EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
@TRACK COMMUNICATIONS, INC.
This Restated Certificate of Incorporation restates in its entirety the
Certificate of Incorporation, as amended to date, of @Track Communications,
Inc., a corporation originally incorporated in Delaware as "HM Holding
Corporation" on January 28, 1994. This Restated Certificate of Incorporation has
been duly adopted pursuant to Section 245 of the Delaware General Corporation
Law. This Certificate of Incorporation only restates and integrates and does not
further amend the provisions of the Certificate of Incorporation as heretofore
amended to date, and there is no discrepancy between those provisions and the
provisions in this Restated Certificate of Incorporation.
I. NAME
The name of the corporation is @Track Communications, Inc.
II. EXISTENCE
The corporation is to have perpetual existence.
III. PURPOSE
The purpose for which the corporation is organized is the transaction
of any or all lawful business for which corporations may be incorporated under
the General Corporation Law of the State of Delaware.
IV. CAPITALIZATION
The aggregate number of shares of capital stock which the corporation
shall have authority to issue is 100,020,000 shares consisting of 100,000,000
shares of common stock, par value $0.01 per share (the "Common Stock"), and
20,000 shares of preferred stock, par value $0.01 per share. Each holder of a
share of Common Stock shall be entitled to one vote for each share held in any
stockholder vote in which any of such holders is entitled to participate.
Simultaneously with the effective date of the filing of this Amendment
to the Certificate of Incorporation (the "Effective Date"), each five (5) shares
of Common Stock (and each option, warrant and all other securities convertible
into shares of Common Stock, that represent the right to acquire five (5) shares
of Common Stock) of the corporation issued and outstanding or held as treasury
shares immediately prior to the Effective Date (the "Old Common Stock") shall
automatically be reclassified and continued (the "Reverse Split"), without any
action on the part of the holder thereof, as one (1) share of Common Stock (or
as an option, warrant or other security convertible into shares of Common Stock,
into the right to acquire one (1) share of Common Stock, as the case may be).
The corporation shall not issue fractional shares on account of the Reverse
Split. Holders of Old Common Stock who would otherwise be entitled to a fraction
of a share on account of the Reverse Split shall receive, upon surrender of the
stock certificates formerly representing shares of the Old Common Stock, in lieu
of
such fractional share, an amount in cash (the "Cash-in-Lieu Amount") equal to
the product of (i) the fractional share which a holder would otherwise be
entitled to, multiplied by (ii) the average of the last sale price per share of
the Old Common Stock on the 20 trading days immediately prior to the Effective
Date or, if no such sale takes place on such days, the average of the closing
bid and asked prices thereof for such days, in each case as officially reported
on the Nasdaq SmallCap Market. No interest shall be payable on the Cash-in-Lieu
Amount.
The Board of Directors of the corporation, by resolution or
resolutions, may at any time and from time to time, divide and establish any or
all of the unissued shares of Preferred Stock not then allocated to any series
of Preferred Stock into one or more series and, without limiting the generality
of the foregoing, fix and determine the designation of each such share, the
number of shares which shall constitute such series and certain powers,
preferences and relative, participating, optional or other special rights and
qualifications, limitations and restrictions and voting rights of the shares of
each series so establishing.
SERIES E PREFFERED STOCK
1. Title. The series of Preferred Stock is hereby designated as the
"Series E Preferred Stock" (the "Series E Preferred Stock").
2. Number. The number of shares which are hereby designated as, and
shall constitute, Series E Preferred Stock shall be one (1) share.
3. Ranking. In respect of rights to the payment of dividends and the
distribution of assets in the event of any liquidation, dissolution or winding
up of the Corporation, the Series E Preferred Stock shall rank senior to the
Corporation's common stock, par value $.01 per share (the "Common Stock"), and
senior to any other class or series of capital stock of the Corporation, other
than any class or series of capital stock of the Corporation the terms of which
specifically provide that such class or series of capital stock ranks on a
parity with or senior to the Series E Preferred Stock in respect of rights to
the payment of dividends and the distribution of assets in the event of any
liquidation, dissolution or winding up of the Corporation. The term "capital
stock" does not include convertible debt securities.
