EXHIBIT 3.3
RESTATED CERTIFICATE OF INCORPORATION
OF
MAINCONTROL, INC.,
a Delaware Corporation
MainControl, Inc. (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 "Delaware General Corporation Law"), DOES HEREBY CERTIFY
THAT:
1. The name of the Corporation is MainControl, Inc.. The original
Certificate of Incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on January 5, 1996 pursuant to
the Delaware General Corporation Law.
2. This Restated Certificate of Incorporation restates and integrates
and further amends the provisions of the Certificate of Incorporation of
the Corporation and was duly adopted by the stockholders of the Corporation
in accordance with the provisions of Sections 242 and 245 of the Delaware
General Corporation Law by written consent of stockholders given in
accordance with Section 228 of the Delaware General Corporation Law, with
written notice given to stockholders who did not consent in writing.
3. The text of the Certificate of Incorporation of the Corporation as
heretofore amended, supplemented or restated is hereby restated and further
amended to read in its entirety as follows:
ARTICLE I
Name
----
Section 1.1. Name. The name of the Corporation is MainControl, Inc.
----
(the "Corporation").
ARTICLE II
Registered Office and Registered Agent
--------------------------------------
Section 2.1. Registered Office and Registered Agent. 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. The name of its
registered agent at such address is The Corporation Trust Company.
ARTICLE III
Corporate Purpose
-----------------
Section 3.1 Corporate Purpose. 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 (the "Delaware General Corporation Law").
ARTICLE IV
Capitalization
--------------
Section 4.1. Authorized Capital. The Corporation is authorized to
------------------
issue two classes of stock to be designated, respectively, "Common Stock" and
"Preferred Stock." The total number of shares that the Corporation is authorized
to issue is two hundred million fifteen thousand (215,000,000) shares, comprised
of two hundred million (200,000,000) shares of Common Stock, par value $.001 per
share, and fifteen million (15,000,000) shares of Preferred Stock, par value
$.001 per share.
Section 4.2. Common Stock.
------------
(a) All outstanding shares of Common Stock shall be identical and
shall entitle the holders thereof to the same rights and privileges. The
holders of shares of Common Stock shall have no preemptive or preferential
rights of subscription to any shares of any class of capital stock of the
Corporation.
(b) When, as and if dividends or distributions are declared on
outstanding shares of Common Stock, whether payable in cash, in property or in
securities of the Corporation, the holders of outstanding shares of Common Stock
shall be entitled to share equally, share for share, in such dividends and
distributions.
(c) Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of outstanding shares
of Common Stock shall be entitled to share equally, share for share, in the
assets of the Corporation to be distributed among the holders of shares of the
Common Stock.
(d) The holder of each share of Common Stock shall have the right to
one vote, and shall be entitled to notice of any stockholders' meeting in
accordance with the bylaws of the Corporation, and shall be entitled to vote
upon such matters and in such manner as may be
provided by law. Except as otherwise required by law or this Restated
Certificate of Incorporation, holders of Common Stock shall vote together with
holders of the Preferred Stock as a single class, subject to any special or
preferential voting rights of any then outstanding Preferred Stock. The number
of authorized shares of Common Stock may be increased or decreased (but not
below the number of shares then outstanding) by the affirmative vote of the
holders of a majority of the outstanding shares of capital stock of the
Corporation, with each such share being entitled to such number of votes per
share as is provided in this Article IV.
Section 4.3. Preferred Stock. Shares of the Preferred Stock of the
---------------
Corporation may be issued from time to time in one or more classes or series,
each of which class or series shall have such distinctive designation or title
as shall be fixed by the Board of Directors of the Corporation prior to the
issuance of any shares thereof. Each such class or series of Preferred Stock
shall have such voting powers, full or limited, or no voting powers, and such
other relative, participating, optional or other rights, preferences, privileges
and restrictions, including the voting rights, redemption provisions (including
sinking fund provisions), dividend rights, dividend rates, liquidation
preferences and conversion rights, and such qualifications, limitations or
restrictions thereof, as shall be stated in such resolution or resolutions
providing for the issuance of such class or series of Preferred Stock as may be
adopted from time to time by the Board of Directors prior to the issuance of any
shares thereof pursuant to the authority hereby expressly vested in it, all in
accordance with the laws of the State of Delaware. Any action by the Board of
Directors under this Section 4.3 shall require the affirmative vote of a
majority of the members of the Board of Directors then in office.
