AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
MULTEX.COM, INC.
(Pursuant to Sections 228, 242 and 245 of the
General Corporation Law of the State of Delaware)
Multex.com, Inc. (the "Corporation"), a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"General Corporation Law"),
DOES HEREBY CERTIFY:
FIRST: That the Corporation was originally incorporated in Delaware
under the name Multex Publisher, Inc., and the date of its filing of its
original Certificate of Incorporation with the Secretary of State of Delaware
was April 23, 1993. On October 28, 1993, the Corporation filed with the
Secretary of State of Delaware a Certificate of Agreement of Merger which merged
Multex Systems, Inc., a New York corporation, with and into Multex Publisher,
Inc. pursuant to which the Corporation changed its name to Multex Systems, Inc.
The Corporation changed its name to Multex.com, Inc. on February 9, 1999.
SECOND: That the Board of Directors duly adopted resolutions
proposing to amend and restate the Amended and Restated Certificate of
Incorporation of the Corporation, and that thereafter, pursuant to such
resolutions of the Board of Directors, a consent of stockholders in lieu of
meeting was signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon would have been
present and voted.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Sections 228, 242 and 245 of the General Corporation Law of the
State of Delaware.
FOURTH: The Amended and Restated Certificate of Incorporation of the
Corporation shall be amended and restated in its entirety as follows:
ARTICLE I
The name of the Corporation is Multex.com, Inc.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, New Castle County, Wilmington, Delaware 19805. The
name of its registered agent at such address is Corporation Service Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted
is to engage in any lawful business or purposes for which a corporation may be
organized under the GCL.
ARTICLE IV
A. Classes of Stock. The Corporation is authorized to issue two classes of
stock to be designated, respectively, "Common Stock" and "Preferred Stock." The
total number of shares which the Corporation is authorized to issue is Fifty
Five Million (55,000,000) shares. Fifty Million (50,000,000) shares, par value
$0.01 per share, shall be Common Stock and Five Million (5,000,000) shares, par
value $0.01 per share, shall be Preferred Stock.
B. Common Stock.
(1) General. All shares of Common Stock will be identical and will
entitle the holders thereof to the same rights, powers and privileges. The
rights, powers and privileges of the holders of the Common Stock are subject to
and qualified by the rights of holders of any then outstanding Preferred Stock.
(2) Dividends. Dividends may be declared and paid on the Common
Stock from funds lawfully available therefor as and when determined by the Board
of Directors and subject to any preferential dividend rights of any then
outstanding Preferred Stock.
(3) Dissolution, Liquidation or Winding Up. In the event of any
dissolution, liquidation or winding up of the affairs of the Corporation,
whether voluntary or involuntary, each issued and outstanding share of Common
Stock shall entitle the holder thereof to receive an equal portion of the net
assets of the Corporation available for distribution to the holders of Common
Stock after the payment of all debts and other liabilities and subject to any
preferential rights of any then outstanding Preferred Stock.
(4) Voting Rights. Except as otherwise required by law or this
Amended and Restated Certificate of Incorporation, each holder of Common Stock
shall have one vote in respect of each share of stock held of record by such
holder on the books of the Corporation for the election of directors and on all
matters submitted to a vote of stockholders of the Corporation. Except as
otherwise required by law or provided herein, holders of Preferred Stock shall
vote together with holders of Common Stock as a single class, subject to any
special or preferential voting rights of any then outstanding Preferred Stock.
There shall be no cumulative voting.
(5) Redemption. The Common Stock is not redeemable.
C. Preferred Stock. The Board of Directors is authorized, subject to
limitations prescribed by law, by the rules of a national securities exchange,
if applicable, and by the provisions of this ARTICLE IV, to provide for the
issuance of up to an aggregate of Five Million (5,000,000) shares of Preferred
Stock in one or more series, and by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to time the
number of shares
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to be included in each such series, and to fix the designation, powers,
preferences, and rights of the shares of each such series 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, determination of the following:
(1) The number of shares constituting that series and the
distinctive designation of that series;
(2) The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates, and the
relative rights of priority, if any, of payment of dividends on shares of that
series;
(3) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
(4) Whether that series shall have conversion privileges, and, if
so, the terms and conditions of such conversion, including provision for
adjustment of the conversion rate in such events as the Board of Directors shall
determine;
(5) Whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including the date or
dates upon or after which they shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary under different conditions
and at different redemption dates;
(6) Whether that series shall have a sinking fund for the redemption
or purchase of shares of that series, and, if so, the terms and amount of such
sinking fund;
(7) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights or priority, if any, of payment of shares
of that series; and
(8) Any other relative rights, preferences and limitations of that
series.
Dividends on outstanding shares of Preferred Stock shall be paid or
declared and set apart for payment before any dividends shall be paid or
declared and set apart for payment on the Common Stock with respect to the same
dividend period.
If upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the assets available for distribution to holders
of shares of Preferred Stock of all series shall be insufficient to pay such
holders the full preferential amount to which they are entitled, then such
assets shall be distributed ratably among the shares of all series of Preferred
Stock in accordance with the respective preferential amounts (including unpaid
cumulative dividends, if any) payable with respect thereto.
D. Preemptive Rights. 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 preemptive right to purchase or subscribe for
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any unissued stock of any class or series, or any unissued bonds, certificates
of indebtedness, debentures or other securities convertible into or exchangeable
for stock of any class or series or carrying any right to purchase stock of any
class or series; but any such unissued stock, bonds, certificates or
indebtedness, debentures or other securities convertible into or exchangeable
for stock or carrying any right to purchase stock may be issued pursuant to
resolution of the Board of Directors to such persons, firms, corporations or
associations, whether or not holders thereof, and upon such terms as may be
deemed advisable by the Board of Directors in the exercise of its sole
discretion.
ARTICLE V
A. Number. The number of directors of the Corporation shall be such
number, not greater than eleven (11), as shall be fixed from time to time by, or
in the manner provided in the Bylaws or by resolution duly adopted by, the Board
of Directors, provided that no action shall be taken to decrease or increase the
number of directors unless at least 66.67% of the outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of directors
cast at a meeting of the stockholders called for that purpose approve such
decrease or increase. Vacancies occurring in the Board of Directors for any
reason and newly created directorships shall be filled by a vote of a majority
of the remaining members of the Board of Directors, although less than a quorum,
at any meeting of the Board of Directors. A director so chosen shall hold office
for the remainder of the full term of the director for which the vacancy was
created or occurred and until such director's successor shall have been duly
elected and qualified.
B. Classified Board of Directors. The directors of the Corporation shall
be divided into three (3) classes as nearly equal in size as is practicable,
hereby designated Class I, Class II and Class III. For the purposes hereof, the
initial Class I, Class II and Class III directors shall be those directors so
designated by a resolution of the Board of Directors. At the first annual
meeting of stockholders following the closing of the initial public offering of
the Corporation's Common Stock, the term of office of the Class I directors
shall expire and Class I directors shall be elected for a full term of three (3)
years. At the second annual meeting of stockholders following the closing of the
initial public offering of the Corporation's Common Stock, the term of office of
the Class II directors shall expire and Class II directors shall be elected for
a full term of three (3) years. At the third annual meeting of stockholders
following the initial public offering of the Corporation's Common Stock, the
term of office of the Class III directors shall expire and Class III directors
shall be elected for a full term of three (3) years. At each succeeding annual
meeting of stockholders, directors shall be elected for a full term of three (3)
years to succeed the directors of the class whose terms expire at such annual
meeting. If the number of directors is hereafter changed, each director then
serving as such shall nevertheless continue as a director of the Class of which
he is a member until the expiration of his current term and any newly created
directorships or decrease in directorships shall be so apportioned among the
classes as to make all classes as nearly equal in number as is practicable.
In the event of any increase or decrease in the authorized number of
directors, (1) each director then serving as such shall nevertheless continue as
a director of the class of which he is a member until the expiration of his
current term, or his earlier resignation, removal from office or death, and (2)
the newly created or eliminated directorship resulting from such
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increase or decrease shall be appointed by the Board of Directors among the
three classes of directors so as to maintain such classes as nearly equal as
possible.
C. Removal of Directors. Notwithstanding any other provisions of this
Amended and Restated Certificate of Incorporation or the Bylaws of the
Corporation, any director or the entire Board of Directors may be removed, at
any time, but only for cause and only by the affirmative vote of the holders of
not less than 66.67% of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors (considered
for this purpose as one class) cast at a meeting of the stockholders called for
that purpose. Notwithstanding the foregoing, whenever the holders of any one or
more series of preferred stock of the Corporation shall have the right, voting
separately as a class, to elect one or more directors of the Corporation, the
preceding provisions of this ARTICLE V shall not apply with respect to the
director or directors elected by such holders of preferred stock.
ARTICLE VI
Stockholders of the Corporation shall take action by meetings held
pursuant to this Amended and Restated Certificate of Incorporation and the
Bylaws and shall have no right to take any action by written consent without a
meeting. 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.
ARTICLE VII
Except to the extent that the GCL prohibits the elimination or
limitation of liability of directors for breaches of fiduciary duty, no director
of the Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty as a
director, notwithstanding any provision of law imposing such liability. If the
GCL is amended after approval by the stockholders of this ARTICLE VII to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the GCL, as so
amended. No amendment to or repeal of this provision shall apply to or have any
effect on the liability or alleged liability of any director of the Corporation
for or with respect to any acts or omissions of such director occurring prior to
such amendment.
