Registration of Securities of a Small-Business Issuer — Form 10-SB
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-12G Registration of Securities 34 128K
2: EX-3.1 Certificate of Incorporation 13 30K
3: EX-3.2 By-Laws 24 50K
4: EX-4.1 Form of Common Stock 1 5K
5: EX-10.1 Performance Equity Plan 12 57K
6: EX-21.1 Subsidiaries of Cybermark 1 4K
7: EX-27 Financial Data Schedule 1 6K
EX-3.1 — Certificate of Incorporation
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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
CYBER MARK INTERNATIONAL CORP.
The undersigned, being of legal age, in order to form a corporation under
and pursuant to the laws of the State of Delaware, does hereby set forth, as
follows:
FIRST: The name of the corporation (herein referred to as the "Corporation") is:
Cyber Mark International Corp.
SECOND: The address of the registered office of the Corporation in the State of
Delaware is c/o National Corporate Research, Ltd., 9 East Loockerman Street,
County of Kent, Dover, Delaware 19901. The name of the Corporation's registered
agent at such address is National Corporate Research, Ltd.
THIRD: The purposes of the Corporation are to engage in, promote, conduct, and
carry on any lawful acts or activities for which corporations may be organized
under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of capital stock of all classes which the
Corporation shall have authority to issue is 10,500,000 shares, of which 500,000
shares shall be Preferred Stock, par value $.001 per share, and 10,000,000
shares shall be Common Stock, par value $.0001 per share.
A Preferred Stock
(1) Shares of Preferred Stock may be issued in one or more series at
such time or times and for such consideration as the Board of Directors may
determine. All shares of any one series shall be of equal rank and identical in
all respects.
(2) Authority is hereby expressly granted to the Board of Directors to
fix from time to time, by resolution or resolutions providing for the
establishment and/or issuance of any series of Preferred Stock, the designation
of the series and the powers, preferences, and rights of the shares of the
series, and the qualifications, limitations, or restrictions thereof, including
the following:
(a) The distinctive designation and number of shares
comprising the series, which number may, except where otherwise provided by the
Board of Directors in creating the series, be increased or decreased from time
to time by action of the Board of Directors, but not below the number of shares
then outstanding;
(b) The rate of dividends, if any, on the shares of that
series, whether dividends shall be noncumulative, cumulative to the extent
earned, or cumulative, and if cumulative, from which date or dates, whether
dividends shall be payable in cash, property, or rights, or in shares of the
Corporation's capital stock, and the relative rights of priority, if any, of
payment of dividends on shares of that series over shares of any other series;
(c) Whether the shares of that series shall be redeemable and,
if so, the terms and conditions of the redemption, including the date or dates
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upon or after which they shall be redeemable, the event or events upon or after
which they shall be redeemable or at whose option they shall be redeemable, and
the amount per share payable in case of redemption, which amount may vary under
different conditions and at different redemption dates, or the property or
rights, including securities of any other corporation, payable in case of
redemption;
(d) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series and, if so, the terms and
amounts payable into the sinking fund;
(e) The rights to which the holders of the shares of that
series shall be entitled in the event of voluntary or involuntary liquidation,
dissolution, or winding-up of the Corporation, and the relative rights of
priority, if any, of payment of shares of that series in any such event;
(f) Whether the shares of that series shall be convertible
into or exchangeable for shares of stock of any other class or any other series
and, if so, the terms and conditions of the conversion or exchange, including
the rate or rates of conversion or exchange, the date or dates upon or after
which they shall be convertible or exchangeable, the duration for which they
shall be convertible or exchangeable, the event or events upon or after which
they shall be convertible or exchangeable or at whose option they shall be
convertible or exchangeable, and the method, if any, of adjusting the rates of
conversion or exchange in the event of a stock split, stock dividend,
combination of shares, or similar event;
(g) Whether the issuance of any additional shares of the
series, or of any shares of any other series, shall be subject to restrictions
as to issuance, or as to the powers, preferences, or rights of any such other
series; and
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(h) Any other preferences, privileges, and powers and
relative, participating, optional, or other special rights and qualifications,
limitations, or restrictions of the series, as the Board of Directors may deem
advisable and as shall not be inconsistent with the provisions of this
Certificate of Incorporation and to the full extent now or hereafter permitted
by the laws of the State of Delaware.
