EXHIBIT 3.3
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
OBJECTSPACE, INC.
(Pursuant to Section 242 of the General
Corporation Law of the State of Delaware)
ObjectSpace, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify as follows:
FIRST: The Certificate of Incorporation of the Corporation is hereby
amended by replacing Article FOURTH in its entirety with the Article FOURTH set
forth on EXHIBIT A attached hereto and incorporated herein by this reference.
SECOND: The Board of Directors of the Corporation duly adopted
resolutions setting forth the above-referenced amendment, declaring such
amendment to be advisable, and calling for a vote of the stockholders of the
Corporation on such amendment.
THIRD: The stockholders of the Corporation duly adopted resolutions
approving the above-referenced amendment.
FOURTH: The above-referenced amendment was duly adopted in accordance
with the provisions of Section 242 of the General Corporation Law of the State
of Delaware.
* * * * *
EXHIBIT 3.3
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed and attested as of the 20th day of August, 1998.
OBJECTSPACE, INC.
By: /s/ DAVID NORRIS
----------------------------
Name: David Norris
Title: President
ATTEST:
/s/ DEBORAH THOMAS
- -------------------------------
Name: Deborah Thomas
Title: Secretary
2
EXHIBIT 3.3
EXHIBIT A
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 25,000,000 shares of capital stock, classified as (i)
20,000,000 shares of common stock, $.01 par value ("Common Stock"), and (ii)
5,000,000 shares of preferred stock, $1.00 par value ("Preferred Stock").
The designations and the powers, preferences, rights, qualifications,
limitations, and restrictions of the Preferred Stock and Common Stock are as
follows:
1. PROVISIONS RELATING TO THE PREFERRED STOCK.
(a) The Preferred Stock may be issued from time to time in one
or more classes or series, the shares of each class or series to have such
designations and powers, preferences, and rights, and qualifications,
limitations, and restrictions thereof, as are stated and expressed herein and
in the resolution or resolutions providing for the issue of such class or
series adopted, as hereinafter prescribed, by the entire board of directors
of the Corporation ("Board of Directors") or by any duly designated committee
thereof ("Committee").
(b) Authority is hereby expressly granted to and vested in the
Board of Directors or Committee to authorize the issuance of the Preferred
Stock from time to time in one or more classes or series, and with respect to
each class or series of the Preferred Stock, to fix and state by the
resolution or resolutions from time to time adopted providing for the
issuance thereof the following:
(i) whether or not the class or series is to have voting
rights, full, special, or limited, or is to be without voting rights, and
whether or not such class or series is to be entitled to vote as a separate
class either alone or together with the holders of one or more other classes
or series of stock;
(ii) the number of shares to constitute the class or series
and the designations thereof;
(iii) the preferences, and relative, participating,
optional, or other special rights, if any, and the qualifications,
limitations, or restrictions thereof, if any, with respect to any class or
series;
(iv) whether or not the shares of any class or series shall
be redeemable at the option of the Corporation or the holders thereof or upon
the happening of any specified event, and, if redeemable, the redemption
price or prices (which may be payable in the form of cash, notes, securities,
or other property), and the time or times at which, and the terms and
conditions upon which, such shares shall be redeemable and the manner of
redemption;
(v) whether or not the shares of a class or series shall be
subject to the operation of retirement or sinking funds to be applied to the
purchase or redemption of such shares for
3
EXHIBIT 3.3
retirement, and, if such retirement or sinking fund or funds are to be
established, the annual amount thereof, and the terms and provisions relative
to the operation thereof;
(vi) the dividend rate, whether dividends are payable in cash,
stock of the Corporation, or other property, the conditions upon which and the
times when such dividends payable on any other class or classes or series of
stock, whether or not such dividends shall be cumulative or noncumulative, and
if cumulative, the date or dates from which such dividends shall accumulate;
(vii) the preferences, if any, and the amounts thereof which
the holders of any class or series thereof shall be entitled to receive upon the
voluntary or involuntary dissolution of, or upon any distribution of the assets
of, the Corporation;
(viii) whether or not the shares of any class or series, at
the option of the Corporation or the holder thereof or upon the happening of any
specified event, shall be convertible into or exchangeable for, the shares or
any other class or classes or of any other series of the same or any other class
or classes of stock, securities, or other property of the Corporation and the
conversion price or prices or ratio or ratios or the rate or rates at which such
exchange may be made, with such adjustments, if any, as shall be stated and
expressed or provided for in such resolution or resolutions; and
(ix) such other special rights and protective provisions with
respect to any class or series as may to the Board of Directors or Committee
deem advisable.
