Exhibit 3.1
FORM OF
RESTATED CERTIFICATE OF INCORPORATION
OF
LINC.NET, INC.
ARTICLE ONE
The name of the Corporation is Linc.net, Inc.
ARTICLE TWO
The address of the Corporation's registered office in the State of
Delaware is 9 East Loockerman Street, in the City of Dover, County of Kent,
19901. The name of its registered agent at such address is National Registered
Agents, Inc.
ARTICLE THREE
The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
ARTICLE FOUR
A. AUTHORIZED SHARES
The total number of shares of capital stock which the Corporation has
authority to issue is __________ shares, consisting of:
(1) ___________ shares of Preferred Stock, par value $.01 per
share ("PREFERRED STOCK"); and
(2) ___________ shares of Common Stock, par value $.01 per share
("COMMON STOCK").
The Preferred Stock and the Common Stock shall have the rights, preferences and
limitations set forth below. Capitalized terms used but not otherwise defined in
Part A, Part B, or Part C of this Article IV are defined in Part D.
B. PREFERRED STOCK
The Preferred Stock may be issued from time to time and in one or more
series. The Board of Directors of the Corporation is authorized to determine or
alter the powers, preferences and rights, and the qualifications, limitations
and restrictions granted to or imposed upon any wholly unissued series of
Preferred Stock, and within the limitations or restrictions stated in any
resolution or resolutions of the Board of Directors originally fixing the number
of shares constituting any series of Preferred Stock, to increase or decrease
(but not below the number of shares of any such series of Preferred Stock then
outstanding) the number of shares of any such series of Preferred Stock, and to
fix the number of shares of any series of Preferred Stock. In the event that the
number of shares of any series of Preferred Stock shall be so decreased, the
shares constituting such decrease shall resume the status which such shares had
prior to the adoption of the resolution originally fixing the number of shares
of such series of Preferred Stock subject to the requirements of applicable law.
C. COMMON STOCK
Section 1. DIVIDENDS. Except as otherwise provided by the Delaware
General Corporation Law or this Restated Certificate of Incorporation (the
"RESTATED CERTIFICATE"), the holders of Common Stock: (i) subject to the rights
of holders of any series of Preferred Stock, shall share ratably in all
dividends payable in cash, stock or otherwise and other distributions, whether
in respect of liquidation or dissolution (voluntary or involuntary) or otherwise
and (ii) are subject to all the powers, rights, privileges, preferences and
priorities of any series of Preferred Stock as provided herein or in any
resolution or resolutions adopted by the Board of Directors pursuant to
authority expressly vested in it by the provisions of Part B of this Article
Four.
Section 2. CONVERSION RIGHTS. The Common Stock shall not be
convertible into, or exchangeable for, shares of any other class or classes or
of any other series of the same class of the Corporation's capital stock.
Section 3. PREEMPTIVE RIGHTS. No holder of Common Stock shall have any
preemptive, subscription, redemption, conversion or sinking fund rights with
respect to the Common Stock, or to any obligations convertible (directly or
indirectly) into stock of the Corporation whether now or hereafter authorized.
Section 4. VOTING RIGHTS. Except as otherwise provided by the Delaware
General Corporation Law or the Restated Certificate and subject to the rights of
holders of any series of Preferred Stock, all of the voting power of the
stockholders of the Corporation shall be vested in the holders of the Common
Stock, and each holder of Common Stock shall have one vote for each share held
by such holder on all matters voted upon by the stockholders of the Corporation.
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Section 5. REGISTRATION OR TRANSFER. The Corporation shall keep at its
principal office (or such other place as the Corporation reasonably designates)
a register for the registration of Common Stock. Upon the surrender of any
certificate representing shares of any class of Common Stock at such place, the
Corporation shall, at the request of the registered holder of such certificate,
execute and deliver a new certificate or certificates in exchange therefor
representing in the aggregate the number of shares of such class represented by
the surrendered certificate, and the Corporation forthwith shall cancel such
surrendered certificate. Each such new certificate will be registered in such
name and will represent such number of shares of such class as is requested by
the holder of the surrendered certificate and shall be substantially identical
in form to the surrendered certificate. The issuance of new certificates shall
be made without charge to the holders of the surrendered certificates for any
issuance tax in respect thereof or other cost incurred by the Corporation in
connection with such issuance.
