporation for the purposes
hereinafter stated, under and pursuant to the General Corporation Law of the
State of Delaware, does hereby certify as follows:
FIRST: The name of the corporation (hereinafter referred to as the
"corporation") is Darby Acquisition Corporation.
SECOND: The registered office of the corporation in the State of Delaware
is to be located at 2711 Centreville Road, Wilmington, Delaware, County of New
Castle. The name of the corporation's 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 corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is Ten Million (10,000,000) shares of common stock and
One Hundred Thousand (100,000) shares of preferred stock. The par value of each
of such shares is $.001.
FIFTH: The name and mailing address of the incorporator are as follows:
NAME MAILING ADDRESS
Leslie M. Apple Whiteman Osterman & Hanna
One Commerce Plaza
Albany, New York 12260
SIXTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the corporation, and for further
definition, limitation and regulation of the powers of the corporation and of
its directors and stockholders:
(1) The number of directors of the corporation shall be such as from
time to time shall be fixed by, or in the manner provided in, the by-laws.
Election of directors need not be by written ballot.
(2) The Board of Directors of the corporation shall have the power to
adopt, amend or repeal the by-laws of the corporation; provided, however,
that the fact that such power has been conferred upon the Board of
Directors shall not divest the corporation's stockholders of the power, nor
limit their power to adopt, amend or repeal the by-laws of the corporation.
(3) In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered
to exercise all such powers and
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do all such acts and things as may be exercised or done by the corporation;
subject, nevertheless, to the provisions of the statutes of Delaware, of this
certificate, and to any by-laws from time to time made by the stockholders;
provided, however, that no by-laws so made shall invalidate any prior act of the
directors which would have been valid if such by-laws had not been made.
(4) Special meetings of stockholders of the Corporation may be called
only by the Board of Directors pursuant to a resolution adopted by a
majority of the Whole Board or as otherwise provided in the by-laws. The
term "Whole Board" shall mean the total number of authorized directorships
(whether or not there exist any vacancies in previously authorized
directorships at the time any such resolution is presented to the Board for
adoption).
SEVENTH: The corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as the same may be
amended 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 expenses,
liabilities, or other matters referred to in or covered by said section, 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 official capacity and as to action 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.
EIGHTH: The personal liability of the directors of the corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of subsection
(b) of Section 102 of the General Corporation Law of the State of Delaware, as
the same may be amended and supplemented.
NINTH: 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.
TENTH: From time to time any of the provisions of this certificate of
incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by
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said laws, and all rights and powers at any time conferred herein on
stockholders, directors and officers are subject to the provisions of this
Article TENTH.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 17th day of
October, 2000.
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Leslie M. Apple
Incorporator
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