EXHIBIT 3(1) - Restated Certificate of Incorporation as
filed with the Secretary of State of Delaware on June 29, 1995
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 06/29/95
950147379 - 2039007
RESTATED CERTIFICATE OF INCORPORATION
OF
AUTOTOTE CORPORATION
AUTOTOTE CORPORATION, a corporation organized and existing under the laws
of the State of Delaware, hereby certifies as follows:
1. The name of this corporation is Autotote Corporation. Autotote
Corporation was originally incorporated under the name United Tote, Inc. The
date of filing its original Certificate of Incorporation with the Secretary of
State was July 2, 1994.
2. This Restated Certificate of Incorporation restates and integrates and
does not further amend the provisions of the corporation's Restated Certificate
of Incorporation as theretofore amended and supplemented, which amendments have
been approved by the stockholders of the Corporation. This Restated Certificate
of Incorporation has been adopted by the Board of Directors of the Corporation
in accordance with Section 245(h) of the Delaware Corporation Law.
3. The text of the Certificate of Incorporation as Restated is as follows:
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CERTIFICATE OF INCORPORATION
FIRST: The name of the corporation (hereinafter called the corporation)
is Autotote Corporation.
SECOND: The address of its registered office 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.
THIRD: 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.
FOURTH: The total number of shares of all stock which the Corporation
shall have authority to issue is 102,000,000 shares, consisting of: (i)
99,300,000 shares of Class A Common Stock, par value 8.01 per share (herein
called the "Class A Common Stock"); (ii) 700,000 shares of Class B Nonvoting
Common Stock, par value $.01 per share (herein called the "Class B Common
Stock"); and (iii) 2,000,000 shares, $1.00 par value, as designated Preferred
Stock. All cross references in each subdivision of this ARTICLE Fourth refer to
other paragraphs in such subdivision unless otherwise indicated.
The shares of Preferred Stock are hereby authorized to be issued from
time to time in one or more series, the shares of each series to have 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 as are specified in the resolution
or resolutions adopted by the Board of Directors providing for the issue
thereof. Such Preferred Stock may be convertible into, or exchangeable for, at
the option of either the holder or the corporation or upon the happening of a
specified event, shares of any other class or classes or any other series of the
same or any other class or classes of capital stock of the corporation at such
price or prices or at such rate or rates of exchange and with such adjustments
as shall be stated and expressed in the Certificate of Incorporation or any
amendment thereto or in the resolution or resolutions adopted by the Board of
Directors providing for the issue thereof.
The rights, preferences, privileges and restrictions granted to or
imposed upon the respective classes or series of shares or the holders thereof
are as follows:
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A. PREFERRED STOCK
Authority is hereby expressly vested in the Board of Directors of the
corporation, subject to the provisions of this ARTICLE FOURTH and to the
limitations prescribed by law, to authorize the issue from time to time of one
or more series of Preferred Stock and, with respect to each such series, to fix
by resolution or resolutions adopted by the affirmative vote of a majority of
the whole Board of Directors providing for the issue of such series the voting
powers, full or limited, if any, of the shares of such series and the
designations, preferences and relative, participating, optional or other special
rights and the qualifications, limitations or restrictions thereof. The
authority of the Board of Directors with respect to each series shall include,
but not be limited to, the determination of the following:
(i) The designation of such series.
(ii) The dividend rate of such series, the conditions and dates
upon which such dividends shall be payable, the relation which such dividends
shall bear to the dividends payable on any other class or classes or series of
the corporation's capital stock, and whether such dividends shall be cumulative
or non-cumulative.
(iii) Whether the shares of such series shall be subject to
redemption by the corporation at the option of either the corporation or the
holder or both or upon the happening of a specified event and, if made subject
to any such redemption, the times or events, prices and other terms and
conditions of such redemption.
(iv) The terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such series.
(v) Whether or not the shares of such series shall be
convertible into, or exchangeable for, at the option of either the holder or the
corporation or upon the happening of a specified event, shares of any other
class or classes or of any other series of the same or any other class or
classes of the corporation's capital stock, and, if provision is made for
conversion or exchange, the times or events, prices, rates, adjustments and
other terms and conditions of such conversions or exchanges.
(vi) The restrictions, if any, on the issue or reissue of any
additional Preferred Stock.
(vii) The rights of the holders of the shares of such series
upon the voluntary or involuntary
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liquidation, dissolution or winding up of the corporation.
(viii) The provisions as to voting, optional and/or other
special rights and preferences, if any.
B. COMMON STOCK
Except as otherwise provided herein, all shares of Class A Common Stock
and Class B Common Stock will be identical and will entitle holders thereof to
the same rights and privileges.
1. Voting Rights. The holders of Class A Common Stock will be
entitled to notice of and to attend all meetings of the shareholders or the
corporation and shall be entitled to one vote per share on all matters to be
voted on by the corporation's shockholders, and except as otherwise required by
law, the holders of Class B Common Stock will have no right to vote their shares
of Class B Common Stock on any matters to be voted on by the corporation's
stockholders.
2. Dividends. Subject to all provisions of this ARTICLE FOURTH, the
holders of the Common Stock shall be entitled to receive dividends when and as
declared by the Board of Directors of the corporation, out of any funds legally
available for such purpose. When and as dividends are declared thereon, whether
payable in cash, property or securities of the corporation, the holders of Class
A Common Stock and the holders of Class B Common Stock will be entitled to
share, ratably according to the number of shares of Class A Common Stock or
Class B Common Stock held by them, in such dividends; provided, that if
dividends are declared which are payable in shares of Class A Common Stock or
Class B Common Stock, dividends will be declared which are payable at the same
rate on both classes of Common Stock, and the dividends payable in shares of
Class A Common Stock will be payable to the holders of Class A Common Stock, and
the dividends payable in shares of Class B Common Stock will be payable to the
holders of Class B Common Stock.
