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Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
COLLEGIS, INC.
Collegis, Inc. (the "CORPORATION"), a corporation originally
organized on May 23, 1996 and existing under and by virtue of the General
Corporation Law of the State of Delaware (the "DGCL"), does hereby certify:
I. That the Board of Directors of the Corporation duly
adopted, by unanimous written consent, a resolution setting forth the Amended
and Restated Certificate of Incorporation as set forth below, declaring its
adoption advisable and submitting it to the stockholders entitled to vote in
respect thereof for their consideration.
II. That, in lieu of a meeting, by written consent executed in
accordance with Section 228 of the DGCL, the holders of a majority of the
outstanding stock entitled to vote thereon have voted in favor of the adoption
of the Amended and Restated Certificate of Incorporation as set forth below.
III. That the Amended and Restated Certificate of Incorporation
of the Corporation set forth below has been duly adopted and approved in
accordance with Sections 228, 242 and 245 of the DGCL:
FIRST: The name of the Corporation is Collegis, Inc.
SECOND: The address of the Corporation's registered office in the
State of Delaware is 1209 Orange Street, City of Wilmington, County of New
Castle. The name of the Corporation's registered agent at that address is The
Corporation Trust Company.
THIRD: 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.
FOURTH: The total number of shares of capital stock which the
Corporation shall have authority to issue is 40,000,000 shares of common stock,
par value of $.01 per share (the "COMMON STOCK"), and 1,000,000 shares of
preferred stock, par value of $.01 per share (the "PREFERRED STOCK").
The powers, preferences and relative, participating, optional or
other rights of the capital stock and the qualifications, limitations or
restrictions thereof are as follows:
A. COMMON STOCK
1. RELATIVE RIGHTS. The Common Stock shall be subject to all
of the rights, privileges, preferences and priorities of the Preferred
Stock as set forth in the Certificate(s) of designation filed to establish
the respective classes or series of Preferred Stock. Each share of Common
Stock shall have the same relative rights as set and be identical in all
respects to all the other shares of Common Stock.
2. VOTING RIGHTS. (a) Except as otherwise required by law,
each share of Common Stock shall entitle the holder thereof to one vote on
each matter
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properly submitted to a vote of the stockholders of the Corporation. There
shall be no right to cumulate votes in the election of directors.
(b) The Corporation shall not take any of the following
actions, directly or indirectly, without the vote of the holders of at
least two-thirds (2/3) of the Common Stock:
(i) amend, alter or repeal provisions of the By-Laws
of the Corporation that require the vote of the holders of at least
two-thirds (2/3) of the Common Stock;
(ii) liquidate, in whole or in part, consolidate or
merge with or into any other entity or convey, transfer or lease its
properties and assets substantially as an entirety to any entity, or permit
any entity to merge into it or convey, transfer or lease its properties and
assets substantially as an entirety to it, unless the Board of Directors of
the Corporation specifically approves and authorizes any such liquidation,
consolidation, conveyance, merger, transfer or lease, then in such event
such liquidation, consolidation, conveyance, merger, transfer or lease
shall be approved by the vote of the holders of at least a majority of the
Common Stock; or
(iii) amend this article FOURTH, Section A(2)(b) or
article SIXTH.
3. DIVIDEND RIGHTS. Subject to all of the rights of the
holders of all classes or series of stock at the time outstanding having
prior rights as to dividends, the holders of the Common Stock shall be
entitled to receive dividends at such times and in such amounts as may be
determined by the Board of Directors of the Corporation or a duly
authorized committee thereof.
4. LIQUIDATION RIGHTS. In the event of a dissolution,
liquidation or winding up of the Corporation, whether voluntary or
involuntary, the holders of the Common Stock shall be entitled, after
payment or provision for payment of the debts and other liabilities of the
Corporation and the amount to which the holders of any class or series of
the Preferred Stock shall be entitled, to share ratably in the remaining
net assets of the Corporation.
B. PREFERRED STOCK
1. The Board of Directors of the Corporation is expressly
authorized to provide for the issuance of all or any shares of the
Preferred Stock in one or more classes or series, and to fix for each such
class or series such voting powers, full or limited, or no voting powers,
and such distinctive designations, preferences and relative, participating,
optional or other special rights and such qualifications, limitations or
restrictions thereof, as shall be stated and expressed in the resolution or
resolutions adopted by the Board of Directors of the Corporation providing
for the issuance of such class or series and as may be permitted by the
DGCL, including without limitation, the authority to provide that any such
class or series may be (i) subject to redemption at such time or times and
at such price or prices; (ii) 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; (iii)
entitled to such rights upon the dissolution of, or upon
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any distribution of the assets of, the Corporation; or (iv) convertible
into, or exchangeable for, shares of any other class or classes of stock,
or of any other series of the same or any other class or classes of stock,
of the Corporation at such price or prices or at such rates of exchange and
with such adjustments; all as may be stated in such resolution or
resolutions. Unless otherwise provided in such resolution or resolutions,
shares of Preferred Stock of such class or series which shall be issued and
thereafter acquired by the Corporation through purchase, redemption,
exchange, conversion or otherwise shall return to the status of authorized
but unissued Preferred Stock.
