Exhibit 3.1
FOURTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
WEBHIRE, INC.
Webhire, Inc. (hereinafter called the "Corporation"), a corporation
organized and existing under and by virtue of the provisions of the General
Corporation Law of the State of Delaware (the "DGCL"), hereby certifies as
follows:
1. The name of the Corporation is Webhire, Inc., and it was
originally incorporated under the name MicroTrac Systems, Inc. pursuant to a
filing with the Secretary of State of the State of Delaware on November 8,
1993. The Corporation filed its First Amended and Restated Certificate of
Incorporation on January 5, 1994; filed its Second Amended and Restated
Certificate of Incorporation on June 5, 1996; and filed its Third Amended and
Restated Certificate of Incorporation on July 26, 1996 (the "Third
Certificate"). On May 26, 1999, the Corporation filed a Certificate of
Ownership and Merger to change the name of the Corporation from Restrac, Inc.
to Webhire, Inc. On April 25, 2001, the Corporation filed an Amendment to the
Third Certificate to delete Article V of the Third Certificate.
2. This Fourth Amended and Restated Certificate of Incorporation
amends, restates and integrates the provisions of the Third Certificate as
heretofore amended, and (i) was duly adopted by the Board of Directors of the
Corporation (the "Board") in accordance with Section 245 of the DGCL, (ii) was
declared by the Board to be advisable and in the best interests of the
Corporation and was directed by the Board to be submitted to and be considered
by the stockholders of the Corporation entitled to vote thereon for approval by
the affirmative vote of such stockholders in accordance with Section 242 of the
DGCL, and (iii) was duly adopted by a stockholder consent in lieu of a meeting
of the stockholders, with the holders of a majority of the outstanding shares of
the Corporation's common stock, par value $.01 per share, consenting to the
adoption of this Fourth Amended and Restated Certificate of Incorporation in
accordance with the provisions of Section 228 and Section 242 of the DGCL and
the terms of the Third Certificate, such common stock of the Corporation being
all of the classes and series of capital stock entitled to vote thereon.
3. The text of the Third Amended and Restated Certificate of
Incorporation is hereby amended and restated in its entirety to provide as
herein set forth in full.
ARTICLE I
NAME
The name of the Corporation is Webhire, Inc.
ARTICLE II
REGISTERED OFFICE
The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street, in the 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
PURPOSES
The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the DGCL.
ARTICLE IV
CAPITAL STOCK
Section 1. NUMBER OF SHARES.
The total number of shares of capital stock which the Corporation shall
have the authority to issue is thirty-five million (35,000,000) shares, of which
(i) thirty million (30,000,000) shares shall be common stock, par value $.01 per
share (the "Common Stock"), and (ii) five million (5,000,000) shares shall be
preferred stock, par value $.01 per share (the "Preferred Stock"). As set forth
in this Article IV, the Board of Directors or any authorized committee thereof
is authorized from time to time to establish and designate one or more series of
Preferred Stock, to fix and determine the variations in the relative rights and
preferences as between the different series of Preferred Stock in the manner
hereinafter set forth in this Article IV, and to fix or alter the number of
shares comprising any such series and the designation thereof to the extent
permitted by law.
The number of authorized shares of the class of Preferred Stock may be
increased or decreased (but not below the number of shares 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, pursuant to the resolution or
resolutions establishing the class of Preferred Stock or this Fourth Amended and
Restated Certificate of Incorporation, as it may be amended from time to time.
Effective upon the filing with the Secretary of State of the State of
Delaware of this Fourth Amended and Restated Certificate of Incorporation (the
"Effective Time"), each 5 shares of Common Stock of the Corporation, par value
$0.01 per share (the "Old Common Stock"), issued and outstanding or reserved for
issuance or held in treasury shall automatically, and without any action by the
holder thereof, be reclassified into 1 share of Common Stock of the Corporation,
par value $0.01 per share (the "New Common Stock"), and each certificate which
prior to the Effective Time represented 5 shares of the Old Common Stock shall,
from and after the Effective Time, be deemed to represent 1 share of the New
Common Stock. In connection
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with the preceding calculation, the Corporation shall not issue fractional
shares, but may instead make a cash payment in lieu of any fractional shares.
