RESTATED CERTIFICATE OF INCORPORATION
OF
LINEO, INC.
Pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware, this Restated Certificate of Incorporation was adopted by the
Corporation's Board of Directors and its stockholders in accordance with Section
228 thereof. This Restated Certificate of Incorporation restates, integrates and
amends the provisions of the Certificate of Incorporation of the Corporation.
ARTICLE I
The name of this corporation is Lineo, Inc. (the "Corporation").
ARTICLE II
The address of the Corporation's registered office in the State of Delaware
is 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801.
The name of its registered agent at such address is The Corporation Trust
Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
Delaware.
ARTICLE IV
AUTHORIZED SHARES
4.1 AUTHORIZED CAPITAL. The total number of shares of all classes of
capital stock which the Corporation shall have authority to issue is 130,000,000
shares, consisting of 100,000,000 shares of Common Stock, $.001 par value (the
"Common Stock") and 30,000,000 shares of Preferred Stock, $.001 par value (the
"Preferred Stock").
4.2 ISSUANCE OF PREFERRED STOCK IN SERIES. The Preferred Stock may be
issued from time to time in one or more series in any manner permitted by law
and the provisions of these Articles of Incorporation, as determined from time
to time by the Board of Directors and stated in the resolution or resolutions
providing for the issuance thereof, prior to the issuance of any shares thereof.
The Board of Directors shall have the authority to fix and determine and to
amend, subject to the provisions hereof, the designations, powers, preferences
and relative, participating, optional or other rights, if any, and
qualifications, limitations or other restrictions of the shares of any series
that is wholly unissued or to be established and the number of shares
constituting any such series. Unless otherwise specifically provided in the
resolution establishing any series, the Board of Directors shall further have
the authority, after the issuance of shares of a series whose number it has
designated, to amend the resolution establishing such series to decrease the
number of shares of that series, but not below the number of shares of such
series then outstanding.
(a) DIVIDENDS. The holders of shares of the Preferred Stock shall be
entitled to receive dividends, out of the funds of the corporation legally
available therefor, at the rate and at the time or times as may be provided by
the Board of Directors in designating a particular series of Preferred Stock.
The holders of the Preferred Stock shall not be entitled to receive any
dividends thereon, unless otherwise provided by the Board of Directors in
designating a particular series of Preferred Stock.
(b) LIQUIDATION. In the event of any liquidation, dissolution or
winding up of the affairs of the corporation, whether voluntary or involuntary,
then, before any distribution shall be made to the holders of the Common Stock,
the holders of the Preferred Stock at the time outstanding shall be entitled to
be paid the preferential amount or amounts per share as may be provided by the
Board of Directors in designating a particular series of Preferred Stock, plus
dividends accrued thereon to the date of such payment. In designating a
particular series of Preferred Stock, the Board of Directors may also provide
that such series is senior, on a par with or subordinate in order of priority to
any other existing or later issued series of Preferred Stock in respect of
distribution of amounts upon the liquidation, dissolution or winding up of the
affairs of the corporation. The holders of the Preferred Stock shall not be
entitled to receive any distributive amounts upon the liquidation, dissolution
or winding up of the affairs of the corporation, unless otherwise provided by
the Board of Directors in designating a particular series of Preferred Stock.
(c) CONVERSION. Shares of Preferred Stock may be convertible to
shares of Common Stock at such rate and subject to such adjustments as may be
provided by the Board of Directors in designating a particular series of
Preferred Stock.
(d) REDEMPTION. The Preferred Stock may be redeemable in such
amounts, and at such time or times as may be provided by the Board of Directors
in designating a particular series of Preferred Stock. In any event, such
Preferred Stock may be repurchased by the corporation only to the extent legally
permissible.
(e) VOTING RIGHTS. Holders of Preferred Stock shall have such voting
rights as may be provided by the Board of Directors in designating a particular
series of Preferred Stock.
ARTICLE V
The Corporation reserves the right to amend, alter, change, or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon the stockholders
herein are granted subject to this right.
ARTICLE VI
The Corporation is to have perpetual existence.
ARTICLE VII
1. LIMITATION OF LIABILITY. To the fullest extent permitted by the
Delaware General Corporation Law as it now exists or as it may hereafter be
amended, a director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director.
2. INDEMNIFICATION. To the full extent permitted by the Delaware General
Corporation Law as it now exists or as it may hereafter be amended, the
Corporation is authorized to provide indemnification of, and advancement of
expenses to, such directors, officers and agents (and any
other person to which Delaware law permits the Corporation to provide
indemnification) through bylaw provisions, agreements with such directors,
officers, agents or other persons, vote of stockholders or disinterested
directors or otherwise, in excess of the indemnification provisions and
advancement of expenses permitted by Section 145 of the General Corporation Law
of Delaware, subject only to limits created by applicable Delaware law
(statutory and non-statutory) with respect to actions for breach of duty to a
corporation, its stockholders and others.
