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EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
MEDIA 100 INC.
Media 100 Inc., a corporation organized and existing under the laws of
the State of Delaware, does hereby certify that, pursuant to Section 245 of the
General Corporation Law of the State of Delaware, its Certificate of
Incorporation, originally filed under the name of Data Translation, Inc. with
the Secretary of State of the State of Delaware on September 10, 1996, is
restated to read in its entirety as follows:
1. The name of the corporation is Media 100 Inc.
2. The registered office of this corporation in the State of
Delaware is located at 1013 Centre Road, in the City of Wilmington, County of
New Castle. The name of its registered agent at such address is Corporation
Service Company.
3. The purpose of this corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
4. The corporation shall have two classes of stock, Common Stock, $.01
par value per share, and Preferred Stock, $.01 par value per share. The total
number of shares that the corporation shall have authority to issue is
25,000,000 shares of Common Stock and 1,000,000 shares of Preferred Stock.
Subject to the limitations prescribed by law and the provisions of this
certificate of incorporation, the board of directors of the corporation is
authorized to issue the Preferred Stock from time to time in one or more series,
each of such series to have such voting powers, full or limited, or no voting
powers, and such designations, preferences and relative, participating, optional
or other special rights, and such qualifications, limitations or restrictions
thereof, as shall be determined by the board of directors in a resolution or
resolutions providing for the issue of such Preferred Stock. Subject to the
powers, preferences and rights of any Preferred Stock, including any series
thereof, having any preference or priority over, or rights superior to, the
Common Stock and except as otherwise provided by law, the holders of the Common
Stock shall have and possess all powers and voting and other rights pertaining
to the stock of this corporation and each share of Common Stock shall be
entitled to one vote.
5. Except as otherwise provided in the provisions establishing a class
of stock, the number of authorized shares of any class of stock may be increased
or decreased (but not below the number of shares thereof then outstanding) by
the affirmative vote of the holders of a majority of the voting power of the
corporation entitled to vote irrespective of the provisions of Section 242(b)(2)
of the General Corporation Law of the State of Delaware.
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6. In furtherance and not in limitation of the power conferred upon the
board of directors by law, the board of directors shall have power to make,
adopt, alter, amend and repeal from time to time by-laws of this corporation,
subject to the right of the stockholders entitled to vote with respect thereto
to alter and repeal by-laws made by the board of directors.
7. A director of this corporation shall not be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent that exculpation from liability is not
permitted under the General Corporation Law of the State of Delaware as in
effect at the time such liability is determined. No amendment or repeal of this
paragraph 7 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 or repeal.
8. This corporation shall, to the maximum extent permitted from time to
time under the law of the State of Delaware, indemnify and upon request advance
expenses to any person who is or was a party or is threatened to be made a party
to any threatened, pending or completed action, suit, proceeding or claim,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was or has agreed to be a director or officer of this
corporation or while a director or officer is or was serving at the request of
this corporation as a director, officer, partner, trustee, employee or agent of
any corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against expenses
(including attorneys' fees and expenses), judgments, fines, penalties and
amounts paid in settlement incurred (and not otherwise recovered) in connection
with the investigation, preparation to defend or defense of such action, suit,
proceeding or claim; PROVIDED, HOWEVER, that the foregoing shall not require
this corporation to indemnify or advance expenses to any person in connection
with any action, suit, proceeding, claim or counterclaim initiated by or on
behalf of such person. Such indemnification shall not be exclusive of other
indemnification rights arising under any by-law, agreement, vote of directors or
stockholders or otherwise and shall inure to the benefit of the heirs and legal
representatives of such person. Any person seeking indemnification under this
paragraph 8 shall be deemed to have met the standard of conduct required for
such indemnification unless the contrary shall be established. Any repeal or
modification of the foregoing provisions of this paragraph 8 shall not adversely
affect any right or protection of a director or officer of this corporation with
respect to any acts or omissions of such director or officer occurring prior to
such repeal or modification.
The books of this corporation may (subject to any statutory requirements) be
kept outside the State of Delaware as may be designated by the board of
directors or in the by-laws of this corporation.
