AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
DOMINIX,INC.
The undersigned, being the sole director of Dominix, Inc., hereby
certifies pursuant to Sections 241 and 245 of the General Corporation Law of the
State of Delaware that:
1. The name of the corporation is Dominix,Inc.
2. The Certificate of Incorporation was filed by the Secretary of State
on June 1, 2000.
3. The Corporation has not received any payment for its stock and no
directors have been named the sole director have been named in the Certificate
of Incorporation of the Corporation. The undersigned was elected the sole
director of the Corporation by the Incorporator on June 1, 2000 and is the sole
director of the Corporation.
4. On June 8, 2000, the sole director (being a majority of the
directors) adopted the following resolutions in writing to amend and restate the
Certificate of Incorporation:
RESOLVED, that pursuant to Sections 241 and 245 of the General
Corporation Law of the State of Delaware, the Corporation's Certificate of
Incorporation be amended and restated to be the following:
ARTICLE I
The name of the corporation is: DOMINIX, INC. (the "Corporation").
ARTICLE II
The purpose for which the Corporation is organized is the transaction
of any or all lawful acts and activities for which corporations may be
incorporated under the General Corporation Law of the State of Delaware.
ARTICLE III
The address, including street, number, city and county of the
registered office of the Corporation in the State of Delaware is 1013 Centre
Road, Wilmington, Delaware 19805, County of New Castle and the name of the
registered agent of the corporation in the State of Delaware at such address is
The Company Corporation.
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ARTICLE IV
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is Twenty Five Million (25,000,000)
shares of which Five Million (5,000,000) shares shall be Preferred Stock, par
value $.001 per share, and Twenty Million (20,000,000) shall be Common Stock,
par value $.001 per share. The voting power, designations, preferences and
relative participating option or other special qualifications, limitations or
restrictions are set forth hereinafter:
1. Preferred Stock
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(a) The Preferred Stock may be issued in one or more series,
each of which shall be distinctively designated, shall rank
equally and shall be identical in all respects except as
otherwise provided in subarticle 1(b) of this Article FOURTH.
(b) Authority is hereby vested in the Board of Directors to
issue from time to time the Preferred Stock of any series and
to state in the resolution or resolutions providing for the
issuance of shares of any series the voting powers, if any,
designations, preferences and relative, participating,
optional or other special rights, and the qualifications,
limitations or restrictions of such series to the full extent
now or hereafter permitted by the law of the State of Delaware
in respect of the matters set forth in the following clauses
(i) to (viii) inclusive;
(i) the number of shares to constitute such series, and the
distinctive designations thereof;
(ii) the voting powers, full or limited, if any, of such
series;
(iii) the rate of dividends payable on shares of such series,
the conditions on which and the times when such dividends are
payable, the preference to, or the relation to, the payment of
the dividends payable on any other class, classes or series of
stock, whether cumulative or non-cumulative and, if
cumulative, the date from which dividends on shares of such
series shall be cumulative;
(iv) the redemption price or prices, if any, and the terms and
conditions on which shares of such series shall be redeemable;
(v) the requirement of any sinking fund or funds to be applied
to the purchase or redemption of shares of such series and, if
so, the amount of such fund or funds and the manner of
application;
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(vi) the rights of shares of such series upon the liquidation,
dissolution or winding up of, or upon any distribution of the
assets of, the Corporation;
(vii) the rights, if any, of the holders of shares of such
series to convert such shares into, or to exchange such shares
for, shares of any other class, classes or series of stock and
the price or prices or the rates of exchange and the
adjustments at which such shares shall be convertible or
exchangeable, and any other terms and conditions of such
conversion or exchange;
(viii) any other preferences and relative, participating,
optional or other special rights of shares of such series, and
qualifications, limitations or restrictions including, without
limitation, any restriction on an increase in the number of
shares of any series theretofore authorized and any
qualifications, limitations or restrictions of rights or
powers to which shares of any future series shall be subject.
(c) The number of authorized shares of Preferred Stock may be
increased or decreased by the affirmative vote of the holders
of a majority of the votes of all classes of voting securities
of the Corporation without a class vote of the Preferred
Stock, or any series thereof, except as otherwise provided in
the resolution or resolutions fixing the voting rights of any
series of the Preferred Stock.
