EXHIBIT 3.1
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
PEROT SYSTEMS CORPORATION
Perot Systems Corporation, a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
1. The name of the Corporation is Perot Systems Corporation. Perot
Systems Corporation was originally incorporated under the same name, and the
Certificate of Incorporation of the Corporation was filed with the Secretary of
State of the State of Delaware on December 18, 1995.
2. Pursuant to Sections 242 and 245 of the General Corporation Law of
the State of Delaware, this Restated Certificate of Incorporation restates and
integrates and further amends the provisions of the Certificate of Incorporation
of this Corporation.
3. The text of the Restated Certificate of Incorporation as heretofore
amended or supplemented is hereby restated and further amended to read in its
entirety as follows:
ARTICLE I
The name of the Corporation is Perot Systems Corporation.
ARTICLE II
The name of the Corporation's registered agent and the address of its
registered office in the State of Delaware is Corporation Service Company, 2711
Centerville Road, Suite 400, Wilmington, New Castle County, Delaware.
ARTICLE III
The purpose of the Corporation 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.
ARTICLE IV
A. The aggregate number of shares of capital stock which the
Corporation shall have authority to issue is 329,000,000 shares, consisting of:
(i) 300,000,000 shares of Class A Common Stock, par value
$0.01 per share;
(ii) 24,000,000 shares of Class B Common Stock, par value
$0.01 per share; and
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(iii) 5,000,000 shares of Preferred Stock, par value $0.01 per
share.
B. Class B Common Stock.
(i) Shares of Class B Common Stock will have no voting rights, except
to the extent that the Delaware General Corporation Law requires a vote of the
Class B Common Stock with respect to an amendment to the Certificate of
Incorporation that would increase or decrease the par value of the Class B
Common Stock or alter or change the powers, preferences or special rights of
shares of Class B Common Stock so as to affect them materially and adversely. No
authorization or issuance of any capital stock of the Corporation will be
considered to alter or change the powers, preferences or special rights of
shares of Class B Common Stock. The number of authorized shares of Class B
Common Stock may be increased or decreased (but not below the number of shares
of Class B Common Stock then outstanding or reserved for issuance pursuant to
outstanding options, warrants or similar rights) by the affirmative vote of the
holders of a majority of the voting stock of the Corporation, voting as a single
class, without any vote by holders of the Class B Common Stock.
(ii) (a) Each share of Class B Common Stock shall be convertible, on a
share for share basis, at the option of the holder thereof, into a fully paid
and nonassessable share of Class A Common Stock upon satisfaction of the terms
of Section 1(b) below for the purpose of the transfer, sale or other disposition
thereof (a "sale") to a third party purchaser that is not an "affiliate" (as
defined in Rule 144(a)(1) under the Securities Act of 1933, as amended) of the
holder thereof (a "Third Party") if such sale is made (a) in a widely dispersed
public offering of the Class A Common Stock; (b) to a Third Party that, prior to
such sale, controls more than 50% of the then outstanding voting securities (as
defined in the Bank Holding Company Act of 1956, as amended, or in Regulation Y
of the Board of Governors of the Federal Reserve System) of the Corporation; (c)
to a Third Party that, after such sale, is the beneficial owner (directly or
indirectly) of not more than two percent (2%) of the outstanding voting stock of
the Corporation having power to elect directors; (d) in a transaction that
complies with Rule 144 (or any successor thereto) under the Securities Act of
1933, as amended; or (e) by Swiss Bank Corporation or its affiliates in a
transaction approved in advance by the Board of Governors of the Federal Reserve
System as being in compliance with the requirements of the Bank Holding Company
Act of 1956, as amended, and any rules and regulations or interpretations
promulgated by the Board of Governors of the Federal Reserve System pursuant
thereto (each, a "Qualifying Sale").
(b) The conversion of Class B Common Stock into Class A Common
Stock for the purpose of making a Qualifying Sale will be effective only after
receipt by the Corporation of a certificate, executed by the holder of the Class
B Common Stock that is the subject of the sale, stating that the proposed sale
is a Qualifying Sale.
