EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
KINZAN, INC.
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I, the undersigned natural person acting as an incorporator of Kinzan,
Inc. (the "Corporation") under the General Corporation Law of the State of
Delaware ("DGCL"), do hereby adopt the following Certificate of Incorporation
for the Corporation:
FIRST: The name of the Corporation is Kinzan, Inc.
SECOND: The registered office of the Corporation in the State of
Delaware is located at 1013 Centre Road, in the City of Wilmington, County of
New Castle. The name of the registered agent of the Corporation at such
address is the Corporation Service Company.
THIRD: The purpose for which the Corporation is organized is to engage
in any and all lawful acts and activity for which corporations may be
organized under the DGCL. The Corporation will have perpetual existence.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 1,000 shares, par value $0.001 per share,
designated Common Stock.
FIFTH: The name of the incorporator of the Corporation is Kyle C.
Krpata, and the mailing address of such incorporator is 2882 Sand Hill Road,
Suite 280, Menlo Park, California 94025.
SIXTH: The number of directors constituting the initial board of
directors is one and the name and mailing address of such person who is to
serve as director until the first annual meeting of stockholders or until his
successor is elected and qualified is as follows:
Gari L. Cheever 2111 Palomar Airport Road, Suite 250
Carlsbad, California 92009
SEVENTH: Directors of the Corporation need not be elected by written
ballot unless the bylaws of the Corporation otherwise provide.
EIGHTH: The directors of the Corporation shall have the power to adopt,
amend, and repeal the bylaws of the Corporation.
NINTH: No contract or transaction between the Corporation and one or
more of its directors, officers, or stockholders or between the Corporation
and any person (as used herein, "person" means any other corporation,
partnership, association, firm, trust, joint venture, political subdivision,
or instrumentality) or other organization in which one or more of its
directors, officers, or stockholders are directors, officers, or
stockholders, or have a financial interest, shall be void or voidable solely
for this reason, or solely because the director or officer is present at or
participates in the meeting of the board or committee which authorizes the
contract or transaction, or solely because his, her, or their votes are
counted for such purpose, if: (i) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed
or are known to the board of directors or the committee, and the board of
directors or committee in good faith authorizes the contract or transaction
by the affirmative votes of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum; (ii) the material
facts as to his or her relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good
faith by vote of the stockholders; or (iii) the contract or transaction is
fair as to the Corporation as of the time it is authorized, approved, or
ratified by the board of directors, a committee thereof, or the stockholders.
Common or interested directors may be counted in determining the presence of
a quorum at a meeting of the board of directors or of a committee which
authorizes the contract or transaction.
TENTH: The Corporation shall indemnify any person who was, is, or is
threatened to be made a party to a proceeding (as hereinafter defined) by
reason of the fact that he or she (i) is or was a director or officer of the
Corporation or (ii) while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, to the
fullest extent permitted under the DGCL, as the same exists or may hereafter
be amended. Such right shall be a contract right and as such shall run to
the benefit of any director or officer who is elected and accepts the
position of director or officer of the Corporation or elects to continue to
serve as a director or officer of the Corporation while this Article Tenth is
in effect. Any repeal or amendment of this Article Tenth shall be
prospective only and shall not limit the rights of any such director or
officer or the obligations of the Corporation with respect to any claim
arising from or related to the services of such director or officer in any of
the foregoing capacities prior to any such repeal or amendment to this
Article Tenth. Such right shall include the right to be paid by the
Corporation expenses incurred in defending any such proceeding in advance of
its final disposition to the maximum extent permitted under the DGCL, as the
same exists or may hereafter be amended. If a claim for indemnification or
advancement of expenses hereunder is not paid in full by the Corporation
within sixty (60) days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim, and if successful in
whole or in part, the claimant shall also be entitled to be paid the expenses
of prosecuting such claim. It shall be a defense to any such action that
such indemnification or advancement of costs of defense are not permitted
under the DGCL, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its board of
directors or any committee thereof, independent legal counsel, or
stockholders) to have made its determination prior to the commencement of
such
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action that indemnification of, or advancement of costs of defense to, the
claimant is permissible in the circumstances nor an actual determination by
the Corporation (including its board of directors or any committee thereof,
independent legal counsel, or stockholders) that such indemnification or
advancement is not permissible shall be a defense to the action or create a
presumption that such indemnification or advancement is not permissible. In
the event of the death of any person having a right of indemnification under
the foregoing provisions, such right shall inure to the benefit of his or her
heirs, executors, administrators, and personal representatives. The rights
conferred above shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, by-law, resolution of
stockholders or directors, agreement, or otherwise.
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by law.
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal,
administrative, arbitrative, or investigative, any appeal in such an action,
suit, or proceeding, and any inquiry or investigation that could lead to such
an action, suit, or proceeding.
ELEVENTH: 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, except for liability (i) for any breach of the
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 knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for
any transaction from which the director derived an improper personal benefit.
Any repeal or amendment of this Article Eleventh by the stockholders of the
Corporation shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Corporation arising
from an act or omission occurring prior to the time of such repeal or
amendment. In addition to the circumstances in which a director of the
Corporation is not personally liable as set forth in the foregoing provisions
of this Article Eleventh, a director shall not be liable to the Corporation
or its stockholders to such further extent as permitted by any law hereafter
enacted, including without limitation any subsequent amendment to the DGCL.
TWELFTH: The Corporation expressly elects not to be governed by Section
203 of the DGCL.
I, the undersigned, for the purpose of forming the Corporation under the
laws of the State of Delaware, do make, file, and record this Certificate of
Incorporation and do certify that this is my act and deed and that the facts
stated herein are true and, accordingly, I do hereunto set my hand on this
10th day of May, 2000.
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Kyle C. Krpata
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