(c) The shares of each class or series of the Preferred Stock may vary
from the shares of any other class or series thereof in any or all of the
foregoing respects. The Board of Directors or Committee may increase the number
of shares of the Preferred Stock designated for any existing class or series by
a resolution adding to such class or series authorized and unissued shares of
the Preferred Stock not designated for any other class or series. The Board of
Directors or Committee may decrease the number of shares of the Preferred Stock
designated for any existing class or series by a resolution subtracting from
such class or series authorized and unissued shares of the Preferred Stock
designated for such existing class or series, and the shares so subtracted shall
become authorized, unissued, and undesignated shares of the Preferred Stock. The
number of authorized shares of Preferred Stock may be increased or decreased
(but not below the number of shares thereof then outstanding) by the affirmative
vote of the holders of a majority of the Common Stock, without a vote of the
holders of the Preferred Stock, or any series thereof, unless a vote of any such
holders is required pursuant to the terms fixed therefor in the resolution or
resolutions providing for the issuance of such class or series adopted by the
Board of Directors or any Committee.
2. PROVISIONS RELATING TO THE COMMON STOCK.
(a) Each share of Common Stock of the Corporation shall have identical
rights and privileges in every respect. The holders of shares of Common Stock
shall be entitled to vote upon
4
EXHIBIT 3.3
all matters submitted to a vote of the stockholders of the Corporation and
shall be entitled to one vote for each share of Common Stock held.
(b) Subject to the prior rights and preferences, if any, applicable to
shares of the Preferred Stock or any series thereof, the holders of shares of
the Common Stock shall be entitled to receive such dividends (payable in cash,
stock, or otherwise) as may be declared thereon by the Board of Directors or
Committee at any time and from time to time out of any funds of the Corporation
legally available therefor.
(c) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up 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 or any series thereof, the holders of shares of the Common Stock
shall be entitled to receive all of the remaining assets of the Corporation
available for distribution to its stockholders, ratably in proportion to the
number of shares of the Common Stock held by them. A liquidation, dissolution,
or winding-up of the Corporation, as such terms are used in this paragraph (c),
shall not be deemed to be occasioned by or to include any consolidation or
merger of the Corporation with or into any other corporation or corporations or
other entity or a sale, lease, exchange, or conveyance of all or a part of the
assets of the Corporation.
3. GENERAL.
(a) Subject to the foregoing provisions of this Certificate of
Incorporation and the applicable provisions of the DGCL, the Corporation may
issue shares of its Preferred Stock and Common Stock from time to time for such
consideration (not less than the par value thereof) as may be fixed by the Board
of Directors or Committee, which is expressly authorized to fix the same in its
absolute and uncontrolled discretion subject to the foregoing conditions. Shares
so issued for which the consideration shall have been paid or delivered to the
Corporation shall be deemed fully paid stock and shall not be liable to any
further call or assessment thereon, and the holders of such shares shall not be
liable for any further payments in respect of such shares.
(b) The Corporation shall have authority to create and issue rights and
options entitling their holders to purchase shares of the Corporation's capital
stock of any class or series or other securities of the Corporation, and such
rights and options shall be evidenced by instrument(s) approved by the Board of
Directors or Committee. The Board of Directors or Committee shall be empowered
to set the exercise price, duration, times for exercise, and other terms of such
options or rights; PROVIDED, HOWEVER, that the consideration to be received for
any shares of capital stock subject thereto shall not be less than the par value
thereof.
5