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EXHIBIT 3.2
RESTATED
CERTIFICATE OF INCORPORATION
OF
BOLT, INC.
Bolt, Inc., a corporation organized and existing under the laws of the
State of Delaware (the "Corporation"), hereby certifies as follows:
1. The name of the Corporation is Bolt, Inc.
2. The Corporation was originally incorporated under the name
"Concrete Media, Inc.", and the original Certificate of Incorporation of the
Corporation was filed with the Secretary of the State of Delaware on August 15,
1996.
3. This Restated Certificate of Incorporation was duly adopted in
accordance with the provisions of Sections 141(f), 242, 245 and 228 of the
General Corporation Law of the State of Delaware. This Restated Certificate of
Incorporation restates, integrates, amends and supersedes the provisions of the
Certificate of Incorporation of this Corporation as heretofore amended.
4. The text of the Certificate of Incorporation as heretofore
amended is hereby restated and further amended to read in its entirety as
follows:
FIRST: The name of the corporation is Bolt, Inc. (the "Corporation").
SECOND: The name and address of the Corporation's registered agent in
the State of Delaware is National Registered Agents, Inc., 9 East Lockerman
Street in the City of Dover, County of Kent.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity or carry on any business for which corporations may be organized
under the Delaware General Corporation Law or any successor statue.
FOURTH:
A. Designation and Number of Shares.
The total number of shares of all classes of stock which the
Corporation shall have the authority to issue is 55,000,000 shares, consisting
of 50,000,000 shares of common stock, par value $0.001 per share (the "Common
Stock") and 5,000,000 shares of Preferred Stock, par value $0.001 per share
(the "Preferred Stock").
A statement of the designations of the different classes of stock of
the Corporation and of the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, and of the authority
conferred upon the Board of Directors to fix by resolution or resolutions any
of
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the foregoing in connection with the creation of one or more series of
Preferred Stock and the limitation of variations between or among such series,
is set forth below in this Article FOURTH.
B. Preferred Stock
1. Shares of Preferred Stock may be issued in one or
more series at such time or times and for such consideration as the Board of
Directors may determine.
2. Authority is hereby expressly granted to the Board of
Directors to fix from time to time, by resolution or resolutions providing for
the establishment and/or issuance of any series of Preferred Stock, the
designation and number of the shares of such series and the powers, preferences
and rights of such series, and the qualifications, limitations or restrictions
thereof, to the fullest extent such authority may be conferred upon the Board
of Directors under the Delaware General Corporation Law.
The number of authorized shares of Preferred Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority of the Common Stock, without a
vote of the holders of the Preferred Stock, or of any series thereof, unless a
vote of any such holders is required pursuant to the terms of any Preferred
Stock designation.
C. Common Stock.
The relative powers, preferences, rights, qualifications, limitations
and restrictions of the shares of the Common Stock are as follows:
1. Dividends. Subject to the preferential rights, if
any, of the Preferred Stock, the holders of shares of Common Stock shall be
entitled to receive, when and if declared by the Board of Directors, out of the
assets of the Corporation which are by law available therefor, dividends
payable either in cash, in property, or in shares of Common Stock.
2. Liquidation. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
after payment or provision for payment of the debts and other liabilities of
the Corporation and the amounts to which the holders of any Preferred Stock
shall be entitled, the holders of Common Stock shall be entitled to share
ratably in the remaining assets of the Corporation.
3. Voting. The holders of the Common Stock are entitled
to one vote for each share held; provided, however, that, except as otherwise
required by law or set forth in any Preferred Stock designation, holders of
Common Stock shall not be entitled to vote on any amendment to this Restated
Certificate of Incorporation (including any certificate of designation relating
to Preferred Stock) that relates solely to the terms of one or more outstanding
series of Preferred Stock if the holders of such affected series are entitled,
either separately or together as a class with the holders of one or more other
such series, to vote thereon by law or pursuant to
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this Restated Certificate of Incorporation (including any certificate of
designation relating to Preferred Stock). There shall be no cumulative voting.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
A. The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors. In addition to the powers
and authority expressly conferred upon them by statute or by this Restated
Certificate of Incorporation or the By-Laws of the Corporation as in effect
from time to time, the directors are hereby empowered to exercise all such
powers and do all such acts and things as may be exercised or done by the
Corporation.
