EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
TMS, INC.
TO THE SECRETARY OF STATE OF THE STATE OF OKLAHOMA:
The undersigned incorporator, whose name and address is shown below, being a
person legally competent to enter into contracts, under the provisions of the
Oklahoma General Corporation Act, does hereby adopt the following Certificate of
Incorporation:
ARTICLE I
NAME
----
The name of this Corporation is: TMS, INC.
ARTICLE II
REGISTERED AGENT
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The name and address of the registered agent of the Corporation in the State
of Oklahoma is Winfrey D. Houston, 110 West Third Street, P.O. Box 1358,
Stillwater, Oklahoma 74076.
ARTICLE III
DURATION
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The duration of the Corporation is perpetual.
ARTICLE IV
PURPOSES
--------
The objectives and purposes for which the Corporation is organized is for any
lawful act or activity for which a corporation may be organized under the
general corporation law of the State of Oklahoma, now or hereafter in effect,
and to do any of such things as fully and to the same extent as natural persons
might or could do, including but not limited to the development, production and
marketing of computer software.
ARTICLE V
INCORPORATOR
------------
The name and address of the Incorporator is Herbert F. Hewett, One North
Hudson, Sixth Floor, Oklahoma City, Oklahoma 73102.
ARTICLE VI
AUTHORIZED CAPITAL
------------------
The maximum number of shares of stock to be issued by the Corporation shall be
20,000,000 and such stock shall be Common Stock, $.05 par value.
ARTICLE VII
ATTRIBUTES OF STOCK
-------------------
Each share of Common Stock shall be equal to each other share of Common Stock
and, when issued, shall be fully paid and nonassessable, and the private
property of shareholders shall not be liable for corporate debts. The holders of
Common Stock of the Corporation shall each be entitled to share in any dividends
of the Corporation ratably, if, as, and when declared by the Board of Directors.
Each holder of record of Common Stock shall have one vote for each share of
Common Stock outstanding in his name on the books of the Corporation and shall
be entitled to vote said stock.
ARTICLE VIII
BOARD OF DIRECTORS
------------------
The number of directors of this Corporation shall be as specified in the
Bylaws, and such number may from time to time be increased or decreased under
the Bylaws or any amendment, or change thereof, upon resolution of the Board of
Directors. The number of directors to be elected at the first meeting of the
shareholders is a minimum of one (1). Directors and officers need not be
shareholders. In case of vacancies in the Board of Directors, including
vacancies occurring by reason of an increase in the number of Directors, a
majority of the remaining members of the Board, even though less than a quorum,
may elect directors to fill such vacancies to hold office until the next annual
meeting of the shareholders.
ARTICLE IX
INDEMNIFICATION
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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 (whether or not by or in the right of
the Corporation) by reason of the fact that he is or was a director, officer,
incorporator, employee, or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, incorporator, employee, or
agent of another corporation, partnership, joint venture, trust, or other
enterprise (including an employee benefit plan), shall be entitled to be
indemnified by the Corporation to the full extent then
permitted by law against expenses (including attorneys' fees), judgments, fines
(including excise taxes assessed on a person with respect to an employee benefit
plan), and amounts paid in settlement incurred by him in connection with such
action, suit, or proceeding; provided, however, that the Corporation shall not
indemnify any such person in relation to matters as to which he shall be
adjudged in such action, suit or proceeding to be liable for gross negligence or
willful misconduct, or to have not acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation. Such right of indemnification shall inure whether or not the claim
asserted is based on matters which antedate the adoption of this Article IX.
Such right of indemnification shall continue as to a person who has ceased to be
a director, officer, incorporator, employee, or agent and shall inure to the
benefit of the heirs and personal representatives of such a person. The
indemnification provided by this Article IX shall not be deemed exclusive of any
other rights which may be provided now or in the future under any provisions
currently in effect or hereafter adopted by the Bylaws, by any agreement, by
vote of shareholders, by resolution of disinterested directors, by provision of
law, or otherwise.
