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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
DELL COMPUTER CORPORATION
FIRST: The name of the corporation is DELL COMPUTER CORPORATION.
SECOND: The address of the registered office of the corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of the registered agent of the corporation at such
address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or
promoted by the corporation is to engage in any lawful business, act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of capital stock of the corporation
shall be thirty million (30,000,000), which shall consist of five million
(5,000,000) shares of Preferred Stock, of the par value of $.01 per share, and
twenty five million (25,000,000) shares of Common Stock, of the par value of
$.01 per share.
The following is a statement fixing certain of the designations and
powers, voting powers, preferences, and relative, participating, optional or
other rights of the Preferred Stock and the Common Stock of the corporation,
and the qualifications, limitations or restrictions thereof, and the authority
with respect thereto expressly granted to the Board of Directors of the
corporation to fix any such provisions not fixed by this Certificate:
I. Preferred Stock
The Board of Directors is hereby expressly vested with the authority to
adopt a resolution or resolutions providing for the issue of authorized but
unissued shares of Preferred Stock, which shares may be issued from time to
time in one or more series and in such amounts as may be determined by the
Board of Directors in such resolution or resolutions. The powers, voting
powers, designations, preferences, and relative, participating, optional or
other rights, if any, of each series of Preferred Stock and the qualifications,
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limitations or restrictions, if any, of such preferences and/or rights
(collectively the "Series Terms"), shall be such as are stated and expressed in
a resolution or resolutions providing for the creation or revision of such
Series Terms (a "Preferred Stock Series Resolution") adopted by the Board of
Directors or a committee of the Board of Directors to which such responsibility
is specifically and lawfully delegated. The powers of the Board with respect
to the Series Terms of a particular series (any of which powers, other than
voting powers, may by resolution of the Board of Directors be specifically
delegated to one or more of its committees, except as prohibited by law) 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, or any increase or decrease
(but not below the number of shares thereof then outstanding) in such
number;
(2) The dividend rate on the shares of that series,
whether such dividends, if any, shall be cumulative, and, if so, the
date or dates from which dividends payable on such shares shall
accumulate, 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
with respect to shares of any other class or classes of stock or of any
other series of any class of stock, and, if so, the terms and
conditions of such conversion, including provision for adjustment of
the conversion rate upon occurrence of such events as the Board of
Directors shall determine;
(5) Whether the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including
their relative rights of priority, if any, of redemption, the date or
dates upon or after which they shall be
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redeemable, provisions regarding redemption notices, 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 of priority, if any, of
payment of shares of that series;
(8) The conditions or restrictions upon the creation of
indebtedness of the corporation or upon the issuance of additional
Preferred Stock or other capital stock ranking on a parity therewith,
or senior thereto, with respect to dividends or distribution of assets
upon liquidation;
(9) The conditions or restrictions with respect to the
issuance of, payment of dividends upon, or the making of other
distributions to, or the acquisition or redemption of, shares ranking
junior to the Preferred Stock or to any series thereof with respect to
dividends or distribution of assets upon liquidation; and
(10) Any other designations, powers, preferences, and
rights, including, without limitation any qualifications, limitations,
or restrictions thereof.
Any of the Series Terms, including voting rights, of any series may be
made dependent upon facts ascertainable outside the Certificate of
Incorporation and the Preferred Stock Series Resolution, provided that the
manner in which such facts shall operate upon such Series Terms is clearly and
expressly set forth in the Certificate of Incorporation or in the Preferred
Stock Series Resolution.
Subject to the provisions of this Article Fourth, shares of one or more
series of Preferred Stock may be
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authorized or issued from time to time as shall be determined by and for such
consideration as shall be fixed by the Board of Directors or a designated
committee thereof, in an aggregate amount not exceeding the total number of
shares of Preferred Stock authorized by this Certificate of Incorporation.
Except in respect of series particulars fixed by the Board of Directors or its
committee as permitted hereby, all shares of Preferred Stock shall be of equal
rank and shall be identical. All shares of any one series of Preferred Stock
so designated by the Board of Directors shall be alike in every particular,
except that shares of any one series issued at different times may differ as to
the dates from which dividends thereon shall be cumulative.
II. Common Stock
1. Dividends. Subject to the provisions of any Preferred Stock
Series Resolution, the Board of Directors may, in its discretion, out of funds
legally available for the payment of dividends and at such times and in such
manner as determined by the Board of Directors, declare and pay dividends on
the Common Stock of the corporation.
No dividend (other than a dividend in capital stock ranking on a parity
with the Common Stock or cash in lieu of fractional shares with respect to such
stock dividend) shall be declared or paid on any share or shares of any class
of stock or series thereof ranking on a parity with the Common Stock in respect
of payment of dividends for any dividend period unless there shall have been
declared, for the same dividend period, like proportionate dividends on all
shares of Common Stock then outstanding.
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 payment or setting aside for payment of any preferential amount due to the
holders of any other class or series of stock, the holders of the Common Stock
shall be entitled to receive ratably any or all assets remaining to be paid or
distributed.
3. Voting Rights. Subject to any special voting rights set forth
in any Preferred Stock Series Resolution, the holders of the Common Stock of
the corporation shall be
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entitled at all meetings of stockholders to one vote for each share of such
stock held by them.
