EXHIBIT 3.1
SECOND RESTATED
CERTIFICATE
OF
INCORPORATION
OF
MICROSTRATEGY INCORPORATED
PURSUANT TO SECTION 245 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE
MicroStrategy Incorporated (hereinafter called the "Corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, does hereby certify that at a meeting
of the Board of Directors of the Corporation in accordance with the General
Corporation Law of the State of Delaware, the Board of Directors adopted a
resolution pursuant to Section 245 of the General Corporation Law of the State
of Delaware proposing a restatement of the Amended and Restated Certificate of
Incorporation, as amended, of the Corporation. The Corporation's Certificate of
Incorporation was initially filed in the Office of the Secretary of State of the
State of Delaware on November 17, 1989.
The Second Restated Certificate of Incorporation of the Corporation only
restates and integrates and does not further amend the provisions of the
Corporation's Amended and Restated Certificate of Incorporation as amended, and
there is no discrepancy between those provisions and the provisions of the
Second Restated Certificate of Incorporation. The text of the Second Restated
Certificate of Incorporation is as follows:
ARTICLE ONE
NAME
The name of the corporation is MicroStrategy Incorporated.
ARTICLE TWO
REGISTERED OFFICE
The address of the corporation's registered office in the State of
Delaware is 11th Floor, Rodney Square North, 11th and Market Streets,
Wilmington, DE 19801, County of New Castle. The name of the registered agent at
such address is Corporation Guarantee and Trust Company.
ARTICLE THREE
PURPOSE
The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act for which corporations may be organized under the
General Corporation Law of Delaware. The corporation shall possess and exercise
all the powers and privileges granted by the General Corporation Law of the
State of Delaware, by any other law or by this Certificate, together with any
powers incidental thereto as far as such powers and privileges are necessary or
convenient to the conduct, promotion, or attainment of the purposes of the
corporation.
ARTICLE FOUR
CAPITAL STRUCTURE
The total number of shares of capital stock which the corporation shall
have the authority to issue is 500,000,000 shares, consisting of three classes
of capital stock:
(a) 330,000,000 shares of Class A Common Stock, par value $0.001 per
share (the "Class A Common Stock");
(b) 165,000,000 shares of Class B Common Stock, par value $0.001 per
share (the "Class B Common Stock") (the Class A Common Stock and
the Class B Common Stock are collectively referred to as the
"Common Stock"); and
(c) 5,000,000 shares of Preferred Stock, par value $0.001 per share
(the "Preferred Stock").
ARTICLE FIVE
COMMON STOCK
5.1 Identical Rights. Except as otherwise set forth in this ARTICLE FIVE,
the rights and privileges of the Common Stock shall be identical, including
without limitation the right to participate ratably in dividends and liquidation
distributions. The corporation may not make any dividend or distribution with
respect to any class of Common Stock unless at the same time the corporation
makes a ratable dividend or distribution with respect to each outstanding share
of Common Stock regardless of class. In the case of dividends or distributions
payable in shares of a class of Common Stock, only shares of Class A Common
Stock may be distributed with respect to Class A Common Stock and only shares of
Class B Common Stock may be distributed with respect to Class B Common Stock,
and the number of shares of Common Stock payable per share will be equal for
each class. In addition, neither the shares of Class A Common Stock nor the
shares of Class B Common Stock may be subdivided, consolidated, reclassified or
otherwise changed unless concurrently the shares of the other class of Common
Stock are subdivided, consolidated, reclassified or otherwise changed in the
same proportion and the same manner. The rights of holders of Class A Common
Stock and Class B Common Stock are subject to the rights of holders of shares of
any series of Preferred Stock that the corporation may designate and issue from
time to time.
5.2 Voting Rights. The holders of the Common Stock shall vote as a single
class on all matters submitted to a vote of the stockholders to which the
holders of Common Stock are entitled to vote, except as may be required by
Delaware law or as otherwise expressly specified in this Certificate of
Incorporation. Each share of Class A Common Stock shall be entitled to one vote
and each share of Class B Common Stock shall be entitled to ten votes. The
corporation, by action of its Board of Directors and the affirmative vote of the
holders of a majority of the voting power of the capital stock of the
corporation entitled to vote, may increase or decrease the number of authorized
shares of Common Stock of the corporation (but not below the number of shares of
Common Stock then outstanding) irrespective of the provisions of Section
242(b)(2) of the General Corporation Law of Delaware.
5.3 Conversion Rights.
(a) Voluntary Conversion. Each share of Class B Common Stock is
convertible into one share Class A Common Stock at any time at the option of the
holder.
