Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
WAM!NET INC.
ARTICLE 1.
NAME
The name of the corporation is WAM!NET Inc., which shall be referred to in
these Articles of Incorporation as the "Corporation."
ARTICLE 2.
REGISTERED OFFICE
The address of the registered office of the Corporation in Minnesota is
6100 West 110th Street, Minneapolis, Minnesota 55438
ARTICLE 3.
DURATION
The duration of the Corporation shall be perpetual.
ARTICLE 4.
PURPOSE
The Corporation is organized for general business purposes.
ARTICLE 5.
POWERS
The Corporation shall have the unlimited power to engage in and to do any
act necessary or incidental to the carrying out of its purposes, together with
the power to do or perform any acts consistent with or which may be implied from
the powers expressly conferred upon corporations by Minnesota Statutes, Chapter
302A.
ARTICLE 6.
STOCK
6.1) Capitalization. The aggregate number of shares of stock that the
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Corporation has authority to issue shall be one hundred million (100,000,000)
shares, which shall consist of (a) ninety million (90,000,000) shares of common
stock, with a par value of One Cent ($.01) per share ("Common Stock"); (b) one
hundred thousand (100,000) shares of Class A preferred stock ("Class A Preferred
Stock"); and (c) nine million nine hundred thousand (9,900,000) shares of
undesignated stock. The Board of Directors of the Corporation is authorized to
establish from the undesignated stock, by resolution adopted and filed in the
manner provided by law, one or more classes or series of shares, to designate
each such class or series (which may include but is not limited to designation
as additional Common Stock), and to fix the relative rights and preferences of
each such class or series.
6.2) Class A Preferred Stock. The express terms and provisions of the
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shares classified and designated as Class A Preferred Shares are as follows:
(a) Designation and Amount. Each share of Class A Preferred Stock shall
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have a par value of Ten Dollars ($10.00) per share. The number of shares of
Class A Preferred Stock may be increased or decreased by resolution of the
Board of Directors; provided, that, no decrease shall reduce the number of
shares of Class A Preferred Stock to a number less than the number of
shares then outstanding, plus the number of shares of Class A Preferred
Stock, if any, reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding
securities issued by the Company convertible into Class A Preferred Stock.
(b) Dividends and Distributions.
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(1) The holders of shares of Class A Preferred Stock, in preference
to the holders of Common Stock of the Company, shall be entitled
to receive, when, as and if declared by the Board of Directors
of the Company (the "Directors"), a dividend (the "Quarterly
Dividend") in the amount of Seventeen and One-half Cents ($.175)
per share payable out of the net earnings of the Company
constituting funds legally available for the purpose. The
Quarterly Dividend shall begin to accrue on January 1, 1997, and
shall be payable in cash on the first day of March, June,
September and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share or fraction of a share of Class A
Preferred Stock. If the net earnings in any year are not
sufficient to pay the Quarterly Dividend, either in whole or in
part, then any unpaid portion of such dividend will become a
charge against the net earnings of the Company, and will be paid
in full out of the net earnings of the Company in subsequent
years before any dividends are
2.
paid on the Common Stock of the Company in those years. No dividends
will be paid or set apart for payment on the Common Stock, no
distribution will be made on the Common Stock, and no shares of Common
Stock will be redeemed, retired or otherwise acquired for valuable
consideration unless all theretofore unpaid Quarterly Dividends have
been declared, and the Company has paid those dividends or has set
aside a sum sufficient to pay them.
(2) Dividends shall begin to accrue and accumulate on outstanding shares
of Class A Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, in which case
dividends on such shares shall begin to accrue from the date of issue
of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination
of holders of shares of Class A Preferred Stock entitled to receive
Quarterly Dividends and before such Quarterly Dividend Payment Date,
in either of which events such Quarterly Dividends shall begin to
accrue and accumulate from such Quarterly Dividend Payment Date.
Accrued but unpaid Quarterly Dividends shall not bear interest.
Dividends paid on the shares of Class A Preferred Stock in an amount
less than the total amount of Quarterly Dividends then accrued and
payable shall be allocated pro rata on a share-by-share basis among
all such shares of Class A Preferred Stock then outstanding. The
Directors may fix a record date for the determination of holders of
shares of Class A Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be
no more than sixty (60) days prior to the date fixed for the payment
thereof.
(c) Voting Rights. The holders of shares of Class A Preferred Stock shall have
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the following voting rights:
(1) Each share of Class A Preferred Stock shall entitle the holder thereof
to one (1) vote for each share of Class A Preferred Stock standing in
the name of the holder on the books of the Company. The holders of
Class A Preferred Stock, voting separately as a class, shall be
entitled to elect a majority of the Directors. The right to elect
Directors may be exercised at any annual meeting of the stockholders
of the Company, at any special meeting held in place of an annual
meeting, or at a special meeting called to elect directors. The right
to elect directors shall continue until December 31, 1999, and then
expire. The directors elected by the Class A Preferred Stock shall
serve until the next annual or special meeting of the stockholders of
the Company and until their respective successors have been elected by
the holders of Class A Preferred Stock and have been qualified. The
term of office of any person elected as a director by the holders of
Class A Preferred Stock shall terminate on December 31, 1999.
