Exhibit 3.1
BLUESTONE SOFTWARE, INC.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
SEPTEMBER 29, 1999
BLUESTONE SOFTWARE, INC.
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
Bluestone Software, Inc., a Delaware corporation (the "Corporation"),
does hereby certify that:
FIRST: The present name of the Corporation is "Bluestone Software,
Inc.," which is the name under which the Corporation was originally
incorporated. The date of filing of the original Certificate of Incorporation of
the Corporation with the Secretary of State of the State of Delaware was March
13, 1997.
SECOND: This Amended and Restated Certificate of Incorporation (this
"Certificate") amends and restates in its entirety the present Third Amended and
Restated Certificate of Incorporation of the Corporation, as amended. This
Certificate has been duly adopted and approved by the board of directors of the
Corporation and the stockholders of the Corporation in accordance with the
provisions of Section 141(f), 228 and 242 of the General Corporation Law of the
State of Delaware.
THIRD: This Certificate shall become effective immediately upon its
filing with the Secretary of State of the State of Delaware.
FOURTH: Upon the filing with the Secretary of State of the State of
Delaware of this Certificate, the Third Amended and Restated Certificate of
Incorporation of the Corporation, as amended, shall be amended and restated in
its entirety to read as set forth in Exhibit "A" hereto.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed by a duly authorized officer this 29th day of September, 1999.
BLUESTONE SOFTWARE, INC.
By: /s/ S. Craig Huke
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S. Craig Huke, Sr. Vice President
Exhibit A
BLUESTONE SOFTWARE, INC.
FORM OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
ARTICLE I
NAME. The name of the corporation is Bluestone Software, Inc.
(the "Corporation").
ARTICLE II
REGISTERED OFFICE AND AGENT. The address of the registered office of
the Corporation in the State of Delaware is 1201 Market Street, Suite 1600,
Wilmington, DE 19801. The name of its registered agent at such address is PHS
Corporate Services, Inc.
ARTICLE III
PURPOSE. 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 Delaware.
ARTICLE IV
AUTHORIZED CAPITAL STOCK. The Corporation shall have the authority to
issue an aggregate of 54,900,000 shares of common stock, par value $.001 per
share ("Common Stock"), as more fully described below.
1. DIVIDEND RIGHTS. The holders of the Common Stock shall be
entitled to receive, when and as declared by the Board of Directors of the
Corporation (the "Board of Directors" or "Board"), out of any assets of the
Corporation legally available therefor, such dividends as may be declared from
time to time by the Board.
2. LIQUIDATION RIGHTS. Upon the liquidation, dissolution or
winding up of the Corporation, the holders of shares of Common Stock shall be
entitled to receive the remaining assets and funds of the Corporation available
for distribution to its stockholders ratably in proportion to the number of
shares of Common Stock held by such stockholders.
3. REDEMPTION. The Common Stock is not redeemable.
4. VOTING RIGHTS. The holder of each share of Common Stock
shall have the right to one vote, and shall be entitled to notice of any
stockholders' meeting in accordance with the bylaws of
the Corporation (the "Bylaws"), and shall be entitled to vote upon such matters
and in such manner as may be provided by law.
5. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute, may be called
only in accordance with the Bylaws.
6. ADVANCE NOTICE PROVISIONS. Advance notice of stockholder
nominations for the election of directors of the Corporation and of business to
be brought by stockholders before any meeting of stockholders of the Corporation
shall be given in the manner provided in the Bylaws.
ARTICLE V
BOARD OF DIRECTORS.
1. NUMBER; ELECTION. The Board of Directors of the Corporation
shall consist of such number of the directors as shall be fixed from time to
time by resolution of the Board of Directors. The Board of Directors shall be
divided into three classes, which shall be as nearly equal in number as
possible. Directors of each class shall serve for a term of three years and
until their successors shall have been elected and qualified. The three initial
classes of directors shall be comprised as follows:
(a) Class I shall be comprised of directors who shall serve
until the annual meeting of stockholders held in the first year following the
year in which the initial classes of directors were established and until their
successors shall have been elected and qualified.
(b) Class II shall be comprised of directors who shall
serve until the annual meeting of stockholders held in the second year following
the year in which the initial classes of directors were established and until
their successors shall have been elected and qualified.
