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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
HQ GLOBAL HOLDINGS, INC.
1. NAME
The name of this corporation is HQ Global Holdings, Inc. (the
"Corporation").
2. REGISTERED OFFICE AND AGENT
The registered office of the Corporation shall be located at Corporation
Trust Center, 1209 Orange Street, Wilmington, Delaware 19801 in the County
of New Castle. The registered agent of the Corporation at such address
shall be The Corporation Trust Company.
3. PURPOSE AND POWERS
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 (the "Delaware General Corporation Law"). The
Corporation shall have all power necessary or helpful to engage in such
acts and activities.
4. CAPITAL STOCK
4.1 AUTHORIZED SHARES
4.1(a) COMMON STOCK. The aggregate number of shares of common stock
which the Corporation shall have the authority to issue is One Hundred Million
(100,000,000) shares of common stock (referred to in this Certificate of
Incorporation as "Common Stock") with a par value of one cent ($0.01) per share.
The Common Stock shall be divided into two classes, as follows: (i) Seventy-Five
Million (75,000,000) shares shall be designated as shares of Voting Common
Stock, and (ii) Twenty-Five Million (25,000,000) shares shall be designated as
shares of nonvoting Class C common stock ("Nonvoting Class C Common Stock").
Except as provided in Sections 4.2 and 4.3 hereof, all shares of Voting Common
Stock and Nonvoting Class C Common Stock shall be identical and shall entitle
the holders thereof to the same rights, powers and privileges.
4.1(b) PREFERRED STOCK. Shares of preferred stock (referred to in this
Certificate of Incorporation as "Preferred Stock") may be issued from time to
time in one or more series. The Board of Directors is hereby authorized to fix
the voting rights, designations, powers, preferences and relative,
participating, option or other rights, if any, and the qualifications,
limitations, or restrictions thereof, of any wholly unissued series of Preferred
Stock; and to fix the number of shares constituting such series, and to increase
or decrease the number of shares of any such series (but not below the number of
shares thereof then outstanding). The total number of shares of Preferred Stock
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authorized shall be Seven Million Eight Hundred Thousand (7,800,000) shares with
a par value of one cent ($0.01) per share.
4.2 VOTING RIGHTS OF COMMON STOCK
Each share of Voting Common Stock shall have one (1) vote on each
matter submitted to a vote of the stockholders of the Corporation. Each share of
Nonvoting Class C Common Stock shall not have any vote on any matters upon which
stockholders of the Corporation may vote except as required by law. The holders
of shares of Nonvoting Class C Common Stock shall be entitled to notification as
to, and to attend, any meeting of the stockholders of the Corporation.
4.3 CONVERSION RIGHTS OF NONVOTING CLASS C COMMON STOCK
4.3(a) CONVERSION. Subject to the provisions of Section 4.3(b) below,
a share of Nonvoting Class C Common Stock shall automatically convert into a
share of Voting Common Stock, on a one-for-one share basis, upon the occurrence
of either of the following events (each, a "Triggering Event"): (a) a transfer
of such share by the holder thereof to another person or entity (other than an
entity in which such holder directly or indirectly owns more than 9.9% of the
voting securities); or (b) January 1, 2001 unless prior to such date Section
856(c)(4)(B)(iii) of the Internal Revenue Code of 1986, as amended by H.R. 1180,
the Work Incentives Improvement Act of 1999, permitting a "real estate
investment trust" to own more than ten percent (10%) of the voting securities of
a "taxable REIT subsidiary," shall have been repealed.
4.3.(b) MECHANICS OF CONVERSION.
(1) Upon the conversion of a share of Nonvoting Class C Common Stock
pursuant to Section 4.3(a) above, the holder of such share of Nonvoting Class C
Common Stock so converted shall surrender the certificate representing such
share, duly endorsed or assigned to the Corporation or in blank, at the office
of the transfer agent of the Corporation at the time of such conversion,
accompanied by evidence satisfactory to the Corporation that a Triggering Event
has occurred. Unless the shares issuable on conversion are to be issued in the
same name as the name in which such shares of Nonvoting Class C Common Stock are
registered, each share surrendered for conversion shall be accompanied by
instruments of transfer, in form satisfactory to the Corporation, duly executed
by the holder or such holder's duly authorized attorney and an amount sufficient
to pay any transfer or similar tax (or evidence reasonably satisfactory to the
Corporation demonstrating that such taxes have been paid).
(2) As promptly as practicable after the surrender of a certificate
for shares of Nonvoting Class C Common Stock as aforesaid, the Corporation shall
issue and shall deliver at such office to such holder, or on his or her written
order, a certificate or certificates for the number of shares of Voting Common
Stock issuable upon the conversion of such shares in accordance with the
provisions of this Section 4.3.