Section 6. REPLACEMENT. Upon receipt of evidence reasonably
satisfactory to the Corporation (an affidavit of the registered holder will be
satisfactory) of the ownership and the loss, theft, destruction or mutilation of
any certificate evidencing one or more shares of any class of Common Stock, and
in the case of any such loss, theft or destruction, upon receipt of indemnity
reasonably satisfactory to the Corporation (provided that if the holder is a
financial institution or other institutional investor, its own agreement will be
satisfactory), or, in the case of any such mutilation upon surrender of such
certificate, the Corporation shall (at its expense) execute and deliver in lieu
of such certificate a new certificate of like kind representing the number of
shares of such class represented by such lost, stolen, destroyed or mutilated
certificate and dated the date of such lost, stolen, destroyed or mutilated
certificate.
Section 7. NOTICES. All notices referred to herein shall be in
writing, shall be delivered personally or by first class mail, postage prepaid,
and shall be deemed to have been given when so delivered or mailed to the
Corporation at its principal executive offices and to any stockholder at such
holder's address as it appears in the stock records of the Corporation (unless
otherwise specified in a written notice to the Corporation by such holder).
Section 8. FRACTIONAL SHARES. In no event will holders of fractional
shares be required to accept any consideration in exchange for such shares other
than consideration which all holders of Common Stock are required to accept.
Section 5. RECLASSIFICATION OF EXISTING PREFERRED STOCK AND STOCK
SPLIT.
(i) RECLASSIFICATION. Immediately prior to the effectiveness of the
Registration Statement on Form S-1 (Reg. No. 333-_______) (the "EFFECTIVE
TIME"), each outstanding share of preferred stock of the Corporation shall,
without any action by the holder thereof, be reclassified such that each
outstanding share of Series A Convertible Preferred Stock, par value $.01 per
share, and Series B Preferred Stock, par value $.01 per share (the "EXISTING
PREFERRED") into a number of shares of Common Stock equal to the result of (x)
the Liquidation Value of such share of Existing Preferred plus the accrued and
unpaid dividends thereon divided by (y) the
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price per share of the Common Stock paid by investors in the Public Offering (in
each case before giving effect to any stock split declared in connection with
such Public Offering).
Prior to the effectiveness of the reclassification of the Existing
Preferred Stock set forth above (the "RECLASSIFICATION"), the Existing Preferred
Stock shall continue to have the rights, preferences and limitations set forth
in the Corporation's Restated Certificate of Incorporation as in effect
immediately prior to the filing of this Restated Certificate.
(ii) FRACTIONAL SHARES. Notwithstanding the foregoing, in the event
that the Reclassification would result in any holder of shares of Common Stock
holding a share of Common Stock that is not an integral multiple of one, the
effect of the Reclassification shall be such that the number of such holder's
shares of Common Stock issued as a result of the Reclassification with fractions
of 0.50 and greater being rounded up to the next higher integral multiple of one
and fractions less than 0.50 being rounded down to the next lower integral
multiple of one. No consideration will be paid in lieu of fractions that are
rounded down.
(iii) STOCK SPLIT. At the Effective Time and immediately following the
Reclassification, each share of Common Stock outstanding at the Effective Time
(after giving effect to the Reclassification) shall be, without further action
by the Corporation or any of the holders thereof, changed and converted into a
number of shares of Common Stock equal to that number determined by multiplying
each outstanding share of Common Stock by [INSERT SPLIT FACTOR] (the "STOCK
SPLIT FACTOR"). Each certificate then outstanding representing shares of Common
Stock (including those certificates that represent shares of Common Stock as a
result of the Reclassification) shall automatically represent from and after the
Effective Time that number of shares of Common Stock equal to the number of
shares shown on the face of the certificate multiplied by the Stock Split
Factor.
(iv) As soon as possible after a conversion has been effected, the
Corporation shall deliver to the converting holder a certificate or certificates
representing the number of shares of Common Stock issuable by reason of such
conversion in such name or names and such denomination or denominations as the
converting holder has specified.
