Exhibit 3.3
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
IMTEK OFFICE SOLUTIONS, INC.
Imtek Office Solutions, Inc., a Delaware corporation (the
"Corporation") hereby files this Amended and Restated Certificate of
Incorporation.
NOW, THEREFORE, IT IS HEREBY CERTIFIED THAT:
1. The name of the corporation filing this Amended and Restated Certificate of
Incorporation is Imtek Office Solutions, Inc., a Delaware corporation.
2. The Corporation was originally incorporated under the name of Vision
Capital, Inc., a Delaware corporation ("Vision"). Vision originally filed
its Certificate of Incorporation with the Secretary of State of Delaware on
November 9, 1987.
3. This Amended and Restated Certificate of Incorporation hereby amends and
restates in its entirety the Certificate of Incorporation of the
Corporation to read as follows:
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
IMTEK OFFICE SOLUTIONS, INC.
ARTICLE I.
NAME
The name of this corporation is Imtek Office Solutions, Inc.
ARTICLE II.
REGISTERED OFFICE; REGISTERED AGENT
The address of the registered office of the corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the
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registered agent of the corporation in the State of Delaware at such address is
The Corporation Trust Company.
ARTICLE III.
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE IV.
CAPITAL STOCK
A. GENERAL AUTHORIZATION. The Corporation is authorized to issue two
classes of stock to be designated, respectively, "Common Stock" and "Preferred
Stock". The total number of shares of all classes of stock which the Corporation
shall have the authority to issue shall be Fifty-Five Million (55,000,000)
shares. Fifty Million (50,000,000) shares shall be Common Stock, each having a
par value of $.000001 per share. Five Million (5,000,000) shares shall be
Preferred Stock, each having a par value of $0.01 per share.
B. COMMON STOCK. The Common Stock of the Corporation shall have such
designations, voting powers, preferences, and such other special rights and
qualifications, limitations and restrictions thereon as are provided by Delaware
General Corporation Law.
C. PREFERRED STOCK. (1) The Preferred Stock may be issued from time to
time in one or more series. The Board of Directors is hereby authorized, by
filing a certificate pursuant to the Delaware General Corporation Law, to fix or
alter from time to time the designation, powers, preferences and rights of the
shares of each such series and the qualifications, limitations or restrictions
thereof, including without limitation the dividend rights, dividend rate,
conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions), redemption price or prices, and the liquidation
preferences of any wholly unissued series of Preferred Stock, and to establish
from time to time the number of shares constituting any such series and the
designation thereof, or any of them (a "Preferred Stock Designation"), and to
increase or decrease the number of shares of any series subsequent to the
issuance of shares of that series, but not below the number of shares of such
series then outstanding. In case the number of shares of any series shall be
decreased in accordance with the foregoing sentence, the shares constituting
such decrease shall resume the status that they had prior to the adoption of the
resolution originally fixing the number of shares of such series. Different
series of Preferred Stock shall not be considered to constitute different
classes of shares for the purpose of voting by classes (except as otherwise
fixed by the Board of Directors with respect to any series at the time of the
creation thereof).
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(2) The Corporation has authority to issue 75,000 shares of
its Preferred Stock as Series A Convertible Preferred Stock, par value $.01 per
share, pursuant to that certain Certificate of Designation of Series A
Convertible Preferred Stock of the Corporation filed with the Secretary of State
of Delaware on March 23, 1998 (the "Series A Convertible Preferred
Designation"). The designation, voting powers or lack thereof, preferences, and
such other special rights and qualifications, limitations and restrictions of
the Series A Convertible Preferred Stock are as set forth in the Series A
Convertible Preferred Designation.
D. NEGATION OF PREEMPTIVE RIGHTS. Except as set forth in a duly adopted
resolution of the Board of Directors or pursuant to a written agreement duly
authorized by the Board of Directors, the holders of the capital stock of the
Corporation shall have no preemptive rights to subscribe for any shares of any
class of stock of the Corporation whether now or hereafter authorized.
ARTICLE V.
BOARD OF DIRECTORS AND STOCKHOLDERS
For the management of the business and for the conduct of the affairs
of the corporation, and in further definition, limitation and regulation of the
powers of the corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
A. The management of the business and the conduct of the affairs of the
Corporation shall be vested in its Board of Directors. The number of directors
which shall constitute the whole Board of Directors shall be fixed exclusively
by one or more resolutions adopted from time to time by the Board of Directors.
B. From and after the closing of the Corporation's initial public
offering pursuant to an effective registration statement under the Securities
Act of 1933, as amended, covering the offer and sale of the Common Stock (the
"Initial Public Offering"), the directors of the Corporation shall be divided
into three classes designated as Class I, Class II and Class III, respectively.
