Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE
OF
INCORPORATION
OF
DATAMARK HOLDING, INC.
(Originally incorporated as Exchequer, Inc.
To be known hereafter as Digital Courier Technologies, Inc.)
The following Amended and Restated Certificate of Incorporation of DataMark
Holding, Inc. amends and restates the provisions of and supersedes the
Certificate of Incorporation filed with the Secretary of State of the State of
Delaware on May 16, 1985 in its entirety and any and all certificates of
amendment filed with the Secretary of State of the State of Delaware prior to
September 16, 1998.
ARTICLE I
NAME
----
The name of the corporation hereby created shall be Digital Courier
Technologies, Inc.
ARTICLE II
DURATION
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The Corporation shall continue in existence perpetually unless sooner
dissolved according to law.
ARTICLE III
PURPOSES
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The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
ARTICLE IV
CAPITALIZATION
--------------
The total number of shares of stock of all classes which the
Corporation shall have authority to issue is Twenty Two Million Five Hundred
Thousand (22,500,000), of which Twenty Million (20,000,000) shares shall have
the par value of One Hundredth of One Cent ($.0001) each and shall be shares of
common stock (the "Common Stock"), and Two Million Five Hundred Thousand
(2,500,000) shares shall have the par value of One Hundredth of One Cent
($.0001) each and shall be shares of preferred stock (the "Preferred Stock").
ARTICLE V
CLASSES OF STOCK
----------------
A statement of the designations and the powers, preferences, and
rights, and the qualifications, limitations, or restrictions thereof, of the
shares of stock of each class which the Corporation shall be authorized to
issue, is as follows:
(a) Preferred Stock. Shares of preferred stock may be issued from time
to time in one or more series as may from time to time be determined by the
Board of Directors. Each series shall be distinctly designated. All shares of
any one series of the preferred stock shall be alike in every particular, except
that there may be different dates from which dividends thereon, if any, shall be
cumulative, if made cumulative. The powers, preferences, participating, optional
and other rights of each such series qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any time
outstanding. Subject to the provisions of subparagraph (i) of Paragraph (c) of
this Article V, the Board of Directors of this Corporation is hereby expressly
granted authority to fix by resolution or resolutions adopted prior to the
issuance of any shares of each particular series of preferred stock, the
designation, powers, preferences and relative, participating, optional and other
rights and the qualifications, limitations and restrictions thereof, if any, of
such series, including, without limiting the generality of the foregoing the
following:
(i) The distinctive designation of , and the number of shares of
preferred stock which shall constitute, the series, which number may be
increased (except as otherwise fixed by the Board of Directors) or decreased
(but not below the number of shares thereof outstanding) from time to time by
action of the Board of Directors;
(ii) The rate and times at which, and the terms and conditions
upon which, dividends, if any, on shares of the series shall be paid, the extent
of preferences or relation, if any, of such dividends to the dividends payable
on any other class or classes of stock of this Corporation, or on any series of
preferred stock, and whether such dividends shall be cumulative or
noncumulative;
(iii)The right, if any, of the holders of shares of the series to
convert the same into, or exchange the same for any other series, or any other
class or classes of stock of this Corporation, and the terms and conditions of
such conversion or exchange;
(iv) Whether shares of the series shall be subject to redemption,
and the redemption price or prices, including, without limitation, a redemption
price or prices payable in shares of the Common Stock, cash or other property
and the time or times at which, and the terms and conditions upon which, shares
of the series may be redeemed;
(v) The rights, if any, of the holders of shares of the series
upon voluntary or involuntary liquidation merger, consolidation, distribution or
sale of assets, dissolution or winding up of this Corporation;
(vi) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for shares of the series; and
(vii)The voting powers, if any, of the holders of shares of the
series which may, without limiting the generality of the foregoing, include (A)
the right to more or less than one vote per share on any or all matters voted
upon by the shareholders and (B) the right to vote as a series by itself or
together without preferred stock as a class, upon such matters, under such
circumstances and upon such conditions as the Board of Directors may fix,
including, without limitation, the right, voting as a series by itself or
together with other series of preferred or together with all series of preferred
stock as a class, to elect one or more directors of this Corporation in the
event there shall have been a default in the payment of dividends on any one or
more series of preferred stock or under such other circumstances and upon such
conditions as the Board may determine.