3. AMENDMENTS. Neither any amendment nor repeal of this Article VII, nor
the adoption of any provision of the Corporation's Certificate of Incorporation
inconsistent with this Article VII, shall eliminate or reduce the effect of this
Article VII, in respect of any matter occurring, or any action or proceeding
accruing or arising or that, but for this Article VII, would accrue or arise,
prior to such amendment, repeal, or adoption of an inconsistent provision.
ARTICLE VIII
The right to cumulate votes in the election of directors shall not exist
with respect to shares of stock of this Corporation.
The Board of Directors shall be set at five (5). Effective upon the date
that the Corporation becomes a Public Company, as defined below, the Board of
Directors shall be divided into three (3) classes, as determined by the Board of
Directors, with said classes to be as equal in number as may be possible, which
classes shall be elected for the terms set forth below:
Class Term
----- ----
Class 1 1 Year
Class 2 2 Years
Class 3 3 Years
Thereafter, each Director's term shall be three (3) years, and each Director
shall serve for the term he or she was elected and thereafter until his or her
successor is elected and qualified (or the number of directors is reduced), or
until his or her death, resignation or removal from office. Directors need not
be stockholders of the Corporation or residents of the State of Delaware.
Written ballots are not required in the election of Directors. For purposes of
this Restated Certificate of Incorporation, the Corporation shall be a "Public
Company" at such time and for so long as it has a class of equity securities
registered pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended, or any successor statute (the "Exchange Act"), or is otherwise subject
to the reporting requirements of Section 15(d) of the Exchange Act.
Newly created directorships resulting from any increase in the number of
Directors or any vacancies on the Board of Directors resulting from death,
resignation, removal or other cause shall be filled by the affirmative vote of a
majority of the remaining Directors then in office, even though less than a
quorum of the Board of Directors. Any Director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
class of Directors in which the new directorship was created or in which the
vacancy occurred and thereafter until such Director's successor shall have been
elected and qualified (or the number of directors is reduced). No decrease in
the number of Directors constituting the Board of Directors shall shorten the
term of any incumbent Director.
ARTICLE IX
In furtherance of and not in limitation of powers conferred by statute, the
Board of Directors of the Corporation is expressly authorized to adopt, repeal,
alter, amend and rescind the bylaws of the Corporation by vote of a majority of
the Board of Directors. In addition, the bylaws may be amended by the
affirmative vote of the holders of at least two-thirds of the outstanding shares
of voting stock of the Corporation entitled to vote at an election of directors.
ARTICLE X
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside of 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 Bylaws of the Corporation.
ARTICLE XI
Any Director or the entire Board of Directors may be removed with or
without cause by the holders of not less than a majority of the shares then
entitled to vote at an election of Directors; PROVIDED, HOWEVER, beginning at
such time and for so long as the Corporation is a Public Company (as defined in
Article VIII), no Director may be removed without "Cause," as defined below.
Such action may be taken at any regular or special meeting of the stockholders
of the Corporation, or by unanimous written consent in lieu of a meeting,
provided that notice of the proposed removal, which shall include a statement of
the charges alleged against the Director(s) in the event of removal for Cause,
shall have been duly given to the stockholders together with or as a part of the
notice of the meeting.
Where a question of the removal of a Director for Cause is to be presented
for stockholder consideration while the Corporation is a Public Company, an
opportunity must be provided to such Director to present his or her defense to
the stockholders by a statement which must accompany or precede the notice of
the meeting at which removal of such Director for Cause shall be considered.
Under such circumstances the Director involved shall be served with notice of
the meeting at which such action is proposed to be taken together with a
statement of the specific charges and shall be given an opportunity to be
present and to be heard at the meeting at which his or her removal is
considered.
For purposes of this Article XI, "Cause" for removal shall be limited to
(a) action by a Director involving willful malfeasance having a material adverse
effect on the Corporation or (b) a Director being convicted of a felony;
provided that any action by a Director shall not constitute "Cause" if, in good
faith, such Director believed such action to be in or not opposed to the best
interests of the Corporation, or if a Director shall be entitled, under
applicable law or the Restated Certificate of Incorporation or Bylaws of the
Corporation, to be indemnified with respect to such action.
ARTICLE XII
Special meetings of the stockholders, for any purpose or purposes, may only
be called by the Chairman of the Board or a majority of the Board.
* * *
This Restated Certificate of Incorporation shall become effective at 8:59
a.m. EST on _________, 2000.
* * *
IN WITNESS WHEREOF, the undersigned officer of the Corporation has executed
this Restated Certificate of Incorporation this ___ day of __________, 2000.
-------------------------------
Name: Matthew R. Harris
Title: Secretary