Section 2. GENERAL.
The designations, powers, preferences and rights of, and the
qualifications, limitations and restrictions upon, each class or series of stock
shall be determined in accordance with, or as set forth below in, Section 3 and
Section 4 of this Article IV.
Section 3. COMMON STOCK.
Subject to all of the rights, powers and preferences of the Preferred
Stock, and except as provided by law or in this Article IV (or in any
certificate of designation of any series of Preferred Stock) or by the Board of
Directors or any authorized committee thereof pursuant to this Article IV,
(a) the holders of the Common Stock shall have the exclusive right
to vote for the election of directors and on all other matters
requiring stockholder action, each share being entitled to one
vote;
(b) dividends may be declared and paid or set apart for payment
upon the Common Stock out of any assets or funds of the
Corporation legally available for the payment of dividends,
but only when and as declared by the Board of Directors or any
authorized committee thereof; and
(c) upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the net assets of the
Corporation shall be distributed pro rata to the holders of
the Common Stock in accordance with their respective rights
and interests.
Section 4. PREFERRED STOCK.
Subject to any limitations prescribed by law, the Board of Directors or
any authorized committee thereof is expressly authorized to provide for the
issuance of the shares of Preferred Stock in one or more series of such stock,
and by filing a certificate pursuant to applicable law of the State of Delaware,
to establish or change from time to time the number of shares to be included in
each such series, and to fix the designations, powers, preferences and the
relative, participating, optional or other special rights of the shares of each
series and any qualifications, limitations and restrictions thereof. Any action
by the Board of Directors or any authorized committee thereof under this Section
4 shall require the affirmative vote of a majority of the directors then in
office or a majority of the members of such committee. The Board of Directors or
any authorized committee thereof shall have the right to determine or fix one or
more of the following with respect to each series of Preferred Stock to the
extent permitted by law:
(a) The distinctive serial designation and the number of shares
constituting such series;
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(b) The dividend rates or the amount of dividends to be paid on
the shares of such series, whether dividends shall be
cumulative and, if so, from which date or dates, the payment
date or dates for dividends, and the participating and other
rights, if any, with respect to dividends;
(c) The voting powers, full or limited, if any, of the shares of
such series;
(d) Whether the shares of such series shall be redeemable and, if
so, the price or prices at which, and the terms and conditions
on which, such shares may be redeemed;
(e) The amount or amounts payable upon the shares of such series
and any preferences applicable thereto in the event of
voluntary or involuntary liquidation, dissolution or winding
up of the Corporation;
(f) Whether the shares of such series shall be entitled to the
benefit of a sinking or retirement fund to be applied to the
purchase or redemption of such shares, and if so entitled, the
amount of such fund and the manner of its application,
including the price or prices at which such shares may be
redeemed or purchased through the application of such fund;
(g) Whether the shares of such series shall be convertible into,
or exchangeable for, shares of any other class or classes or
of any other series of the same or any other class or classes
of stock of the Corporation and, if so convertible or
exchangeable, the conversion price or prices, or the rate or
rates of exchange, and the adjustments thereof, if any, at
which such conversion or exchange may be made, and any other
terms and conditions of such conversion or exchange;
(h) The price or other consideration for which the shares of such
series shall be issued;
(i) Whether the shares of such series which are redeemed or
converted shall have the status of authorized but unissued
shares of Preferred Stock (or series thereof) and whether such
shares may be reissued as shares of the same or any other
class or series of stock; and
(j) Such other powers, preferences, rights, qualifications,
limitations and restrictions thereof as the Board of Directors
or any authorized committee thereof may deem advisable.
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ARTICLE V
DIRECTORS
Section 1. GENERAL.
The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors except as otherwise provided
herein or required by law.
Section 2. ELECTION OF DIRECTORS.
Election of directors need not be by written ballot unless the bylaws
of the Corporation shall so provide.