2. Common Stock
------------
(a) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of Paragraph 1 of this Article FOURTH), if any,
shall have been met and after the corporation shall have
complied with all the requirements, if any, with respect to
the setting aside of same as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of
Paragraph 1 of this Article FOURTH), and subject further to
any other conditions which may be fixed in accordance with the
provisions of Paragraph 1 of this Article FOURTH, then and not
otherwise the holders of Common Stock shall be entitled to
receive such dividends as may be declared from time to time by
the Board of Directors.
(b) After distribution in full of the preferential amount
(fixed in accordance with the Provisions of Paragraph 1 of
this Article FOURTH), if any, to be distributed to the holders
of Preferred Stock in the event of the voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up of the Corporation, the holders of
Common Stock shall, subject to the rights, if any, of the
holders of Preferred Stock to participate therein (fixed in
accordance with the provisions of Paragraph 1 of this Article
FOURTH) be entitled to receive all the remaining assets of the
Corporation,
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tangible and intangible, of whatever kind available for
distribution to stockholders ratably in proportion to the
number of shares of Common Stock held by them respectively.
(c) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted
by the Board of Directors pursuant to Paragraph 1 of this
Article FOURTH, each holder of Common Stock shall have one
vote in respect of each share of Common Stock held by him on
all matters voted upon by the stockholders.
3. OTHER PROVISIONS RELATED TO SHARES OF STOCK:
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(a) No holder of any of the shares of any class or series of
stock or of options, warrants or other rights to purchase
shares of any class or series of stock or of other securities
of the Corporation shall have any preemptive right to purchase
or subscribe for any unissued stock of any class or series or
any additional shares of any class or series to be issued by
reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into
or exchangeable for stock of the Corporation of any class or
series, or carrying any right to purchase stock of any class
or series, but such unissued stock, additional authorized
issue of shares of any class or series of stock or securities
convertible into or exchangeable for stock, or carrying any
right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such
persons, firms, corporations or associations, whether such
holders or others, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its
sole discretion.
(b) The powers and rights of Common Stock shall be
subordinated to the powers, preferences and rights of the
holders of Preferred Stock. The relative powers, preferences
and rights of each series of Preferred Stock in relation to
the powers, preferences and rights of each other series of
Preferred Stock shall, in each case, be as fixed from time to
time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in Paragraph
I of this Article 4 and the consent, by Class or series, vote
or otherwise, of the holders of such of the series of are from
time to time outstanding Preferred Stock as for the issuance
by the Board of shall not be required Directors of any other
series of rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the
powers, preferences and rights of such outstanding series, or
any of them; provided, however, that the Board of Directors
may provide in the resolution or resolutions as to any series
of Preferred Stock adopted pursuant to Paragraph 1 of this
Article FOURTH that the consent of the holders of a majority
(or such greater proportion as shall be therein fixed) of the
outstanding shares of
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such series voting thereon shall be required for the issuance
of any or all other series of Preferred Stock.
(c) subject to the provisions of subparagraph (b) of this
Paragraph 3 of this Article FOURTH, shares of any series of
Preferred Stock may be authorized or issued from time to time
as the Board of Directors in its sole discretion shall
determine and on such terms and for such consideration as
shall be fixed by the Board of Directors in its sole
discretion.
(d) Shares of Common stock may be issued from time to time as
the Board of Directors in its sole discretion shall determine
and on such terms and for such consideration as shall be fixed
by the board of Directors in its sole discretion.
(e) The authorized number of shares of Common Stock and of
Preferred Stock Preferred Stock may be increased or decreased
from time to time by the affirmative vote of the holders of a
majority of the outstanding shares of Common Stock and
Preferred Stock of the corporation entitled to vote thereon.
ARTICLE V
The name and mailing address of the incorporator is as follows:
David B. Clarke
The Company Corporation
1013 Centre Road
Wilmington, Delaware 19805
ARTICLE VI
The corporation is to have perpetual existence.
ARTICLE VII
To the fullest extent permitted by the General Corporation Law of the
State of Delaware, as the same exists or may hereafter be amended, a director of
the Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. Any repeal or
amendment of this Article VII 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 limitation on the personal
liability of any director of the Corporation at the time of such repeal or
amendment.