B. The directors of the Corporation need not be elected by
written ballot unless the By-Laws so provide.
C. Any action required or permitted to be taken by the
stockholders of the Corporation may be effected only at a duly called annual or
special meeting of stockholders of the Corporation and not by written consent.
D. Special meetings of the stockholders may only be called by the
Board of Directors.
SEVENTH: A. Subject to the rights of the holders of shares of any
series of Preferred Stock then outstanding to elect additional directors under
specified circumstances, the number of directors shall be fixed from time to
time exclusively by the Board of Directors pursuant to a resolution adopted by
a majority of the Board of Directors.
B. Subject to the rights of the holders of shares of any series
of Preferred Stock then outstanding to elect additional directors under
specified circumstances, the Board of Directors of the Corporation shall be
divided into three classes, with the term of office of the first class to
expire at the 2001 annual meeting of stockholders or any special meeting in
lieu thereof, the term of office of the second class to expire at the 2002
annual meeting of stockholders or any special meeting in lieu thereof, and the
term of office of the third class to expire at the 2003 annual meeting of
stockholders or any special meeting in lieu thereof. At each annual meeting of
stockholders or special meeting in lieu thereof, directors elected to succeed
those directors whose terms expire, other than directors elected by the holders
of any series of Preferred Stock, shall be elected for a term of office to
expire at the third succeeding annual meeting of stockholders or special
meeting in lieu thereof after their election and until their successors are
duly elected and qualified.
C. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, newly created directorships resulting from
any increase in the authorized number of directors or any vacancies in the
Board of Directors resulting from death, resignation, retirement,
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disqualification, removal from office or other cause shall be filled only by a
majority vote of the directors then in office even though less than a quorum,
or by a sole remaining director and not by stockholders.
D. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in
the By-Laws of the Corporation.
E. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any director, or the entire Board of
Directors, may be removed from office at any time only for cause and only by
the affirmative vote of the holders of at least eighty percent (80%) of the
voting power of all of the outstanding shares of capital stock then entitled to
vote at an election of the directors. A director may be removed for cause only
after a reasonable notice and opportunity to be heard by the stockholders.
EIGHTH: The Board of Directors is expressly empowered to adopt, amend
or repeal By-Laws of the Corporation. Any adoption, amendment or repeal of the
By-Laws of the Corporation by the Board of Directors shall require the approval
of a majority of the Board of Directors. The stockholders shall also have
power to adopt, amend or repeal the By-Laws of the Corporation; provided, that
in addition to any vote of the holders of any class or series of stock of the
Corporation required by law or by this Restated Certificate of Incorporation,
the affirmative vote of the holders of at least eighty percent (80%) of the
voting power of all of the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required for the stockholders to adopt,
amend or repeal any provision of the By-Laws of the Corporation.
NINTH: A. To the fullest extent permitted by the Delaware General
Corporation Law as the same now exists or may hereafter be amended, the
Corporation shall indemnify, and advance expenses to, its directors and
officers and to any person who is or was serving at the request of the
Corporation as a director, officer, trustee, employee or agent of another
corporation, or of a partnership, joint venture, trust or other enterprise, if
such person was or is made a party to or is threatened to be made a party to or
is otherwise involved (including, without limitation, as a witness) in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director or
officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, trustee, employee or agent of another
corporation, or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan; provided, that
except with respect to proceedings to enforce rights to indemnification or as
is otherwise required by law, the Corporation shall not be required to
indemnify, and advance expenses to, any director, officer or other person in
connection with a proceeding (or part thereof) initiated by such director,
officer or other person, unless such proceeding (or part thereof) was
authorized by the Board of Directors.
B. The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article NINTH shall not be deemed exclusive of any
other rights to which a person seeking indemnification or advancement of
expenses may be entitled under any By-Law,
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agreement, vote of stockholders or disinterested directors or otherwise, both
as to action in such person's official capacity and as to action in another
capacity while holding such office.