III. Senior, Parity or Junior Stock
Whenever reference is made in this Article Fourth to shares "ranking
senior to" another class of stock or "on a parity with" another class of stock,
such reference shall mean and include all other shares of the corporation in
respect of which the rights of the holders thereof as to the payment of
dividends or as to distributions in the event of a voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the corporation are
given preference over, or rank on an equality with, as the case may be, the
rights of the holders of such other class of stock. Whenever reference is made
to shares "ranking junior to" another class of stock, such reference shall mean
and include all shares of the corporation in respect of which the rights of the
holders thereof as to the payment of dividends and as to distributions in the
event of a voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the corporation are junior and subordinate to the rights of the
holders of such class of stock.
Except as otherwise provided herein or in any Preferred Stock Series
Resolution, each series of Preferred Stock ranks on a parity with each other
and each ranks senior to the Common Stock. Common Stock ranks junior to the
Preferred Stock.
IV. Liquidation Notices
Written notice of any voluntary or involuntary dissolution, liquidation
or winding up of the affairs of the corporation, stating a payment date and the
place where the distributable amounts shall be payable, shall be given by mail,
postage prepaid, not less than thirty (30) days prior to the payment date
stated therein, to the holders of record of the Preferred Stock, if any, at
their respective addresses as the same shall appear on the books of the
corporation.
V. Reservation and Retirement of Shares
The corporation shall at all times reserve and keep available, out of
its authorized but unissued shares of Common Stock or out of shares of Common
Stock held in its treasury, the full number of shares of Common Stock into
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which all shares of any series of Preferred Stock having conversion privileges
from time to time outstanding are convertible.
Unless otherwise provided in a Preferred Stock Series Resolution with
respect to a particular series of Preferred Stock, all shares of Preferred
Stock redeemed or acquired (as a result of conversion or otherwise) shall be
retired and restored to the status of authorized but unissued shares.
VI. No Preemptive Rights
Subject to the provisions of any Preferred Stock Series Resolution, no
holder of shares of stock of the corporation shall have any preemptive or other
right, except as such rights are expressly provided by contract, to purchase or
subscribe for or receive any shares of any class, or series thereof, of stock
of the corporation, whether now or hereafter authorized, or any warrants,
options, bonds, debentures or other securities convertible into, exchangeable
for or carrying any right to purchase any shares of any class, or series
thereof, of stock; but subject to the provisions of any Preferred Stock Series
Resolution, such additional shares of stock and such warrants, options, bonds,
debentures or other securities convertible into, exchangeable for or carrying
any right to purchase any shares of any class, or series thereof, of stock may
be issued or disposed of by the Board of Directors to such persons, and on such
terms and for such lawful consideration, as in its discretion it shall deem
advisable or as to which the corporation shall have by binding contract agreed.
FIFTH: The incorporator of the corporation is Michael S. Dell, 1611
Headway Circle, Building Three, Austin, Texas 78754.
SIXTH: The name and mailing address of the person who is to serve as
the director of the corporation until the appropriate annual meeting of
stockholders or until his successor is elected and qualified is as follows:
Name Mailing Address
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Michael S. Dell 1611 Headway Circle,
Building Three
Austin, Texas 78754
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The number of directors of the corporation shall be fixed as specified or
provided for in the by-laws of the corporation. Election of directors need not
be by written ballot unless the by-laws shall so provide. No holders of
Preferred Stock or Common Stock of the corporation shall have any right to
cumulate votes in the election of directors.
SEVENTH: Except as otherwise provided by statute, any action that
might have been taken at a meeting of stockholders by a vote of the
stockholders may be taken with the written consent of stockholders owning (and
by such written consent, voting) in the aggregate not less than the minimum
percentage of the total number of shares that by statute, this Certificate of
Incorporation or the by-laws are required to be voted with respect to such
proposed corporate action, provided, however, that the written consent of a
stockholder who would not have been entitled to vote upon the action if a
meeting were held shall not be counted; and further provided, that prompt
notice shall be given to all stockholders of the taking of such corporate
action without a meeting if less than unanimous written consent of all
stockholders who would have been entitled to vote on the action if a meeting
were held is obtained.
EIGHTH: In furtherance of, and not in limitation of, the powers
conferred by statute, the Board of Directors is expressly authorized to adopt,
amend or repeal the by-laws of the corporation or adopt new by-laws, without
any action on the part of the stockholders; provided, however, that no such
adoption, amendment, or repeal shall be valid with respect to by-law provisions
which have been adopted, amended, or repealed by the stockholders; and further
provided, that by-laws adopted or amended by the Directors and any powers
thereby conferred may be amended, altered, or repealed by the stockholders.
NINTH: 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 such liability as is expressly not
subject to limitation under the General Corporation Law of the State of
Delaware, as the same exists or may hereafter be amended to further limit or
eliminate such liability. Moreover, the corporation shall, to the fullest
extent permitted by law, indemnify any and all officers and directors of the
corporation, and may, to the fullest extent permitted by law or to such lesser
extent as is determined in the discretion of the
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Board of Directors, indemnify any and all other persons whom it shall have
power to indemnify, from and against all expenses, liabilities or other matters
arising out of their status as such or their acts, omissions or services
rendered in such capacities. 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, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation would have
the power to indemnify him against such liability.
TENTH: The corporation shall have the right, subject to any express
provisions or restrictions contained in the Certificate of Incorporation or
by-laws of the corporation, from time to time, to amend the Certificate of
incorporation or any provision thereof in any manner now or hereafter provided
by law, and all rights and powers of any kind conferred upon a director or
stockholder of the corporation by the Certificate of Incorporation or any
amendment thereof are conferred subject to such right.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 21st
day of October, 1987.
/s/ MICHAEL S. DELL
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Michael S. Dell
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