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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
DAISYTEK INTERNATIONAL CORPORATION
(Pursuant to Section 245 of the General
Corporation Law of the State of Delaware)
DAISYTEK INTERNATIONAL CORPORATION, a corporation organized
and existing under the General Corporation Law of the State of Delaware, does
hereby certify as follows:
1. The name of the corporation is DAISYTEK INTERNATIONAL
CORPORATION (the "Corporation").
2. The name under which the Corporation was originally
incorporated is Bradford Holdings Group, Ltd. and the date of filing the
original Certificate of Incorporation of the Corporation with the Secretary of
State of the State of Delaware was December 17, 1991, as amended on January 26,
1993 and Certificate of Correction filed on January 25, 1995.
3. This Amended and Restated Certificate of
Incorporation amends and restates the provisions of the Certificate of
Incorporation of the Corporation, as amended, and was duly adopted by the
written consent of the stockholders of the Corporation entitled to vote thereon
in accordance with the provisions of Sections 228, 242 and 245 of the General
Corporation Law of the State of Delaware (the "GCL").
4. The Certificate of Incorporation of the Corporation,
as amended and restated hereby, shall, upon its filing with the Secretary of
State of the State of Delaware, read in its entirety as follows:
FIRST: The name of the corporation is Daisytek
International Corporation (the "Corporation").
SECOND: The registered office of the Corporation in the
State of Delaware is located at Corporation Trust Center, 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 purpose of the Corporation and the nature and
objects of the business to be transacted, promoted, and carried on are to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
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FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 11,000,000 shares, divided into
two classes as follows: (i) 1,000,000 shares of Preferred Stock, par value
$1.00 per share ("Preferred Stock"); and (ii) 10,000,000 shares of Common
Stock, par value $0.01 per share ("Common Stock").
Upon the filing and effectiveness of this Amended and Restated
Certificate of Incorporation with the Office of the Secretary of State of the
State of Delaware, each of the previously authorized, issued and outstanding
shares of Common Stock, $.01 par value, is hereby converted and split into and
shall become 1.45 shares of Common Stock, $.01 par value, and any fractional
shares arising therefrom shall be rounded (up or down) to the nearest whole
share and any surplus created or arising out of the stock split, if any, shall
be paid-in surplus.
The designations and the powers, preferences, rights,
qualifications, limitations, and restrictions of the Preferred Stock and the
Common Stock of the Corporation are as follows:
A. Provisions Relating to the Preferred Stock.
1. The Preferred Stock may be issued from time to time
in one or more classes or series, the shares of each class or series to have
such designations and powers, preferences, and rights, and qualifications,
limitations, and restrictions thereof as are stated and expressed herein and in
the resolution or resolutions providing for the issuance of such class or
series adopted by the board of directors of the Corporation as hereafter
prescribed.
2. Authority is hereby expressly granted to and vested
in the board of directors of the Corporation to authorize the issuance of the
Preferred Stock from time to time in one or more classes or series, and with
respect to each such class or series of the Preferred Stock, to fix and state
by the resolution or resolutions from time to time adopted providing for the
issuance thereof the following:
(i) whether or not such class or series is to have voting rights,
full, special, or limited, or is to be without voting rights, and
whether or not such class or series is to be entitled to vote as a
separate class either alone or together with the holders of one or
more other classes or series of stock;
(ii) the number of shares to constitute such class or series and
the designations thereof;
(iii) the preferences, and relative, participating, optional, or
other special rights, if any, and the qualifications, limitations, or
restrictions thereof, if any, with respect to any such class or
series;
(iv) whether or not the shares of any such class or series shall be
redeemable at the option of the Corporation or the holders thereof or
upon the happening of any specified event, and, if redeemable, the
redemption price or prices (which may be payable in the
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form of cash, notes, securities, or other property), and the time or
times at which, and the terms and conditions upon which, such shares
shall be redeemable and the manner of redemption;
(v) whether or not the shares of such class or series shall be
subject to the operation of retirement or sinking funds to be applied
to the purchase or redemption of such shares for retirement, and, if
such retirement or sinking fund or funds are to be established, the
annual amount thereof, and the terms and provisions relative to the
operation thereof;
(vi) the dividend rate, whether dividends are payable in cash,
stock of the Corporation, or other property, or a combination thereof,
the conditions upon which and the times when such dividends are
payable, the preference to or the relation to the payment of dividends
payable on any other class or classes or series of stock, whether such
dividends shall be cumulative or noncumulative, and if cumulative, the
date or dates from which such dividends shall accumulate;
(vii) the preferences, if any, and the amounts thereof which the
holders of any such class or series shall be entitled to receive upon
the voluntary and involuntary dissolution of, or upon any distribution
of the assets of, the Corporation;
(viii) whether or not the shares of any such class or series, at the
option of the Corporation or the holder thereof or upon the happening
of any specified event, shall be convertible into or exchangeable for
the shares of any other class or classes or of any other series of the
same or any other class or classes of stock, securities, or other
property of the Corporation and the conversion price or prices or
ratio or ratios or the rate or rates at which such exchange may be
made, with such adjustments, if any, as shall be stated and expressed
or provided for in such resolution or resolutions; and
(ix) such other special rights and provisions with respect to any
such class or series as may to the board of directors of the
Corporation seem advisable.