FIFTH: The Corporation shall have perpetual existence.
SIXTH: The business and affairs of the Corporation shall be
managed by or under the direction of a Board of Directors consisting of not less
than one nor more than 15 directors, the exact number of directors to be
determined from time to time by resolution adopted by affirmative vote of a
majority of the entire Board of Directors. The Board of Directors shall be
divided into three classes, designated Class I, Class II and Class III. Each
class shall consist, as nearly as may be possible, of one-third of the total
number of directors constituting the entire Board of Directors. The initial term
of the Class I directors shall expire at the 2003 annual meeting of the
stockholders; the initial term of the Class II directors shall expire at the
2004 annual meeting of the stockholders; and the initial term of the Class III
directors shall expire at the 2005 annual meeting of the stockholders. At each
succeeding annual meeting of stockholders beginning in 2003, successors to the
class of directors whose term expires at that annual meeting shall be elected
for a three-year term. If the number of directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible, and any additional director
of any class elected to fill a vacancy resulting from an increase in such class
shall hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten the
term of any incumbent director. A director shall hold office until the annual
meeting for the year in which his or her term expires and until his or her
successor shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office. Any vacancy
occurring in the Board of Directors, including any vacancy created by an
increase in the number of directors, shall be filled for the unexpired term by
the vote of a majority of the directors then in office, whether or not a quorum,
or by a sole remaining director, and any director so chosen shall hold office
for the remainder of the full term of the class in which the new directorship
was created or the vacancy occurred and until such director's successor shall
have been elected and qualified. No director may be removed except for cause and
then only by an affirmative vote of the holders of at least a majority of the
outstanding shares of capital stock of the Corporation entitled to vote thereon
at a duly constituted meeting of stockholders called for such purpose. At least
thirty days prior to such meeting of stockholders, written notice shall be sent
to the director or directors whose removal shall be considered at such meeting.
SEVENTH: A. The Corporation shall indemnify to the fullest
extent permitted under and in accordance with the DGCL any person who was or is
a party to (or witness in) or is threatened to be made a party to (or witness
in) any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he or she is or was or
has agreed to become a director, officer, employee or agent of the Corporation,
or is or was serving (or who
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has agreed to serve) at the request of the Corporation as a director, officer,
trustee, employee or agent of or in any other capacity with respect to another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
B. Expenses (including reasonable attorneys' fees) incurred
in defending a civil, criminal, administrative or investigative action, suit or
proceeding (i) in the case of any action, suit or proceeding against a director
of the Corporation shall or (ii) in the case of any action, suit or proceeding
against an officer, employee or agent of the Corporation may, as authorized by
the Board of Directors, be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of the indemnified person to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by the
Corporation as authorized in this Article SEVENTH.
C. The indemnification and other rights set forth in this
Article SEVENTH shall not be exclusive of any provisions with respect thereto in
the Amended and Restated By-Laws of the Corporation or any other contract or
agreement between the Corporation and any officer, director, employee or agent
of the Corporation.
D. Neither the amendment nor repeal of Section A, B or C of
this Article SEVENTH nor the adoption of any provision of this Amended and
Restated Certificate of Incorporation inconsistent with Section A, B or C of
this Article SEVENTH in respect of any matter occurring prior to such amendment,
repeal or adoption of an inconsistent provision or in respect of any cause of
action, suit or claim relating to any such matter which would have given rise to
a right of indemnification or right to receive expenses pursuant to Section A, B
or C of this Article SEVENTH if such provision had not been so amended or
repealed or if a provision inconsistent therewith had not been so adopted.
EIGHTH: To the fullest extent permitted by the DGCL as the
same now exists or may be hereafter amended, a director of the Corporation shall
not be liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director. No amendment to or repeal of this
Article EIGHTH shall apply to or have any effect on the liability or alleged
liability of any director of the Corporation for or with respect to any acts or
omissions of such individual occurring prior to such amendment or repeal.
NINTH: Any action required or permitted to be taken by the
stockholders of the Corporation shall be effected only at a duly called annual
or special meeting of such stockholders and shall not be effected by a consent
in writing by such stockholders in lieu of such meeting.
TENTH: In furtherance and not in limitation of the powers
conferred by statute, the directors are expressly authorized to adopt, amend and
repeal the Amended and Restated By-Laws of the Corporation, subject to any
specific limitation on such power contained in any Amended and Restated By-Laws
adopted by the stockholders of the Corporation and subject to the provisions in
this Amended and Restated Certificate of Incorporation.
ELEVENTH: Elections of directors need not be by written ballot
unless the by-laws of the Corporation so provide.
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TWELFTH: The Corporation reserves the right to amend, alter or
repeal any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon the stockholders herein are granted subject to this
reservation.
[signature page follows]
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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be executed by the undersigned duly authorized
officer of the Corporation on this ___ day of August, 2002.
COLLEGIS, INC.
By:_________________________________
Name:_______________________________
Title:______________________________