(b) Common Stock. The Common Stock shall be non-assessable and shall
not have cumulative voting rights or pre-emptive rights. In addition, the Common
Stock shall have the following powers, preferences, rights, qualifications,
limitations and restrictions. -------------
(i) After the requirements with respect to preferential dividends
of preferred stock (fixed in accordance with the provisions of Paragraph (a) of
this Article V), if any, shall have been met and after this Corporation shall
comply with all the requirements, if any, with respect to the setting aside of
funds as sinking funds or redemption or purchase accounts (fixed in accordance
with provisions of Paragraph (a) of this Article V) and subject further to any
other conditions which may be fixed in accordance with the provisions of
paragraph (a) of this Article V, but not otherwise, the holders of Common Stock
shall be entitled to receive such dividends, if any, as may be declared from
time to time by the Board of Directors.
(ii) After distribution in full of the preferential amount (fixed
in accordance with the provisions of Paragraph (a) of this Article V), if any,
to be distributed to the holders of preferred stock in the event of a voluntary
or involuntary liquidation, distribution or sale of assets, dissolution or
winding up of this Corporation, the holders of the Common Stock shall be
entitled to receive all of the remaining assets of this Corporation, tangible
and intangible, of whatever kind available for distribution to stockholders,
ratably in proportion to the number of shares of the Common Stock held by each;
(iii) Shares of the Common Stock may be issued from time to time
as the Board of Directors shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors;
(iv) No holder of any of the shares of any class or series of
stock or of options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
pre-emptive right to purchase or subscribe for any unissued stock of any class
or series of any additional shares of any class or series to be issued by reason
of any increase of the authorized capital stock of the Corporation of any class
or series, or bonds, certificate of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any class or
series, or carrying any rights to purchase stock of any class or series, but any
such unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock, or
carrying any right to purchase stock, may be issued and disposed of pursuant to
resolution of the Board of Directors to such person, firms, corporation or
associations, whether such holders or others, and upon such terms as may be
deemed advisable by the Board of Directors in the exercise of its sole
discretion.
(c) Other Provisions. The relative powers, preferences and rights of
each series of preferred stock in relation to the powers, preferences and rights
of each other series of preferred stock shall, in each case, be as fixed from
time to time by the Board of Directors in the resolution or resolutions adopted
pursuant to authority granted in Paragraph (a) of this Article V, and the
consent by class or series vote or otherwise, of the holders of the preferred
stock of such of the series of preferred stock as are from time to time
outstanding shall not be required for the issuance by the Board of Directors of
any other series of preferred stock whether the powers, preferences and rights
of such other series shall be fixed by the Board of Directors as senior to, or
on a parity with the powers, preferences and rights of such outstanding series,
or any of them: provided, however, that the Board of Directors may provide in
such resolution or resolutions adopted with respect to any series of preferred
stock that the consent of the holders of a majority (or such greater proportion
as shall be therein fixed) of the outstanding shares of such series voting
thereon shall be required for the issuance of any or all other series of
preferred stock.
(ii) Subject to the provisions of subparagraph (i) of this
Paragraph, shares of any series of preferred stock may be issued from time to
time as the Board of Directors shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(iii) Shares of the Common Stock may be issued from time to time
as the Board of Directors shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(iv) No holder of any of the shares of any class or series of
stock or of options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
pre-emptive right to purchase or subscribe for any unissued stock of any class
or series or any additional shares of any class or series to be issued by reason
of any increase of the authorized capital stock of the Corporation of any class
or series, or bonds, certificate of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any class or
series, or carrying any rights to purchase stock of any class or series, but any
such unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock, or
carrying any right to purchase stock, may be issued and disposed of pursuant to
resolution of the Board of Directors to such persons, firms, corporations or
associations, whether such holders or others, and upon such terms as may be
deemed advisable by the Board of Directors in the exercise of its sole
discretion.
