1
Exhibit 3.2
FIFTH AMENDED
AND
RESTATED CERTIFICATE OF INCORPORATION
OF
CONNECTED CORPORATION
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation")
is Connected Corporation and the date the Corporation's original Certificate of
Incorporation was filed with the Secretary of State of Delaware was October 31,
1995.
2. The amendment and restatement of the Certificate of Incorporation
herein certified has been duly adopted by the directors and the stockholders in
accordance with the provisions of Sections 141, 228, 242 and 245 of the General
Corporation Law of the State of Delaware.
3. The Certificate of Incorporation of the Corporation, as amended and
restated herein, shall upon the effective date of this Fifth Amended and
Restated Certificate of Incorporation, read as follows:
2
FIFTH AMENDED
AND
RESTATED
CERTIFICATE OF INCORPORATION OF
CONNECTED CORPORATION
The undersigned, a natural person, for the purposes of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and generally known as the
"General Corporation Law of the State of Delaware"), hereby certifies that:
FIRST: The name of the Corporation is Connected Corporation.
SECOND: The address including street, number, city, and county, of the
registered office of the Corporation in the State of Delaware is 1013 Centre
Road, Wilmington, County of New Castle and the name of the registered agent of
the Corporation in the State of Delaware at such address is The Prentice-Hall
Corporation System, Inc.
THIRD: The nature of the business and the purposes to be conducted and
promoted by the Corporation shall be to provide internet and networking computer
services to businesses and individuals and to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The designations and powers, preferences and rights, and the
qualifications, limitations or restrictions of the classes of capital stock of
the Corporation shall be as follows:
Capital Stock
1. Authority to Issue. The Corporation is authorized to issue two
classes of stock to be designated, respectively, "Common Stock" and
"Undesignated Preferred Stock." The total number of shares that the Corporation
is authorized to issue is One Hundred Five Million (105,000,000) shares. One
Hundred Million (100,000,000) shares shall be Common Stock, $.001 par value per
share, and Five Million (5,000,000) shares shall be Undesignated Preferred
Stock, $.001 par value per share.
2. Additional Issuances. Except as otherwise restricted by this
Certificate, the Board of Directors may, at any time and from time to time, if
all of the shares of capital stock which the Corporation is authorized by this
Certificate to issue have not been issued, subscribed for, or otherwise
committed to be issued, issue or take subscriptions for additional shares of its
capital stock up to the amount authorized in this Certificate to such person or
persons and for such lawful consideration as it may deem appropriate, and
generally in its absolute discretion to determine the terms and the manner of
disposition of such authorized but unissued capital stock.
3. Fully Paid and Non-Assessable. Any and all such shares issued for
which the full consideration has been paid or delivered shall be deemed fully
paid shares of capital stock,
3
and the holder of such shares shall not be liable for any further call or
assessment or any other payment thereon.
4. Authorized Number of Undesignated Preferred Stock. The number of
authorized shares of the class of Undesignated Preferred Stock may from time to
time be increased or decreased (but not below the number of shares outstanding)
by the affirmative vote of the holders of a majority of the outstanding shares
of Common Stock entitled to vote, without a vote of the holders of the
Undesignated Preferred Stock (except as otherwise provided in any certificate of
designation of any series of Undesignated Preferred Stock).
Common Stock
Subject to all the rights, powers and preferences of the Undesignated
Preferred Stock and except as provided by law or in this Article the Fourth (or
in any certificate of designation of any series of Undesignated Preferred
Stock):
a) the holders of Common Stock shall have the right to one vote
per share, and shall be entitled to notice of any stockholders
meeting in accordance with the bylaws of the Corporation, and
shall be entitled to vote upon such matters and in such manner
as may be provided by law, and shall have the exclusive right
to vote for the election of Directors; and
b) subject to the prior rights of holders of all classes of stock
having prior rights as to dividends, the holders of Common
Stock shall be entitled to receive, when and as declared by
the Board of Directors, out of any assets or funds of the
Corporation legally available therefor, such dividends as may
be declared from time to time by the Board of Directors; and
c) upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the net assets of the
Corporation shall be distributed pro rata to the holders of
the Common Stock.