Directors shall be assigned to each class in accordance with a resolution or
resolutions adopted by the Board of Directors prior to the Initial Public
Offering. At the first annual meeting of stockholders following the Initial
Public Offering, the term of office of the Class I directors shall expire and
Class I directors shall be elected for a full term of three years. At the second
annual meeting of stockholders following the closing of the Initial Public
Offering, the term of office of the Class II directors shall expire and Class II
directors shall be elected for a full term of three years. At the third annual
meeting of stockholders following the closing of the Initial Public Offering,
the term of office of the Class III directors shall expire and Class III
directors shall be elected for a full term of three years. At each succeeding
annual meeting of stockholders, directors shall be elected for a full term of
three years
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to succeed the directors of the class whose terms expire at such annual meeting.
Notwithstanding the foregoing provisions of this Article, each director shall
serve until his successor is duly elected and qualified or until his death,
resignation or removal. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
C. The Board of Directors is expressly authorized to alter, amend, or
repeal or adopt new Bylaws by the affirmative vote of a majority of directors
present and voting at a meeting of directors duly called and noticed at which a
quorum of directors is present.
D. The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
E. From and after the Initial Public Offering, any director, or the
entire Board of Directors, may be removed from office only (i) for cause, and
(ii) by the affirmative vote of the holders of at least sixty-six and two-thirds
percent (66-2/3%) of the voting power of all of the then-outstanding shares of
the voting stock.
ARTICLE VI.
ALTERATION, AMENDMENT OR REPEAL OF CERTAIN ARTICLES
From and after the Initial Public Offering and notwithstanding any
other provisions of this Certificate of Incorporation 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 any particular class or series of the voting
stock required by law, this Certificate of Incorporation or any Preferred Stock
Designation, the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the voting power of all of the then-outstanding
shares of the voting stock, voting together as a single class, shall be required
to alter, amend or repeal Article V, Article VI , Article VIII or Article IX
hereof.
ARTICLE VII.
SECTION 102(b)(2) STATEMENT
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-
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fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court at which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
ARTICLE VIII.
RESERVATION OF RIGHT TO AMEND, ALTER, CHANGE OR REPEAL CERTIFICATE OF
INCORPORATION
Subject to Article VI hereof, the corporation reserves the right at any
time, and from time to time, to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, and other provisions authorized
by the laws of the State of Delaware at the time in force may be added or
inserted, in the manner now or hereafter prescribed by law, and all rights,
preferences and privileges of whatsoever nature conferred upon the stockholders,
directors or any other persons whomsoever by and pursuant to this Certificate of
Incorporation in its present form or as hereafter amended are granted subject to
the rights reserved in this Article.
ARTICLE IX.
LIMITATION OF LIABILITY AND INDEMNIFICATION
A. The liability of the directors of the Corporation for monetary
damages shall be eliminated to the fullest extent permissible under Delaware
law.
B. The Corporation is authorized to provide indemnification of agents
(as defined in Section 145 of the Delaware General Corporation Law) for breach
of duty to the Corporation and its stockholders through bylaw provisions,
through agreements with the agents, and/or through stockholder resolutions, or
otherwise, in excess of the indemnification otherwise permitted by Section 145
of the Delaware General Corporation Law.
C. Any repeal or modification of this Article IX shall be prospective
and shall not affect the rights under this Article IX in effect at the time of
the alleged occurrence of any act or omission to act giving rise to liability or
indemnification.
4. The Board of Directors of the Corporation adopted a resolution
setting forth this Amended and Restated Certificate of Incorporation herein
certified, declaring its advisability and submitting this Amended and Restated
Certificate of Incorporation to the stockholders entitled to vote in respect
thereof in order to consider the adoption of this Amended and Restated
Certificate of Incorporation.
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5. Pursuant to the aforementioned resolution of the Corporation?s Board
of Directors, the Amended and Restated Certificate of Incorporation herein
certified was duly adopted in accordance with Section 242 of the Delaware
General Corporation Law by the consent of at least a majority of the outstanding
stock entitled to vote thereon, and a majority of the outstanding stock of each
class entitled to vote thereon as a class. This Amended and Restated Certificate
of Incorporation herein certified has been duly adopted in accordance with the
provisions of Sections 242 and 245 of the Delaware General Corporation Law.
6. This Amended and Restated Certificate of Incorporation shall become
effective when filed with the Secretary of State of Delaware.
SIGNED AND ACKNOWLEDGED JUNE 25, 1999:
IMTEK OFFICE SOLUTIONS, INC.
/s/ Edwin C. Hirsch
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Edwin C. Hirsch, President
ATTEST:
/s/ Robert J. Brown
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Robert J. Brown, Secretary
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