ARTICLE X
EXCULPATORY PROVISIONS
----------------------
No director of the Corporation shall be liable to the Corporation or any of
its shareholders for monetary damages for breach of fiduciary duty as a
director, provided that this provision does not eliminate the liability of the
director (i) for any breach of the director's duty of loyalty to the Corporation
or its shareholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 1053 of the Oklahoma General Corporation Act, or (iv) for any
transaction from which the director derived an improper personal benefit. For
purposes of the prior sentence, the term "damages" shall, to the extent
permitted by law, include without limitation, any judgment, fine, amount paid in
settlement, penalty, punitive damages, excise or other tax assessed with respect
to an employee benefit plan, or expense of any nature (including, without
limitation, counsel fees and disbursements). Each person who serves as a
director of the Corporation while this Article X is in effect shall be deemed to
be doing so in reliance on the provisions of this Article X, and neither the
amendment or repeal of this Article X, nor the adoption of any provision of this
Certificate of Incorporation inconsistent with this Article X, shall apply to or
have any effect on the liability or alleged liability of any director or the
Corporation for, arising out of, based upon, or in connection with any acts or
omissions of such director occurring prior to such amendment, repeal, or
adoption of an inconsistent provision. The provisions of this Article X are
cumulative and shall be in addition to and independent of any and all other
limitations on or eliminations of the liabilities of directors of the
Corporation, as such, whether such limitations or eliminations arise under or
are created by any law, rule, regulation, bylaw, agreement, vote of shareholders
or disinterested directors, or otherwise.
If the Oklahoma General Corporation Act is amended to further limit or
eliminate liability of this Corporation's directors for breach of fiduciary
duty, then a director of this Corporation shall not be liable for any such
breach to the fullest extent permitted by the Oklahoma General Corporation Act
as so amended. If the Oklahoma General Corporation Act is amended to increase or
expand liability of the Corporation's directors for breach of fiduciary duty, no
such amendment shall apply to or have any effect on the liability or alleged
liability of any director of this Corporation for or with respect to any acts or
omissions of such director occurring prior to the time of such amendment or
otherwise adversely affect any right or protection of a director of this
Corporation existing at the time of such amendment.
ARTICLE XI
MERGERS, SALES OF ASSETS AND AMENDMENTS
TO THE CERTIFICATE OF INCORPORATION
-----------------------------------
The Corporation shall not, without the approval of the holders of two-thirds
(2/3) of the outstanding shares of each class of voting stock of the Corporation
(i) enter into any contract, agreement or plan of merger of the Corporation;
(ii) enter into any contract, agreement or plan to sell all or substantially all
of the assets of the Corporation; or (iii) amend this Article XI of this
Certificate of Incorporation.
ARTICLE XII
COMPROMISE OR ARRANGEMENT BY
CORPORATION WITH CREDITORS OR SHAREHOLDERS
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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
shareholders or any class of them, any court of equitable jurisdiction within
the State of Oklahoma, on the application in a summary way of this Corporation
or of any creditor or shareholder thereof or on the application of any receiver
or receivers appointed for this Corporation under the provisions of Section 1106
of the Oklahoma General Corporation Act or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 1100 of the Oklahoma General Corporation Act, may
order a meeting of the creditors or class of creditors, and/or of the
shareholders or class of shareholders of this Corporation, as the case may be,
to be summoned in such manner as the court directs. If a majority in number
representing three-fourths (3/4) in value of the creditors or class of
creditors, and/or of the shareholders or class of shareholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the compromise or arrangement and the reorganization, if sanctioned
by the court to which the application has been made, shall be binding on all the
creditors or class of creditors, and/or on all the shareholders or class of
shareholders, of this Corporation, as the case may be, and also on this
Corporation.
Signed at Oklahoma City, Oklahoma, this 20th day of April, 1990.
_____________________________________________
Herbert F. Hewett
One North Hudson, Suite 600
Oklahoma City, Oklahoma 73102
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
TMS, INC.