3.
The vacancies created thereby may be filled by resolution of the
remaining Directors who shall have been elected by a vote of the
holders of the Common Stock of the Company. If the office of a
director elected by the holders of Class A Preferred Stock is vacant
prior to December 31, 1999, due to resignation, removal or death, the
vacancy shall be filled by the majority vote of the directors then in
office, even if less than a quorum, upon the recommendation of the
remaining director or directors who were elected by the holders of the
Class A Preferred Stock. If the office of a director who was elected
by the holders of Common Stock is vacant prior to December 31, 1999,
due to resignation, removal or death, the vacancy shall be filled by
the majority vote of the directors then in office, even if less than a
quorum, upon the recommendation of the remaining director or directors
who were elected by the holders of the Common Stock. If the vacancy is
not so filled within forty (40) days after the creation of the
vacancy, a special meeting of the holders of Preferred Stock and/or
Common Stock shall be called and the vacancy or vacancies shall be
filled at that meeting.
(2) In addition to the right to elect a majority of the Directors as
provided in Section 6.2(c)(1), the holder of each share of Class A
Preferred Stock shall be entitled to one (1) vote, voting together
with the holders of Common Stock as a single class, on all matters,
excluding the election of Directors, submitted to the vote of
shareholders of the Company.
(3) Except as otherwise provided in Section 6.2(c) or in Section 6.2(j)
hereof, or in any Certificate of Designations creating another class
or series of preferred stock, or in any similar stock of the Company
hereafter created, or by law, the holders of shares of Class A
Preferred Stock and the holders of shares of Common Stock and any
other capital stock of the Company having general voting rights shall
vote together as one class on all matters submitted to a vote of
stockholders of the Company.
(4) Except as expressly set forth herein, or as otherwise provided by law,
holders of Class A Preferred Stock shall have no special voting rights
and their consent, as a separate class, shall not be required (except
to the extent they are entitled to vote with holders of Common Stock
as set forth herein) for taking any corporate action.
(d) Certain Restrictions
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(1) Whenever Quarterly Dividends or distributions payable on Class A
Preferred Stock as provided in Section 6.2(b) are in arrears,
thereafter and until all accrued and unpaid Quarterly Dividends and
distributions, whether or not declared, on shares of Class A Preferred
Stock outstanding shall have been paid in full, the Company shall not,
without the express
4.
affirmative unanimous approval of the Directors elected by holders of
the Class A Preferred Stock:
a. declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Class A Preferred
Stock;
b. declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Class A
Preferred Stock, except dividends paid ratably on the Class A
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
c. redeem or purchase or otherwise acquire for consideration shares
of any stock of the Company ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Class A Preferred Stock, provided that the Company may at any
time redeem, purchase or otherwise acquire shares of any such
junior stock in exchange for shares of any stock of the Company
ranking junior (as to dividends and upon dissolution, liquidation
and winding up) to the Class A Preferred Stock; or
d. redeem or purchase or otherwise acquire for consideration any
shares of Class A Preferred Stock, or any shares of stock ranking
on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Class A Preferred Stock,
except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair
and equitable treatment among the respective series or classes.
(2) The Company shall not permit any subsidiary of the Company to purchase
or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under Section 6.2(d)(1), purchase or
otherwise acquire such shares at such time and in such manner.
(e) Liquidation, Dissolution or Winding Up. Upon any voluntary or involuntary
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liquidation, dissolution or winding up of the affairs of the Company, no
distribution shall be made (a) to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Class A Preferred Stock, or (b) to the
5.
holders of shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Class A Preferred Stock unless
each holder of Class A Preferred Stock has received in cash out of the assets of
the Company, whether from capital or earnings, available for distribution to the
shareholders of the Company, before any amount is paid to the holders of Common
Stock, the sum of Ten Dollars ($10.00) per share for each share of Class A
Preferred Stock held by the holder, plus an amount equal to the sum of all
accumulated and unpaid dividends to the date affixed for the payment of the
distribution on the shares of Class A Preferred Stock held by the holder. The
sale or transfer by the Company of all or substantially all of its assets shall
not, for the purposes of determining preferences and liquidation, be deemed to
be a liquidation, dissolution or winding up of the Company.
(f) Preemptive Rights. No holder of any shares of Class A Preferred Stock shall
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be entitled as such, as a matter of right, to subscribe for, purchase or receive
any part of any class whatsoever, or of securities convertible into or
exchangeable for any stock or any class whatsoever, whether now or hereafter
authorized or whether issued for cash or other consideration or by way of a
dividend.
(g) Mandatory Redemption. Unless earlier redeemed or acquired in whole or in
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part by the Company with the consent of the holder, the shares of Class A
Preferred Stock that remain issued and outstanding shall expire and and shall be
automatically redeemed on December 31, 1999, at par value, plus an amount equal
to all accumulated and unpaid dividends, if any, due with respect to the Class A
Preferred Stock (collectively, the "Redemption Price"). Redemption shall be in
cash out of any funds legally available for the redemption of the Class A
Preferred Stock.