3. Liquidation Rights. In the event of any liquidation, dissolution
or winding up of the corporation, whether voluntary or involuntary, or any
distribution of any of its assets to any of its stockholders other than by
dividends from funds legally available therefor, and other than payments made
upon redemptions or purchases of shares of the corporation, after payment full
of the amount which the holders of Preferred Stock are entitled to receive in
such event, the holders of Class A Common Stock and Class B Common Stock shall
be entitled to share, ratably according to the number of shares of Class A
Common Stock or Class B Common Stock held by them, in the remaining assets of
the corporation available for distribution to its stockholders.
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4. Conversion of Class B Common Stock. (a) At any time and from time
to time, each record holder of Class B Common Stock will be entitled to convert
any and all of the shares of such holder's Class B Common Stock into the same
number of shares of Class A Common Stock at such holder's election.
(b) Each conversion of shares of Class B Common Stock into shares of
Class A Common Stock will be effected by the surrender of the certificate or
certificates representing the shares to be converted at the principal office of
the corporation (or such other office or agency of the corporation as the
corporation may designate by notice in notice in writing to the holder or
holders of the Class B Common Stock) at any time during normal business hours,
together with written notice by the holder of such Class B Common Stock stating
that such holder desires to convert the shares, or a stated number of the
shares, of Class B Common Stock represented by such certificate or certificates
into Class A Common Stock (and such statement will obligate the corporation to
issue such Class A Common Stock). Such conversion will be deemed to have been
effected as of the close of business on the date on which such certificate or
certificates have been surrendered and such notice has been received, and at
such time the rights of the holder of the converted Class B Common Stock as such
holder will cause and the person or persons in whose name or names the
certificate or certificates for shares of Class A Common Stock are to be issued
upon such conversion will be deemed to have become the holder or holders of
record of the shares of Class A Common Stock represented thereby.
(c) Promptly after such surrender and the receipt of such written
notice, the corporation will issue and deliver in accordance with the
surrendering holder's instructions (i) the certificate or certificates for the
Class A Common Stock issuable upon such conversion and (ii) a certificate
representing any Class B Common Stock which was represented by the certificate
or certificates delivered to the corporation in connection with such conversion
but which was not converted.
(d) If the corporation in any manner subdivides or combines the
outstanding shares of one class of either Class A Common Stock or Class B Common
Stock, the outstanding shares of the other class will be proportionately
subdivided or combined.
(e) In the case of, and as a condition to, any capital reorganization
of, or any reclassification of the capital stock of, the corporation (other than
a subdivision or combination of shares of Class A Common Stock or Class B Common
Stock into a greater or lesser number of shares (whether with or without par
value) or a change in the par value of Class A Common Stock or Class B Common
Stock or from par value to no par value, or from no par value to par value or in
the case of, and as condition to, the consolidation or merger of the corporation
with or into another corporation (other than a merger in which the corporation
is the continuing corporation and which does not result in any
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reclassification of outstanding shares of Class A Common Stock or Class B Common
Stock)), each share of Class B Common Stock shall be convertible into the number
of shares of stock or other securities or property receivable upon such
reorganization, reclassification, consolidation or merger by a holder of the
number of shares of Class A Common Stock of the corporation into which such
share of Class B Common Stock was convertible immediately prior to such
reorganization, reclassification, consolidation or merger, and, in any such
case, appropriate adjustment shall be made in the application of the provisions
set forth in this ARTICLE FOURTH with respect to the rights and interests
thereafter of the holders of Class B Common Stock to the end that the provisions
set forth in this ARTICLE FOURTH (including provisions with respect to the
conversion rate) shall thereafter be applicable, as nearly as they reasonably
may be, in relation to any shares of stock or other securities or property
thereafter deliverable upon the conversion of the shares of Class B Common
Stock.
(f) Shares of Class B Common Stock which are converted into shares of
Class A Common Stock as provided therein shall not be reissued.
(g) The corporation will at all times reserve and keep available out
of its authorized but unissued shares of Class A Common Stock or its treasury
shares, solely for the purpose of issue upon the conversion of the Class B
Common Stock as provided in this ARTICLE FOURTH, such number of shares of Class
A Common Stock as shall then be issuable upon the conversion of all then
outstanding shares of Class B Common Stock.
(h) The issue of certificates for Class A Common Stock upon the
conversion of Class B Common Stock will be made without charge to the holders of
such shares for any issuance tax in respect thereof or other cost incurred by
the corporation in connection with such conversion and the related issuance of
Class A Common Stock issued or issuable upon the conversion of Class B Common
Stock in any manner which would interfere with the timely conversion of Class B
Common Stock.
FIFTH: The corporation is to have perpetual existence.
SIXTH: 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 Bylaws of the corporation.
SEVENTH: Elections of directors need not be by written ballot unless the
Bylaws of the corporation shall so provide.
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws 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
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places as may be designated from time to time by the Board of Directors or in
the Bylaws of the corporation.
EIGHTH: 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 herein are granted subject to this reservation.
NINTH: To the fullest extent permitted by the General Corporation Law
of Delaware as the same exists or may hereafter be amended, a director of this
corporation shall not be liable to this corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. No amendment to or
repeal of this ARTICLE NINTH shall apply to or have any affect 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 such amendment or
repeal.
IN WITNESS WHEREOF, the undersigned has executed this Restated Certificate
of Incorporation on June 28, 1995.
--
/s/ Martin E. Schloss
----------------------------
Martin E. Schloss
Vice President and General
Counsel
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