(v) The issuance of certificates for shares of Common Stock upon
conversion of the Existing Preferred Stock shall be made without charge to the
holders of such Existing Preferred Stock for any issuance tax in respect thereof
or other cost incurred by the Corporation in connection with such conversion and
the related issuance of shares of Common Stock. Upon conversion of each share of
the Existing Preferred Stock, the Corporation shall take all such actions as are
necessary in order to insure that the Common Stock, issuable with respect to
such conversion shall be validly issued, fully paid and nonassessable, free and
clear of all taxes, liens, charges and encumbrances with respect to the issuance
thereof.
(vi) The Corporation shall not close its books against the transfer of
the
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Existing Preferred Stock or of Common Stock issued or issuable upon conversion
of the Existing Preferred Stock in any manner which interferes with the timely
conversion of the Existing Preferred Stock. The Corporation shall assist and
cooperate with any holder of shares required to make any governmental filings or
obtain any governmental approval prior to or in connection with any conversion
of shares hereunder (including, without limitation, making any filings required
to be made by the Corporation).
(vii) All shares of Common Stock which are so issuable shall, when
issued, be duly and validly issued, fully paid and nonassessable and free from
all taxes, liens and charges. The Corporation shall take all such actions as may
be necessary to assure that all such shares of Common Stock may be so issued
without violation of any applicable law or governmental regulation or any
requirements of any domestic securities exchange upon which shares of Common
Stock may be listed (except for official notice of issuance which shall be
immediately delivered by the Corporation upon each such issuance). The
Corporation shall not take any action which would cause the number of authorized
but unissued shares of Common Stock to be less than the number of such shares
required to be reserved hereunder for issuance upon conversion of the Existing
Preferred Stock.
E. DEFINITIONS
"AFFILIATE" means, with respect to any Person, any other Person,
entity or investment fund controlling, controlled by or under common control
with such Person and, in the case of a Person which is a partnership, any
partner of such Person.
"COMMON STOCK" means, collectively, the Corporation's Common Stock and
any other class of capital stock of the Corporation hereafter authorized which
is not limited to a fixed sum or percentage of par or stated value in respect to
the rights of the holders thereof to participate in dividends or in the
distribution of assets upon any liquidation, dissolution or winding up of the
Corporation.
"GENERAL CORPORATION LAW" means the General Corporation Law of the
State of Delaware, as amended from time to time.
"LIQUIDATION VALUE" of any Share of Existing Preferred Stock as of any
particular date shall be equal to the initial price paid to the Corporation for
such Share on its date of issuance.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"PUBLIC OFFERING" means any offering by the Corporation of its capital
stock or
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equity securities to the public pursuant to an effective registration statement
under the Securities Act of 1933, as then in effect, or any comparable statement
under any similar federal statute then in force.
ARTICLE FIVE
The Corporation is to have perpetual existence.
ARTICLE SIX
Elections of directors need not be by written ballot unless the Bylaws
of the Corporation shall so provide.
ARTICLE SEVEN
The number of directors which constitute the entire Board of Directors
of the Corporation shall be designated in the Bylaws of the Corporation.
ARTICLE EIGHT
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter, amend or repeal
the Bylaws of the Corporation.
ARTICLE NINE
Section 1. LIMITATION OF LIABILITY.
(a) To the fullest extent permitted by the Delaware General Corporation Law
as it now exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than permitted prior thereto), and except
as otherwise provided in the Corporation's By-laws, no Director of the
Corporation shall be liable to the Corporation or its stockholders for monetary
damages arising from a breach of fiduciary duty owed to the Corporation or its
stockholders.
(b) Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a Director of the Corporation existing at the time of such repeal
or modification.
