Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ACCOUNT4.COM, INC.
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1. The date of filing of the corporation's original Certificate
of Incorporation with the Secretary of State of Delaware was December 14, 1987,
under the name of Eiffel Software.
2. This Amended and Restated Certificate of Incorporation amends,
restates and integrates the provisions of the Certificate of Incorporation filed
with the Secretary of State of Delaware on December 14,1987, as thereafter
amended through the date hereof, and was proposed and declared advisable by the
Board of Directors of the corporation on April 26, 2000 and was consented to in
writing by the corporation's stockholders on the same date, in accordance with
the Certificate of Incorporation and with Sections 228, 242 and 245 of the
Delaware General Corporation Law.
3. The terms of this Amended and Restated Certificate of
Incorporation are as follows:
FIRST: The name of this corporation shall be:
ACCOUNT4.COM, INC.
SECOND: Its registered office in the State of Delaware is to be
located at 1209 Orange Street, in the City of Wilmington, County of New Castle,
19801, and its registered agent at such address is: THE CORPORATION TRUST
COMPANY.
THIRD: The purpose or purposes of the corporation shall be:
To carry on any and all business and to engage in any lawful act or
activity for which corporations may be organized under the Delaware General
Corporation Law.
FOURTH: The total number of shares of all classes of capital stock
which the corporation shall have authority to issue shall be 50,000,000
consisting solely of: (i) 10,000,000 shares of preferred stock, $.01 par value
per share (the "PREFERRED STOCK") and (ii) 40,000,000 shares of common stock,
$.01 par value per share (the "COMMON STOCK").
A description of the respective classes of stock and a statement of the
designations, preferences, voting powers (or no voting powers), relative,
participating, optional or other special rights and privileges and the
qualifications, limitations and restrictions of the Preferred Stock and Common
Stock are as follows.
SECTION 1: COMMON STOCK.
1. RELATIVE RIGHTS OF PREFERRED STOCK AND COMMON STOCK.
All preferences, voting powers, relative, participating, optional or other
special rights and privileges, and qualifications, limitations or restrictions
of the Common Stock are expressly made subject and subordinate to those that may
be fixed with respect to any shares of the Preferred Stock.
2. VOTING RIGHTS. Except as otherwise required by law or
this Certificate of Incorporation, each holder of Common Stock shall have one
vote in respect of each share of stock held by him of record on the books of the
corporation for the election of directors and on all matters submitted to a vote
of stockholders of the corporation. As used herein, "CERTIFICATE OF
INCORPORATION" shall mean this Amended and Restated Certificate of Incorporation
as the same may be amended from time to time, and shall include any certificates
filed pursuant to the terms of Section 2 of this Article FOURTH.
3. INCREASE/DECREASE OF COMMON STOCK. Notwithstanding
the provisions of Section 242(b)(2) of the Delaware General Corporation Law, the
number of authorized shares of Common Stock may be increased or decreased (but
not below the number of shares then outstanding) by the affirmative vote of the
holders of a majority of the outstanding shares of capital stock of the
corporation, voting as a single class, with each such share being entitled to
such number of votes per share as is provided in this Article FOURTH.
4. DIVIDENDS. Subject to the preferential rights of the
Preferred Stock, if any, the holders of shares of Common Stock shall be entitled
to receive, when and if declared by the Board of Directors, out of the assets of
the corporation which are by law available therefor, dividends payable either in
cash, in property or in shares of capital stock.
5. DISSOLUTION, LIQUIDATION OR WINDING UP. In the event
of any dissolution, liquidation or winding up of the affairs of the corporation,
after distribution in full of the preferential amounts, if any, to be
distributed to the holders of shares of the Preferred Stock, holders of Common
Stock shall be entitled, unless otherwise provided by law or this Certificate of
Incorporation, to receive all of the remaining assets of the corporation of
whatever kind available for distribution to stockholders ratably in proportion
to the number of shares of Common Stock held by them respectively.
SECTION 2. PREFERRED STOCK.