Undesignated Preferred Stock
1. Authority To Issue. The total number of shares of Undesignated
Preferred Stock which the Corporation shall have authority to issue is Five
Million (5,000,000) shares. Subject to any limitations prescribed by law, the
Board of Directors or any authorized committee thereof is expressly authorized
to provide for the issuance of the shares of Undesignated Preferred Stock in one
or more series of such stock, and by filing a certificate pursuant to applicable
law of the State of Delaware, to establish or change from time to time the
number of shares to be included in each such series, and to fix the
designations, powers, preferences and the relative, participating, optional or
other special rights of the shares of each series and any qualifications,
limitations and restrictions thereof.
2. Powers, Preferences, Rights, Qualifications, Limitations And
Restriction Of Each Series Of Undesignated Preferred Stock. The Board of
Directors or any authorized committee
-2-
4
thereof shall have the right to determine or fix one or more of the following
with respect to each series of Undesignated Preferred Stock to the fullest
extent permitted by law:
(a) The distinctive serial designation and the number of shares
constituting such series;
(b) The dividend rates or the amount of dividends to be paid on the
shares of such series, whether dividends shall be cumulative and, if
so, from which date or dates, the payment date or dates for dividends,
and the participating and other rights, if any, with respect to
dividends;
(c) The voting rights and powers, full or limited, if any, of the
shares of such series;
(d) Whether the shares of such series shall be redeemable and, if so,
the price or prices at which, and the terms and conditions on which,
such shares may be redeemed;
(e) The amount or amounts payable upon the shares of such series and
any preferences applicable thereto in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation;
(f) Whether the shares of such series shall be entitled to the benefit
of a sinking or retirement fund to be applied to the purchase or
redemption of such shares, and if so entitled, the amount of such fund
and the manner of its application, including the price or prices at
which such shares may be redeemed or purchased through the application
of such fund;
(g) Whether the shares of such series shall be convertible into, or
exchangeable for, shares of any other class or classes or of any other
series of the same or any other class or classes of stock of the
Corporation and, if so convertible or exchangeable, the conversion
price or prices, or the rate or rates of exchange, and the adjustments
thereof, if any, at which such conversion or exchange may be made, and
any other terms and conditions of such conversion or exchange;
(h) The consideration for which the shares of such series shall be
issued;
(i) Whether the shares of such series which are redeemed or converted
shall have the status of authorized but unissued shares of Undesignated
Preferred Stock (or a series thereof) and whether such shares may be
reissued as shares of the same or any other class or series of stock;
(j) Whether, and the extent to which, any of the rights, powers,
preferences and terms of any such class or series may be made dependent
upon facts ascertainable outside of the Certificate of Incorporation or
outside the resolution or resolutions providing for the issuance of
such class or series by the Board of Directors, provided that the
manner in which such facts shall operate is clearly set forth in the
resolution or resolutions providing for the issuance of such class or
series adopted by the Board of Directors; and
-3-
5
(k) Such other powers, preferences, rights, qualifications, limitations
and restrictions thereof as the Board of Directors or any authorized
committee thereof may deem advisable.
FIFTH: The Corporation shall have perpetual existence.
SIXTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of Title 8 of the Delaware Code,
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be, to
be conducted in such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
the Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
SEVENTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided that:
1. Stockholder Action. Notwithstanding any other provision of law, any
action required or permitted to be taken by the stockholders of the Corporation
at any annual or special meeting of stockholders of the Corporation must be
effected at a duly called annual or special meeting of stockholders and may not
be taken or effected by a written consent of stockholders in lieu thereof.
2. Special Meetings of Stockholders. Except as otherwise required by
statute and subject to the rights, if any, of the holders of any series of
Undesignated Preferred Stock, special meetings of the stockholders of the
Corporation may be called only by the President of the Corporation or by the
Board of Directors acting pursuant to a resolution approved by the affirmative
vote of a majority of the directors then in office. Only those matters set forth
in the notice of the special meeting may be considered or acted upon at a
special meeting of stockholders of the Corporation.