Section 3. TERMS OF DIRECTORS.
The number of directors of the Corporation shall be fixed by resolution
duly adopted from time to time by the Board of Directors. The directors, other
than those who may be elected by the holders of any series of Preferred Stock of
the Corporation, shall be classified, with respect to the term for which they
severally hold office, into three classes, as nearly equal in number as
possible. The initial Class I Director shall serve for a term expiring at the
annual meeting of stockholders to be held following the fiscal year ending
September 30, 1996, the initial Class II Director shall serve for a term
expiring at the annual meeting of stockholders to be held following the fiscal
year ending September 30, 1997, and the initial Class III Directors shall serve
for a term expiring at the annual meeting of stockholders to be held following
the fiscal year ending September 30, 1998. At each annual meeting of
stockholders, the successor or successors of the class of directors whose term
expires at that meeting (other than directors elected by any series of Preferred
Stock) shall be elected by a plurality of the votes cast at such meeting and
shall hold office for a term expiring at the annual meeting of stockholders held
in the third year following the year of their election. The directors elected to
each class (other than directors elected by any series of Preferred Stock) shall
hold office until their successors are duly elected and qualified or until their
earlier resignation or removal.
Notwithstanding the foregoing, whenever, pursuant to the provisions of
Article IV of this Fourth Amended and Restated Certificate of Incorporation, the
holders of any one or more series of Preferred Stock shall have the right,
voting separately as a series or together with holders of other such series, to
elect directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such directorships
shall be governed by the terms of this Fourth Amended and Restated Certificate
of Incorporation and any certificate of designations applicable thereto, and
such directors so elected shall not be divided into classes pursuant to this
Section 3.
During any period when the holders of any series of Preferred Stock
have the right to elect additional directors as provided for or fixed pursuant
to the provisions of Article IV hereof, then upon commencement and for the
duration of the period during which such right continues: (i) the then otherwise
total authorized number of directors of the Corporation shall automatically be
increased by such specified number of directors, and the holders of such
Preferred Stock shall be
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entitled to elect the additional directors so provided for or fixed pursuant to
said provisions, and (ii) each such additional director shall serve until such
director's successor shall have been duly elected and qualified, or until such
director's right to hold such office terminates pursuant to said provisions,
whichever occurs earlier, subject to such director's earlier death,
disqualification, resignation or removal. Except as otherwise provided by the
Board of Directors in the resolution or resolutions establishing such series,
whenever the holders of any series of Preferred Stock having such right to elect
additional directors are divested of such right pursuant to the provisions of
such stock, the terms of office of all such additional directors elected by the
holders of such stock, or elected to fill any vacancies resulting from the
death, resignation, disqualification or removal of such additional directors,
shall forthwith terminate and the total and authorized number of directors of
the Corporation shall be reduced accordingly.
Section 4. VACANCIES.
Subject to the rights, if any, of the holders of any series of
Preferred Stock to elect directors and to fill vacancies in the Board of
Directors relating thereto, any and all vacancies in the Board of Directors,
however occurring, including, without limitation, by reason of an increase in
size of the Board of Directors, or the death, resignation, disqualification or
removal of a director, shall be filled solely by the affirmative vote of a
majority of the remaining directors then in office, even if less than a quorum
of the Board of Directors. Any director appointed 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 the vacancy
occurred and until such director's successor shall have been duly elected and
qualified or until his or her earlier resignation or removal. Subject to the
rights, if any, of the holders of any series of Preferred Stock to elect
directors, when the number of directors is increased or decreased, the Board of
Directors shall determine the class or classes to which the increased or
decreased number of directors shall be apportioned; provided, however, that no
decrease in the number of directors shall shorten the term of any incumbent
director. In the event of a vacancy in the Board of Directors, the remaining
directors, except as otherwise provided by law, may exercise the powers of the
full Board of Directors until the vacancy is filled.
Section 5. REMOVAL.