9. (A) Except as set forth in Section (D) of this paragraph 9, the
affirmative vote of the holders of not less than 75% of the outstanding shares
of capital stock of the corporation entitled to vote generally in the election
of directors shall be required for the
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approval or authorization of any Business Combination of the corporation with
any Related Person.
(B) For purposes of this paragraph 9:
(1) The term "Business Combination" shall mean (i) any merger
or consolidation of the corporation with or into a Related Person, (ii)
any sale, lease, exchange, transfer or other disposition, including
without limitation the creation of a mortgage or any other security
device of all or any substantial part of the assets of the corporation
(including without limitation any voting securities of a subsidiary) or
of a subsidiary, to a Related Person, (iii) any merger or consolidation
of a Related Person with or into the corporation or a subsidiary of the
corporation, (iv) any sale, lease, exchange, transfer or other
disposition of all or any substantial part of the assets of a Related
Person to the corporation or a subsidiary of the corporation, (v) the
issuance of any securities of the corporation to a Related Person, (vi)
the acquisition by the corporation or a subsidiary of the corporation
of any securities of a Related Person, (vii) any reclassification of
Common Stock of the corporation, or any recapitalization involving
Common Stock of the corporation, consummated at a time that a Related
Person exists and within two years after such Related Person becomes a
Related Person, and (viii) any agreement, contract or other arrangement
providing for any of the transactions described in this definition of
Business Combination.
(2) The term "Related Person" shall include any individual,
corporation, partnership or other person or entity (collectively, a
"Person") that together with its affiliates and associates beneficially
owns in the aggregate 5% or more of the outstanding shares of the
capital stock of any class of the corporation, and any affiliate or
associate of any such Person; PROVIDED, HOWEVER, that the term "Related
Person" shall not include a Person that together with its affiliates
and associates beneficially owned on December 31, 1995 in the aggregate
more than 15% of the outstanding shares of any class of stock of the
corporation's predecessor, Data Translation, Inc., a Massachusetts
corporation, or any affiliate or associate of such Person.
(3) The term "substantial part" shall mean more than 10% of
the total assets of the corporation in question, as of the end of its
most recent fiscal year ending prior to the time the determination is
being made.
(4) With respect to any proposed Business Combination, the
term "continuing director" shall mean (i) directors who were members of
the board of directors at December 31, 1995 of the corporation's
predecessor corporation, Data Translation, Inc., a Massachusetts
corporation and (ii) any other director who was a member of the Board
of Directors of the corporation immediately prior to the time that any
Related Person involved in the proposed Business Combination became a
Related Person (or, if the transaction involves more than one Related
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Person, immediately prior to the time the first of such Persons to
become a Related Person became a Related Person).
(5) Any Person shall be deemed to be the beneficial owner of
any shares of stock of the corporation
(i) that it owns directly, whether or not of record; or
(ii) that it has the right to acquire pursuant to any
agreement or understanding or upon exercise of conversion
rights, warrants or options or otherwise; or
(iii) that are beneficially owned, directly or
indirectly (including shares deemed to be owned through
application of clause (ii) above), by an affiliate or
associate: or
(iv) that are beneficially owned, directly or
indirectly, by any other Person or (including any shares
which such other Person has the right to acquire pursuant to
any agreement or understanding or upon exercise of
conversion rights, warrants or options or otherwise) with
which it or its affiliates or associates has any agreement
or arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of stock of the
corporation.
(6) The outstanding shares of stock of the corporation shall
include shares deemed owned through the application of clauses (5)(ii),
(iii) and (iv) above, but shall not include any other shares that may
be issuable pursuant to any agreement or upon exercise of conversion
rights, warrants, options or otherwise.
(7) The term "affiliate" shall mean any individual,
corporation, partnership or other person or entity that directly, or
indirectly through one or more intermediaries, controls, or is
controlled by or is under common control with, such Person. The term
"control" (including the terms "controlling," "controlled by" and
"under common control with") means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of
voting securities, by contract or otherwise.
(8) The term "associate" shall mean (i) any corporation or
organization (other than this corporation or a majority-owned
subsidiary of this corporation) of which such Person is an officer,
director, trustee, partner or employee or is, directly or indirectly,
the beneficial owner of 10% or more of any class of equity securities,
(ii) any trust or other estate in which such Person serves as a trustee
or in a similar fiduciary capacity, and (iii) any relative or spouse of
such Person or any relative of such spouse, who has the same home as
such Person or who is a director or officer of this corporation or of
any of its subsidiaries.
