Exhibit 3.1
State of Florida
Department of State
I certify the attached is a true and correct copy of the Articles of
Incorporation of EMERGING MARKETS HOLDINGS, INC., a Florida corporation, filed
on October 11, 2005, as shown by the records of this office.
I further certify the document was electronically received under FAX audit
number H05000240969. This certificate is issued in accordance with section
15.16, Florida Statutes, and authenticated by the code noted below
The document number of this corporation is P05000138699.
Authentication Code: 905A00062243-101205-P05000138699-1/1
Given under my hand and the
Great Seal of the State of Florida,
at Tallahassee, the Capital, this the
Twelfth day of October, 2005
[FLORIDA STATE SEAL] /s/ Glenda E. Hood
Glenda E. Hood
Secretary of State
ARTICLES OF INCORPORATION
OF
EMERGING MARKETS HOLDINGS, INC.
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The undersigned incorporator to the Articles of Incorporation, desiring
to form a corporation under the provisions of the Florida Business Corporation
Act ("FBCA"), does hereby accept all of the rights and privileges, benefits, and
obligations conferred and imposed by said laws and does hereby adopt the
following Articles of Incorporation as the charter of the Corporation hereby
organized:
FIRST: Name. The name of this corporation is Emerging Markets Holdings, Inc.
(the "Corporation").
SECOND: Initial Corporate Address; Registered Office and Agent. The initial
street address of the Corporation is 309 Celtic Court, Oviedo, Florida 32765.
The address of the Corporation's initial registered office in the State of
Florida is to be located at AmSouth Bank Center, 111 North Orange Avenue, Suite
775, Orlando, Florida 32801. Its initial registered agent at such address is
Greene & Lee, PL.
THIRD: Duration; Purpose.
Section 3.1. Duration. Subject to the provisions below, the Corporation shall
have perpetual existence, commencing upon the filing of these Articles of
Incorporation with the Department of State, State of Florida.
Section 3.2. Purpose. The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the FBCA.
FOURTH: Capital Stock.
Section 4.1. Authorized Shares. The total number of shares of stock which the
Corporation shall have authority to issue is fifteen million (15,000,000),
fifteen million (15,000,000) of which shall be shares of Common Stock with a par
value of $0.0001 per share.
Section 4.2. Common Stock. Except as otherwise required by law or as otherwise
provided in the terms of any class or series of stock having a preference over
the Common Stock as to dividends or upon liquidation, the holders of the Common
Stock shall exclusively possess all voting power, and each share of Common Stock
shall have one vote.
Section 4.3. Preferred Stock.
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(a) Board Authorized to Fix Terms. The Board of Directors is authorized, subject
to limitations prescribed by law, by resolution or resolutions to provide for
the issuance of shares of preferred stock in one or more series, and, by filing
a certificate when required by the FBCA, to establish from time to time the
number of shares to be included in each such series and to fix the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof. The authority of the Board
of Directors with respect to each series shall include, but not be limited to,
determination of the following:
(i) the number of shares constituting that series, including the
authority to increase or decrease such number, and the distinctive designation
of that series;
(ii) the dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, the date or dates from which they shall be
cumulative and the relative rights of priority, if any, in the payment of
dividends on shares of that series;
(iii) the voting rights, if any, of the shares of that series in
addition to the voting rights provided by law and the terms of any such voting
rights;
(iv) the terms and conditions, if any, upon which shares of that series
shall be convertible or exchangeable for shares of any other class or classes of
stock of the Corporation or other entity, including provision for adjustment of
the conversion or exchange rate upon the occurrence of such events as the Board
of Directors shall determine;
(v) the right, if any, of the Corporation to redeem shares of that
series and the terms and conditions of such redemption, including the date or
dates upon or after which they shall be redeemable and the amount per share
payable in case of redemption, which amount may vary according to different
conditions and different redemption dates;
(vi) the obligation, if any, of the Corporation to retire shares of
that series pursuant to a retirement or sinking fund or fund of a similar nature
for the redemption or purchase of shares of that series and the terms and
conditions of such obligation;
(vii) the rights of the shares of that series in the event of voluntary
or involuntary liquidation, dissolution or winding up of the Corporation, and
the relative rights of priority, if any, in the payment of shares of that
series; and
(viii) any other rights, preferences and limitations of the shares of
that series as may be permitted by law.