(b) Automatic Conversion. Each share of Class B Common Stock shall
convert automatically into one share of Class A Common Stock upon its sale,
assignment, gift or other transfer, other than a transfer approved in advance of
the effectiveness thereof by the holders of a majority of the Class B Common
Stock outstanding, voting separately as a class; provided, however, that a
transfer effected as a result of the death of the transferor may be approved by
the holders of a majority of the Class B Common Stock outstanding, voting
separately as a class, within thirty (30) days of such transfer. For purposes of
determining whether a transfer has been approved by the holders of a majority of
the Class B Common Stock outstanding, the shares for which approval of the
transfer is being sought shall continue to be considered outstanding shares of
Class B Common Stock and the proposed transferor (or in the case of shares
transferred as a result of the death of the proposed transferor, the Executor or
similar personal representative of such proposed transferor) shall be entitled
to vote on such transfer. Notwithstanding the foregoing, (i) the provisions of
this Section 5.3(b) shall not apply in the case of a merger or similar
transaction by the corporation in which all the outstanding shares of Common
Stock of the corporation regardless of class are purchased by the acquirer, and
(ii) any holder of Class B Common Stock may pledge his shares of Class B Common
Stock to a financial institution (the "Pledgee") pursuant to a bona fide pledge
of such shares as collateral security for indebtedness due to the Pledgee;
provided that such shares remain subject to the provisions of this Section 5.3
and that, if the Pledgee forecloses or takes similar action, such pledged shares
of Class B Common Stock shall be converted automatically into shares of Class A
Common Stock as provided in this Section 5.3(b); provided, however, that if
within five business days after such foreclosure or similar event such converted
shares are returned to the pledgor, such shares shall be converted automatically
back into shares of Class B Common Stock.
5.4 Unconverted Shares. If less than all of the shares of Class B Common
Stock evidenced by a certificate surrendered to the corporation (in accordance
with such procedures as the Board of Directors may determine) are converted, the
corporation shall execute and deliver to or upon the written order of the holder
of such certificate a new certificate evidencing the number of shares of Class B
Common Stock which are not converted without charge to the holder.
5.5 Reservation. The corporation hereby reserves, and shall at all times
reserve and keep available, out of its authorized and unissued shares of Class A
Common Stock, for the purposes of effecting conversions, such number of duly
authorized shares of Class A Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding shares of Class B Common
Stock. The corporation covenants that all the shares of Class A Common Stock so
issuable shall, when so issued, be duly and validly issued, fully paid and
non-assessable. The corporation shall take all such action as may be necessary
to assure that all such shares of Class A Common Stock may be so issued without
violation of any applicable law or regulation. The corporation shall not take
any action that results in any adjustment of the conversion ratio if the total
number of shares of Class A Common Stock issued and issuable after such action
upon conversion of the shares of Class B Common Stock would exceed the total
number of shares of Class A Common Stock then authorized by the corporation's
certificate of incorporation.
5.6 Merger. Upon the merger or consolidation of the corporation, holders of
each class of Common Stock will be entitled to receive equal per share payments
or distributions, except that in any transaction in which shares of capital
stock are distributed to holders of Common Stock, the shares of capital stock
distributed to holders of Class A Common Stock and Class B Common Stock may
differ, but only to the extent that the Class A Common Stock and the Class B
Common Stock differ in this Certificate of Incorporation.
5.7 Liquidation. Upon any dissolution or liquidation of the corporation,
holders of Common Stock shall be entitled to receive ratably all assets of the
corporation available for distribution to stockholders, subject to any
preferential rights of any then outstanding Preferred Stock.
ARTICLE SIX
PREFERRED STOCK
Preferred Stock may be issued from time to time in one or more series,
each series to have such terms as stated or expressed in this Certificate of
Incorporation and in the resolution or resolutions providing for the issue of
such series adopted by the Board of Directors of the corporation as hereinafter
provided. Any shares of Preferred Stock which may be redeemed, purchased or
acquired by the corporation may be reissued except as otherwise provided by law.
Different series of Preferred Stock shall not be construed to constitute
different classes of shares for the purposes of voting by classes unless
expressly provided or required by law.
The Board of Directors is expressly granted the authority from time to
time to issue the Preferred Stock in one or more series, and in connection with
the creation of any such series, by its resolutions providing for the issue of
Preferred Stock, to determine and fix such voting powers, full or limited, or no
voting powers, and such designations, preferences and relative participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, including without limitation, dividend rights, redemption
and sinking fund provisions, liquidation preferences, conversion rights and
preemptive rights as shall be stated and expressed in such resolutions, all to
the fullest extent now or hereafter permitted by the General Corporation Law of
Delaware. Without limiting the generality of the foregoing, the resolutions
providing for issuance of any series of Preferred Stock may provide that such
series shall be superior or rank equally or be junior to the Preferred Stock of
any other series to the extent
permitted by law. Except as otherwise provided in this Certificate of
Incorporation or any certificate of designation creating a series of Preferred
Stock, no vote of the holders of the Preferred Stock (or any series thereof) or
Common Stock shall be a prerequisite to the designation or issuance of any
shares of any series of the Preferred Stock authorized by and complying with the
conditions of this Certificate of Incorporation, the right to have such vote
being expressly waived by all present and future holders of the capital stock of
the corporation.
ARTICLE SEVEN
BOARD OF DIRECTORS
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter or repeal the
by-laws of the corporation, but the stockholders may make additional by-laws and
may alter or repeal any by-law whether adopted by them or otherwise.