3. Business of Corporation. The business of the corporation shall be
conducted by the officers of the corporation under the supervision of the Board
Directors.
EIGHTH:
-4-
6
Board of Directors
1. Election Of Directors. Election of directors need not be by written
ballot unless the By-Laws of the Corporation shall so provide. The number of
directors which shall constitute the whole Board of Directors shall be fixed by,
or in the manner provided in, the By-Laws.
2. Terms Of Directors. The directors, other than those who may be
elected by the holders of any series of Undesignated Preferred Stock, shall be
classified, with respect to the term for which they severally hold office, into
three classes, as nearly equal in number as possible. The initial Class I
Directors of the Corporation shall be David A. Cane, Lawrence Bettino and
Robert Ketterson; the initial Class II Directors of the Corporation shall be
Frederick Bamber and Ashley Leeds; and the initial Class III Directors of the
Corporation shall be Harry A. George and Ronald D. Lachman. The initial Class I
Directors shall serve for a term expiring at the annual meeting of stockholders
to be held in 2001, the initial Class II Directors shall serve for a term
expiring at the annual meeting of stockholders to be held in 2002, and the
initial Class III Directors shall serve for a term expiring at the annual
meeting of stockholders to be held in 2003. At each annual meeting of
stockholders, directors elected to succeed those directors whose terms expire
shall be elected for a term of office to expire at the third succeeding annual
meeting of stockholders after their election. Notwithstanding the foregoing, the
directors elected to each class shall hold office until their successors are
duly elected and qualified or until their earlier resignation or removal.
Notwithstanding the foregoing, whenever, pursuant to the provisions of
this Article EIGHTH of this Certificate, the holders of any one or more series
of Undesignated Preferred Stock shall have the right, voting separately as a
series or together with holders of other such series, to elect directors at an
annual or special meeting of stockholders, the election, term of office, filling
of vacancies and other features of such directorships shall be governed by the
terms of this Certificate and any certificate of designation applicable thereto,
and such directors so elected shall not be divided into classes pursuant to this
Article Eighth, Section 2.
3. Vacancies. Subject to the rights, if any, of the holders of any
series of Undesignated Preferred Stock to elect directors and to fill vacancies
in the Board of Directors relating thereto, any and all vacancies in the Board
of Directors, however occurring, including, without limitation, by reason of an
increase in size of the Board of Directors, or the death, resignation,
disqualification or removal of a director, shall be filled solely by the
affirmative vote of a majority of the remaining directors then in office, even
if such remaining directors constitute less than a quorum of the Board of
Directors. Any director appointed in accordance with the preceding sentence
shall hold office for the remainder of the full term of the class of directors
in which the new directorship was created or the vacancy occurred and until such
director's successor shall have been duly elected and qualified or until his or
her earlier resignation or removal. Subject to the rights, if any, of the
holders of any series of Undesignated Preferred Stock to elect directors, when
the number of directors is increased or decreased, the Board of Directors shall
determine the class or classes to which the increased or decreased number of
directors shall be apportioned so as to maintain all classes as equal in number
as possible; provided, however, that no decrease in the number of directors
shall shorten the term of any incumbent director. In the event of a vacancy in
the Board of Directors, the remaining directors, except as otherwise provided by
law, shall exercise the powers of the full Board of Directors
-5-
7
until the vacancy is filled. If any newly created directorship may, consistently
with the provision that the three classes of directors shall be as nearly equal
in number as possible, be allocated to one of two or more classes, the Board of
Directors shall allocate it to that of the available classes whose term of
office is due to expire at the earliest date following such allocation.
4. Removal. Subject to the rights, if any, of any series of
Undesignated Preferred Stock to elect directors and to remove any director whom
the holders of any such stock have the right to elect, any director (including
persons elected by directors to fill vacancies in the Board of Directors) may be
removed from office (i) only with cause and (ii) only by the affirmative vote of
the holders of 75% or more of the shares then entitled to vote at an election of
directors. At least thirty (30) days prior to any meeting of stockholders at
which it is proposed that any director be removed from office, written notice of
such proposed removal shall be sent to the director whose removal will be
considered at the meeting.