The Preferred Stock may be issued in one or more series at such time or
times and for such consideration or considerations as the corporation's Board of
Directors may determine. Each series of Preferred Stock shall be so designated
as to distinguish the shares thereof from the shares of all other series and
classes. Except as otherwise provided in this Certificate of Incorporation,
different series of Preferred Stock shall not be construed to constitute
different classes of shares for the purpose of voting by classes.
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Except as otherwise expressly provided in this Certificate of
Incorporation, the Board of Directors is expressly authorized to provide for the
issuance of all or any shares of the Preferred Stock in one or more series, each
with such designations, preferences, voting powers (or no voting powers),
relative, participating, optional or other special rights and privileges and
such qualifications, limitations or restrictions thereof as shall be stated in
the resolution or resolutions adopted by the Board of Directors to create such
series, and a certificate of said resolution or resolutions shall be filed in
accordance with the Delaware General Corporation Law of the State of Delaware.
The authority of the Board of Directors with respect to each such series shall
include, without limitation of the foregoing, the right to provide that the
shares of each such series may: (i) have such distinctive designation and
consist of such number of shares; (ii) be subject to redemption at such time or
times and at such price or prices; (iii) be entitled to the benefit of a
retirement or sinking fund for the redemption of such series on such terms and
in such amounts; (iv) be entitled to receive dividends (which may be cumulative
or non-cumulative) at such rates, on such conditions, and at such times, and
payable in preference to, or in such relation to, the dividends payable on any
other class or classes or any other series of stock; (v) be entitled to such
rights upon the voluntary or involuntary liquidation, dissolution or winding up
of the affairs, or upon any distribution of the assets of the corporation in
preference to, or in such relation to, any other class or classes or any series
of stock; (vi) be convertible into, or exchangeable for, shares of any other
class or classes or any other series of stock at such price or prices or at such
rates of exchange and with such adjustments, if any; (vii) be entitled to the
benefit of such conditions, limitations or restrictions, if any, on the creation
of indebtedness or new classes of capital stock, the issuance of additional
shares of such series or shares of any other series of Preferred Stock, the
amendment of this Certification of Incorporation or the corporation's By-laws,
the reclassification of any class of capital stock of the corporation, the
payment of dividends or the making of other distributions on, or the purchase,
redemption or other acquisition by the corporation of, any other class or
classes or series of stock, the merger, liquidation, dissolution, winding up or
sale of assets by the corporation, or any other corporate action; or (viii) be
entitled to such other preferences, powers, qualifications, rights and
privileges, all as the Board of Directors may deem advisable and as are not
inconsistent with law and the provisions of this Certificate of Incorporation.
FIFTH: The corporation hereby expressly elects to be governed by
Section 203 of the Delaware General Corporation Law.
SIXTH: In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware:
A. The board of directors of the corporation is expressly
authorized to adopt, amend, or repeal the By-laws of the corporation.
B. Elections of directors need not be by written ballot unless
the By-laws of the corporation shall so provide.
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C. The books of the corporation may be kept at such place within
or without the State of Delaware as the By-laws of the corporation may
provide or as may be designated from time to time by the board of
directors of the corporation.
SEVENTH. The corporation eliminates the personal liability of each
member of its Board of Directors to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided, however,
that, to the extent provided by applicable law, the foregoing shall not
eliminate the liability of a director (i) for any breach of such director's duty
of loyalty to the corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the Delaware General Corporation Law or (iv)
for any transaction from which such director derived an improper personal
benefit. No amendment to or repeal of this provision shall apply to or have any
effect on the liability or alleged liability of any director for or with respect
to any acts or omissions of such director occurring prior to such amendment or
repeal.
EIGHTH. The corporation shall, to the fullest extent permitted by the
provisions of Section 145 of the Delaware General Corporation Law, as the same
may be amended and supplemented, indemnify any and all persons whom it shall
have power to indemnify under said section from and against any and all of the
expenses, liabilities, or other matters referred to in or covered by said
Section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any Bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to action
in another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of the heirs, executors, and administrators of such person.
IN WITNESS WHEREOF, the undersigned Assistant Secretary of the
corporation has executed, signed, and acknowledged this Amended and Restated
Certificate of Incorporation this 1st day of May, 2000.
/s/ William C. Rogers, P.C.
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William C. Rogers, P.C.
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