4. Dividends.
(a) The holders of the then outstanding shares of Series E
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors of the Corporation (the "Board of Directors"), out of funds
legally available for the payment of dividends, cash dividends at the rate of 7%
per annum of the $1,000 per share liquidation preference of the Series E
Preferred Stock (equivalent to an annual rate of $70.00 per share). Such
dividends shall accrue and be cumulative from the date which shares are actually
issued (the "Original Issue Date"), and shall be payable annually in arrears in
cash no later than January 31st of each year, commencing January, 2002 (each, a
"Dividend Payment Date"). Dividends shall be declared and payable to holders of
record as they appear in the stock transfer books of the Corporation at the
close of business on the applicable record date (each, a "Record Date"), which
shall be the last day in December of each year which is a Business Day,
commencing December, 2001, or such other date designated by the Board of
Directors. The period from and including the Original Issue Date to, but
excluding, the first Dividend Payment Date, and each subsequent period from and
including a Dividend Payment Date to, but excluding, the next
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succeeding period from and including a Dividend Payment date to, but excluding,
the next succeeding Dividend Payment date, is hereinafter called a "Dividend
Period." The amount of any dividend, payable for any Dividend Period, or portion
thereof, shall be computed on the basis of a 360-day year consisting of twelve
30-day months. The dividends payable on any Dividend Payment Date or any other
date shall include dividends accrued to, but excluding, such Dividend Payment
Date or other date, as the case may be.
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is not a day on which banking institutions in New York, New York, are
authorized or required by law, regulation or executive order to close. All
references herein to "accrued and unpaid" dividends on the Series E Preferred
Stock (and all references of like import) shall include, unless otherwise
expressly stated or the context otherwise requires, accumulated dividends, if
any, on the Series E Preferred Stock; and all references herein to "accrued and
unpaid" dividends on any other class or series of capital stock of the
Corporation shall include if (and only if) such class or series of capital stock
provides for cumulative dividends and unless otherwise expressly stated or the
context otherwise requires, accumulated dividends, if any, thereon.
(b) If any shares of Series E Preferred Stock are outstanding, no
full dividends will be declared or paid or set apart for payment on any capital
stock of the Corporation of any other class or series ranking, as to dividends
on a parity with or junior to the Series E Preferred Stock, unless full
cumulative dividends have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for such payment
on the Series E Preferred Stock for all past Dividend Periods (including,
without limitation, any Dividend Period terminating on the date upon which the
dividends on such other capital stock are declared and paid or set apart for
payment, as the case may be). When dividends are not paid in full (or a sum
sufficient for such full payment is not set apart therefor) upon the Series E
Preferred Stock and the shares of any other class or series of capital stock of
the Corporation ranking on a parity as to dividends with the Series E Preferred
Stock, all dividends declared upon the Series E Preferred Stock and any other
class or series of capital stock of the Corporation ranking on a parity as to
dividends with the Series E Preferred Stock shall be declared pro rata so that
the amount of dividends declared per share of Series E Preferred Stock and such
other class or series of capital stock of the Corporation shall in all cases
bear to each other the same ratio that accrued and unpaid dividends per share on
the shares of Series E Preferred Stock and such other class or series of capital
stock of the Corporation bear to each other.
Except as provided in the immediately preceding paragraph, unless full
cumulative dividends on the Series E Preferred Stock have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on the Series E Preferred Stock for
all past Dividend Periods (including, without limitation, any Dividend Period
terminating on the applicable Subject Date (as defined below)), (i) no dividends
(other than in shares of, or options, warrants or rights to subscribe for or
purchase shares of, Common Stock or any other class or series of capital stock
of the Corporation ranking junior to the Series E Preferred Stock as to
dividends and as to the distribution of assets upon liquidation, dissolution and
winding up of the Corporation) shall be declared or paid or set apart for
payment or other distribution declared or made upon the Common Stock of the
Corporation or any other class or series of capital stock of the Corporation
ranking junior to or on a parity with the Series E Preferred Stock as to
dividends or as to the distribution of assets upon liquidation, dissolution or
winding up of the Corporation, and (ii) no shares of Common Stock or shares of
any other class or series of capital stock of the Corporation ranking junior to
or on a parity with the Series E Preferred Stock as to dividends or as to the
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distribution of assets upon liquidation, dissolution or winding up of the
Corporation shall be redeemed, purchased or otherwise acquired for any
consideration (or any monies paid to or made available for a sinking fund for
the redemption of any such shares of junior or parity stock) by the Corporation
(except by conversion into or exchange for shares of any other class or series
of capital stock of the Corporation ranking junior to the Series E Preferred
Stock as to dividends and as to the distribution of assets upon liquidation,
dissolution and winding up of the Corporation). As used in this paragraph, the
term "Subject Date" means any date on which any dividends shall be declared and
paid or set apart for payment or other distribution declared or made upon the
Common Stock or any other class or series of capital stock of the Corporation
ranking junior to or on parity with the Series E Preferred Stock as to dividends
or as to the distribution of assets upon liquidation, dissolution or winding up
of the Corporation or on which any shares of Common Stock of the Corporation or
any shares of any other class or series of capital stock of the Corporation
ranking junior to or on parity with the Series E Preferred Stock as to dividends
or as to the distribution of assets upon liquidation, dissolution or winding up
of the Corporation shall be redeemed, purchased or otherwise acquired for any
consideration (or any moneys paid to or made available for a sinking fund for
the redemption of any such shares of junior or parity stock) by the Corporation.