(c) As promptly as practicable after receipt by the
Corporation of the certificate referred to in Section B (ii)(b) and delivery to
the Corporation of the certificate or certificates evidencing any shares so
converted, duly endorsed for transfer, the Corporation shall issue and deliver
to the Third Party (or, if necessary for purposes of effecting the Qualifying
Sale, to the holder of the shares to be converted) a certificate or certificates
for the number of shares of
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Class A Common Stock that are the subject of the Qualifying Sale. If only a
portion of the shares of Class B Common Stock represented by a certificate are
transferred in a Qualifying Sale, the Corporation shall issue and deliver to the
holder of such Class B Common Stock a new certificate representing the Class B
Common Stock retained by such holder.
(d) The Corporation shall at all times reserve and keep
available, out of its authorized but unissued Class A Common Stock, solely for
the purpose of effecting the conversion of the Class B Common Stock, the number
of shares of Class A Common Stock deliverable upon the conversion of all Class B
Common Stock from time to time outstanding. The Corporation shall from time to
time (subject to obtaining necessary director and stockholder action), in
accordance with the laws of the State of Delaware, increase the authorized
amount of its Class A Common Stock if at any time the authorized number of
shares of its Class A Common Stock remaining unissued shall not be sufficient to
permit the conversion of all of the shares of Class B Common Stock at the time
outstanding.
C. Required Vote. Any amendment to the Certificate of Incorporation,
merger or consolidation, sale, lease or exchange of all or substantially all of
the Corporation's property and assets or voluntary dissolution of the
Corporation that (in any such case) requires approval by the Corporation's
stockholders under Delaware law must be approved by the affirmative vote of the
holders of at least 66-2/3% of the outstanding stock of the Corporation entitled
to vote thereon, and at least 66-2/3% of the outstanding stock of each class
entitled to vote thereon as a class.
D. Preferred Stock. The Board of Directors is expressly authorized at
any time, and from time to time, to provide for the issuance of the Preferred
Stock in one or more series, each with such voting powers, full or limited, or
without voting powers, and with such designations, preference and relative
participating, conversion, optional or other rights, and such qualifications,
limitation or restrictions thereof, as shall be stated in the resolution or
resolutions providing for the issue thereof adopted by the Board of Directors,
and as are not stated in this Certificate of Incorporation, or any amendments
thereto, including (but without limiting the generality of the foregoing) the
following:
(i) The distinctive designation and number of shares comprising such
series, which number may (except where otherwise provided by the Board of
Directors in creating such series) be increased or decreased (but not below the
number of shares then outstanding) from time to time by action of the Board of
Directors.
(ii) The dividend rate or rates on the shares of such series and the
relation which such dividends shall bear to the dividends payable on any other
class of capital stock or on any other series of preferred stock, the terms and
conditions upon which and the period in respect of which dividends shall be
payable, whether and upon what conditions such dividends shall be cumulative
and, if cumulative, the date or dates from which dividends shall accumulate.
(iii) Whether the shares of such series shall be redeemable, and, if
redeemable, whether redeemable for cash, property or rights, including
securities of any other corporation, and whether redeemable at the option of the
holder or the Corporation or upon the happening of a specified
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event, the limitations and restrictions with respect to such redemption, the
time or times when, the price or prices or rate or rates at which, the
adjustments with which and the manner in which such shares shall be redeemable,
including the manner of selecting shares of such series for redemption if less
than all shares are to be redeemed.
(iv) The rights to which the holders of shares of such series shall be
entitled, and the preferences, if any, over any other series (or for any other
series over such series), upon the voluntary or involuntary liquidation,
dissolution, which rights may vary depending on whether such liquidation,
dissolution, distribution or winding up is voluntary or involuntary, and, if
voluntary, may vary at different dates.