(3) Payment of dividends shall be as follows:
(a) The holders of any series of Preferred Stock, in
preference to the holders of the Common Stock and the holders of any
junior-ranking series of Preferred Stock, shall be entitled to receive, as and
when declared by the Board of Directors out of funds legally available therefor,
dividends in cash, property, or rights, or in shares of the Corporation's
capital stock, at the rate for such series fixed in accordance with the
provisions of paragraph A(2)(b) of this Article Fourth.
(b) No dividend shall be paid upon, or declared or set aside
for, any series of Preferred Stock with respect to any dividend period unless:
(i) All dividends on all senior-ranking series
of Preferred Stock shall, for the same dividend period, and for all past
dividend periods, to the extent the dividends on such senior-ranking series of
Preferred Stock are cumulative, have been fully paid or declared and provided
for; and
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(ii) At the same time, a like proportionate dividend
with respect to the same dividend period, ratably in proportion to the
respective annual dividend rates fixed therefor, shall be paid upon, or declared
and provided for, all equally ranking series of Preferred Stock.
(c) As long as any shares of any series of Preferred Stock
shall be outstanding, in no event shall any dividend, whether in cash, property,
excluding shares of Common Stock of the Corporation, or rights, be paid upon, or
declared and provided for, nor shall any distribution be made, on the
outstanding shares of Common Stock, unless all dividends on all cumulative
series of Preferred Stock with respect to all past dividend periods and unless
all dividends on all series of Preferred Stock for the then current dividend
period shall have been paid upon, or declared and provided for, and unless the
Corporation shall not be in default under any of its obligations with respect to
any sinking fund for any series of Preferred Stock. The foregoing provisions of
this paragraph (c) shall not, however, in any way prohibit or limit the
Corporation from making a dividend or other distribution of shares of Common
Stock on the outstanding shares of Common Stock.
(d) No dividends shall be deemed to have accrued on any share
of any series of Preferred Stock with respect to any period prior to the date of
the original issuance of the share or the dividend payment date immediately
preceding or following the date or original issue, except as may otherwise be
provided in the resolution or resolutions of the Board of Directors creating
such series. Accruals of dividends shall not bear interest.
(4) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Corporation, the holders of the shares of any
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series of Preferred Stock then outstanding shall be entitled to receive out of
the net assets of the Corporation, whether capital or surplus, but only in
accordance with the preferences, if any, provided for such series, before any
distribution or payment shall be made to the holders of the Common Stock and the
holders of any junior-ranking series of Preferred Stock, the amount per share
fixed by the resolution or resolutions of the Board of Directors to be received
by the holders of such shares on such voluntary or involuntary liquidation,
dissolution, or winding-up, as the case may be. If the payment shall have been
made in full to the holders of all outstanding Preferred Stock of all series, or
duly provided for, the remaining net assets of the Corporation shall be
available for distribution to the holders of the Common Stock to the extent the
Board of Directors shall determine as provided for in paragraph B(2) of this
Article Fourth. If, upon any such voluntary or involuntary liquidation,
dissolution, or winding-up, the net assets of the Corporation available for
distribution among the holders of any one or more series of the Preferred Stock
which (i) are entitled to a preference over the holders of the Common Stock upon
such voluntary or involuntary liquidation, dissolution, or winding-up, and (ii)
rank equally in connection therewith, shall be insufficient to make payment in
full of the preferential amount to which the holders of such shares shall be
entitled, then the assets shall be distributed among the holders of each series
of the Preferred Stock ratably according to the respective amounts to which they
would be entitled in respect of the shares held by them upon the distribution if
all amounts payable on or with respect to the shares were paid in full. Neither
the consolidation nor merger of the Corporation, nor a reduction of the capital
of the Corporation, nor the sale, lease, or conveyance of all or part of its
assets, whether for cash, securities or other property, shall be deemed a
voluntary or involuntary liquidation, dissolution, or winding-up of the
Corporation within the meaning of the foregoing provisions.
(5) The shares of Preferred Stock shall have no voting power or voting
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rights with respect to any matter whatsoever, except as may be otherwise
required by law or may be provided in the resolution or resolutions of the Board
of Directors creating the series of which such shares are a part.
