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EXHIBIT 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NEURAL APPLICATIONS CORPORATION
ARTICLE 1.
The name of this corporation is Neural Applications Corporation.
ARTICLE 2.
The purpose of this corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware General
Corporation Law.
ARTICLE 3.
The registered office of this corporation in Delaware is 1209 Orange
Street, Wilmington, Delaware 19801, and the name of its registered agent is The
Corporation Trust Company.
ARTICLE 4.
(a) Authorized Capital Stock. The total number of shares of capital
stock of all classes which this corporation is authorized to issue is 25,000,000
shares, par value $.01 per share, of which 20,000,000 shares are designated
common stock and 5,000,000 shares are designated preferred stock.
(b) Preferred Stock. Authority is expressly vested in the board of
directors of this corporation to authorize the issuance from time to time of one
or more classes or series of preferred stock by resolution or resolutions
adopted by a majority of the board of directors, and to establish the number,
voting powers (full, partial or no voting powers) and designations and the
preferences, qualifications, limitations or restrictions of the shares of each
such class or series.
ARTICLE 5.
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In furtherance, and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, amend, alter,
change, add to or repeal bylaws of this corporation, without any action on the
part of the stockholders. The bylaws made by the directors may be amended,
altered, changed, added to or repealed by the stockholders. Any specific
provision in the bylaws regarding amendment thereof shall be controlling.
ARTICLE 6.
A director of this corporation shall not be personally liable to this
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that this Article 6 shall not eliminate
or limit the liability of a director (i) for any breach of the director's duty
of loyalty to this 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 of the Delaware General Corporation Law; or (iv)
for any transaction from which the director derived an improper personal
benefit. This Article 6 shall not eliminate or limit the liability of a director
for any act or omission occurring prior to the effective date of this Article 6.
If the Delaware General Corporation Law is hereafter amended to
authorize any further limitation of the liability of a director, then the
liability of a director of this corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as
amended.
Any repeal or modification of the foregoing provisions of this Article
6 by the stockholders of this corporation shall not adversely affect any right
or protection of a director of this corporation existing at or prior to the time
of such repeal or modification.
ARTICLE 7.
The business and affairs of the Corporation shall be managed by or
under the direction of a board of directors consisting of not less than three
nor more than eleven persons, none of whom need be shareholders. The number of
directors may from time to time be increased or decreased by the stockholders or
the board of directors; provided, however, that, unless such change shall have
been approved by a majority of the entire board of directors, any change in the
number of directors (including, without limitation, changes at an annual meeting
of the stockholders) shall be approved by the affirmative vote of not less than
75% of the votes entitled to be cast by the holders of all then outstanding
shares of common stock.
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The directors shall be divided into three classes as determined by the
board of directors, designated as Class I, Class II and Class III. Each class
shall consist, as nearly as may be possible, of one-third of the total number of
directors then constituting the entire board of directors. At the 1996 annual
meeting of the stockholders, Class I directors shall be elected for a one-year
term, Class II directors shall be elected for a two-year term and Class III
directors for a three-year term. At each succeeding annual meeting of
stockholders thereafter, successors to the class of directors whose terms
expired at that annual meeting shall be elected for a three-year term. If the
number of directors has changed, any increase or decrease shall be apportioned
among the classes so as to maintain the number of directors in each class as
nearly equal as possible, and any additional director of any class elected to
fill a vacancy resulting from an increase in such class shall hold office for a
term that shall coincide with the remaining term of that class. In no case will
a decrease in the number of directors shorten the term of any incumbent
director. A director shall hold office until the annual meeting for the year in
which his or her term expires and until his or her successor shall be elected
and qualified, subject, however, to such director's prior death, resignation,
retirement, disqualification or removal from office.
Newly created directorships resulting from any increase in the number
of directors may be filled by a majority of the board of directors then in
office, and any other vacancy on the board of directors resulting from death,
resignation, disqualification, removal or other cause shall be filled solely by
the affirmative vote of a majority of the remaining directors then in office or
a sole remaining director, even if less than a quorum of the board of directors.
Any director elected in accordance with the preceding sentence shall hold office
for the remainder of the full term of the new directorship which was created or
in which the vacancy occurred and until such director's successor shall have
been elected and qualified.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of preferred stock issued by this corporation shall have the
right, voting separately by class or series, to elect directors at any annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by or
pursuant to the applicable terms of the resolution or resolutions of the board
of directors establishing the rights, designations and preferences of such
preferred stock, and such directors so elected shall not be divided into classes
pursuant to this Article 7 unless expressly provided by such resolutions.
No person other than a person nominated by or on behalf of the board of
directors shall be eligible for election as a director at any annual or special
meeting of stockholders unless a written request that his or her name be placed
in nomination is received from a stockholder of record by the Secretary of this
corporation not less than 60 days prior to the date fixed for the meeting,
together with the written consent of such person to serve as a director.
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Notwithstanding any other provisions of this Certificate of
Incorporation (and notwithstanding the fact that a lesser percentage or separate
class vote may be specified by law or this Certificate of Incorporation), the
affirmative vote of not less than 75% of the votes entitled to be cast by the
holders of all then outstanding shares of common stock shall be required to
amend or repeal, or adopt any provisions inconsistent with, this Article 7.
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