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EXHIBIT 3.3
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF PEGASUS SYSTEMS, INC.
This Second Amended and Restated Certificate of Incorporation amends and
restates the Amended and Restated Certificate of Incorporation filed in the
office of the Secretary of State of the State of Delaware on June 25, 1996,
which amended and restated the Certificate of Incorporation of Pegasus Systems,
Inc., a corporation originally incorporated in Delaware as "Pegasus Systems,
Inc." on July 10, 1995. This Second Amended and Restated Certificate of
Incorporation has been duly adopted pursuant to Section 245 of the Delaware
General Corporation Law,
ARTICLE I
The name of this corporation is Pegasus Systems, Inc. (the "Corporation").
ARTICLE II
The address of the registered office of the Corporation in the State of
Delaware is 1013 Centre Road, New Castle County, Wilmington, Delaware
19805-1297, The name of the registered agent of the Corporation at that address
is The Prentice-Hall Corporation Systems, Inc.
ARTICLE III
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. The private property of the stockholders shall not be subject to the
payment of corporate debts to any extent whatsoever.
ARTICLE IV
This Corporation is authorized to issue two classes of stock, designated
"Common Stock" and "Preferred Stock". The total number of shares which this
Corporation is authorized to issue is 102,000,000 shares. The number of shares
of Common Stock which this Corporation is authorized to issue is 100,000,000
shares, par value $0.01 per share. The number of shares of Preferred Stock
which this Corporation is authorized to issue is 2,000,000 shares, par value
$0.01 per share, which shall initially be undesignated as to series.
Any Preferred Stock not previously designated as to series may be issued
from time to time in one or more series pursuant to a resolution or resolutions
providing for such issue duly adopted by the Board of Directors (authority to
do so being hereby expressly
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vested in the Board), and such resolution or resolutions shall also set forth
the voting powers, full or limited or none, of each such series of Preferred
Stock and shall fix the designations, preferences and relative, participating,
optional or other special rights and qualifications, limitations or
restrictions of each such series of Preferred Stock. The Board of Directors is
authorized to alter the designation, rights, preferences, privileges and
restrictions granted to or imposed upon any wholly unissued series of Preferred
Stock and, within the limits and restrictions stated in any resolution or
resolutions of the Board of Directors originally fixing the number of shares
constituting any series of Preferred Stock, to increase or decrease (but not
below the number of shares of any such series then outstanding) the number of
shares of any such series subsequent to the issue of shares of that series.
Each share of Preferred Stock issued by the Corporation, if reacquired by
the Corporation (whether by redemption, repurchase, conversion to Common Stock
or other means), shall upon such reacquisition resume the status of authorized
and unissued shares of Preferred Stock, undesignated as to series and available
for designation and issuance by the Corporation in accordance with the
immediately preceding paragraph.
The relative rights, preferences, privileges and restrictions granted to
or imposed upon the Common Stock or the holders thereof are as follows:
(a) Dividend Rights. Subject to the prior rights of holders of all
classes of stock at the time outstanding having prior rights as to dividends,
the holders of the Common Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of any assets of the Corporation
legally available therefor, such dividends as may be declared from time to time
by the Board of Directors.
(b) Liquidation Rights. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation, after
payment or provision for payment of the debts and other liabilities of the
Corporation and of any amounts to which the holders of all classes of stock at
the time outstanding having prior rights as to liquidation are entitled, the
holders of all outstanding shares of Common Stock shall be entitled to share
ratably in the remaining assets of the Corporation.
(c) Redemption. The Common Stock is not redeemable.
(d) Voting Rights. The holder of each share of Common Stock shall
have the right to one vote, and shall be entitled to notice of any
shareholders' meeting in accordance with the Bylaws of this Corporation, and
shall be entitled to vote upon such matters and in such manner as may be
provided by law.
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(e) Residual Rights. All rights accruing to the outstanding shares of
this Corporation not expressly provided for to the contrary herein shall be
vested in the Common Stock.
ARTICLE V
The Corporation is to have perpetual existence.
ARTICLE VI
Elections of directors need not be by written ballot unless a stockholder
demands election by written ballot at the meeting and before voting begins or
unless the Bylaws of the Corporation shall so provide.
ARTICLE VII
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors of the Corporation is expressly authorized to make,
alter, amend or repeal the Bylaws of the Corporation.
ARTICLE VIII
(a) To the fullest extent permitted by the General Corporation Law of
the State of Delaware as the same exists or as may hereafter be amended, 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.
(b) The Corporation may indemnify to the fullest extent permitted by
law any person made or threatened to be made a party to an action or
proceeding, whether criminal, civil, administrative or investigative, by reason
of the fact that he, his estate or legal representative is or was a director,
officer, employee or agent of the Corporation or any predecessor of the
Corporation or serves or served at any other enterprise as a director, officer,
employee or agent at the request of the Corporation or any other predecessor to
the Corporation.