3. The shares of each class or series of the Preferred
Stock may vary from the shares of any other class or series thereof in any or
all of the foregoing respects. The board of directors of the Corporation may
increase the number of shares of Preferred Stock designated for any existing
class or series by a resolution adding to such class or series authorized and
unissued shares of the Preferred Stock not designated for any other class or
series. The board of directors of the Corporation may decrease the number of
shares of the Preferred Stock designated for any existing class or series by a
resolution, subtracting from such series unissued shares of the Preferred Stock
designated for such class or series, and the shares so subtracted shall become
authorized, unissued, and undesignated shares of the Preferred Stock.
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B. Provisions Relating to the Common Stock.
1. Each holder of Common Stock shall be entitled to one
vote for each share of Common Stock standing in such holder's name on the
records of the Corporation on each matter submitted to a vote of the
stockholders.
2. Subject to the rights of the holders of the Preferred
Stock, the holders of the Common Stock shall be entitled to receive when, as,
and if declared by the board of directors of the Corporation, out of funds
legally available therefor, dividends payable in cash, stock or otherwise.
3. Upon any liquidation, dissolution, or winding up of
the Corporation, whether voluntary or involuntary, and after the holders of the
Preferred Stock and the holders of any bonds, debentures, or other obligations
of the Corporation shall have been paid in full the amounts to which they shall
be entitled (if any), or a sum sufficient for such payment in full shall have
been set aside, the remaining net assets of the Corporation shall be
distributed pro rata to the holders of the Common Stock in accordance with
their respective rights and interests, to the exclusion of the holders of the
Preferred Stock and any bonds, debentures, or other obligations of the
Corporation.
C. General.
1. Subject to the foregoing provisions of this
Certificate of Incorporation, the Corporation may issue shares of its Preferred
Stock and Common Stock from time to time for such consideration (in any form,
but not less in value than the par value thereof) as may be fixed by the board
of directors of the Corporation, which is expressly authorized to fix the same
in its absolute and uncontrolled discretion subject to the foregoing
conditions. Shares so issued for which the consideration shall have been paid
or delivered to the Corporation shall be deemed fully paid stock and shall not
be liable to any further call or assessment thereon, and the holders of such
shares shall not be liable for any further payments in respect of such shares.
2. The Corporation shall have authority to create and
issue rights and options entitling their holders to purchase or otherwise
acquire shares of the Corporation's capital stock of any class or series or
other securities of the Corporation, and such rights and options shall be
evidenced by instrument(s) approved by the board of directors of the
Corporation or any committee thereof. The board of directors of the
Corporation or any committee thereof shall be empowered to set the exercise
price, duration, times for exercise, and other terms of such options or rights;
provided, however, that the consideration to be received (which may be in any
form) for any shares of capital stock subject thereto shall have a value not
less than the par value thereof.
FIFTH: No contract or transaction between the Corporation
and one or more of its directors, officers, or stockholders or between the
Corporation and any person (as
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used herein "person" means any other corporation, partnership, association,
firm, trust, joint venture, political subdivision, or instrumentality) or other
organization in which one or more of its directors, officers, or stockholders
are directors, officers, or stockholders, or have a financial interest, shall
be void or voidable solely for this reason, or solely because the director or
officer is present at or participates in the meeting of the board or committee
which authorizes the contract or transaction, or solely because his, her or
their votes are counted for such purpose, if: (i) the material facts as to his
or her relationship or interest and as to the contract or transaction are
disclosed or are known to the board of directors or the committee, and the
board of directors or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or
(ii) the material facts as to his or her relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is
fair as to the Corporation as of the time it is authorized, approved, or
ratified by the board of directors, a committee thereof (to the extent
permitted by applicable law), or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting
of the board of directors or of a committee which authorizes the contract or
transaction.
