Exhibit 3.3
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 05:00 PM 09/07/2001
010446487 - 3434592
CERTIFICATE OF INCORPORATION
OF
T-NETIX, INC.
ARTICLE I
The name of the corporation is T-NETIX, Inc.
ARTICLE II
The registered office of the corporation in the State of Delaware is
located at The Corporation Trust Company, 1209 Orange Street, Wilmington, New
Castle County, Delaware 19801. The name of the corporation's registered agent at
such address is The Corporation Trust Company.
ARTICLE III
The purpose of the corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
the State of Delaware.
ARTICLE IV
The total number of shares of stock which the Corporation shall have
authority to issue is 80,000,000 shares of capital stock, classified as (i)
70,000,000 shares of common stock, $0.01 par value ("Common Stock"), and (ii)
10,000,000 shares of preferred stock, $0.01 par value ("Preferred Stock").
The designation and the powers, preferences, rights, qualifications,
limitations, and restrictions of the Preferred Stock and Common Stock are as
follows:
1. Provisions Relating to the Common Stock.
(a) Each share of Common Stock of the Corporation shall have identical
rights and privileges in every respect. The holders of shares of Common Stock
shall be entitled to vote upon all matters submitted to a vote of the
stockholders of the Corporation and shall be entitled to one vote for each share
of Common Stock held.
(b) Subject to the prior rights and preferences, if any, applicable to
shares of the Preferred Stock or any series thereof, the holders of shares of
the Common Stock shall be entitled to receive such dividends (payable in cash,
stock, or otherwise) as may be declared thereon by the Board of Directors of
Committee at any time and from time to time out of any funds of the Corporation
legally available therefor.
(c) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Corporation, after distribution in full of the
preferential amounts, if any, to be
1
distributed to the holders of shares of the Preferred Stock or any series
thereof, the holders of shares of the Common Stock shall be entitled to receive
all of the remaining assets of the Corporation available for distribution to its
stockholders, ratably in proportion to the number of shares of the Common Stock
held by them. A liquidation, dissolution, or winding-up of the Corporation, as
such terms are used in this paragraph (c), shall not be deemed to be occasioned
by or to include any consolidation or merger of the Corporation with or into any
other corporation or corporations or other entity or a sale, lease, exchange, or
conveyance of all or a part of the assets of the Corporation.
2. Provisions Relating to the Preferred Stock.
(a) 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 issue of such class or series adopted, as
hereinafter prescribed, by the entire board of directors of the Corporation
("Board of Directors") or (to the extent permitted by law) by any duly
designated committee thereof ("Committee").
(b) Authority is hereby expressly granted to and vested in the Board
of Directors or Committee to authorize the issuance of the Preferred Stock from
time to time in one or more classes or series, and with respect to each 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 the 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 the 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 class or series;
(iv) whether or not the shares of any 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 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 a class or series shall be
subject to the operation of retirement or sinking funds to be applied to the
purchase or redemption of such
2
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, the conditions upon which and the
times when such dividends are payable on any other class or classes or series of
stock, whether or not 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 class or series thereof shall be entitled to receive upon the
voluntary or involuntary dissolution of, or upon any distribution of the assets
of, the Corporation;
(viii) whether or not the shares of any 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 protective provisions with
respect to any class or series as the Board of Directors or Committee may deem
advisable.
(c) 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 or Committee may increase the number
of shares of the 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 or Committee may decrease the number of shares of the Preferred Stock
designated for any existing class or series by a resolution subtracting from
such class or series authorized and unissued shares of the Preferred Stock
designated for such existing class or series, and the shares so subtracted shall
become authorized, unissued, and undesignated shares of the Preferred Stock.
3. General.
(a) 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 (not less than the par
value thereof) as may be fixed by the Board of Directors or Committee, 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.
3
(b) The Corporation shall have authority to create and issue rights
and options entitling their holders to purchase 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 or Committee. The Board of Directors or Committee 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 for any shares of capital stock subject thereto shall not be less than
the par value thereof.
ARTICLE V
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 less than one (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) and until changed in
accordance with the manner prescribed by the bylaws shall be ten (10).
The directors of the Corporation, whether now serving as such or hereafter
elected (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 1," the second
class as "Class 2," and the third class as "class 3." If the total number of
Classified Directors equals a number divisible by three, then the number of
directors in each of Class 1, Class 2, and Class 3 shall be that number of
directors equal to the total number of directors divided by three. If, however,
the total number of Classified Directors equals a number that is not divisible
by three, each such class of directors shall consist of that number of directors
as nearly equal in number as reasonably possible to the total number of
directors divided by three, as determined by the Board of Directors in advance
of each respective election of directors by holders of shares of capital stock
of the Corporation then entitled to vote in such election. The term of office of
the initial Class 1 directors shall expire at the 2002 annual meeting of
stockholders, the term of office of the initial Class 2 directors shall expire
at the 2003 annual meeting of stockholders and the term of office of the initial
Class 3 directors shall expire at the 2004 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, commencing with the 2002
annual meeting, 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. Each director to hold
office until such director's successor shall have been duly elected and
qualified or until such director's earlier resignation or removal.
