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EXHIBIT 3.1
CERTIFICATE OF THE POWERS, DESIGNATIONS,
PREFERENCES AND RIGHTS OF
SPECIAL VOTING STOCK
OF 8X8, INC.
PURSUANT TO SECTIONS 151(g) AND 155 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
I, Paul Voois, the President of 8x8, Inc., a Delaware corporation (the
"COMPANY"), in accordance with the provisions of Section 103 of the General
Corporation Law of the State of Delaware (the "DGCL"), DO HEREBY CERTIFY that,
pursuant to the provisions of Section 151(g) and Section 155 of the DGCL, the
following resolutions were duly adopted by the Board of Directors of the Company
and pursuant to authority conferred upon the Board of Directors by the
provisions of the Amended and Restated Certificate of Incorporation of the
Company (the "CERTIFICATE OF INCORPORATION"), the Board of Directors of the
Company, on May 16, 2000, adopted resolutions providing for the issuance of a
series of Preferred Stock of the Company and fixing the relative powers,
designations, preferences, rights, qualifications, limitations and restrictions
of such stock. These resolutions are as follows:
"RESOLVED, that pursuant to authority expressly granted to and vested in
the Board of Directors of the Company by the provisions of the Certificate of
Incorporation, the issuance of a series of Preferred Stock of the Company to be
designated "SPECIAL VOTING STOCK", par value $0.001 per share, which shall
consist of one of the 5,000,000 shares of Preferred Stock which the Company now
has authority to issue, be, and the same hereby is, authorized, and the Board
hereby fixes the powers, designations, preferences and relative, participating,
optional and other rights, and the qualifications, limitations and restrictions
thereof, of the sole share of such series (in addition to the powers,
designations, preferences and relative, participating, optional or other rights,
and the qualifications, limitations or restrictions thereof, set forth in the
Certificate of Incorporation which may be applicable to the Preferred Stock of
this series) as follows:
1. AUTHORIZED NUMBER AND DESIGNATION. One share of the Preferred Stock,
$0.001 par value, of the Company is hereby constituted as a series of the
Preferred Stock designated as Special Voting Stock, $0.001 par value (the
"SPECIAL VOTING STOCK").
2. DIVIDENDS AND DISTRIBUTIONS. The holders of Special Voting Stock shall
not be entitled to receive any dividends declared and paid by the Company.
3. VOTING RIGHTS. Except as otherwise required by law or by the
Certificate of Incorporation, the holders of record of the Special Voting Stock
will be entitled to all of the voting rights, including the right to vote in
person or by proxy, of the Special Voting Share on any matters, questions,
proposals or propositions whatsoever that may properly come before the
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shareholders of the Company at a meeting at which holders of the Company's
Common Stock ("COMMON STOCK") are entitled to vote ("COMPANY MEETING") or with
respect to all written consents sought by the Company from its shareholders
including the holders of the Company's Common Stock ("COMPANY CONSENT"). The
holders of record of the Special Voting Stock shall have a number of votes
("VOTING RIGHTS") at a Company Meeting or with respect to a Company Consent
equal to the number of votes that the holders ("HOLDERS") of non-voting
exchangeable shares ("EXCHANGEABLE SHARES") of each of UForce Company - Societe
UForce and 3044869 Nova Scotia Limited would be entitled to if all such
Exchangeable Shares were exchanged by the Holders for shares of the Common
Stock. In respect of all matters concerning the Voting Rights, the Special
Voting Stock and the Common Stock shall vote as a single class.
4. FRACTIONAL INTERESTS.
(b) Pursuant to the terms of that certain Voting, Exchange and
Support Agreement by and among the Company, 3044007 Nova Scotia Company, UForce
Company - Societe UForce, 3044869 Nova Scotia Limited and each Holder, each
Holder of Exchangeable Shares will be issued a fractional interest ("FRACTIONAL
INTEREST") in the sole share of Special Voting Stock initially equal to the
fraction obtained by dividing (i) the number of Exchangeable Shares held by such
Holder at the time of the issuance of such fractional interest, by (ii) the
total number of Exchangeable Shares outstanding at such time. The Fractional
Interest of each Holder will automatically adjust from time to time, without any
further action of the Company or the Holders, upon any change in the number of
issued Exchangeable Shares such that each Holder's Fractional Interest at any
time shall equal the fraction obtained by dividing (i) the number of
Exchangeable Shares held by such Holder at such time, by (ii) the total number
of Exchangeable Shares outstanding at such time.
(c) The Fractional Interest of each Holder shall entitle such
Holder to cast and exercise at each Company Meeting or on all Company Consents a
number of votes equal to the number of votes to which a holder of one Common
Stock is entitled to cast and exercise thereat or with respect thereto for each
Exchangeable Share owned of record by such Holder on the record date established
by the Company for such Company Meeting or Company Consent, as the case may be.
(d) At such time as the Special Voting Stock has no votes
attached to it because there are no Exchangeable Shares outstanding which are
not owned by the Company, any of its subsidiaries or any person directly or
indirectly controlled by or under common control of the Company, the Special
Voting shall be cancelled.
5. LIQUIDATION PREFERENCE. Upon any liquidation, dissolution or winding
up of the Company, whether voluntary or involuntary, and subject to any prior
rights of holders of shares of Preferred Stock ranking senior to the Special
Voting Stock, the holders of the share of Special Voting Stock shall be paid an
amount totaling $0.001, together with payment to any class of stock ranking
equally with the Special Voting Stock, and before payment shall be made to the
holders of any stock ranking on liquidation junior to the Special Voting Stock.
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6. RANKING. The Special Voting Stock shall rank junior to all other
series of the Company's Preferred Stock, unless the terms of any such series
shall provide otherwise.
RESOLVED FURTHER, that the Chief Executive Officer, President or any Vice
President and the Secretary or any Assistant Secretary of the Company be, and
they hereby are, authorized and directed to prepare and file (or cause to be
prepared and filed) a Certificate of the Powers, Designations, Preferences and
Rights in accordance with the foregoing resolution and the provisions of
Delaware law and to take such actions as they may deem necessary or appropriate
to carry out the intent of the foregoing resolutions."
IN WITNESS WHEREOF, I have executed and subscribed to this Certificate
and do hereby affirm the foregoing as true under the penalties of perjury as of
the 29th day of June, 2000.
8X8, INC.
/s/ Paul Voois
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Paul Voois
President
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