Subject to the rights, if any, of any series of Preferred Stock to
elect directors and to remove any director whom the holders of any such stock
have the right to elect, any director (including persons elected by directors to
fill vacancies in the Board of Directors) may be removed from office (i) only
with cause and (ii) only by the affirmative vote of at least two-thirds of the
total votes which would be eligible to be cast by stockholders in the election
of such director. At least 30 days prior to any meeting of stockholders at which
it is proposed that any director be removed from office, written notice of such
proposed removal shall be sent to the director whose removal will be considered
at the meeting. For purposes of this Fourth Amended and Restated Certificate of
Incorporation, "cause," with respect to the removal of any director shall
include (i) conviction of a felony, (ii) declaration of unsound mind by order of
court, (iii) gross dereliction of duty, (iv) commission of any action involving
moral turpitude, or (v) commission of an action which constitutes intentional
misconduct or a knowing violation of law
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if such action in either event results both in an improper substantial personal
benefit and a material injury to the Corporation.
ARTICLE VI
LIMITATION OF LIABILITY
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 a 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. If the
DGCL is amended after the effective date of this Fourth Amended and Restated
Certificate of Incorporation to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest extent
permitted by the DGCL, as so amended.
Any repeal or modification of this Article VI by either of (i) the
stockholders of the Corporation or (ii) an amendment to the DGCL, shall not
adversely affect any right or protection existing at the time of such repeal or
modification with respect to any acts or omissions occurring before such repeal
or modification of a person serving as a director at the time of such repeal or
modification.
ARTICLE VII
AMENDMENT OF BYLAWS
Section 1. AMENDMENT BY DIRECTORS.
Except as otherwise provided by law, the bylaws of the Corporation may
be amended or repealed by the Board of Directors.
Section 2. AMENDMENT BY STOCKHOLDERS.
The bylaws of the Corporation may be amended or repealed at any annual
meeting of stockholders, or special meeting of stockholders called for such
purpose, by the affirmative vote of at least two-thirds of the total votes
eligible to be cast on such amendment or repeal by holders of voting stock,
voting together as a single class; provided, however, that if the Board of
Directors recommends that stockholders approve such amendment or repeal at such
meeting of stockholders, such amendment or repeal shall only require the
affirmative vote of a majority of the total votes eligible to be cast on such
amendment or repeal by holders of voting stock, voting together as a single
class.
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ARTICLE VIII
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend or repeal this Fourth
Amended and Restated Certificate of Incorporation in the manner now or hereafter
prescribed by statute and this Fourth Amended and Restated Certificate of
Incorporation, and all rights conferred upon stockholders herein are granted
subject to this reservation. No amendment or repeal of this Fourth Amended and
Restated Certificate of Incorporation shall be made unless the same is first
approved by the Board of Directors pursuant to a resolution adopted by the Board
of Directors in accordance with Section 242 of the DGCL, and, except as
otherwise provided by law, thereafter approved by the stockholders. Whenever any
vote of the holders of voting stock is required to amend or repeal any provision
of this Fourth Amended and Restated Certificate of Incorporation, and in
addition to any other vote of holders of voting stock that is required by this
Fourth Amended and Restated Certificate of Incorporation, or by law, the
affirmative vote of a majority of the total votes eligible to be cast by holders
of voting stock with respect to such amendment or repeal, voting together a
single class, at a duly constituted meeting of stockholders called expressly for
such purpose shall be required to amend or repeal any provisions of this Fourth
Amended and Restated Certificate of Incorporation; provided, however, that the
affirmative vote of not less than 80% of the total votes eligible to be cast by
holders of voting stock, voting together a single class, shall be required to
amend or repeal any of the provisions of Article V or Article VIII of this
Fourth Amended and Restated Certificate of Incorporation.
* * *
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IN WITNESS WHEREOF, this Fourth Amended and Restated Certificate of
Incorporation has been executed by the President and Secretary of the
Corporation on this 18th day of June, 2001.
/s/ Martin J. Fahey
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Martin J. Fahey
President
/s/ Stephen D. Allison
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Stephen D. Allison
Secretary
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