(b) Dividend Preference. Dividends on outstanding shares of preferred stock
shall be paid or declared and set apart for payment before any dividends shall
be paid or declared and set apart for payment on shares of common stock with
respect to the same dividend period.
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(c) Relative Liquidation Preference. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the assets available
for distribution to holders of shares of preferred stock of all series shall be
insufficient to pay such holders the full preferential amount to which they are
entitled, then such assets shall be distributed ratably among the shares of all
series of preferred stock in accordance with their respective priorities and
preferential amounts (including unpaid cumulative dividends, if any) payable
with respect thereto.
(d) Reissuance of Preferred Stock. Subject to the conditions or restrictions on
issuance set forth in the resolution or resolutions adopted by the Board of
Directors providing for the issue of any series of shares of Preferred Stock,
shares of Preferred Stock of any series that have been redeemed or repurchased
by the Corporation (whether through the operation of a sinking fund or
otherwise) or that, if convertible or exchangeable, have been converted or
exchanged in accordance with their terms, shall be retired and have the status
of authorized and unissued shares of Preferred Stock of the same series and may
be reissued as a part of the series of which they were originally a part or may,
upon the filing of an appropriate certificate with the Florida Secretary of
State, be reissued as part of a new series of shares of Preferred Stock to be
created by resolution or resolutions of the Board of Directors or as part of any
other series of shares of Preferred Stock.
FIFTH: Provisions Applicable Until Business Combination or Termination Date. The
following provisions of this Article Fifth shall apply during the period
commencing upon the filing of these Articles of Incorporation and terminating
upon the first to occur of (a) the consummation of any "Business Combination" or
(b) the "Termination Date" (as such terms are hereinafter defined), and may not
be amended prior thereto. A "Business Combination" shall mean the acquisition by
the Corporation, whether by merger, capital stock exchange, asset or stock
acquisition or other similar type of transaction or a combination of the
foregoing of an operating business.
Section 5.1. Shareholder Approval of Business Combination. Prior to the
consummation of any Business Combination, the Corporation shall submit such
Business Combination to its stockholders for approval regardless of whether the
Business Combination is of a type which normally would require such stockholder
approval under the FBCA. In the event that the holders of a majority of the IPO
Shares (defined below) cast at the meeting to approve the Business Combination
are voted for the approval of such Business Combination, the Corporation shall
be authorized to consummate the Business Combination.
Section 5.2. Liquidation and Dissolution in Absence of Business Combination. In
the event that the Corporation does not consummate a Business Combination by the
later of (a) 18 months after the consummation of the IPO or (b) 24 months after
the consummation of the IPO in the event that either a letter of intent, an
agreement in principle or a definitive agreement to complete a Business
Combination was executed but was not consummated within such 18 month period
(such later date being referred to as the "Termination Date"), the officers of
the Corporation shall take all such action as may be necessary to dissolve and
liquidate the Corporation as soon as reasonably practicable. In the event that
the Corporation is so dissolved and liquidated, only the holders of IPO Shares
shall be entitled to receive liquidating distributions and the Corporation shall
pay no liquidating distributions with respect to any other shares of capital
stock of the Corporation.
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SIXTH: Elimination of Certain Liability of Directors. No director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director except (a) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) under Section 607.0834
of the FBCA, or (d) for any transaction from which the director derived an
improper personal benefit. If the FBCA is hereafter amended to permit a
corporation to further eliminate or limit the liability of a director of a
corporation, then the liability of a director of the Corporation, in addition to
the circumstances in which a director is not personally liable as set forth in
the preceding sentence, shall, without further action of the directors or
stockholders, be further eliminated or limited to the fullest extent permitted
by the FBCA as so amended. Neither any amendment, repeal, or modification of
this Article Sixth, nor the adoption or amendment of any other provision of
these Articles of Incorporation or the bylaws of the Corporation inconsistent
with this Article Sixth, shall adversely affect any right or protection provided
hereby with respect to any act or omission occurring prior to the date when such
amendment, repeal, modification, or adoption became effective.
SEVENTH: Indemnification.