(h) Rank. The Class A Preferred Stock shall rank, with respect to the payment
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of dividends and the distribution of assets, senior to all other classes and
series of preferred stock.
(i) Reacquired Shares. Any shares of Class A Preferred Stock purchased or
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otherwise acquired by the Company in any manner whatsoever shall be retired and
canceled promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares of undesignated stock
and may be reissued subject to the conditions and restrictions on issuance in
the Articles of Incorporation, or in any other Certificate or Designations
creating another class or series of stock or as otherwise required by law.
(j) Amendment. If any proposed amendment to these Articles of Incorporation
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would alter or change the preferences, special rights or powers given to the
Class A Preferred Stock so as to affect the Class A Preferred Stock adversely,
or would authorize the issuance of a class or classes of stock having
preferences or rights with respect to dividends or dissolution or the
distribution of assets that would be superior to the preferences or rights of
the Class A Preferred Stock, then the holders of the Class A Preferred Stock
shall be entitled to vote as a series upon such amendment, and the
6.
affirmative vote of two-thirds of the outstanding shares of Class A
Preferred Stock shall be necessary to the adoption thereof, in addition to
such other vote as may be required by law.
6.3) Preemptive Rights. Shareholders shall not have any preemptive or
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preferential rights for or to shares of this Corporation, whether now or
hereafter authorized, or to any obligations convertible into shares of this
Corporation, or to any options, warrants or other right to acquire shares of
this Corporation, or to any subscription or right of subscription therefor,
except such, if any, as the Board of Directors in its sole discretion may
determine from time to time, and at such price or terms as the Board of
Directors may fix. The Board of Directors may, at any time and from time to
time, issue and sell for such consideration as may be permitted by law and these
Articles of Incorporation, any or all of the authorized shares of the
Corporation not then issued and any and all of any stock of any class or series
that may hereafter be authorized.
6.4) Issuance of Shares. Subject to this Article 6, the Board of Directors
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may issue any or all shares of the Corporation authorized by these Articles and
not already issued, including any shares previously issued and reacquired by the
Corporation. Upon approval by the Board of Directors, shares may be issued (i)
for any consideration determined appropriate by the Board of Directors, or (ii)
for no consideration in order to effectuate share conversions, dividends or
splits, including reverse splits. The Board of Directors shall determine the
value of non-monetary consideration received for shares.
6.5) Issuance of Rights to Acquire Shares. Subject to Section 6.4, the
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Board of Directors may issue rights to purchase shares of the Corporation, and
shall fix the terms, provisions and conditions of such rights to purchase,
including the conversion basis and the price at which shares may be purchased or
subscribed for. Shares to be issuable upon the exercise of all outstanding
rights to purchase, including such rights to be issued, must be authorized by
these Articles and not already issued.
ARTICLE 7.
SHAREHOLDERS
All shareholder actions shall require an affirmative vote of the holders of
a majority of the voting power of the shares represented and entitled to vote at
a duly held meeting, except where the law requires a vote with respect to all
outstanding shares of the Corporation, in which case the affirmative vote of a
majority of the shares entitled to vote (by class or series if more than one
class or series of shares is outstanding and entitled to vote separately as a
class or series on such matter) shall be sufficient to authorize the action.
ARTICLE 8.
NON-CUMULATIVE VOTING
Unless otherwise provided in these Articles or in a Certificate of
Designation, cumulative voting for directors shall not be permitted.
7.
ARTICLE 9.
DIRECTORS
9.1) Power; Voting. The Board of Directors shall have the power and
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authority to take any action required or permitted by law or by these Articles.
The Board of Directors shall take action by the affirmative vote of a majority
of directors present at a duly held meeting, except where law requires the
affirmative vote of a larger proportion or number.
9.2) Written Action. Any action required or permitted to be taken at a
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board meeting may be taken by written action signed by a majority of directors.
If the action must also be approved by the shareholders, then the action must be
taken by written action of all the directors.
9.3) Indemnification. A director of the Corporation shall not be
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personally liable to the Corporation or its shareholders for monetary damages
for breach of fiduciary duty as a director, except for (i) liability based on a
breach of the duty of loyalty to the Corporation or the shareholders (ii)
liability for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law; (iii) liability under Minnesota
Statutes Section 302A.559 or 80A.23; or (iv) liability for any transaction from
which the director derived an improper personal benefit. If Chapter 302A, the
Minnesota Business Corporation Act, is hereafter amended to authorize the
further elimination or limitation of the liability of directors, then the
liability of a director of the Corporation, in addition to the limitation on
personal liability provided herein, shall be limited to the fullest extent
permitted by the amended Chapter 302A, the Minnesota Business Corporation Act.
Any repeal or modification of this Section 9.3 by the shareholders of the
Corporation shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Corporation at the
time of such repeal or modification.
ARTICLE 10.
BYLAWS
The Board of Directors may adopt bylaws which may contain any provision
relating to the management of the business or the regulation of the affairs of
the Corporation not inconsistent with law or these Articles of Incorporation.
The power to adopt, amend or repeal the bylaws shall be vested in the Board of
Directors.
8.