(c) No amendment nor repeal of this Article VIII, nor the adoption of
any provision of this Corporation's Certificate of Incorporation inconsistent
with this Article VIII, shall eliminate or reduce the effect of this Article
VIII, in respect of any matter occurring, or any action or proceeding accruing
or arising or that, but for this Article VIII, would accrue or arise, prior to
such amendment, repeal or adoption of an inconsistent provision.
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ARTICLE IX
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside of the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of the Corporation.
ARTICLE X
Advance notice of new business and stockholder nominations for the
election of directors shall be given in the manner and to the extent provided
in the Bylaws of the Corporation.
ARTICLE XI
The business and affairs of the Corporation shall be managed by or under
the direction of the Board of Directors. The Board of Directors may exercise
all such authority and powers of the Corporation and do all such lawful acts
and things as are not by statute or this Certificate of Incorporation directed
or required to be exercised or done by the stockholders.
1. Number of Directors
The number of directors of the Corporation shall be fixed from time to
time only by action of not less than a majority of the members of the Board of
Directors then in office. The number of directors comprising the Board of
Directors of the Corporation shall not be less than two (2) or more than
twenty-five (25).
2. Classes
Subject to the rights, if any, of any series of Preferred Stock then
outstanding, the directors shall be divided into three classes, designated
Class I, Class II and Class III. The number of directors in each class shall be
the whole number contained in the quotient arrived at by dividing the
authorized number of directors by three, and if a fraction is also contained in
such quotient then if such fraction is one-third (1/3) the extra director shall
be a member of Class III and if the fraction is two-thirds (2/3) then one of
the extra directors shall be a member of Class III and the other shall be a
member of Class II. Upon filing of this Second Amended and Restated Certificate
of Incorporation with the Secretary of State of the State of Delaware, Donald
R. Dixon, John Biggs and W.C. Hammett, Jr. shall be members of Class I, Malcolm
Highet, Bruce W. Wolff and Mark C. Wells shall be members of Class II, and
Rockwell A. Schnabel, John F. Davis, III and Paul Travers shall be
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members of Class III. The term of office of directors in each class shall
expire as follows: Class I shall expire at the 1998 annual meeting of
stockholders, Class II shall expire at the 1999 annual meeting of stockholders,
Class III shall expire at the 2000 annual meeting of stockholders. At each such
meeting of stockholders, directors shall be elected to succeed those directors
whose terms expire for a term of office to expire at the third succeeding
annual meeting of stockholders after their election. All directors shall hold
office until the annual meeting of stockholders for the year in which their
term expires and until their successors are duly elected and qualified, or
until their earlier death, resignation, disqualification or removal.
3. Vacancies
Subject to the rights, if any, of the holders of any series of Preferred
Stock then outstanding, newly created directorships resulting from any increase
in the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation, disqualification or removal may be
filled only by a majority vote of the directors then in office, though less
than a quorum, and directors so chosen shall hold office for a term expiring at
the annual meeting of stockholders at which the term of office of the class to
which they have been elected expires and until such director's successor shall
have been duly elected and qualified.
4. Removal
Any director or the entire Board of Directors may be removed only for
cause and only by the vote of the holders of two-thirds (2/3) of the securities
of the Corporation then entitled to vote at an election of directors voting
together as a single class.
ARTICLE XII
Any action required or permitted to be taken at any annual or special
meeting of stockholders may only be taken upon the vote of the stockholders at
an annual or special meeting duly called and may not be taken by written
consent of the stockholders. Special meetings of the stockholders, unless
otherwise prescribed by statute, may be called at any time only by the Chairman
of the Board or the Chief Executive Officer of the Corporation or the Board of
Directors.
ARTICLE XIII
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 statute, and all rights conferred upon stockholders
herein are granted subject to this reservation. In addition to any affirmative
vote required by applicable law or any other provision of this Certificate of
Incorporation or specified in any agreement, the affirmative
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EXHIBIT 3.3
vote of the holders of not less than two-thirds (2/3) of the voting power of
all securities of the Corporation entitled to vote generally in the election of
directors shall be required to amend, add, alter, change, repeal or adopt any
provisions inconsistent with Sections 1, 2 or 3 of Article XI, Article XII or
this Article XIII of this Certificate of Incorporation and the affirmative vote
of not less than eighty percent (80%) of the voting power of all securities of
the Corporation entitled to vote generally in the election of directors shall
be required to amend, add, alter, change, repeal or adopt any provisions
inconsistent with Section 4 of Article XI or this Article XIII with respect to
Section 4 of Article XI.
IN WITNESS WHEREOF, the Corporation has caused this Second Amended and
Restated of Certificate to be duly executed this ____ day of ___________, 1997.
By: /s/ JOHN F. DAVIS, III
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John F. Davis, III
President and Chief Executive Officer
ATTEST:
/s/ RIC L. FLOYD
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Ric L. Floyd, Secretary
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