Section 7.1. Right to Indemnification. Each person who was or is a party or is
threatened to be made a party to or is involved in any threatened, pending or
completed action, suit, proceeding or alternative dispute resolution procedure,
whether (a) civil, criminal, administrative, investigative or otherwise, (b)
formal or informal or (c) by or in the right of the Corporation (collectively, a
"proceeding"), by reason of the fact that he or she, or a person of whom he or
she is the legal representative, 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, manager, officer, partner, trustee, employee or agent of another
foreign or domestic corporation or of a foreign or domestic limited liability
company, partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as such a director,
officer, employee or agent of the Corporation or in any other capacity while
serving as such other director, manager, officer, partner, trustee, employee or
agent, shall be indemnified and held harmless by the Corporation against all
judgments, penalties and fines incurred or paid, and against all expenses
(including attorneys' fees) and settlement amounts incurred or paid, in
connection with any such proceeding, except in relation to matters as to which
the person did not act in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe the person's conduct was unlawful. Until such time as there has been a
final judgment to the contrary, a person shall be presumed to be entitled to be
indemnified under this Section 7.1. The termination of any proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
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its equivalent, shall not, of itself, either rebut such presumption or create a
presumption that (a) the person did not act in good faith and in a manner which
the person reasonably believed to be in or not opposed to the best interests of
the Corporation, (b) with respect to any criminal action or proceeding, the
person had reasonable cause to believe that the person's conduct was unlawful or
(c) the person was not successful on the merits or otherwise in defense of the
proceeding or of any claim, issue or matter therein. If the FBCA is hereafter
amended to provide for indemnification rights broader than those provided by
this Section 7.1, then the persons referred to in this Section 7.1 shall be
indemnified and held harmless by the Corporation to the fullest extent permitted
by the FBCA as so amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than permitted prior to such amendment).
Section 7.2. Determination of Entitlement to Indemnification. A determination as
to whether a person who is a director or officer of the Corporation at the time
of the determination is entitled to be indemnified and held harmless under
Section 7.1 shall be made (a) a majority vote of the directors who are not
parties to such proceeding, even though less than a quorum, (b) by a committee
of such directors designated by majority vote of such directors, even though
less than a quorum, (c) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or (d) by the
stockholders. A determination as to whether a person who is not a director or
officer of the Corporation at the time of the determination is entitled to be
indemnified and held harmless under Section 7.1 shall be made by or as directed
by the Board of Directors of the Corporation.
Section 7.3. Mandatory Advancement of Expenses. The right to indemnification
conferred in this Article Seventh shall include the right to require the
Corporation to pay the expenses (including attorneys' fees) incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Board of Directors so determines, an advancement of
expenses incurred by an indemnitee in his or her capacity as a director or
officer of the Corporation (but not in any other capacity in which service was
or is rendered by such indemnitee, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall be finally determined that such indemnitee is not entitled
to be indemnified for such expenses under Section 7.1 or otherwise.
Section 7.4. Non-Exclusivity of Rights. The right to indemnification and the
advancement of expenses conferred in this Article Seventh shall not be exclusive
of any other right which any person may have or hereafter acquire under any
statute, any provision of these Articles of Incorporation or of any bylaw,
agreement, or insurance policy or arrangement, or any vote of stockholders or
disinterested directors, or otherwise. The Board of Directors is expressly
authorized to adopt and enter into indemnification agreements with, and obtain
insurance for, directors and officers.
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Section 7.5. Effect of Amendment. Neither any amendment, repeal, or modification
of this Article Seventh, nor the adoption or amendment of any other provision of
these Articles of Incorporation or the bylaws of the Corporation inconsistent
with this Article Seventh, shall adversely affect any right or protection
provided hereby with respect to any act or omission occurring prior to the date
when such amendment, repeal, modification, or adoption became effective.
EIGHTH: Miscellaneous. The following provisions are inserted for the management
of the business and for the conduct of the affairs of the Corporation and for
the purpose of creating, defining, limiting and regulating powers of the
Corporation and its directors and stockholders:
Section 8.1 Number, Election and Term of Office of Directors. The initial Board
of Directors shall consist of two (2) members. This number may be increased or
decreased from time to time in accordance with the Corporation's bylaws, but
shall never be less than one. No decrease in the number of directors shall
change the term of any director in office at the time of such decrease. A
director shall hold office until the annual meeting for the year in which the
director's term expires and such director's successor shall be elected and
qualified, subject, however, to such director's prior death, resignation or
removal from office.
Section 8.2 Manner of Election of Directors. Elections of directors need not be
by written ballot unless the bylaws of the Corporation shall so provide.