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 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
4
Preferred Stock shall not be divided into classes pursuant to this Article V
unless expressly provided by such terms.
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. Except as may otherwise be provided by law, cause
for removal shall exist only if the director whose removal is proposed (a) has
been convicted of a felony by a court of competent jurisdiction and such
conviction is no longer subject to direct appeal, (b) has been adjudged by a
court of competent jurisdiction to be liable for gross negligence or misconduct
in the performance of his duties to the Corporation in a matter of substantial
importance to the Corporation, and such adjudication has become final and
non-appealable, or (c) has missed twelve consecutive meetings of the Board of
Director.
ARTICLE VI
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this 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 this
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this corporation under 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 this Corporation under 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 this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths (3/4) in value of
the creditors of class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as 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 this Corporation, as the case
may be, and also on this Corporation.
ARTICLE VII
No director of the Corporation shall be 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
that involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. If the DGCL hereafter is amended to
authorize the further elimination or limitation of the liability of directors,
then the liability of a director of the Corporation, in addition to the
limitation on personal liability provided herein, shall be limited to the
fullest extent permitted by the amended DGCL. Any repeal or modification of this
Article by the stockholders of the Corporation shall be prospective only and
shall not adversely affect any
5
limitation of the personal liability of a director of the Corporation existing
at the time of such repeal or modification.
ARTICLE VIII
The Corporation shall indemnify any person who was, is, or is threatened to
be made a party to a proceeding (as hereinafter defined) by reason of the fact
that he or she (i) is or was a director or officer of the Corporation or (ii)
while a director or officer of the Corporation, is or was serving at the request
of the Corporation as a director, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary of another foreign or domestic
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan, or other enterprise, to the fullest extent permitted under the
DGCL, as the same exists or may hereafter be amended.
Such rights shall be a contract right and as such shall run to the benefit
of any director or officer who is elected and accepts the position of director
or officer of the Corporation or elects to continue to serve as a director or
officer of the Corporation while this Article IX is in effect. Any repeal or
amendment of this Article IX shall be prospective only and shall not limit the
rights of any such director or officer or the obligations of the Corporation
with respect to any claim arising from or related to the services of such
director or officer in any of the foregoing capacities prior to any such repeal
or amendment to this Article IX. Such right shall include the right to be paid
by the Corporation expenses incurred in defending any such proceeding in advance
of its final disposition to the maximum extent permitted under the DGCL.
If a claim for indemnification hereunder is not paid in full by the
Corporation within sixty (60) days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim, and if successful in
whole or in part, the claimant shall also be entitled to be paid the expenses of
prosecuting such claim. It shall be a defense to any such action that such
indemnification or advancement of costs of defense are not permitted under the
DGCL, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including the Board of Directors or any
Committee thereof, independent legal counsel, or stockholders) to have made Its
determination prior to the commencement of such action that indemnification of,
or advancement of costs of defense to, the claimant is permissible in the
circumstances nor an actual determination by the Corporation (including the
Board of Directors or any Committee thereof, independent legal counsel, or
stockholders) that such indemnification or advancement is not permissible shall
be a defense to the action or create a presumption that such indemnification by
the Corporation is not permissible.
In the event of the death of any person having rights of indemnification
under the foregoing provisions, men right shall inure to the benefit of his or
her heirs, executors, administrators, and personal representatives. The rights
conferred above shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, bylaw, resolution of stockholders
or directors, agreement, or otherwise.
6
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by law.
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
ARTICLE IX
The Corporation expressly elects to be governed by Section 203 of the DGCL.
ARTICLE X
Special meetings of stockholders of the Corporation may only 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.
ARTICLE XI
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 two-thirds (2/3) 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 V, VI, VIII, IX, X, XI, XII, XIII and XV of this Certificate of
Incorporation.
ARTICLE XII
Any action which may be taken, or which is required by law or the
Certificate of Incorporation or bylaws of the Corporation to be taken, at any
annual or special meeting of shareholders may be taken without a meeting,
without prior notice, and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall have been signed by the holder or
holders of shares having not less than the minimum number of votes that would be
necessary to take such action at a meeting at which the holders of all shares
entitled to vote on the action were present and voted.
7
ARTICLE XIII
The name and the mailing address of the incorporator are:
Name Mailing Address
- ---- ---------------
Wayne Johnson 1544 Valwood Parkway
Suite 102
Carrollton, Texas 75006
ARTICLE XV
The corporation is to have perpetual existence.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGE FOLLOWS.
8
1. THE UNDERSIGNED, being the sole incorporator of T-NETIX, Inc. do hereby
execute this Certificate of Incorporation, declaring and certifying under
penalties of perjury that the facts herein stated are true, and accordingly have
hereunto set my hand this 7th day of September, 2001.
By: /s/ Wayne Johnson
-------------------------------------
Wayne Johnson, Incorporator
9
CONSENT OF
T-NETIX, INC.