(c) Class III shall be comprised of directors who shall
serve until the annual meeting of stockholders held in the third year following
the year in which the initial classes of directors were established and until
their successors shall have been elected and qualified.
2. TERM. After the initial term, at each annual meeting of
stockholders of the Corporation, directors of classes, the terms of which expire
at such annual meeting, shall be elected for terms of three years by a plurality
vote of all votes cast at such meeting. Notwithstanding the foregoing, a
director whose term shall expire at any annual meeting shall continue to serve
until such time as his successor shall have been duly elected and qualified
unless his or her position on the Board of Directors shall have been abolished
by action taken to reduce the size of the Board of Directors prior to said
meeting. Furthermore, any vacancy in directorship prior to the expiration of
such director's term caused by the death, removal or resignation of such
director or by an increase in the number of directors of the Corporation shall
be filled by a majority of the remaining directors.
3. INCREASE OR DECREASE IN NUMBER. Should the number of
directors of the Corporation be reduced, the directorship(s) eliminated shall be
allocated among classes as appropriate so that the number of directors in each
class is as specified in Section 1 of this Article V. The Board of Directors
shall designate, by the name of the incumbent(s), the position(s) to be
abolished. Notwithstanding the foregoing, no decrease in the number of directors
shall have the effect of shortening
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the term of any incumbent director. Should the number of directors of the
Corporation be increased, the additional directorships shall be allocated among
classes as appropriate so that the number of directors in each class is as
specified in Section 1 of this Article V. With respect to newly created or
eliminated directorships resulting from an increase or decrease, respectively,
in the number of directors, the Board shall determine and designate to which
class of directorships each director belongs, but in no case shall a decrease in
the number of directors shorten the term of an incumbent director.
4. VACANCIES. Vacancies and newly created directorships
resulting from any increase in the number of directors constituting the whole
Board may be filled only by the affirmative vote of a majority of the directors
then in office, although fewer than a quorum, or by a sole remaining director.
Whenever the holders of any class or classes of stock or series thereof are
entitled to elect one or more directors by the provisions of this Certificate,
vacancies and newly created directorships of such class or classes or series may
be filled by the affirmative vote of a majority of the directors elected by such
class or classes or series thereof then in office, or by a sole remaining
director so elected. Each director so chosen shall hold office until the next
election of directors of the class to which such director was appointed, and
until such director's successor is elected and qualified, or until the
director's earlier death, resignation or removal.
5. RESIGNATION OF DIRECTORS. A director may resign at any time
upon written notice to the Corporation, and the resignation shall take effect at
the time it specifies, without any need for acceptance by the Board. In the
event that one or more directors resigns from the Board, effective at a future
date, a majority of the directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, with the vote
thereon to take effect when such resignation or resignations becomes effective.
6. REMOVAL OF DIRECTORS. No director of the Corporation may be
removed at any time unless for cause and by the affirmative vote of the holders
of a majority of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, considered for this
purpose as one class, except as otherwise required by law.
ARTICLE VI
BYLAWS. In furtherance and not in limitation of the powers conferred by
statute, the Board shall have the power to adopt, amend, repeal or otherwise
alter the Bylaws of the Corporation without any action on the part of the
stockholders; provided, however, that the grant of such power to the Board shall
not divest the stockholders of nor limit their power, to adopt, amend, repeal or
otherwise alter the Bylaws.
ARTICLE VII
ELECTION OF DIRECTORS. Elections of directors need not be by written
ballot unless the Bylaws of the Corporation shall so provide.
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ARTICLE VIII
AMENDMENT AND REPEAL. The Corporation reserves the right to adopt,
repeal, rescind or amend in any respect any provisions contained in this
Certificate in the manner now or hereafter prescribed by applicable law, and all
rights conferred on stockholders herein are granted subject to this reservation.
ARTICLE IX
DIRECTOR LIABILITY. A director of the Corporation shall, to the full
extent permitted by the General Corporation Law of Delaware as it now exists or
as it may hereafter be amended, not be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
Neither any amendment nor repeal of this Article IX, nor the adoption of any
provisions of this Certificate inconsistent with this Article IX, shall
eliminate or reduce the effect of this Article IX in respect of any matter
occurring, or any cause of action, suit or claim that, but for this Article IX,
would accrue or arise, prior to such amendment, repeal or adoption of an
inconsistent provision.
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