(3) Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the Triggering Event
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shall have occurred, and the person or persons in whose name or names any
certificate or certificates for shares of Voting Common Stock shall be issuable
upon such conversion shall be deemed to have become the holder or holders of
record of the shares represented thereby at such time on such date unless the
stock transfer books of the Corporation shall be closed on that date, in which
event such person or persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding day on which
such share transfer books are open.
4.3.(c) ADJUSTMENT TO CONVERSION RATIO. If the Corporation shall
hereafter (i) pay a dividend in shares of capital stock or make a distribution
on its capital stock in shares of Voting Common Stock, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares, (iii)
combine its outstanding shares of Common Stock into a smaller number of shares,
or (iv) issue by reclassification of its Common Stock any shares of capital
stock of the Corporation, the number shares of Voting Common Stock issuable upon
conversion of the Nonvoting Class C Common Stock immediately before such action
shall be adjusted so that the holder of any shares of Nonvoting Class C Common
Stock would receive, upon conversion of such shares, the number of shares of
Voting Common Stock or other capital stock of the Corporation that the holder
would have owned immediately following such action if its conversion had
occurred prior to such action.
5. PREEMPTIVE AND PREFERENTIAL RIGHTS
No holder of shares of any class of stock authorized or issued
pursuant hereto shall have any preemptive or preferential rights of subscription
to, or purchase of, any shares of any class of stock of this Corporation, either
now or hereafter authorized, or to the obligations convertible into stock of any
class of this Corporation, other than such rights, if any, as the Board of
Directors in its discretion may from time to time determine, and at such prices
as the Board of Directors may from time to time fix pursuant to the authority
conferred by this Certificate of Incorporation.
6. INCORPORATOR; INITIAL DIRECTORS
6.1 INCORPORATOR
The name and mailing address of the incorporator (the "Incorporator")
is Gwen A. Davis, 2100 McKinney Avenue, Suite 1100, Dallas, Texas 75201. The
powers of the Incorporator shall terminate upon the filing of this Certificate
of Incorporation.
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6.2 INITIAL DIRECTOR
The following person, having the following mailing address, shall
serve as the director of the Corporation until the first annual meeting of the
stockholders of the Corporation or until his successors are elected and
qualified.
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
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<S> <C>
Gary M. Kusin 15950 N. Dallas Parkway, Suite 400
Dallas, Texas 75248
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7. BOARD OF DIRECTORS
7.1 NUMBER; ELECTION
7.1(a) NUMBER. The number of directors of the Corporation shall be
such number as from time to time shall be fixed by, or in the manner provided
in, the Bylaws of the Corporation, so long as such number shall not be less than
one (1) and not more than fifteen (15); provided, that no change in the number
of directors shall affect the tenure of office of any director. Unless and
except to the extent that the Bylaws of the Corporation shall otherwise require,
the election of directors of the Corporation need not be by written ballot.
7.1(b) BOARD CLASSIFICATION. The Board of Directors shall be divided
into three classes, as nearly equal in number as the then total number of
directors constituting the entire Board permits. The classes shall be designated
Class I, Class II and Class III. The directors in office upon the filing and
effectiveness of this Certificate of Incorporation shall be assigned to each
class in accordance with Section 3.02 of the Bylaws of the Corporation. Class I
directors shall hold office for a term expiring at the next succeeding annual
meeting, Class II directors shall hold office for a term expiring at the second
succeeding annual meeting, and Class III directors shall hold office for a term
expiring at the third succeeding annual meeting. Thereafter, directors of each
class the term of which shall then expire shall be elected to hold office for a
three-year term and until the election and qualification of their respective
successors in office. Any vacancies in the Board of Directors for any reason,
and any directorships resulting from any increase in the number of directors
then in office, may be filled in accordance with the Bylaws of the Corporation.
7.2 LIMITATION OF LIABILITY
The liability of the directors and officers of the Corporation to the
Corporation or its stockholders for money damages is hereby limited to the
fullest extent permitted by Section 102(b)(7) of the Delaware General
Corporation Law (or its successor), as the same may be amended from time to
time.
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8. EXISTENCE
The Corporation shall have perpetual existence.
9. INDEMNIFICATION
The Corporation shall, to the fullest extent permitted by Section 145 of
the Delaware General Corporation Law (or its successor), as the same may be
amended from time to time, indemnify any and all directors and officers of the
Corporation from and against any and all of the expenses (and shall advance
expenses to the extent provided for by said section), liabilities or other
matters referred to in or covered by said action, and the indemnification
provided for herein shall not be deemed exclusive of any other rights to which
those indemnified may be entitled under any bylaw, 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 or
officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
10. BYLAWS
In furtherance and not in limitation of the powers conferred by the
Delaware General Corporation Law, the Board of Directors, except as otherwise
provided in this Certificate of Incorporation or provisions of the Bylaws of the
Corporation, is expressly authorized and empowered to adopt, alter, amend and
repeal the Bylaws of the Corporation by a vote of a majority of the Board of
Directors then in office.
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Executed as of the 24th day of May, 2000.
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Gwen A. Davis, Incorporator
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