SIXTH: 1. To the extent not prohibited by law, the
Corporation shall indemnify any person who is or was made, or threatened to be
made, a party to any threatened, pending or completed action, suit or
proceeding (a "Proceeding"), whether civil, criminal, administrative or
investigative, including, without limitation, an action by or in the right of
the Corporation to procure a judgment in its favor, by reason of the fact that
such person, or a person of whom such person is the legal representative, is or
was a director or officer of the Corporation, or is or was serving in any
capacity at the request of the Corporation for any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
(an "Other Entity"), against judgments, fines, penalties, excise taxes, amounts
paid in settlement and costs, charges and expenses (including attorneys' fees
and disbursements). Persons who are not directors or officers of the
Corporation may be similarly indemnified in respect of service to the
Corporation or to an Other Entity at the request of the Corporation to the
extent the Board of Directors at any time specifies that such persons are
entitled to the benefits of this Article.
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2. The Corporation shall, from time to time, reimburse
or advance to any director or officer or other person entitled to
indemnification hereunder the funds necessary for payment of expenses,
including attorneys' fees and disbursements, incurred in connection with any
Proceeding, in advance of the final disposition of such Proceeding; provided,
however, that, if required by the GCL, such expenses incurred by or on behalf
of any director or officer or other person may be paid in advance of the final
disposition of a Proceeding only upon receipt by the Corporation of an
undertaking, by or on behalf of such director or officer (or other person
indemnified hereunder), to repay any such amount so advanced, if it shall
ultimately be determined by final judicial decision from which there is no
further right of appeal that such director, officer or other person is not
entitled to be indemnified for such expenses.
3. The rights to indemnification, and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article shall
not be deemed exclusive of any other rights to which a person seeking
indemnification or reimbursement or advancement of expenses may have or
hereafter be entitled under any statute, this Restated Certificate of
Incorporation, the By-laws of the Corporation, any agreement, any vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding
such office.
4. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article shall
continue as to a person who has ceased to be a director or officer (or other
person indemnified hereunder) and shall inure to the benefit of the executors,
administrators, legatees and distributees of such person.
5. The Corporation shall have 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 an Other Entity,
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 the provisions of this Article, the By-laws or under
Section 145 of the GCL or any other provision of law.
6. The provisions of this Article shall be a contract
between the Corporation, on the one hand, and each director and officer who
serves in such capacity at any time while this Article is in effect and any
other person indemnified hereunder, on the other hand, pursuant to which the
Corporation and each such director, officer, or other person intend to be
legally bound. No repeal or modification of this Article shall affect any
rights or obligations with respect to any state of facts then or theretofore
existing or thereafter arising or any proceeding theretofore or thereafter
brought or threatened based in whole or in part upon any such state of facts.
7. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article shall
be enforceable by any person
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entitled to such indemnification or reimbursement or advancement of expenses in
any court of competent jurisdiction. The burden of proving that such
indemnification or reimbursement or advancement of expenses is not appropriate
shall be on the Corporation. Neither the failure of the Corporation (including
its Board of Directors, its independent legal counsel and its stockholders) to
have made a determination prior to the commencement of such action that such
indemnification or reimbursement or advancement of expenses is proper in the
circumstances nor an actual determination by the Corporation (including its
Board of Directors, its independent legal counsel and its stockholders) that
such person is not entitled to such indemnification or reimbursement or
advancement of expenses shall constitute a defense to the action or create a
presumption that such person is not so entitled. Such a person shall also be
indemnified for any expenses incurred in connection with successfully
establishing his or her right to such indemnification or reimbursement or
advancement of expenses, in whole or in part, in any such proceeding.
8. Any director or officer of the Corporation serving in
any capacity for (a) another corporation of which a majority of the shares
entitled to vote in the election of its directors is held, directly or
indirectly, by the Corporation or (b) any employee benefit plan of the
Corporation or any corporation referred to in clause (a) shall be deemed to be
doing so at the request of the Corporation.
9. Any person entitled to be indemnified or to
reimbursement or advancement of expenses as a matter of right pursuant to this
Article may elect to have the right to indemnification or reimbursement or
advancement of expenses interpreted on the basis of the applicable law in
effect at the time of the occurrence of the event or events giving rise to the
applicable Proceeding, to the extent permitted by law, or on the basis of the
applicable law in effect at the time such indemnification or reimbursement or
advancement of expenses is sought. Such election shall be made, by a notice in
writing to the Corporation, at the time indemnification or reimbursement or
advancement of expenses is sought; provided, however, that if no such notice is
given, the right to indemnification or reimbursement or advancement of expenses
shall be determined by the law in effect at the time indemnification or
reimbursement or advancement of expenses is sought.