B Common Stock
(1) After the requirements with respect to preferential dividends, if
any, on any series of Preferred Stock, fixed pursuant to paragraph A(2)(b) and
as further provided for in paragraph A(3), both of this Article Fourth, shall
have been met, and after the Corporation shall have complied with all
requirements, if any, with respect to the setting aside of sums in a sinking
fund for the purchase or redemption of shares of any series of Preferred Stock,
fixed pursuant to paragraph A(2)(d) of this Article Fourth, then, and not
otherwise, the holders of Common Stock shall receive, to the extent permitted by
law and to the extent the Board of Directors shall determine, such dividends as
may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
fixed pursuant to paragraph A(2)(e) and as further provided for in paragraph
A(4), both of this Article Fourth, to be distributed to the holders of any
series of Preferred Stock in the event of the voluntary or involuntary
liquidation, dissolution, or winding-up of the Corporation, the holders of the
Common Stock shall be entitled to receive such of the remaining assets of the
Corporation of whatever kind available for distribution to the extent the Board
of Directors shall determine.
(3) Except as may be otherwise required by law or by this Certificate
of Incorporation, each holder of Common Stock shall have one vote in respect of
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each share of such stock held by him on all matters voted upon by the
stockholders.
C Preemptive Rights
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase, or receive any shares of stock of the Corporation of any class, now or
hereafter authorized, or any options or warrants for such shares, or any rights
to subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold, or offered for sale by the Corporation.
FIFTH: The name and mailing address of the sole incorporator are: Andrew D.
Hudders, Graubard Mollen & Miller, 600 Third Avenue, 32nd floor, New York, New
York 10016.
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The private property or assets of the stockholders of the Corporation
shall not to any extent whatsoever be subject to the payment of the debts of the
Corporation.
EIGHTH: Elections of directors need not be by written ballot unless otherwise
provided in the By-laws of the Corporation.
NINTH: 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 By-laws of the
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Corporation. None of the directors need be a stockholder or a resident of the
State of Delaware.
TENTH: The books of the Corporation may be kept outside the State of Delaware at
such place or places as may be designated from time to time by the Board of
Directors or in the By-laws of the Corporation, subject to any provision
contained in the statutes.
ELEVENTH: Any action required by law or by the Certificate of Incorporation or
Bylaws of the Corporation to be taken at a meeting of the stockholders of the
Corporation or any other action which may be taken at a meeting of the
stockholders, may be taken without a meeting if a written consent setting forth
the action so taken, shall be signed by all the stockholders entitled to vote on
the action to be taken.
TWELFTH: Special meetings of the stockholders of the Corporation for any purpose
or purposes may be called at any time by the board of directors, the chairman of
the board of directors or the president of the Corporation. Special meetings of
the stockholders of the Corporation may not be called by any other person or
persons.
THIRTEENTH: At an annual meeting of stockholders, only such business shall be
conducted, and only such proposals shall be acted upon, as shall have been
brought before the annual meeting (a) by, or at the direction of, a majority of
the directors, or (b) by any shareholder of the Corporation who complies with
the notice procedures set forth in this Article Thirteenth. For a proposal to be
properly brought before an annual meeting by a shareholder, the shareholder must
have given timely notice thereof in writing to the Secretary of the Corporation.
To be timely, a shareholder's notice must be delivered to, or mailed and
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received at, the principal executive offices of the Corporation not less than 60
days prior to the scheduled annual meeting, regardless of any postponements,
deferrals or adjournments of that meeting to a later date; provided, however,
that if less than 70 days' notice or prior public disclosure of the date of the
scheduled annual meeting is given or made, notice by the shareholder to be
timely, must be so delivered or received not later than the close of business on
the tenth day following the earlier of the day on which such notice of the date
of the scheduled annual meeting was mailed or the day on which such public
disclosure was made. A shareholder's notice to the Secretary shall set forth as
to each matter the shareholder proposes to bring before the annual meeting (a) a
brief description of the proposal desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting, (b)
the name and address, as they appear on the Corporation's books, or the
shareholder proposing such business and any other stockholders known by such
shareholder to be supporting such proposal, (c) the class and number of shares
of the Corporation's stock which are beneficially owned by the shareholder on
the date of such shareholder notice and by any other stockholders known by such
shareholder to be supporting such proposal on the date of such shareholder
notice, and (d) any financial interest of the shareholder in such proposal and
by any other stockholders known by such shareholder to be supporting such
proposal.