NINTH: The corporation may, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom it shall have power
to indemnify under said section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which a person indemnified may be entitled under any by-law,
agreement, 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, and shall continue as to a person who has ceased to
be director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
TENTH: No director shall be personally liable to the corporation or its
stockholders for monetary damages for any breach of fiduciary duty by such
director as a director. Notwithstanding the foregoing sentence, a director shall
be liable to the extent provided by applicable law (i) for 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) pursuant to Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived an
improper personal benefit. No amendment to or repeal of this Article TENTH shall
apply to or have any effect on the liability or alleged liability of any
director of the corporation for or with respect to any acts or omissions of such
Director occurring prior to such amendment.
ELEVENTH:
(a) Any direct or indirect purchase or other acquisition in one or more
transactions by the Corporation or any Subsidiary of any of the outstanding
Voting Stock of any class from any one or more individuals or entities known by
the Corporation to be a Related Person, who has beneficially owned such security
or right for less than two years prior to the date of such purchase, at a price
in excess of the Fair Market Value shall, except as hereinafter provided,
require the affirmative vote of the holders of not less than 75% of the
outstanding shares of Voting Stock, voting as a single class, excluding from the
number of outstanding shares any votes cast with respect to shares of Voting
Stock beneficially owned by such Related Person. Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or
-6-
8
that a lesser percentage may be specified by law or any agreement with any
national securities exchange, or otherwise, but no such affirmative vote shall
be required with respect to any purchase or other acquisition of securities made
as part of (i) a tender or exchange offer by the Corporation to purchase
securities of the same class made on the same terms to all holders of such
securities and complying with the applicable requirements of the Exchange Act
and the rules and regulations thereunder, or any successor rule or regulation or
(ii) pursuant to an open-market purchase program conducted in accordance with
the requirements of Rule 10b-18 promulgated by the Securities and Exchange
Commission pursuant to the Exchange Act or any successor rule or regulation.
(b) A majority of the Continuing Directors shall have the power and
duty to determine, on the basis of information known to them after reasonable
inquiry, all facts necessary to determine compliance with this Article ELEVENTH
including, without limitation, (i) whether a person is a Related Person, (ii)
the number of shares of Voting Stock beneficially owned by any person and (iii)
whether a price is in excess of Fair Market Value.
(c) Nothing contained in this Article ELEVENTH shall be construed to
relieve any Related Person from any fiduciary obligation imposed by law.
TWELFTH: Except as otherwise provided in this Certificate of
Incorporation, the Bylaws and any designation of terms pursuant to Section 151
of the General Corporation Law of the State of Delaware; any vote required by
stockholders pursuant to said General Corporation Law, other than the election
of directors (which shall not be affected by this provision), shall be effective
if recommended by a majority of the Continuing Directors and the vote of a
majority of each class of stock outstanding and entitled to vote thereon; and if
not recommended by a majority of the Continuing Directors, then by the vote of
75% of each class of stock outstanding and entitled to vote thereon.
THIRTEENTH: Notwithstanding any provision of law, the Corporation may,
by contract, grant to some or all of the security holders of the Corporation
pre-emptive rights to acquire stock of the Corporation, but no stockholder shall
have any pre-emptive rights except as specifically so granted.
FOURTEENTH: The Corporation reserves the right to amend or repeal this
Certificate in the manner now or hereafter prescribed by statute and this
Certificate, and all rights conferred upon stockholders herein are granted
subject to this reservation. No amendment or repeal of this Certificate shall be
made unless the same is first approved by a majority of the Continuing Directors
and, except as otherwise provided by law, thereafter approved by vote of a
majority of each class of stock outstanding and entitled to vote thereon; and if
not recommended by a majority of the Continuing Directors, then by vote of 75%
of each class of stock outstanding and entitled to vote thereon; provided,
however, that notwithstanding the foregoing, the affirmative vote of not less
than 75% of the outstanding shares entitled to vote on such amendment or repeal,
and the affirmative vote of not less than 75% of the outstanding shares of each
class of stock entitled to vote thereon, shall be required to amend or repeal
any provision of Articles
-7-
9
SEVENTH, EIGHTH, NINTH, TENTH, ELEVENTH, TWELFTH, THIRTEENTH, FOURTEENTH,
FIFTEENTH or SIXTEENTH of this Certificate.
