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EXHIBIT 3.1
THIRD AMENDED AND RESTATED
CHARTER
OF
@plan.inc
To the Secretary of State of the State of Tennessee:
Pursuant to the provisions of Section 48-20-107 of the Tennessee
Business Corporation Act (the "Act"), the undersigned corporation hereby amends
and restates its Second Amended and Restated Charter to supersede the Second
Amended and Restated Charter and any and all prior amendments thereto as
follows:
I. The name of the corporation is @plan.inc.
II. The text of the Third Amended and Restated Charter is as follows:
"1. The name of the corporation is @plan.inc.
2. The corporation is for profit.
3. The duration of the corporation is perpetual.
4. The street address and zip code of the corporation's principal
office will be:
Three Landmark Square, Suite 400
Stamford, Connecticut 06901
County of Fairfield
5. (a) The name of the corporation's registered agent is J. Page
Davidson, Esq.
(b) The street address, zip code, and county of the corporation's
registered office and registered agent in Tennessee shall be:
2700 First American Center
Nashville, Tennessee 37238
County of Davidson
6. The corporation is organized to do any and all things and to
exercise any and all powers, rights, and privileges that a corporation may now
or hereafter be organized to do or to exercise under the Tennessee Business
Corporation Act, as amended from time to time.
7. The maximum number of shares of stock the corporation is authorized
to issue is:
a. Fifty million (50,000,000) shares of common stock, no par value
per share, which shall be entitled to one vote per share and, upon dissolution
of the corporation, shall be entitled to receive the net assets of the
corporation.
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b. Ten million (10,000,000) shares of preferred stock without
par value. Shares of preferred stock may be issued from time to time in one or
more classes or series, each such class or series to be so designated as to
distinguish the shares thereof from the shares of all other classes and series.
The Board of Directors is hereby vested with the authority to divide preferred
stock into classes or series and to fix and determine the relative rights,
preferences, qualifications, and limitations of the shares of any class or
series so established.
8. The shareholders of the corporation shall not have preemptive
rights.
9. All corporate powers shall be exercised by or under the authority
of, and the business and affairs of the corporation shall be managed under the
direction of, a Board of Directors. The directors shall be divided into three
classes, designated Class I, Class II, and Class III. Each class shall consist,
as nearly as may be possible, of one-third of the total number of directors
constituting the entire Board of Directors. Each class of directors shall be
elected for a three year term. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as to maintain
the number of directors in each class as nearly equal as possible, but in no
case will a decrease in the number of directors shorten the term of any
incumbent director. A director shall hold office until the annual meeting of
shareholders for the year in which his or her term expires and until his or her
successor shall be elected and shall qualify; subject, however, to prior death,
resignation, retirement, disqualification, or removal from office. Any vacancy
on the Board of Directors, including a vacancy that results from an increase in
the number of directors or a vacancy that results from the removal of a director
with cause, may be filled only by the Board of Directors.
Any director may be removed from office but only by (a) the
affirmative vote of the holders of a majority of the voting power of the shares
entitled to vote in the election of directors, considered for this purpose as
one class, unless a vote of a special voting group is otherwise required by law.
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 class or series, to elect directors at an
annual or special meeting of shareholders, the election, term of office, filling
of vacancies, and other features of such directorships shall be governed by the
terms of this Charter applicable thereto.
Notwithstanding any other provision of this Charter, the
affirmative vote of holders of two-thirds of the voting power of the shares
entitled to vote at an election of directors shall be required to amend, alter,
change or repeal, or to adopt any provisions as part of this Charter or as part
of the corporation's Bylaws inconsistent with the purpose and intent of this
Article 9.
10. To the fullest extent permitted by the Tennessee Business
Corporation Act as in effect on the date hereof, and as hereafter amended from
time to time, a director of the corporation shall not be liable to the
corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director. If the Tennessee Business Corporation Act or any successor
statute is amended after adoption of this provision to authorize corporate
action further eliminating or limiting the personal liability of directors, then
the liability of a director of the corporation shall be eliminated or limited to
the fullest extent permitted by the Tennessee Business Corporation Act, as so
amended from time to time, or such successor statute. Any repeal or modification
of this Article 10 by the shareholders of the corporation shall not affect
adversely any right or protection of a director of the corporation existing at
the time of such repeal or modification or with respect to events occurring
prior to such time.
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11. The corporation shall indemnify every person who is or was a party
or is or was threatened to be made a party to any action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, by reason of the fact
that he or she is or was a director or officer or is or was serving at the
request of the corporation as a director, officer, employee, agent, or trustee
of another corporation or of a partnership, joint venture, trust, employee
benefit plan, or other enterprise, including service on a committee formed for
any purpose (and, in each case, his or her heirs, executors, and
administrators), against all expense, liability, and loss (including counsel
fees, judgments, fines, ERISA excise taxes, penalties, and amounts paid in
settlement) actually and reasonably incurred or suffered in connection with such
action, suit, or proceeding, to the fullest extent permitted by applicable law,
as in effect on the date hereof and as hereafter amended. Such indemnification
may include advancement of expenses in advance of final disposition of such
action, suit, or proceeding, subject to the provision of any applicable statute.
The indemnification and advancement of expenses provisions of this
Article 11 shall not be exclusive of any other right that any person (and his or
her heirs, executors, and administrators) may have or hereafter acquire under
any statute, this Charter, the corporation's Bylaws, resolution adopted by the
shareholders, resolution adopted by the Board of Directors, agreement, or
insurance, purchased by the corporation or otherwise, both as to action in his
or her official capacity and as to action in another capacity. The corporation
is hereby authorized to provide for indemnification and advancement of expenses
through its Bylaws, resolution of shareholders, resolution of the Board of
Directors, or agreement, in addition to that provided by this Charter.
12. The corporation shall hold a special meeting of shareholders only
in the event of a call of the Board of Directors of the corporation or the
officers authorized to do so by the Bylaws of the corporation.
Notwithstanding any other provision of this Charter, the
affirmative vote of holders of two-thirds of the voting power of the shares
entitled to vote at an election of directors shall be required to amend, alter,
change or repeal, or to adopt any provisions as part of this Charter or as part
of the corporation's Bylaws inconsistent with the purpose and intent of this
Article 12."
@plan.inc
By:
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Nancy Lazaros
Senior Vice President and Chief
Financial Officer
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