Section 2. RIGHT TO INDEMNIFICATION. Each person who was or is made a party
or is threatened to be made a party to or is otherwise involved (including
involvement as a witness) in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "PROCEEDING"), by reason of the
fact that he or she is or was a Director or officer of the Corporation or, while
a Director or officer of the Corporation, is or was serving at the request of
the Corporation as a Director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee
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benefit plan (an "INDEMNITEE"), whether the basis of such proceeding is alleged
action in an official capacity as a Director or officer or in any other capacity
while serving as a Director or officer, shall be indemnified and held harmless
by the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than permitted prior
thereto), against all expense, liability and loss (including attorneys' fees,
judgments, fines, excise exercise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith and such indemnification shall continue as to an indemnitee who has
ceased to be a Director, officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators; provided,
however, that, except as provided in Section 3 of this ARTICLE NINE with respect
to proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section 2 of this ARTICLE NINE shall be a
contract right and shall include the obligation of the Corporation to pay the
expenses incurred in defending any such proceeding in advance of its final
disposition (an "ADVANCE OF EXPENSES"); provided, however, that, if and to the
extent that the Delaware General Corporation Law requires, an advance of
expenses incurred by an indemnitee in his or her capacity as a Director or
officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking (an
"UNDERTAKING"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (a "FINAL ADJUDICATION") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section 2 or otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the Corporation
with the same or lesser scope and effect as the foregoing indemnification of
Directors and officers.
Section 3. PROCEDURE FOR INDEMNIFICATION. Any indemnification of a Director
or officer of the Corporation or advance of expenses under Section 2 of this
ARTICLE NINE shall be made promptly, and in any event within forty-five days
(or, in the case of an advance of expenses, twenty days), upon the written
request of the Director or officer. If a determination by the Corporation that
the Director or officer is entitled to indemnification pursuant to this ARTICLE
NINE is required, and the Corporation fails to respond within sixty days to a
written request for indemnity, the Corporation shall be deemed to have approved
the request. If the Corporation denies a written request for indemnification or
advance of expenses, in whole or in part, or if payment in full pursuant to such
request is not made within forty-five days (or, in the case of an advance of
expenses, twenty days), the right to indemnification or advances as granted by
this ARTICLE NINE shall be enforceable by the Director or officer in any court
of competent jurisdiction. Such person's costs and expenses incurred in
connection with successfully establishing his or her right to indemnification,
in whole or in part, in any such action shall also
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be indemnified by the Corporation. It shall be a defense to any such action
(other than an action brought to enforce a claim for the advance of expenses
where the undertaking required pursuant to Section 2 of this ARTICLE NINE, if
any, has been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the Delaware General
Corporation Law for the Corporation to indemnify the claimant for the amount
claimed, but the burden of such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual determination
by the Corporation (including its Board of Directors, independent legal counsel
or its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct. The procedure for
indemnification of other employees and agents for whom indemnification is
provided pursuant to Section 2 of this ARTICLE NINE shall be the same procedure
set forth in this Section 3 for Directors or officers, unless otherwise set
forth in the action of the Board of Directors providing indemnification for such
employee or agent.
Section 4. INSURANCE. The Corporation may purchase and maintain insurance
on its own behalf and on behalf of any person who is or was a Director, officer,
employee or agent of the Corporation or was serving at the request of the
Corporation as a Director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss asserted against him or her and incurred by him or her in any
such capacity, whether or not the Corporation would have the power to indemnify
such person against such expenses, liability or loss under the Delaware General
Corporation Law.
Section 5. SERVICE FOR SUBSIDIARIES. Any person serving as a Director,
officer, employee or agent of another corporation, partnership, limited
liability company, joint venture or other enterprise, at least 50% of whose
equity interests are owned by the Corporation (a "SUBSIDIARY" for this ARTICLE
NINE) shall be conclusively presumed to be serving in such capacity at the
request of the Corporation.
Section 6. RELIANCE. Persons who after the date of the adoption of this
provision become or remain Directors or officers of the Corporation or who,
while a Director or officer of the Corporation, become or remain a Director,
officer, employee or agent of a subsidiary, shall be conclusively presumed to
have relied on the rights to indemnity, advance of expenses and other rights
contained in this ARTICLE NINE in entering into or continuing such service. The
rights to indemnification and to the advance of expenses conferred in this
ARTICLE NINE shall apply to claims made against an indemnitee arising out of
acts or omissions which occurred or occur both prior and subsequent to the
adoption hereof.
Section 7. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and to
the advance of expenses conferred in this ARTICLE NINE shall not be exclusive of
any other right which any person may have or hereafter acquire under this
Restated Certificate or under any
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statute, by-law, agreement, vote of stockholders or disinterested Directors or
otherwise.
