EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
WIN OR LOSE ACQUISITION CORPORATION
FIRST: The name of the Corporation is Win or Lose Acquisition Corporation
SECOND: The registered office of the Corporation in the State of Delaware
is located at 919 North Market Street, Suite 600, Wilmington, New Castle County,
Delaware 19801 and its registered agent is SR Services, LLC.
THIRD: The purpose of the Corporation and the nature and objects of the
business to be transacted, promoted, and carried on are to:
(a) augment the capital contributions of its' founding stockholders
with the proceeds of a proposed "blank check offering" of common
stock that will be registered under the Securities Act of 1933 and
conducted in compliance with Securities and Exchange Commission
Rule 419 promulgated thereunder;
(b) deposit 90% of the net proceeds of its blank check offering in a
segregated escrow account pending compliance with the technical
requirements of Rule 419;
(c) use 10% of the net proceeds of its blank check offering, together
with the capital contributions of its founding stockholders, to
search for, investigate and negotiate a business combination
transaction with another company that has both business history
and operating assets;
(d) comply with the technical requirements of Rule 419, complete its
proposed business combination transaction and, thereafter, engage
in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware; and
(e) liquidate and dissolve itself in the event that it is unable to
complete an offering of securities and complete a suitable
business combination within the time limits hereinafter set forth.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is Thirty Million (30,000,000) shares which shall be
subdivided into classes as follows:
(a) Twenty-five Million (25,000,000) shares of the Corporation's
capital stock shall be denominated as Common Stock, have a par
value of $0.001 per share, and have the rights, powers and
preferences generally accorded to common stockholders under the
General Corporation Law of Delaware.
(b) Five Million (5,000,000) shares of the Corporation's authorized
capital stock shall be denominated as Preferred Stock, par value
of $0.001 per share. Shares of Preferred Stock may be issued from
time to time in one or more series as the Board of Directors, by
resolution or resolutions, may from time to time determine, each
of said series to be distinctively designated. The voting powers,
preferences and relative, participating, optional and other
special rights, and the qualifications, limitations or
restrictions thereof, if any, of each such series of Preferred
Stock may differ from those of any and all other series of
Preferred Stock at any time outstanding, and the Board of
Directors is expressly granted authority to fix or alter, by
resolution or resolutions, the designation, number, voting powers,
preferences and relative, participating, optional and other
special rights, and the qualifications, limitations and
restrictions thereof, of each such series of Preferred Stock.
FIFTH: No holder of shares of the Corporation of any class or series
shall have any preemptive right to subscribe for, purchase, or receive any
shares of the Corporation of any class or series now or hereafter authorized, or
any options or warrants for such shares, or any securities convertible into or
exchangeable for such shares, which may at any time be issued, sold, or offered
for sale by the Corporation. Cumulative voting by the stockholders of the
Corporation at any election of directors of the Corporation is hereby
prohibited.
SIXTH: All of the powers of this Corporation, insofar as the same may be
lawfully vested by this Certificate of Incorporation in the Board of Directors,
are hereby conferred upon the Board of Directors of this Corporation. In
furtherance and not in limitation of that power the Board of Directors shall
have the power to make, adopt, alter, amend and repeal from time to time by-laws
of this Corporation, subject to the right of the shareholders entitled to vote
with respect thereto to adopt, alter, amend and repeal by-laws made by the Board
of Directors.
SEVENTH: The number of directors constituting the entire board shall be
as set forth in or determined pursuant to the Bylaws of the Corporation.
EIGHTH: The election of directors need not be by written ballot.
NINTH: If (a) the corporation registers its securities for sale pursuant
to the Securities Act of 1933 (b) the corporation's registration statement
relates to an offering that will be subject to the requirements of Securities
and Exchange Commission Rule 419, (c) the corporation's offering of securities
is successfully completed in accordance with the terms of its registration
statement, and (x) the corporation is unable to negotiate a suitable acquisition
agreement within 15 months after the date when its registration statement
becomes effective under the Securities Act of 1933, or (y) the corporation is
unable to close a suitable business combination within 17 months after the date
when its registration statement becomes effective under the Securities Act of
1933, then notwithstanding any other provision of this Certificate of
Incorporation, the Board of Directors shall promptly take any and all action
that may be necessary or desirable to pay the debts of the corporation,
distribute its remaining assets, if any, to the beneficial owners of its
outstanding common stock in the ratio of their respective ownership interests,
and dissolve the corporation in accordance with the requirements of Delaware
law. To the extent that any shares of common stock are held in escrow for the
benefit of persons who purchased shares of common stock in an offering subject
to the requirements of Rule 419, then the liquidating distribution shall be paid
to the escrow agent and accompanied by written instructions to distribute such
proceeds to the beneficial owners thereof upon termination of such escrow.
TENTH: 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 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 provision 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 a 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 a 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.
ELEVENTH: To the fullest extent permitted by law, the Corporation shall
have the power to indemnify any person 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 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), liability, loss, judgment, 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 reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceedings, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, upon a plea of nolo
contendere or equivalent, shall not, of itself, create a presumption that the
person 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
of any criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
Such indemnity shall inure to the benefit of the heirs, executors and
administrators of any such person so indemnified pursuant to this Article. The
right to indemnification under this Article shall be a contract right and shall
include, with respect to directors and officers, the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its disposition; provided however, that, if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a director or officer in
advance of the final disposition of a proceeding shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such director
or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Article or otherwise. The Corporation may, by action of its board of
directors, pay such expenses incurred by employees and agents of the Corporation
upon such terms as the board of directors deems appropriate. Such
indemnification and advancement of expenses shall be in addition to any other
rights to which those seeking indemnification and advancement of expenses may be
entitled under any law, Bylaw, agreement, vote of stockholders, or otherwise.
The Corporation may, to the fullest extent permitted by applicable law,
at any time without further stockholder approval, 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
such person and incurred by such person in any such capacity, or arising out of
such person's status as such, whether or not the Corporation would have the
power to indemnify such person against such liability under applicable law.
Any repeal or amendment of this Article by the stockholders of the
Corporation or by changes in applicable law shall, to the extent permitted by
applicable law, be prospective only, and shall not adversely affect any right to
indemnification or advancement of expenses of a director or officer of the
Corporation existing at the time of such repeal or amendment. In addition to the
foregoing, the right to indemnification and advancement of expenses shall be to
the fullest extent permitted by the General Corporation Law of the State of
Delaware or any other applicable law and all amendments to such laws as
hereafter enacted from time to time.
TWELFTH: No director of the Corporation shall have any personal liability
to the Corporation or to any of its stockholders for monetary damages for breach
of fiduciary duty as a director; provided, however, that this provision
eliminating such personal liability of a director shall not eliminate or limit
the liability of a director (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 ss.174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
Delaware General Corporation Law is amended to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law as so amended.
THIRTEENTH: 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 law and all rights conferred on officers,
directors, and stockholders herein are granted subject to this reservation.
FOURTEENTH: The name and address of the incorporator is Judith T. Kaiser,
919 North Market Street, Suite 600, Wilmington, Delaware 19801.
THE UNDERSIGNED INCORPORATOR, for the purposes of forming a Corporation,
in pursuance of an act of the legislature of the State of Delaware entitled "An
Act Providing a General Corporation Law" (approved March 10, 1899) and any acts
amendatory thereof and supplemental thereto, does make and file this Certificate
of Incorporation, hereby declaring and certifying that the facts herein stated
are true and accordingly has hereunto set her hand and seal this 30th day of
November, 2000.
/s/ Judith T. Kaiser
--------------------------------
Judith T. Kaiser
INCORPORATOR