Section 8.3 Adoption and Amendment of Bylaws. The Board of Directors shall have
power to make and adopt bylaws with respect to the organization, operation and
government of the Corporation and, subject to such restrictions as may be set
forth in the bylaws, from time to time to change, alter, amend or repeal the
same, but the stockholders of the Corporation may make and adopt additional
bylaws and, subject to such restrictions as may be set forth in the bylaws, may
change, alter, amend or repeal any bylaw whether adopted by them or otherwise.
Section 8.4 Vote Required to Amend Certain Provisions of Articles of
Incorporation. Notwithstanding any other provision of these Articles of
Incorporation or the bylaws of the Corporation or any provision of law which
might otherwise permit a lesser vote, but in addition to any affirmative vote of
the holders of any particular class or series of stock required by law, these
Articles of Incorporation, or the bylaws, the affirmative vote of the holders of
at least 66 2/3% of the Corporation's capital stock entitled to vote generally
in the election of directors, voting as a single class, shall be required to
alter, amend, or adopt any provision inconsistent with or repeal Articles Sixth,
Seventh and Eighth of these Articles of Incorporation.
Section 8.5 Severability. In the event any provision (or portion thereof) of
these Articles of Incorporation shall be found to be invalid, prohibited, or
unenforceable for any reason, the remaining provisions (or portions thereof) of
these Articles of Incorporation shall be deemed to remain in full force and
effect, and shall be construed as if such invalid, prohibited, or unenforceable
provision had been stricken herefrom or otherwise rendered inapplicable, it
being the intent of the Corporation and its stockholders that each such
remaining provision (or portion thereof) of these Articles of Incorporation
remain, to the fullest extent permitted by law, applicable and enforceable as to
all stockholders, notwithstanding any such finding.
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Section 8.6 Reservation of Right to Amend Articles of Incorporation. The
Corporation reserves the right to amend, alter, change or repeal any provision
contained in these Articles of Incorporation, in the manner now or hereafter
prescribed by statute or herein, and all rights conferred upon stockholders
herein are granted subject to this reservation.
NINTH: Incorporator. The name and mailing address of the incorporator are as
follows:
Name Mailing Address
- ---- ---------------
Serguei Melnik 309 Celtic Court, Oviedo, Florida 32765
TENTH: Pre-emptive Rights. No holder of stock of the Corporation shall be
entitled as of right to subscribe for or purchase any shares of any class of the
Corporation, whether such shares or such class is now or hereafter authorized.
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IN WITNESS WHEREOF, the above-named incorporator has hereunto
subscribed his name as of the ___ day of September, 2005.
/s/ Serguei Melnik
--------------------------
Serguei Melnik
STATE OF FLORIDA )
)SS.
COUNTY OF SEMINOLE)
THE FOREGOING was sworn to, subscribed and acknowledged before me this 30th day
of SEPTEMBER, 2005, by Serguei Melnik, as Incorporator of the Corporation, who
is personally known to me or has produced DRIVER'S LICENSE as identification.
/s/ Andres Villafuerte
--------------------------
Notary Public
[NOTARY SEAL] Print Name: Andres Villafuerte
Commission No.: __________
My Commission Expires:
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CERTIFICATE OF DESIGNATION OF
REGISTERED AGENT/REGISTERED OFFICE
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Pursuant to the provisions of Florida Statutes Section 607.0501(3),
Emerging Markets Holdings, Inc. submits the following statement in designating
the registered office/registered agent, in the State of Florida:
1. The name of the Corporation is Emerging Markets Holdings, Inc.
2. The name and address of the registered agent and office is: Greene &
Lee, PL, AmSouth Bank Center, 111 North Orange Avenue, Suite 775,
Orlando, Florida 32801, Attention: Robert Q. Lee, Manager.
Having been named as registered agent and to accept service of process
for the above-named corporation at the place designated in this certificate, the
undersigned, by and through its duly elected manager, hereby accepts the
appointment as registered agent and agrees to act in this capacity. The
undersigned further agrees to comply with the provisions of all statutes
relating to the proper and complete performance of its duties, and is familiar
with and accepts the obligations of the position as registered agent.
Dated: September 30, 2005
GREENE & LEE, PL
By: /s/ Robert Q. Lee
------------------------
Robert Q. Lee, Manager
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