TO USE OF SIMILAR NAME
The undersigned, President and Chief Executive Officer of T-Netix, Inc., a
Colorado corporation, hereby unconditionally consents to the use of the name
T-Netix, Inc., a Delaware corporation, to be used by T-Netix, Inc. in connection
with its Certificate of Incorporation filed with the Delaware Secretary of
State.
The undersigned hereby acknowledges that a copy of this Consent may be
forwarded to the Office of the Delaware Secretary of State for filing.
Dated the 7th day of September, 2001.
T-NETIX, INC.,
a Colorado corporation
By: /s/ Thomas E. Larkin
-------------------------------------
Thomas E. Larkin, President and
Chief Executive Officer
ARTICLES AND CERTIFICATE OF MERGER
T-NETIX, INC.
(A COLORADO CORPORATION)
WITH AND INTO
T-NETIX, INC.
(A DELAWARE CORPORATION)
The undersigned corporations organized and existing under and by
virtue of the Colorado Business Corporation Act and the General Corporation Law
of the State of Delaware, do hereby certify that:
FIRST: The name and state of incorporation of each of the constituent
corporations of the merger is as follows:
NAME STATE OF INCORPORATION
- ---- ----------------------
T-Netix, Inc. ("T-Netix - Colorado") Colorado
T-Netix, Inc. ("T-Netix - Delaware") Delaware
SECOND: An Agreement and Plan of Merger between the parties has been approved,
adopted, certified, executed and acknowledged by each of the constituent
corporations in accordance with the requirements of Section 7-111-104 of
the Colorado Business Corporation Act and Section 252 of the General
Corporation Law of the State of Delaware.
THIRD: T-Netix - Delaware, a Delaware corporation, shall be the surviving
corporation.
FOURTH: The Certificate of Incorporation of T-Netix - Delaware shall be the
Certificate of Incorporation of the surviving corporation, and no
amendments or changes to the Certificate of Incorporation of T-Netix -
Delaware are desired to be effected by the merger.
FIFTH: The executed Agreement and Plan of Merger is on file at the principal
place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is 1544
Valwood Parkway, Suite 102, Carrollton, Texas 75006
SIXTH: A copy of the Agreement and Plan of Merger will be furnished by the
surviving corporation, on request and without cost to any stockholder of
any constituent corporation.
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 05:01 PM 09/07/2001
010446493 - 3434592
SEVENTH: The authorized capital stock of each corporation that is a party to the
merger is as follows:
PAR VALUE NUMBER OF SHARES
CORPORATION CLASS PER SHORT AUTHORIZED
- ------------------ --------- --------- ----------------
T-Netix - Colorado Common $0.01 70,000,000
Preferred $0.01 10,000,000
T-Netix - Delaware Common $0.01 70,000,000
Preferred $0.01 10,000,000
EIGHTH: As to the undersigned corporations, the approval of whose shareholders
is required, the number of outstanding shares of each class or series of
stock of such corporation entitled to vote, with other shares or as a
class, on the Agreement and Plan of Merger are as follows:
NUMBER OF SHARES
NUMBER OF SHARES ENTITLED TO VOTE AS
NAME OF CORPORATION OUTSTANDING CLASS OR SERIES A CLASS OR SERIES
- ------------------- ---------------- --------------- -------------------
T-Netix - Colorado 14,999,151 Common 14,999,151
NINTH: As to the undersigned corporations, the approval of whose shareholders
is required, the number of share, not entitled to vote only as a class,
voted for and against the Agreement and Plan of Merger, respectively,
and, if the shares of any class or series ere entitled to vote as a
class, the number of shares of each such class or series voted for and
against the Agreement and Plan of Merger, are as follows:
NUMBER OF SHARES
ENTITLED TO VOTE AS
A CLASS OR SERIES VOTED
TOTAL TOTAL -----------------------
NAME OF CORPORATION VOTED FOR VOTED AGAINST CLASS OR SERIES FOR AGAINST
- ------------------- --------- ------------- --------------- --------- -------
T-Netix - Colorado 8,025,919 231,287 Common 8,025,919 231,287
TENTH: The Agreement and Plan of Merger was duly authorized by all action
required by the laws of the State of Delaware and the constituent
documents of T-Netix - Delaware.
ELEVENTH: T-Netix - Delaware will be responsible for the payment of all fees and
franchise taxes as are required by law to be paid by T-Netix - Colorado
or T-Netix - Delaware, and, as the sole surviving corporation in the
merger, will be obligated to pay all such fees and franchise taxes if
the same are not timely paid.
TWELFTH: These Articles and Certificate of Merger shall be effective on June
28, 2001.
-2-
Dated: September 7, 2001
T-NETIX, INC.,
a Colorado Corporation
By: /s/ Thomas E. Larkin
-------------------------------------
Thomas E. Larkin,
President and Chief Executive Officer
T-NETIX, INC.,
a Delaware Corporation
By: /s/ Thomas E. Larkin
-------------------------------------
Thomas E. Larkin,
President and Chief Executive Officer
-3-