ARTICLE V
Management of the Affairs of the Corporation
--------------------------------------------
Section 5.1. Management of the Affairs of the Corporation. (a) The
--------------------------------------------
business and affairs of the Corporation shall be managed by its Board of
Directors, which may exercise all the powers of the Corporation and do all such
lawful acts and things that are not conferred upon or reserved to the
stockholders by law, by this Restated Certificate of Incorporation or by the
Bylaws of the Corporation (the "Bylaws").
(b) The following provisions are inserted for the limitation and
regulation of the powers of the Corporation and of its directors and
stockholders:
(i) The Board of Directors shall have the power to make, alter, amend,
change or repeal the Bylaws by the affirmative vote of a majority of the
members of the Board of Directors then in office. In addition, the Bylaws
may be made, altered, amended, changed or repealed by the stockholders of
the Corporation upon the affirmative vote of the holders of at least 80% of
the outstanding capital stock entitled to vote thereon.
(ii) The number of directors of the Corporation shall be as from time
to time fixed by, or in the manner provided in, the Bylaws of the
Corporation. The 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 term of the initial Class I directors shall terminate on the
date of the 2001 annual meeting of stockholders; the term of the initial
Class II directors shall terminate on the date of the 2002 annual meeting
of stockholders; and the term of the initial Class III directors shall
terminate on the date of the 2003 annual meeting of stockholders. At each
annual meeting of stockholders beginning in 2001, 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, 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 term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office.
The term of a director elected to fill a newly created directorship or
other vacancy shall expire at the same time as the terms of the other
directors of the class for which the new directorship is created or in
which the vacancy occurred. Any vacancy on the Board of Directors that
results from an increase in the number of directors and any other vacancy
occurring on the Board of Directors, howsoever resulting, may be filled by
a majority of the directors then in office, even if less than a quorum, or
by a sole remaining director. Any director so elected by the Board of
Directors to fill a vacancy shall hold office for a term that shall
coincide with the term of the class to which such director shall have been
elected.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have
the right, voting separately by class or 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 Restated Certificate of Incorporation or the
resolution or resolutions adopted by the Board of Directors pursuant to
Section 4.2 hereof applicable thereto, and such directors so elected shall
not be divided into classes pursuant to this clause (b) of this Article V
unless expressly provided by such terms.
(iii) Subject to the rights, if any, of the holders of shares of
Preferred Stock then outstanding, any or all of the directors of the
Corporation may be removed from office at any time by the stockholders of
the Corporation, but only for cause and only by the affirmative vote of the
holders of 80% of the outstanding shares of the Corporation then entitled
to vote generally in the election of directors, considered for purposes of
this paragraph as one class.
(iv) Any action required or permitted to be taken at any annual or
special meeting of stockholders may be taken only upon the vote of the
stockholders at an annual or special meeting duly noticed and called, as
provided herein and in the Bylaws of the
Corporation, and may not be taken by a written consent of the stockholders
pursuant to the Delaware General Corporation Law.
(v) Special meetings of the stockholders of the Corporation for any
purpose or purposes may be called at any time by the Chairman of the Board
of Directors or the President of the Corporation. Special meetings of the
stockholders of the Corporation may not be called by any other person or
persons.
(vi) The Board of Directors shall have the exclusive authority and
power to determine whether and to what extent, and at what times and
places, and under what conditions and regulations, the accounts and books
of the Corporation, or any of them, shall be open to inspection of
stockholders; and no stockholder shall have any right to inspect any
account, book or document of the Corporation except as conferred by
applicable law or authorized by the Bylaws or by the Board of Directors.