(v) Whether the shares of such series shall be subject to the operation
of a purchase, retirement or sinking fund and, if so, whether and upon what
conditions such fund shall be cumulative or noncumulative, the extent to which
and the manner in which such fund shall be applied to the purchase or redemption
of the shares of such series for retirement or to other corporation purposes and
the terms and provisions relative to the operation thereof.
(vi) Whether the shares of such series shall be convertible into or
exchangeable for shares of any other class or of any other series of any class
of capital stock of the Corporation, and, if so convertible or exchangeable, the
price or prices or the rate or rates of conversion or exchange and the method,
if any, of adjusting the same, and any other terms and conditions of such
conversion or exchange.
(vii) The voting powers, full and/or limited, if any, of the shares of
such series, and whether and under what conditions the shares of such series
(alone or together with the shares of one or more other series having similar
provisions) shall be entitled to vote separately as a single class, for the
election of one or more additional directors of the Corporation in case of
dividend arrearages or other specified events, or upon other matters.
(viii) Whether the issuance of any additional shares of such series, or
of any shares of any other series, shall be subject to restrictions as to
issuance, or as to the powers, preferences or rights of any such other series.
(ix) Any other preferences, privileges and powers and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions of such series, as the Board of Directors may deem advisable and
as shall not be inconsistent with the provisions of this Certificate of
Incorporation.
ARTICLE V
In furtherance and not limitation of the powers conferred by the laws
of the State of Delaware, the Board of Directors is expressly authorized to
alter, amend or repeal the bylaws of the Corporation or to adopt new bylaws.
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ARTICLE VI
Except as otherwise provided in the resolutions of the Board of
Directors designating any series of Preferred Stock or otherwise authorized by
the Board of Directors, any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of stockholders and may not be effected by a consent in writing
by any such stockholders.
Subject to the rights of holders of any class or series of Preferred
Stock, special meetings of stockholders may be called only by the Chairman of
the Board or President of the Corporation or by the Chairman of the Board,
President or the Secretary at the request in writing of a majority of the Board
of Directors. Stockholders of the Corporation are not permitted to call a
special meeting or to require that the Board call a special meeting of
stockholders unless authorized by the Board of Directors. The business permitted
at any special meeting of stockholders shall be limited to the business brought
before the meeting by or at the direction of the Board of Directors.
ARTICLE VII
Subject to the rights of holders of any class or series of Preferred
Stock, nominations for the election of directors, and business proposed to be
brought before an annual meeting of stockholders may be made only by the Board
of Directors or a committee appointed by the Board of Directors or by any
stockholder entitled to vote in the election of directors generally. However,
any such stockholder may nominate one or more persons for election as directors
only at an annual meeting or propose business to be brought before an annual
meeting, or both, only if such stockholder has given timely notice in proper
written form of his or her intent to make such nomination or nominations or to
propose such business. To be timely, a stockholder's notice must be delivered to
or mailed and received by the Secretary of the Corporation not less than sixty
(60) days nor more than ninety (90) days prior to the annual meeting; provided,
however, that in the event that less than seventy (70) days notice or prior
public disclosure of the date of the annual meeting is given or made to
stockholders, notice by a stockholder, to be timely, must be received no later
than the close of business on the tenth (10th) day following the date on which
such notice of the date of the annual meeting was made or such public disclosure
was made, whichever first occurs. To be in proper written form, a stockholder's
notice to the Secretary shall set forth:
A. the name and address of the stockholder who intends to make
the nominations or propose the business and, as the case may be, of the
person or persons to be nominated or of the business to be proposed;
B. a representation that the stockholder is a holder of record
of stock of the Corporation entitled to vote at such meeting and, if
applicable, intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice;
C. if applicable, a description of all arrangements or
understandings between the stockholder and each nominee and any other
person or persons (naming such person
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or persons) pursuant to which the nomination or nominations are to be
made by the stockholder;
D. such other information regarding each nominee or each
matter of business to be proposed by such stockholder as would be
required to be included in a proxy statement filed pursuant to the
proxy rules of the Securities and Exchange Commission had the nominee
been nominated, or intended to be nominated, or the matter been
proposed, or intended to be proposed, by the Board of Directors, and
such other information about the nominee as the Board of Directors
deems appropriate, including, without limitation, the nominee's age,
business and residence addresses, principal occupation and the class
and number of shares of Common Stock beneficially owned by the nominee,
or such other information about the business to be proposed and about
the stockholder making such business proposal before the annual meeting
as the Board of Directors deems appropriate, including, without
limitation, the class and number of shares of Common Stock beneficially
owned by such stockholder; and
E. if applicable, the consent of each nominee to serve as
director of the Corporation if so elected.