(c) No dividends on the Series E Preferred Stock shall be declared
by the Board of Directors or paid or set apart for payment by the Corporation at
such times as any agreement of the Corporation, including any agreement relating
to its indebtedness, prohibits such declaration, payment or setting apart for
payment or provides that such declaration, payment or setting apart for payment
would constitute a breach thereof or a default thereunder, or if such
declaration or payment shall be restricted or prohibited by law.
(d) No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend or payments on the Series E Preferred Stock
which may be in arrears, and holders of the Section E Preferred Stock will not
be entitled to any dividends (within the meaning of the Internal Revenue Code of
1986, as amended). whether payable in cash, securities or other property, in
excess of the full cumulative dividends described herein.
(e) Any dividend payment made on the Series E Preferred Stock shall
first be credited against the earliest accrued but unpaid dividend due with
respect to such shares.
5. Liquidation Preference.
(a) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, then, before any distribution or payment shall be
made to the holders of any Common Stock of the Corporation or shares of any
other class or series of capital stock of the Corporation ranking junior to the
Series E Preferred Stock with respect to the distribution of assets upon
liquidation, dissolution or winding up of the Corporation, the holders of the
shares of Series E Preferred Stock then outstanding shall be entitled to receive
and be paid out of the assets of the Corporation legally available for
distribution to its stockholders liquidating distributions in cash in the amount
of $1,000.00 per share, plus an amount equal to all accrued and unpaid dividends
thereon to the date of payment.
(b) After payment to the holders of the Series E Preferred Stock of
the full amount of the liquidating distributions (including accrued and unpaid
dividends) to which they are entitled, the holders of Series E Preferred Stock,
as such, shall have no right or claim to any of the remaining assets of the
Corporation.
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(c) If, upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the assets of the Corporation legally
available therefor are insufficient to pay the full amount of liquidating
distributions on all outstanding shares of Series E Preferred Stock and the full
amount of the liquidation distributions payable on all outstanding shares of any
other classes or series of capital stock of the Corporation ranking on a parity
with the Series E Preferred Stock with respect to the distribution of assets
upon liquidation, dissolution or winding up of the Corporation, then the holders
of the Series E Preferred Stock and all such other classes or series of capital
stock will share ratably in any such distribution of assets in proportion to the
full liquidation distributions (including, if applicable, accrued and unpaid
dividends) to which they would otherwise respectively be entitled.
(d) If liquidating distributions shall have been made in full to all
holders of Series E Preferred Stock, the remaining assets of the Corporation
shall be distributed among the holders of any other classes or series of capital
stock of the Corporation ranking junior to the Series E Preferred Stock as to
the distribution of assets upon liquidation, dissolution or winding up,
according to their respective rights and preferences.
(e) For purposes of this Section 5, the consolidation or merger of
the Corporation with or into any other corporation, trust or other entity, nor
the sale, lease or conveyance of all or substantially all of the property or
business of the Corporation.
6. Redemption.
(a) To the extent the Corporation shall have funds legally available
for such payment, the Corporation may, but shall not be required to, redeem the
Series E Preferred Stock at any time after the date which is three years from
the Original Issue Date, at the Redemption Price (as defined below). Any date
fixed by the Board of Directors for the redemption of shares of Series E
Preferred Stock is hereinafter called a "Redemption Date."
(b) The redemption price per share of the Series E Preferred Stock
to be paid upon a redemption under this Section 6 shall be an amount equal to
$1,000.00, plus all accrued and unpaid dividends thereon to the Redemption Date
(the "Redemption Price"). The Redemption Price shall be paid in cash.