Section 8. MERGER OR CONSOLIDATION. For purposes of this ARTICLE NINE,
references to the "Corporation" shall include, in addition to the resulting
Corporation, any constituent Corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
Directors, officers and employees or agents, so that any person who is or was a
Director, officer, employee or agent of such constituent Corporation, or is or
was serving at the request of such constituent Corporation as a Director,
officer, employee or agent of another Corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this ARTICLE
NINE with respect to the resulting or surviving Corporation as he or she would
have with respect to such constituent Corporation if its separate existence had
continued.
ARTICLE TEN
Section 1. CLASSIFICATION OF DIRECTORS. At each annual meeting of
stockholders, directors of the Corporation shall be elected to hold office until
the expiration of the term for which they are elected, and until their
successors have been duly elected and qualified; except that if any such
election shall be not so held, such election shall take place at stockholders'
meeting called and held in accordance with the Delaware General Corporation Law.
The directors of the Corporation shall be divided into three classes as nearly
equal in size as is practicable, hereby designated Class I, Class II and Class
III. In addition, one director shall be elected and designated as the Executive
Management Council Director. The term of office of the initial Class I directors
shall expire at the next succeeding annual meeting of stockholders, the term of
office of the initial Class II directors shall expire at the second succeeding
annual meeting of stockholders and the term of office of the initial Class III
directors shall expire at the third succeeding annual meeting of the
stockholders. The term of office of the Executive Management Council Director
shall expire at each annual meeting of shareholders. For the purposes hereof,
the initial Class I, Class II, Class III directors and Executive Management
Council Director shall be those directors elected by the stockholders of the
Corporation in connection with the adoption of this Restated Certificate. At
each annual meeting after the first annual meeting of stockholders, directors to
replace those of a Class whose terms expire at such annual meeting other than
the Executive Management Council Director shall be elected to hold office until
the third succeeding annual meeting and until their respective successors shall
have been duly elected and qualified. The Executive Management Council Director
shall be elected at each annual meeting. If the number of directors is hereafter
changed, any newly created directorships or decrease in directorships shall be
so apportioned among the classes as to make all classes as nearly equal in
number as practicable.
Section 2. VACANCIES. Vacancies occurring on the Board of Directors for any
reason may be filled by vote of a majority of the remaining members of the Board
of Directors, although less than a quorum, at any meeting of the Board of
Directors. A person so elected by the Board of Directors to fill a vacancy shall
hold office until the next succeeding annual meeting of
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stockholders of the Corporation and until his or her successor shall have been
duly elected and qualified.
ARTICLE ELEVEN
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 TWELVE
Beginning immediately following the consummation of the Corporation's
initial public offering of its Common Stock pursuant to an effective
registration statement under the Securities Act: (i) the stockholders of the
Corporation may not take any action by written consent in lieu of a meeting, and
must take any actions at a duly called annual or special meeting of stockholders
and the power of stockholders to consent in writing without a meeting is
specifically denied and (ii) special meetings of stockholders of the Corporation
may be called only by either the Board of Directors pursuant to a resolution
adopted by the affirmative vote of the majority of the total number of directors
then in office or by the chief executive officer of the Corporation.
ARTICLE THIRTEEN
The Corporation expressly elects to be governed by Section 203 of the
Delaware General Corporation Law. Notwithstanding the terms of Section 203 of
the Delaware General Corporation Law, each of Banc One Venture Partners and its
affiliates (the "Banc One Entities") and Saunders, Karp & Megrue, L.P. and its
affiliates (the "SKM Entities") shall not be deemed at any time and without
regard to the percentage of voting stock of the Corporation owned by each of the
Banc One Entities and the SKM Entities to be an "interested stockholder" as such
term is defined in Section 203(c)(5) of the Delaware General Corporation Law.
ARTICLE FOURTEEN
Notwithstanding any other provisions of this Restated Certificate or any
provision of law which might otherwise permit a lesser vote or no vote, but in
addition to any affirmative vote of the holders of the capital stock required by
law or this Restated Certificate, the affirmative vote of the holders of at
least two-thirds (2/3) of the combined voting power of all of the then
outstanding shares of the Corporation eligible to be cast in the election of
directors shall be required to alter, amend or repeal Articles Ten or Twelve
hereof, or this Article Fourteen, or any provision thereof or hereof.
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ARTICLE FIFTEEN
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Restated Certificate, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
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