The chairman of the meeting may refuse to acknowledge the nomination of
any person or any proposal to transact any business not made in compliance with
the foregoing procedure.
ARTICLE VIII
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (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 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit. If the Delaware General Corporation Law is amended after the
filing of this Second Amended and Restated Certificate of Incorporation 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.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
ARTICLE IX
A. Right to Indemnification. Each person who was or is made a party or
is threatened to be made a party to or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he
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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 is or was serving at the request of
the Corporation as a director or officer of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter an "indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity as a director
or officer or in any other capacity while serving as a director or officer,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than permitted prior thereto), against all expense, liability and loss
(including, without limitation, attorneys' fees, judgments, fines, excise taxes
or penalties and amounts paid or to be paid in settlement) incurred or suffered
by such indemnitee in connection therewith and such indemnification shall
continue with respect to an indemnitee who has ceased to be a director or
officer and shall inure to the benefit of the indemnitee's heirs, executors and
administrators; provided, however, that, except as provided in paragraph (B)
hereof with respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such indemnitee in connection with a proceeding
initiated by such indemnitee only if such proceeding was authorized by the Board
of Directors of the Corporation. The right to indemnification conferred in this
Article IX shall be a contract right and shall include the right to be paid by
the Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition (hereinafter an "advancement of expenses");
provided, however, that, if the Delaware General Corporation Law requires, an
advancement of expenses incurred by an indemnitee shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Article IX or otherwise.
B. Right of Indemnitee to Bring Suit. If a claim under paragraph (A) of
this Article IX is not paid in full by the Corporation within sixty days after a
written claim has been received by the Corporation (except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be twenty days), the indemnitee may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim. If successful in
whole or in part in any such suit, the indemnitee shall also be entitled to be
paid the expense of prosecuting or defending such suit. In (i) any suit brought
by the indemnitee to enforce a right to indemnification hereunder (but not in a
suit brought by the indemnitee to enforce a right to an advancement of expenses)
it shall be a defense that, and (ii) in any suit by the Corporation to recover
an advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final adjudication
that, the indemnitee has not met the applicable standard of conduct set forth in
the Delaware General Corporation Law. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct,
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shall create a presumption that the indemnitee has not met the applicable
standard of conduct or, in the case of such a suit brought by the indemnitee, be
a defense to such suit. In any suit brought by the indemnitee to enforce a right
to indemnification or to an advancement of expenses hereunder or by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the indemnitee is not entitled under
this Article IX or otherwise to be indemnified, or to such advancement of
expenses, shall be on the Corporation.
C. Non-Exclusivity of Rights. The rights to indemnification and to the
advancement of expenses conferred in this Article IX shall not be exclusive of
any other right which any person may have or hereafter acquire under this
Certificate of Incorporation or any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
D. Insurance. The Corporation may maintain insurance, at its expense,
to protect itself and any indemnitee against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware General Corporation
Law.
E. Indemnity of Employees and Agents of the Corporation. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the Corporation to the fullest extent of the provisions
of this Article IX or as otherwise permitted under the Delaware General
Corporation Law with respect to the indemnification and advancement of expenses
of directors and officers of the Corporation.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation has been
signed by Peter A. Altabef, its authorized officer this 9th day of May, 2002.
/s/ PETER A. ALTABEF
-------------------------------
Peter A. Altabef
Secretary
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