(c) Notice of any redemption pursuant to this Section 6 shall be
given by the Corporation by mailing notice (the "Redemption Notice"), via
registered or certified mail, postage prepaid, or by hand delivery to the
holders of record of the Series E Preferred Stock (at the close of business on
the Business Day (as defined in Section 4 herein) which precedes the day on
which the Redemption Notice is given) at their respective addresses as the same
shall appear on the stock books of the Corporation, not less than 10 days prior
to the date of such redemption. The Redemption Notice shall state the Redemption
Date, the Redemption Price, the number of shares to be redeemed, the time and
place fixed for such redemption and the surrender of stock certificates for
payment, and that dividends on the shares of Series E Preferred Stock to be
redeemed will cease to accrue on the Redemption Date. No failure to give or
defect in such notice or defect in the mailing thereof shall affect the validity
of the proceedings for the redemption of any shares of Series E Preferred Stock
except as to the holder to whom notice was defective or not given.
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(d) After the Corporation has sent or delivered the Redemption
Notice as required in Section 6(c) above and it has irrevocably deposited or set
aside a sum sufficient to redeem such shares to pay the Redemption Price for
such shares, said shares shall not be deemed to be outstanding shares for the
purpose of voting or determining the total number of shares entitled to vote on
any matter on or after date which the Redemption Notice was sent or delivered in
accordance with Section 6(c) above.
(e) Upon surrender of a certificate or certificates representing
shares to be redeemed pursuant to this Section 6, the Corporation shall remit an
amount equal to the product of (i) the Redemption Price, times (ii) the number
of shares of the Series E Preferred Stock to be redeemed.
(f) Any shares of the Series E Preferred Stock that shall at any
time have been redeemed or repurchased by the Corporation shall, after such
redemption or repurchase, be canceled by the Corporation, but shall be available
for reissuance at a subsequent date.
7. Voting Rights. Except as required by law, the holder of the
Series E Preferred Stock shall not have any voting rights.
8. Conversion. The Series E Preferred Stock is not convertible into
or exchangeable for any other property or securities of the Corporation.
9. No Preemptive Rights. The Series E Preferred Stock shall have no
preemptive rights.
10. Severability of Provisions. If any power, preference or
relative, participating, optional and other special right of the Series E
Preferred Stock, or qualification or restriction thereof, set forth in the
Certificate of Designations is invalid, unlawful or incapable of being enforced
by reason of any rule of law or public policy, then, to the extent permitted by
law, all other powers, preferences and relative, participating, optional and
other special rights of the Series E Preferred Stock and qualifications and
restrictions thereof set forth in the Certificate of Designations which can be
given effect without the invalid, unlawful or unenforceable powers, preferences
or relative, participating, optional or other special rights of the Series E
Preferred Stock or the qualifications or restriction thereof shall remain in
full force and effect and shall not be deemed dependent upon any other such
powers, preferences or relative, participating, optional or other special right
of the Series E Preferred Stock or qualifications or restrictions thereof unless
so expressed herein.
V. STOCKHOLDER RIGHTS
The preemptive right of any stockholder of the corporation to acquire
additional, unissued or treasury shares of the corporation, or securities of the
corporation convertible into or carrying a right to subscribe to or acquire
shares of the corporation, is hereby denied; provided, however, that nothing
herein shall preclude the corporation from granting preemptive rights by
contract or agreement to any person, corporation or other entity. Cumulative
voting by the stockholders of the corporation at any election of directors of
the corporation is hereby prohibited.
VI. REGISTERED AGENT
The street address of the initial registered office of the corporation
is 1209 Orange Street, Wilmington, New Castle County, Delaware 19801, and the
name of its initial registered agent at such address is The Corporation Trust
Company.
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VII. LIMITATION OF DIRECTORS' LIABILITY
To the fullest extent permitted by the General Corporation Law of the
State of Delaware, as the same exists or may hereafter be amended, a director of
the corporation shall not be liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. Any repeal or
amendment of this Article VII by the stockholders of the corporation or by
changes in applicable law shall, to the extent permitted by applicable law, be
prospective only, and shall not adversely affect any limitation on the personal
liability of any director of the corporation at the time of such repeal or
amendment.