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(C) The Board of Directors of the corporation shall have the power
to determine for the purposes of this paragraph 9, on the basis of information
known to the Board of Directors, whether (1) a Person is a Related Person, and
(2) a Person is an affiliate or associate of another. Any such determination
shall be conclusive and binding for all purposes of this paragraph 9.
(D) The provisions of this paragraph 9 shall not apply to any
Business Combination with any Person if (1) the Board of Directors of the
corporation has approved a memorandum of understanding with such other Person
with respect to such transaction prior to the time such Person became a Related
Person; (2) such transaction is otherwise approved by the Board of Directors of
the corporation, provided that a majority of the members of the Board of
Directors voting for the approval of such transaction were continuing directors;
or (3) the Business Combination involves solely the corporation and a subsidiary
greater than 50% of whose stock is owned by the corporation and none of whose
stock is beneficially owned by a Related Person (other than beneficial ownership
arising solely because of control of the corporation), provided that if the
corporation is not the surviving company, each stockholder of the corporation
receives the same type of consideration in such transaction in proportion to his
stock holdings, the provisions of paragraphs 9 through 10 of this Certificate of
Incorporation are continued in effect or adopted by such surviving company as
part of its articles of association and such articles have no provisions
inconsistent with such provisions, and the provisions of the corporation's
by-laws are continued in effect or adopted by said surviving company.
(E) This paragraph 9 may not be amended or rescinded except by the
affirmative vote of the holders of not less than 75% of the outstanding shares
of capital stock of the corporation entitled to vote generally in the election
of directors, at any regular or special meeting of the stockholders, but only if
notice of the proposed alteration or amendment was contained in the notice of
such meeting.
10. The Board of Directors of the corporation, when evaluating any
offer of another party (a) to make a tender or exchange offer for any equity
security of the corporation or (b) to effect a Business Combination (as defined
in paragraph 9), shall, in connection with the exercise of its judgment in
determining what is in the best interest of the corporation as a whole, be
authorized to give due consideration to such factors as the Board of Directors
determines to be relevant, including, without limitation:
(i) the interest of the corporation's stockholders;
(ii) whether the proposed transaction might violate federal
or state laws;
(iii) not only the consideration being offered in the
proposed transaction, in relation to the then current market
price for the outstanding capital stock of the corporation, but
also to the market price for the capital stock of the corporation
over a period of years, the estimated price that might be
achieved in a negotiated sale of the corporation as a whole or in
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part or through orderly liquidation, the premiums over market
price for the securities of other corporations in similar
transactions, current political, economic and other factors
bearing on securities prices and the corporation's financial
condition and future prospects; and
(iv) the social, legal and economic effects upon employees,
suppliers, customers and others having similar relationships with
the corporation, and the communities in which the corporation
conducts its business.
In connection with any such evaluation, the Board of Directors is authorized to
conduct such investigations and to engage in such legal proceedings as the Board
of Directors may determine.
11. If at any time this corporation shall have a class of stock
registered pursuant to the provisions of the Securities Exchange Act of 1934,
for so long as such class is so registered, any action by the stockholders of
such class must be taken at an annual or special meeting of stockholders and may
not be taken by written consent.
12. The provisions of Section 203 of the Delaware General Corporation
law shall not apply to the corporation.
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This Restated Certificate of Incorporation was duly adopted by the
directors of this Corporation, acting by unanimous written consent pursuant to
Section 141(f) of the General Corporation Law of the State of Delaware, in
accordance with the provisions of Section 245 of the General Corporation Law of
the State of Delaware. This Restated Certificate of Incorporation only restates
and integrates and does not further amend the provisions of this corporation's
certificate of incorporation as heretofore amended or supplemented, and there is
no discrepancy between those provisions and the provisions of this Restated
Certificate of Incorporation.
IN WITNESS WHEREOF, Media 100 Inc. has caused this Restated Certificate
of Incorporation to be signed by its President on this 24th day of February,
1997.
By: /s/ John A. Molinari
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John A. Molinari
President
ATTEST:
By: /s/ Craig Barrows
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Craig Barrows
Secretary
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