ARTICLE VI
BYLAWS
------
In furtherance and not in limitation of the powers conferred by the
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation.
ARTICLE VII
MEETINGS 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. Elections of directors
need not be by written ballot unless the Bylaws of the Corporation so provide.
ARTICLE VIII
REGISTERED OFFICE AND AGENT
---------------------------
The name of the Corporation's registered agent and address of its
registered office in the State of Delaware are:
The Corporation Trust Company
County of New Castle
1209 Orange Street
Wilmington, Delaware 19801
ARTICLE IX
REMOVAL OF DIRECTORS
--------------------
Any director of the Corporation may be removed for cause at any annual
or special meeting of the shareholders by the same vote as that required to
elect a director provided, that such director prior to his removal shall receive
a copy of the charges against him, delivered to him personally or by mail at his
address appearing on the records of the Corporation, at least thirty (30) days
prior to the meeting at which such removal is to be considered, and such
director has an opportunity to be heard on such charges at the meeting of
shareholders of the Corporation at which the question of his removal is to be
considered.
ARTICLE X
INDEMNIFICATION OF OFFICERS AND DIRECTORS
-----------------------------------------
The Corporation shall indemnify any and all persons who may serve or
who have served at any time as director or officers, or who, at the request of
the Board of Directors of the Corporation, may serve, or at any time have served
as directors or officers of another corporation in which the Corporation at such
time owned or may own shares of stock, or which it was or may be a creditor, or
may own shares of stock, or which it was or may be a creditor, and the
respective heirs, administrators, successors, and assigns, against any and all
expenses, including amounts paid upon judgment, counsel fees, and amounts paid
in settlement (before or after suit is commenced), actually or necessarily by
such persons in connection with the defense or settlement of any claim, action,
suit, or proceeding in which they, or any of them, are made parties, or a party,
or which may be assessed against them or any of them, by reason of being or
having been directors or officers of the Corporation, or such other corporation,
except in relation to matters as to which any such director or officer of the
Corporation, or such other corporations, or former director or officer shall be
adjudged in any action, suit or proceeding to be liable for his own negligence
of misconduct in performance of his duties. Such indemnification shall be in
addition to any other rights to which those indemnified may be entitled under
any Law, by-law, agreement, vote of stockholders or otherwise.
ARTICLE XI
AMENDMENT
---------
Except as set forth herein and in the General Corporation Law of the
State of Delaware, the Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders are granted subject to this reservation.
ARTICLE XII
OFFICERS' AND DIRECTORS' CONTRACTS
----------------------------------
No contract or other transactions between this Corporation and any
other firm or corporation shall be affected by the fact that a director or
officer of this Corporation has an interest in, or is a director or officer of
such firm or other corporation. Any officer or director, individually or with
others, may be a party to , or may have an interest in, any transaction of this
Corporation or any transaction in which this Corporation is a party or has an
interest. Each person who is now or may become an officer or director of this
Corporation is hereby relieved from liability that he might otherwise obtain in
the event such officer or director contracts with this Corporation for the
benefit of himself or any other firm or corporation in which he may have an
interest, provided such officer or director acts in good faith.
This Amended and Restated Certificate of Incorporation of the
Corporation was duly adopted in accordance with the provisions of Sections 242
and 245 to the General Corporation law of the State of Delaware.
IN WITNESS WHEREOF, THE CORPORATION HAS CAUSED THIS AMENDED AND
RESTATED CERTIFICATE OF INCORPORATION TO BE SIGNED BY MITCHELL EDWARDS, ITS'
SECRETARY, THIS DAY OF SEPTEMBER, 1998.
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DataMark Holdings, Inc.
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By: Mitchell Edwards
Its: Secretary