STATE OF OKLAHOMA )
) SS:
COUNTY OF OKLAHOMA )
TO THE SECRETARY OF STATE OF THE STATE OF OKLAHOMA:
TMS, INC., a corporation organized and existing under the laws of the State
of Oklahoma (the "Corporation"), DOES HEREBY CERTIFY:
FIRST: that at a meeting of the Board of Directors of the Corporation held
and convened, a resolution was duly adopted setting forth two proposed
amendments to the Certificate of Incorporation, and declaring said amendments
advisable and setting a date for a meeting of shareholders of the Corporation
for consideration thereof. The resolutions setting forth the proposed
amendments are as follows:
BE IT RESOLVED, that the Certificate of Incorporation of the Corporation be
amended by revising Article VI to read in its entirety as follows:
ARTICLE VI
AUTHORIZED CAPITAL
------------------
The total number of shares of all classes of stock which the
Corporation shall have the authority to issue is 51,000,000 shares, divided
into classes designated as follows: (1) 50,000,000 shares of common stock,
par value $.05 per share (the "Common Stock"); and (2) 1,000,000 shares of
preferred stock, par value $.01 per share (the "Preferred Stock").
BE IT FURTHER RESOLVED, that the Certificate of Incorporation of the
Corporation be amended by revising Article VII to read in its entirety as
follows:
ARTICLE VII
ATTRIBUTES OF STOCK
-------------------
The designations, powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, for each class of
stock of the Corporation shall be as follows:
Common Stock: Each share of Common Stock shall be equal to each other
------------
share of Common Stock and, when issued, shall be fully paid and non-
assessable, and the personal property of shareholders shall not be liable
for corporate debts. Subject to any preferential rights of the holders of
Preferred Stock, the holders of Common Stock of the Corporation shall each
be entitled to share in any dividends of the Corporation ratably, if, as
and when declared by the Board of Directors.
Each holder of record of Common Stock shall have one vote for each
share of Common Stock outstanding in his name on the books of the
Corporation and shall be entitled to vote said stock.
Preferred Stock: Shares of Preferred Stock may be issued from time to
---------------
time in one or more series as determined by the Board of Directors. All
shares of Preferred Stock shall be of equal rank and shall be identical,
except in respect of the particulars fixed by the Board of Directors for
each series as provided herein. All shares of any one series shall be
identical in all respects with all the other shares of such series, except
that shares of any one series issued at different times may differ as to
the dates from which dividends thereon shall be cumulative.
The Board of Directors is hereby authorized, by resolution or
resolutions to provide, out of the unissued shares of Preferred Stock not
then allocated to any series of Preferred Stock, for one or more series of
Preferred Stock. Before any shares of any such series are issued, the Board
of Directors shall fix and determine, and is hereby expressly authorized
and empowered to fix and determine, by resolution or resolutions, the
powers, designations, preferences and relative, participating, optional or
other rights, if any, and the qualifications, limitations or restrictions
thereof, if any, and in connection therewith, the Board of Directors is
expressly authorized and empowered to fix and determine any or all of the
following provisions of the shares of such series:
(i) the designation of such series and the number of shares which
shall constitute such series;
(ii) the annual dividend rate payable on shares of such series,
expressed in a dollar amount per share, and the date or dates from
which such dividends shall commence to accrue and shall be cumulative;
(iii) the price or prices at which and the terms and conditions,
if any, on which shares of such series may be redeemed;
(iv) the amounts payable upon such series, in the event of the
voluntary or involuntary liquidation, distribution of assets
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(other than payment of dividends), dissolution, or winding up of the
affairs of the Corporation;
(v) the sinking funds or mandatory redemption provisions, if any,
for the redemption or purchase of shares of such series;
(vi) the extent of the voting powers, if any, of the shares of
such series;
(vii) the terms and conditions, if any, on which shares of such
series may be converted into shares of stock of the Corporation or any
class or classes thereof; and
(viii) any other preferences and relative, participating,
optional or other special rights, and any qualifications, limitations
or restrictions of such preferences or rights, of shares of such
series.
SECOND: That thereafter, pursuant to a resolution of its Board of
Directors, a meeting of shareholders was duly called and held upon due notice to
the shareholders of the Corporation of the aforementioned proposed amendments,
at which meeting the necessary number of shares of Common Stock as required by
statute and the Certificate of Incorporation was voted in favor of the
amendments.
THIRD: That said amendments were duly adopted in accordance with
Section 1077 of the Oklahoma General Corporation Act.
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be
signed by its Chairman and Chief Executive Officer, and attested to by its
Secretary this __________ day of __________________, 1995.
TMS, INC.
By:
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ATTEST: J. Richard Phillips, Chairman
and Chief Executive Officer
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Marshall C. Wicker, Secretary
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