The Corporation may in its Bylaws confer powers upon the Board of
Directors in addition to the foregoing and in addition to the powers and
authorities expressly conferred upon the Board of Directors by applicable law.
ARTICLE VI
Location of Meetings and
Corporate Books and Records
---------------------------
Section 6.1. Location of Meetings and Corporate Books and Records.
----------------------------------------------------
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 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 VII
Liability of Directors
----------------------
Section 7.1. Liability of Directors. A director of the Corporation
----------------------
shall, to the full extent permitted by the Delaware General Corporation Law as
it now exists or as it may hereafter be amended, not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director. Neither any amendment nor repeal of this Article VII, nor
the adoption of any provision of this Restated Certificate of Incorporation
inconsistent with this Article VII, shall eliminate or reduce the effect of this
Article VII in respect of any matter occurring, or any cause of action, suit or
claim that, but for this Article VII, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
ARTICLE VIII
Indemnification of Directors, Officers and Others
-------------------------------------------------
Section 8.1. Indemnification of Directors, Officers and Others. (a)
-------------------------------------------------
The Corporation shall indemnify any 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
(other than an action by or in the right of the Corporation) by reason of the
fact that the person is or was a director, officer, employee or agent of the
Corporation, or is 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 expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person 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 the
person's conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
----
contendere or its equivalent, shall not, of itself, create a presumption that
- ----------
the person did not act in good faith and in a manner which the person 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 reasonable cause to
believe that the person's conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that the person is or was a director, officer,
employee or agent of the Corporation, or is 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 expenses
(including attorneys' fees) actually and reasonably incurred by the person in
connection with the defense or settlement of such action or suit if the person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a present or former director or officer of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in paragraphs (a) and (b) this Section
8.1, or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
(d) Any indemnification under paragraphs (a) and (b) this Section 8.1
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent
is proper in the circumstances because the person has met the applicable
standard of conduct set forth in such paragraphs (a) and (b). Such determination
shall be made, with respect to a person who is a director or officer at the time
of such determination, (i) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(ii) by a committee of such directors designated by majority vote of such
directors, even though less than a quorum, or (iii) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (iv) by the stockholders of the Corporation.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may 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 such director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation authorized in this Section 8.1. Such expenses
(including attorneys' fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as
the Corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other sections of this Section 8.1 shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any law, by-law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in
such person's official capacity and as to action in another capacity while
holding such office.
(g) The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Corporation, or is 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 liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of Section 145 of the Delaware General
Corporation Law.
(h) For purposes of this Section 8.1, 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 the provisions of this Section 8.1 with
respect to the resulting or surviving corporation as such person would have with
respect to such constituent corporation if its separate existence had continued.
(i) For purposes of this Section 8.1, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, officer, employee or agent
of the Corporation which imposes duties on, or involves service by, such
director, officer, employee or agent with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good faith and in a
manner such person reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Section 8.1.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 8.1 shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
ARTICLE IX
Business Combinations
---------------------
Section 9.1. Business Combinations. The Corporation shall be
---------------------
governed by Section 203 of the Delaware General Corporation Law.
ARTICLE X
Amendments
----------
Section 10.1. Amendments. Notwithstanding anything contained in this
----------
Restated Certificate of Incorporation to the contrary, the affirmative vote of
the holders of at least 80% of the outstanding shares of Common Stock shall be
required to amend or repeal, or adopt any provision inconsistent with, Article
V, Article IX or this Article X of this Restated Certificate of Incorporation.
ARTICLE XI
Private Property
----------------
Section 11.1. Private Property. The private property of the
----------------
stockholders of the Corporation shall not be subject to the payment of corporate
debts to any extent whatsoever.
This Restated Certificate of Incorporation shall be effective upon its
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation has
been signed by the Secretary of the Corporation on this ___day of __________,
2000.
--------------
David J. Piper
Secretary