C. The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, trustee, employee or agent of another
corporation, or of a partnership, joint venture, trust or other enterprise,
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether
or not the Corporation would have the power to indemnify such person against
such liability under this Article NINTH.
D. The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article NINTH shall, unless otherwise specified
when authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such person. No repeal or amendment of
this Article NINTH shall adversely affect any rights of any person pursuant to
this Article NINTH which existed at the time of such repeal or amendment with
respect to acts or omissions occurring prior to such repeal or amendment.
TENTH: No director shall be personally liable to the Corporation or
its stockholders for any monetary damages for breaches of fiduciary duty as a
director, notwithstanding any provision of law imposing such liability;
provided that this provision shall not eliminate or limit the liability of a
director, to the extent that such liability is imposed by applicable law, (i)
for any breach of the director's duty of loyalty to the Corporation or its
stockholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) under Section 174
or successor provisions of the Delaware General Corporation Law; or (iv) for
any transaction from which the director derived an improper personal benefit.
This provision shall not eliminate or limit the liability of a director for any
act or omission if such elimination or limitation is prohibited by the Delaware
General Corporation Law. No amendment to or repeal of this provision shall
apply to or have any effect on the liability or alleged liability of any
director for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal. If the Delaware General
Corporation Law is amended 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 Delaware General Corporation Law, as so amended. All
references in this Article TENTH to a director shall also be deemed to refer to
any such director acting in his or her capacity as a Continuing Director (as
defined in Article THIRTEENTH).
ELEVENTH: The Corporation reserves the right to amend or repeal any
provision contained in this Restated Certificate of Incorporation in the manner
prescribed by the Delaware General Corporation Law and all rights conferred
upon stockholders are granted subject to this reservation; provided that in
addition to the vote of the holders of any class or series of stock of the
Corporation required by law or by this Restated Certificate of Incorporation,
the affirmative vote of the holders of shares of voting stock of the
Corporation representing at least eighty percent (80%) of the voting power of
all of the then outstanding shares of the capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single
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class, shall be required to amend, alter or repeal, or adopt any provision
inconsistent with, Articles SIXTH, SEVENTH, EIGHTH, NINTH, TENTH, and this
Article ELEVENTH of this Restated Certificate of Incorporation.
TWELFTH: 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 stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of the Delaware General Corporation Law or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of the
Delaware General Corporation Law, order a meeting of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said
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 stockholders or
class of stockholders of this Corporation, as the case may be, agree to any
compromise or arrangement and to any reorganization of this Corporation as
consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to
which the said application has been made, be binding on all the creditors or
class of creditors, and/or on all the stockholders or class of stockholders, of
this Corporation, as the case may be, and also on this Corporation.
THIRTEENTH: The Board of Directors is expressly authorized to cause
the Corporation to issue rights pursuant to Section 157 of the DGCL and, in
that connection, to enter into any agreements necessary or convenient for such
issuance, and to enter into other agreements necessary and convenient to the
conduct of the business of the Corporation. Any such agreement may include
provisions limiting, in certain circumstances, the ability of the Board of
Directors of the Corporation to redeem the securities issued pursuant thereto
or to take other action thereunder or in connection therewith unless there is a
specified number or percentage of Continuing Directors then in office.
Pursuant to Section 141(a) of the DGCL, the Continuing Directors shall have the
power and authority to make all decisions and determinations, and exercise or
perform such other acts, that any such agreement provides that such Continuing
Directors shall make, exercise or perform. For purposes of this Article
THIRTEENTH and any such agreement, the term, "Continuing Directors," shall mean
(1) those directors who were members of the Board of Directors of the
Corporation at the time the Corporation entered into such agreement and any
director who subsequently becomes a member of the Board of Directors, if such
director's nomination for election to the Board of Directors is recommended or
approved by the majority vote of the Continuing Directors then in office or (2)
such members of the Board of Directors designated in, or in the manner provided
in, such agreement as Continuing Directors.
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IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by its President and Chief Executive Officer this ____ day of
__________, 2000.
BOLT, INC.
By:
Daniel A. Pelson
Its President and Chief Executive Officer
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