FIFTEENTH: Except as otherwise provided by law, the By-Laws of the
Corporation may be amended or repealed by the Board of Directors by the
affirmative vote of a majority of the Directors then in office. The By-laws of
the Corporation may be amended or repealed at any annual meeting of
stockholders, or special meeting of stockholders called for such purpose as
provided in the By-laws, by the affirmative vote of at least 75% of the
outstanding shares of capital stock entitled to vote on such amendment or
repeal, voting together as a single class; provided, however, that if a majority
of the Continuing Directors recommends that stockholders approve such amendment
or repeal at such meeting of stockholders, such amendment or repeal shall only
require the affirmative vote of a majority of the outstanding shares of capital
stock entitled to vote on such amendment or repeal, voting together as a single
class.
SIXTEENTH:
Definitions
The following definitions shall apply for the purpose of this
Certificate:
(a) "Affiliate" shall have the meaning given such term in Rule 12b-2
under the Exchange Act.
(b) "Associated" shall have the meaning given such term in Rule 12b-2
under the Exchange Act.
(c) "Continuing Director" shall mean any member of the Board of
Directors who is not an Affiliate of any Related Person or who was a member of
the Board of Directors prior to the time that any such Related Person became a
Related Person, and any successor of a Continuing Director who is unaffiliated
with any Related Person and is recommended to succeed a Continuing Director by a
majority of the Continuing Directors then on the Board of Directors.
Notwithstanding the above, a majority of the then existing Continuing Directors
can deem a new director to be a Continuing Director, even though such person is
Affiliated with a Related Person.
(d) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, from time to time.
(e) "Fair Market Value" shall mean: (i) in the case of capital stock,
the highest closing sale price during the 30-day period immediately preceding
the date in question of a share of such stock on the principal United States
securities exchange registered under the Exchange Act on which such stock is
listed, or, if such stock is not listed on any such exchange, the highest
closing bid quotation with respect to a share of such stock during the 30-day
period preceding the date in question on the National Association of Securities
Dealers, Inc. Automated Quotation System or any system then in use or, if no
such quotations are available, the fair market value on the date in question of
a share of such stock as determined by the Board of Directors in good
-8-
10
faith; and (ii) in the case of property other than cash or stock, the fair
market value of such property on the date in question as determined by the Board
of Directors in good faith.
(f) "Person" shall mean any individual, firm, corporation or other
entity.
(g) "Related Person" shall mean any Person (other than the Corporation,
any Subsidiary or any individual who is a stockholder of the Corporation on the
effective date of this Fifth Amended and Restated Certificate of Incorporation)
which, together with its Affiliates and Associates and with any other Person
(other than the Corporation, any Subsidiary or any individual who is a
stockholder of the Corporation on the effective date of this Fifth Amended and
Restated Certificate of Incorporation) with which it or they have entered into,
after the effective date of this Fifth Amended and Restated Certificate of
Incorporation, any agreement, arrangement or understanding with respect to
acquiring, holding or disposing of Voting Stock, acquires beneficial ownership
(as defined in Rule 13d-3 of the Exchange Act, except that such term shall
include any Voting Stock which such person has the right to acquire, whether or
not such right may be exercised within 60 days), directly or indirectly of more
than 5% of the voting power of the outstanding Voting Stock after the effective
date of this Fifth Amended and Restated Certificate of Incorporation.
(h) "Subsidiary" shall mean any corporation in which a majority of the
capital stock entitled to vote generally in the election of directors is owned,
directly or indirectly, by the Corporation.
(i) "Voting Stock" shall mean all of the then outstanding shares of the
capital stock of the Corporation entitled to vote generally in the election of
directors.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-9-
11
IN WITNESS WHEREOF, the undersigned has executed this certificate on
March __, 2000.
-------------------------------------
David A. Cane, President
-10-