SEVENTH: All the powers of the Corporation, insofar as
the same may be lawfully vested by this Certificate of Incorporation in the
board of directors, are hereby conferred upon the board of directors. In
furtherance and not in limitation of that power, the board of directors shall
have the power, upon the affirmative vote of a majority of the Classified
Directors (as hereinafter defined) at a meeting lawfully convened, to make,
adopt, alter, amend, and repeal from time to time the Bylaws of the Corporation
and to make from time to time new Bylaws of the Corporation, subject to the
right of the stockholders entitled to vote thereon to adopt, alter, amend, and
repeal Bylaws made by the board of directors or to make new Bylaws; provided,
however, that the stockholders of the Corporation shall be entitled to adopt,
alter, amend, or repeal Bylaws made by the board of directors or to make new
Bylaws solely upon the affirmative vote of the holders of at least a majority
of the outstanding shares of each class of capital stock of the Corporation
then entitled to vote thereon.
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EIGHTH: Except for the provisions of Article SIXTH and NINTH
herein, the Corporation reserves the right to amend, alter, change, or repeal
any provision contained in this certificate of incorporation in the manner now
or hereafter prescribed by law and all rights conferred on officers, directors,
and stockholders herein are granted subject to this reservation.
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 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
knowing violation of law, (iii) under Section 174 of the GCL, or (iv) for any
transaction from which the director derived an improper personal benefit. Any
repeal or amendment of this Article NINTH by the stockholders of the
Corporation shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Corporation arising
from an act or omission occurring prior to the time of such repeal or
amendment. In addition to the circumstances in which a director of the
Corporation is not personally liable as set forth in the foregoing provisions
of this Article NINTH, a director shall not be liable to the Corporation or its
stockholders to such further extent as permitted by any law hereafter enacted,
including without limitation any subsequent amendment to the GCL.
TENTH: 1. The number of directors constituting the board
of directors shall be fixed by, or in the manner provided in, the Bylaws of
the Corporation, provided that such number shall be no fewer than three and
no more than ten (plus such number of directors as may be elected from time to
time pursuant to the terms of any series of Preferred Stock that may be issued
and outstanding from time to time). The directors of the Corporation
(exclusive of directors who are elected pursuant to the terms of, and serve as
representatives of the holders of, any series of Preferred Stock) shall be
referred to herein as "Classified Directors" and shall be divided into three
classes, with the first class referred to herein as "Class I," the second class
as "Class II," and the third class as "Class III." Each class shall consist as
nearly as possible of one-third (1/3) of the total number of directors making
up the entire board of directors. The term of office of the initial Class I
directors shall expire at the 1995 annual meeting of stockholders, the term of
office of the initial Class II directors shall expire at the 1996 annual
meeting of stockholders, and the term of office of the initial Class III
directors shall expire at the 1997 annual meeting of stockholders, with each
director to hold office until his successor shall have been duly elected and
qualified. At each annual meeting of stockholders, directors elected to
succeed those directors whose terms then expire shall be elected for a term of
office to expire at the third succeeding annual meeting of stockholders after
their election, with each director to hold office until his successor shall
have been duly elected and qualified.
2. Notwithstanding the foregoing, whenever the holders
of any one or more classes or series of Preferred Stock issued by the
Corporation shall have the right, voting separately by series or by class
(excluding holders of Common Stock), to elect directors, the election, term of
office, filling of vacancies, and other features of such directorships shall be
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governed by the terms of this Certificate of Incorporation (including any
amendment to this Certificate of Incorporation that designates a series of
Preferred Stock), and such directors so elected by the holders of Preferred
Stock shall not be divided into classes pursuant to this Article TENTH unless
expressly provided by such terms.
3. Any or all Classified Directors may be removed, with
cause, upon the affirmative vote of the holders of a majority of the
outstanding shares of each class of capital stock of the Corporation then
entitled to vote at an election of such Classified Directors.
4. Election of directors, whether Classified Directors
or otherwise, need not be by written ballot.
ELEVENTH: The Corporation expressly elects to be governed by
Section 203 of the GCL.
TWELFTH: Special meetings of stockholders of the Corporation
may be called by the board of directors pursuant to a resolution adopted by a
majority of the Classified Directors then serving, by the Chairman of the board
of directors, or by any holder or holders of at least twenty-five percent (25%)
of the outstanding shares of capital stock of the Corporation then entitled to
vote on any matter for which the respective special meeting is being called.
THIRTEENTH: Notwithstanding any other provisions of this
Certificate of Incorporation or any provision of law which might otherwise
permit a lesser vote or no vote, the affirmative vote of the holders of at
least a majority of the outstanding shares of each class of capital stock of
the Corporation then entitled to vote thereon shall be required to amend,
alter, or repeal any one or more of Articles of this Restated Certificate of
Incorporation.
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be executed and attested on this 26th day of
January, 1995.
DAISYTEK INTERNATIONAL CORPORATION
By: /s/ DAVID A. HEAP
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David A. Heap, Chairman and Chief
Executive Officer
ATTEST:
/s/ HARVEY H. ACHATZ
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Harvey H. Achatz, Secretary
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