Election of directors need not be by written ballot unless required by
the by-laws of the corporation.
Except to the extent that the General Corporation Law of Delaware
prohibits the elimination or limitation of liability of directors for breaches
of fiduciary duty, no director of the corporation shall be personally liable to
the corporation or its stockholders for monetary damages for any breach of
fiduciary duty as a director, notwithstanding any provision of law imposing such
liability. No amendment to or repeal of this provision 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 director
occurring prior to such amendment.
ARTICLE EIGHT
INDEMNIFICATION
The corporation shall, to the fullest extent permitted by Section 145 of
the General Corporation Law of Delaware, as amended from time to time, indemnify
each person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was, or has agreed to become, a director or officer of the corporation, or is or
was serving, or has agreed to serve, at the request of the corporation, as a
director, officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise (including
any employee benefit plan) (any such person being referred to hereafter as an
"Indemnitee"), or by reason of any action alleged to have been taken or omitted
in such capacity, against all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by or on
behalf of an Indemnitee in connection with such action, suit or proceeding and
any appeal therefrom; provided that the corporation shall not indemnify an
Indemnitee seeking indemnification in connection with a proceeding (or part
thereof) initiated by such Indemnitee unless the initiation thereof was approved
by the Board of Directors of the corporation; and provided further that the
corporation shall not indemnify an Indemnitee to the extent such Indemnitee is
reimbursed from the proceeds of insurance, and in the event the corporation
makes any indemnification payments to an Indemnitee and such
Indemnitee is subsequently reimbursed from the proceeds of insurance, such
Indemnitee shall promptly refund such indemnification payments to the
corporation to the extent of such insurance reimbursement.
As a condition precedent to his right to be indemnified, the Indemnitee
must notify the corporation in writing as soon as practicable of any action,
suit, proceeding or investigation involving him for which indemnity will or
could be sought. With respect to any action, suit, proceeding or investigation
of which the corporation is so notified, the corporation will be entitled to
participate therein at its own expense and/or to assume the defense thereof at
its own expense, with legal counsel reasonably acceptable to the Indemnitee.
In the event that the corporation does not assume the defense of any
action, suit, proceeding or investigation of which the corporation receives
notice under this Article, the corporation shall pay in advance of the final
disposition of such matter any expenses (including attorneys' fees) incurred by
an Indemnitee in defending any such action, suit, proceeding or investigation or
any appeal therefrom; provided, however, that the payment of such expenses
incurred by an Indemnitee in advance of the final disposition of such matter
shall be made only upon receipt of an undertaking by or on behalf of the
Indemnitee to repay all amounts so advanced in the event that it shall
ultimately be determined that the Indemnitee is not entitled to be indemnified
by the corporation as authorized in this Article, which undertaking shall be
accepted without reference to the financial ability of the Indemnitee to make
such repayment; and further provided that no such advancement of expenses shall
be made if it is determined that (i) the Indemnitee did not act in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the corporation, or (ii) with respect to any criminal action or
proceeding, the Indemnitee had reasonable cause to believe his conduct was
unlawful.
All determinations hereunder as to the entitlement of an Indemnitee to
indemnification or advancement of expenses shall be made in each instance by (a)
a majority vote of the directors of the corporation consisting of persons who
are not at that time parties to the action, suit or proceeding in question
("disinterested directors"), whether or not a quorum, (b) the vote of the
holders of shares representing a majority of the votes entitled to be cast in
the election of directors, exclusive of any shares held by any party to the
action, suit or proceeding in question, (c) independent legal counsel (who may,
to the extent permitted by law, be regular legal counsel to the corporation), or
(d) a court of competent jurisdiction.
The indemnification rights provided in this ARTICLE EIGHT shall not be
deemed exclusive of any other rights to which an Indemnitee may be entitled
under any law, agreement or vote of stockholders or disinterested directors or
otherwise, and shall inure to the benefit of the heirs, executors and
administrators of the Indemnitee. The corporation may, to the extent authorized
from time to time by its Board of Directors, grant indemnification rights to
other employees or agents of the corporation or other persons serving the
corporation and such rights may be equivalent to, or greater or less than, those
set forth in this Article.
ARTICLE NINE
AMENDMENTS
The corporation reserves the right to amend, alter, change or repeal any
provision contained in this certificate, in the manner now or hereafter
prescribed by the law of the State of Delaware. All rights conferred upon
stockholders herein are granted subject to this reservation.
This Second Restated Certificate of Incorporation supersedes and takes
the place of the heretofore existing Amended and Restated Certificate of
Incorporation, as amended, of the corporation and all amendments, certificates
and supplements thereto, if any.
IN WITNESS WHEREOF, MicroStrategy Incorporated has caused this Second
Restated Certificate of Incorporation to be executed by Michael J. Saylor, its
Chairman and Chief Executive Officer, this 12th day of May, 2003.
MICROSTRATEGY INCORPORATED
By: /s/ Michael J. Saylor
------------------------------------
Michael J. Saylor
Chairman and Chief Executive Officer