The presiding officer of the annual meeting shall determine and declare
at the annual meeting whether the shareholder proposal was made in accordance
with the terms of this Article Thirteenth. If the presiding officer determines
that a shareholder proposal was not made in accordance with the terms of this
Article Thirteenth, he or she shall so declare at the annual meeting and any
such proposal shall not be acted upon at the annual meeting.
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This provision shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, directors and
committees of the board of directors, but, in connection with such reports, no
new business shall be acted upon at such annual meeting unless stated, filed and
received as herein provided.
FOURTEENTH: Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors. Nominations of persons
for election to the board of directors of the Corporation may be made at a
meeting of stockholders by or at the direction of the board of directors, by a
nominating committee or person appointed by the board of directors or by any
shareholder of the Corporation entitled to vote for the election of directors at
the meeting who complies with the notice procedures set forth in this Article
Fourteenth. Such nominations, other than those made by or at the direction of
the board of directors, shall be made pursuant to timely notice in writing to
the Secretary of the Corporation. To be timely, a shareholder's notice must be
delivered to, or mailed and received at, the principal executive offices of the
Corporation not less than 60 days prior to the scheduled annual meeting,
regardless of any postponements, deferrals or adjournments of that meeting to a
later date; provided however, that if less than 70 days' notice or prior public
disclosure of the date of the scheduled annual meeting is given or made, notice
by the shareholder, to be timely, must be so delivered or received not later
than the close of business on the tenth day following the earlier of the day on
which such notice of the date of the scheduled annual meeting was mailed or the
day on which such public disclosure was made. A shareholder's notice to the
Secretary shall set forth (a) as to each person whom the shareholder proposes to
nominate for election or reelection as a director, (i) the name, age, business
address and residence address of the person, (ii) the principal occupation or
employment of the person, (iii) the class and number of shares of capital stock
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of the Corporation which are beneficially owned by the person, and (iv) any
other information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to any rules or
regulations under the Securities Exchange Act of 1934, as amended; and (b) as to
the shareholder giving the notice (i) the name and address, as they appear on
the Corporation's books, of the shareholder, and (ii) the class and number of
shares of the Corporation's stock which are beneficially owned by the
shareholder on the date of such shareholder notice. The Corporation may require
any proposed nominee to furnish such other information as may reasonably be
required by the Corporation to determine the eligibility of such proposed
nominee to serve as a director of the Corporation.
The presiding officer of the annual meting shall determine and
declare at the annual meeting whether the nomination was made in accordance with
the terms of this Article Fourteenth. If the presiding officer determines that a
nomination was not made in accordance with the terms of this Article Fourteenth,
he or she shall so declare at the annual meeting and any such defective
nomination shall be disregarded.
FIFTEENTH: Subject to, and to the fullest extent permitted by, Section 102(b)(7)
of the Delaware General Corporation Law, as amended from time to time, no
director shall be liable to the Corporation or to any of its stockholders for
monetary damages for breach of fiduciary duty as a director, except with respect
to (1) a breach of the director's duty of loyalty to the Corporation; (2) acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (3) liability under Section 174 of the Delaware
General Corporation Law; or (4) a transaction from which the director derived an
improper personal benefit.
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SIXTEENTH: Notwithstanding anything contained in the Certificate of
Incorporation to the contrary, the affirmative vote of at least 66-2/3% of the
outstanding shares of Common Stock of the Corporation shall be required to amend
or repeal Articles Eleven, Twelve, Thirteen, Fourteen and Sixteen of this
Certificate of Incorporation or to adopt any provision inconsistent therewith.
The undersigned, being the sole incorporator hereinabove
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, does make this Certificate of
Incorporation, hereby declaring, affirming, acknowledging, and certifying, under
penalties of perjury, that this is the act and deed of the undersigned and that
the facts stated herein are true, and accordingly has hereunto set his hand this
9th day of June, 1998.
/s/ Andrew D. Hudders
-----------------------------------
Andrew D. Hudders, Incorporator
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