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ARTICLE VIII
The Corporation shall 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, 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 (whether
or not by or in the right of the Corporation), by reason of the fact that such
person 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,
partner, venturer, proprietor, trustee, employee, agent or similar functionary
of another Corporation, partnership, joint venture, sole proprietorship, trust,
nonprofit entity, employee benefit plan or other enterprise, against all
judgments, penalties (including excise and similar taxes), fines, settlements
and expenses (including attorneys' fees and court costs) actually and reasonably
incurred by such person in connection with such action, suit or proceeding to
the fullest extent permitted by any applicable law, and such indemnity shall
inure to the benefit of the heirs, executors and administrators of any such
person so indemnified pursuant to this Article VIII. The right to
indemnification under this Article VIII 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 General Corporation Law of the
State of Delaware 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 VIII 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. The indemnification
and advancement of expenses provided by, or granted pursuant to, this Article
VIII shall not be deemed exclusive of any other right to which those seeking
indemnification may be entitled under any law, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office. Any repeal or amendment of this Article VIII by the stockholders of
the Corporation or by changes in applicable law shall, to the extent permitted
by applicable law, be prospective only, and not adversely affect the
indemnification of any person who may be indemnified at the time of such repeal
or amendment.
ARTICLE IX
No contract or other transaction between the Corporation and any other
corporation and no other acts of the Corporation with relation to any other
corporation shall, in the absence of fraud, in any way be invalidated or
otherwise affected by the fact that any one or more of the directors or officers
of the Corporation are pecuniarily or otherwise interested in, or are directors
or officers of, such other corporation. Any director or officer of the
Corporation individually, or any firm or association of which any director or
officer may be a member, may be a party to, or may be pecuniarily or otherwise
interested in, any contract or transaction of the Corporation, provided that the
fact that such person individually or as a member of such firm or association is
such a party or is so interested shall be disclosed or shall have been known to
the board of directors or a majority of such members thereof as shall be present
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at any meeting of the board of directors at which action upon any such contract
or transaction shall be taken; and any director of the Corporation who is also a
director or officer of such other corporation or who is such a party or so
interested may be counted in determining the existence of a quorum at any
meeting of the board of directors during which any such contract or transaction
shall be authorized and may vote thereat to authorize any such contract or
transaction, with like force and effect as if such person were not such a
director or officer of such other corporation or not so interested. Any director
of the Corporation may vote upon any contract or any other transaction between
the Corporation and any subsidiary or affiliated corporation without regard to
the fact that such person is also a director or officer of such subsidiary or
affiliated corporation.
Any contract, transaction or act of the Corporation or of the directors
that shall be ratified at any annual meeting of the stockholders of the
Corporation, or at any special meeting of the stockholders of the corporation,
or at any special meeting called for such purpose, shall, insofar as permitted
by law, be as valid and as binding as though ratified by every stockholder of
the Corporation; provided, however, that any failure of the stockholders to
approve or ratify any such contract, transaction or act, when and if submitted,
shall not be deemed in any way to invalidate the same or deprive the
Corporation, its directors, officers or employees, of its or their right to
proceed with such contract, transaction or act. Subject to any express agreement
that may from time to time be in effect, any stockholder, director or officer of
the Corporation may carry on and conduct in such person's own right and for such
person's own personal account, or as a partner in any partnership, or as a joint
venturer in any joint venture, or as an officer, director or stockholder of any
corporation, or as a participant in any syndicate, pool, trust or association,
any business that competes with the business of the Corporation and shall be
free in all such capacities to make investments in any kind of property in which
the Corporation may make investments.
ARTICLE X
Election of directors need not be by written ballot. Any director or
the entire board of directors may be removed, with or without cause, by the
holders of a majority of the shares then entitled to vote at an election of
directors, except as otherwise provided by law.
ARTICLE XI
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 of or 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
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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.
ARTICLE XII
The original By-Laws of the Corporation shall be adopted by the
incorporator. Thereafter, the power to make, alter, or repeal the By-Laws, and
to adopt any new By-Law, shall be vested in the Board of Directors.
IN WITNESS WHEREOF, THE UNDERSIGNED, being the sole director of the
Corporation, does hereby execute this Amended and Restated Certificate of
Incorporation, hereby declaring that this is his free act and deed and the facts
herein stated are true, and accordingly have hereunto set my hand this 8th day
of June, 2000.
/s/ Ray Vahab
---------------------------------
Ray Vahab, Sole Director
65 Broadway 5th Floor
New York, New York 10006
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