VIII. INDEMNIFICATION
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, arbitrative or
investigative, any appeal in such an action, suit or proceeding and any inquiry
or investigation that could lead to such an action, suit or proceeding (whether
or not by or in the right of the corporation), by reason of the fact that he 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, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of another
corporation, partnership, joint venture, sole proprietorship, trust, nonprofit
entity, employee benefit plan or other enterprise, against all judgments,
penalties (including excise and similar taxes), fines, settlements and expenses
(including attorneys' fees and court costs) actually and reasonably incurred by
him in connection with such action, suit or proceeding to the fullest extent
permitted by any applicable law, and such indemnity shall inure to the benefit
of the heirs, executors and administrators of any such person so indemnified
pursuant to this Article VIII. The right to indemnification under this Article
VIII shall be a contract right and shall include, with respect to directors and
officers, the right to be paid by the corporation the expenses incurred in
defending any such proceeding in advance of its disposition; provided, however,
that, if the General Corporation Law of the State of Delaware requires, the
payment of such expenses incurred by a director or officer in advance of the
final disposition of a proceeding shall be made only upon delivery to the
corporation of an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Article VIII or
otherwise. The corporation may, by action of its board of directors, pay such
expenses incurred by employees and agents of the corporation upon such terms as
the board of directors deems appropriate. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VIII shall not be
deemed exclusive of any other right to which those seeking indemnification may
be entitled under any law, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office. Any repeal or
amendment of this Article VIII by the stockholders of the corporation or by
changes in applicable law shall, to the extent permitted by applicable law, be
prospective only, and not adversely affect the indemnification of any person who
may be indemnified at the time of such repeal or amendment.
IX. INTERESTED TRANSACTIONS
Any director or officer of the corporation individually, or any
corporation, partnership, association or other organization in which one or more
of the corporation's directors or officers are directors or officers or have a
financial interest (an "Interested Party") may be a party to, or may be
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pecuniarily or otherwise interested in, any contract or transaction of the
corporation, provided that (a) the material facts as to such Interested Party's
relationship and as to such contract or transaction shall be disclosed or shall
have been known to the board of directors, and the board of directors in good
faith shall authorize such contract or transaction by the affirmative vote of a
majority of the disinterested directors (even though the disinterested directors
constitute less than a quorum); or (b) the material facts as to such Interested
Party's relationship and as to such contract or transaction shall be disclosed
or shall have been known to the stockholders entitled to vote on such contract
or transaction, and the stockholders in good faith shall approve such contract
or transaction; or (c) such contract or transaction is fair as to the
corporation as of the time it is authorized, approved or ratified by the board
of directors or the stockholders. Any Interested Party who is a director of the
corporation may be counted in determining the presence of a quorum at a meeting
of the board of directors which authorizes any contract or transaction between
the corporation and an Interested Party.
X. MISCELLANEOUS
Election of directors need not be by written ballot. In furtherance and
not in limitation of the powers conferred by statute, the board of directors of
the corporation is expressly authorized to adopt the bylaws of the corporation,
to amend or repeal the bylaws or to adopt new bylaws, subject to any limitations
which may be contained in such bylaws.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be signed by its President and Chief Executive
Officer as of this 11th day of June, 2001 to be effective upon filing.
@TRACK COMMUNICATIONS, INC.
By: /s/ Jana A. Bell
------------------------------------
Jana A. Bell
President and Chief Executive Officer
ATTEST:
/s/ J. Raymond Bilbao
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J. Raymond Bilbao
Secretary
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CERTIFICATE OF AMENDMENT
OF THE
RESTATED CERTIFICATE OF INCORPORATION
OF
@TRACK COMMUNICATIONS, INC.
@Track Communications, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation held a special
meeting on May 21, 2002, at which it duly adopted a resolution, pursuant to
Sections 242 and 141 of the General Corporation Law of the State of Delaware,
setting forth an amendment to the Restated Certificate of Incorporation of the
Corporation and declaring said amendment to be advisable and in the best
interests of the Corporation.
SECOND: That in accordance with Sections 242 and 228 of the General
Corporation Law of the State of Delaware, the holders of at least a majority of
the stock of every class entitled to vote on said amendment have duly approved
and adopted said amendment pursuant to a written consent. Prompt written notice
of the adoption of the amendment will be given as provided in Section 228 of the
General Corporation Law of the State of Delaware to every stockholder entitled
to such notice.
THIRD: This amendment shall be effective at 5:31 P.M. Eastern
Standard Time on July 22, 2002.
FOURTH: That the amendment is as follows:
Article I of the Corporation's Restated Certification of
Incorporation is hereby amended by deleting said Article I in its
entirety and replacing it with the following in lieu thereof:
"I. Name
The name of the corporation is Minorplanet Systems USA, Inc."
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment of the Restated Certificate of Incorporation to be signed by the
undersigned duly authorized officer this 22nd day of July, 2002.
@TRACK COMMUNICATIONS, INC.
By: /s/ J. Raymond Bilbao
---------------------------------------
J. Raymond Bilbao,
Senior Vice President, General Counsel
and Secretary