ARTICLE VIII
To the fullest extent permitted by applicable law, this Corporation
is authorized to provide indemnification of (and advancement of expenses to)
directors, officers, employees and agents (and any other persons to which
Delaware law permits this Corporation to provide indemnification) through Bylaw
provisions, agreements with such agents or other persons, vote of stockholders
or disinterested directors or otherwise, in excess of the indemnification and
advancement otherwise permitted by Section 145 of the GCL subject only to limits
created by applicable Delaware law (statutory or non-statutory), with respect to
action for breach of duty to the Corporation, its stockholders, and others.
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No director of the Corporation shall be personally liable to the
Corporation or any stockholder for monetary damages for breach of fiduciary duty
as a director, except for any matter in respect of which such director shall be
liable under Section 174 of the GCL or any amendment thereto or shall be liable
by reason that, in addition to any and all other requirements for such
liability, such director (1) shall have breached the director's duty or loyalty
to the Corporation or its stockholders, (2) shall have acted in manner involving
intentional misconduct or a knowing violation of law or, in failing to act,
shall have acted in a manner involving intentional misconduct or a knowing
violation of law, or (3) shall have derived an improper personal benefit. If the
GCL is hereafter amended to authorize the further elimination or limitation of
the liability of a director, the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the GCL, as so
amended.
Each person who was or is made a party or is threatened to be made a
party to or is in any way involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), including any appeal therefrom, by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or a direct
or indirect subsidiary of the Corporation, or is or was serving at the request
of the Corporation as a director or officer of another entity or enterprise, or
was a director or officer of a foreign or domestic corporation which was a
predecessor corporation of the Corporation or of another entity or enterprise at
the request of such predecessor corporation, shall be indemnified and held
harmless by the Corporation, and the Corporation shall advance all expenses
incurred by any such person in defense of any such proceeding prior to its final
determination, to the fullest extent authorized by the GCL. In any proceeding
against the Corporation to enforce these rights, such person shall be presumed
to be entitled to indemnification and the Corporation shall have the burden of
proving that such person has not met the standards of conduct for permissible
indemnification set forth in the GCL. The rights to indemnification and
advancement of expenses conferred by this Article VIII shall be presumed to have
been relied upon by the directors and officers of the Corporation in serving or
continuing to serve the Corporation and shall be enforceable as contract rights.
Said rights shall not be exclusive of any other rights to which those seeking
indemnification may otherwise be entitled. The Corporation may, upon written
demand presented by a director or officer of the Corporation or of a direct or
indirect subsidiary of the Corporation, or by a person serving at the request of
the Corporation as a director or officer of another entity or enterprise, enter
into contracts to provide such persons with specified rights to indemnification,
which contracts may confer rights and protections to the maximum extent
permitted by the GCL, as amended and in effect from time to time.
If a claim under this Article VIII is not paid in full by the
Corporation within sixty (60) days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expenses of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce the right to be advanced expenses incurred in
defending any proceeding prior to its final disposition where the required
undertaking, if any, has been tendered to the Corporation ) that the claimant
has not met the standards of conduct which make it permissible under the GCL for
the Corporation to indemnify the claimant for the amount claimed, but the
claimant shall be presumed to be entitled to indemnification and the Corporation
shall have the burden of proving
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that the claimant has not met the standards of conduct for permissible
indemnification set forth in the GCL.
If the GCL is hereafter amended to permit the Corporation to provide
broader indemnification rights that said Law permitted the Corporation to
provide prior to such amendment, the indemnification rights conferred by this
Article VIII shall be broadened to the fullest extent permitted by the GCL, as
so amended.
ARTICLE IX
In furtherance of and not in limitation of powers conferred by
statute, the Board of Directors of the Corporation is expressly authorized to
adopt, repeal, alter, amend and rescind any or all of the Bylaws of the
Corporation.
ARTICLE X
The Corporation reserves the right to repeal, alter, amend or
rescind any provision contained in this Amended and Restated Certificate of
Incorporation in the manner now or hereafter prescribed by law, and all rights
conferred on stockholders herein are granted subject to this reservation.
Notwithstanding the foregoing, the provisions set forth in ARTICLES V, VI, VII,
VIII, IX and this ARTICLE X may not be repealed, altered, amended or rescinded
in any respect without the affirmative vote of holders at least 66.67% of the
outstanding voting stock of the Corporation entitled to vote at election of
directors.
* * *
FIFTH: The foregoing amendment and restatement has been duly adopted
by the Board of Directors in accordance with the applicable provisions of
Section 242 and 245 of the GCL.
SIXTH: The foregoing amendment and restatement was approved by the
holders of the requisite number of shares of the Corporation in accordance with
Section 228 of the GCL.
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IN WITNESS WHEREOF, the undersigned have executed this certificate
on September 23, 1999.
Multex.com, Inc.
By: /s/ ISAAK KARAEV
-------------------------
Isaak Karaev,
President, Chief Executive Officer and
Chairman of the Board of Directors
Attest:
By: /s/ PHILIP SCHEPS
-------------------------------------
Philip Scheps, Secretary