EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
LATITUDE COMMUNICATIONS, INC.
ARTICLE I
The name of the corporation is Latitude Communications, Inc. (the
"Corporation").
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ARTICLE II
The address of the Corporation's registered office in the State of Delaware
is 1013 Centre Road, Wilmington, County of New Castle. The name of its
registered agent at such address is The Prentice-Hall Corporation System, Inc.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE IV
(a) Authorized Shares. The corporation is authorized to issue two classes
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of shares designated "Common Stock" and "Preferred Stock" respectively. The
total number of shares that the corporation is authorized to issue is Twenty-
three million one hundred forty thousand nine hundred eleven (23,140,911)
shares. Fifteen million (15,000,000) shares shall be Common Stock, par value
$.001 per share, and eight million one hundred forty thousand nine hundred
eleven (8,140,911) shares shall be Preferred Stock, par value $.001 per share.
The Preferred Stock shall be issued in three series. The first series of
Preferred Stock shall be designated Series A Preferred Stock and shall consist
of three million three hundred thousand (3,300,000) shares. The second series
of Preferred Stock shall be designated Series B Preferred Stock and shall
consist of two million seven hundred fifteen thousand nine hundred eleven
(2,715,911) shares. The third series of Preferred Stock shall be designated
Series C Preferred Stock and shall consist of two million one hundred twenty
five thousand (2,125,000) shares. The Liquidation Amount for the Series A
Preferred Stock is one dollar ($1.00) per share, the Liquidation Amount for the
Series B Preferred Stock is two dollars and seventy-five cents ($2.75) per
share, and the Liquidation Amount for the Series C Preferred Stock is four
dollars ($4.00) per share, in each case subject to proportional and equitable
adjustment for stock splits, reverse splits and similar recapitalizations."
(b) Liquidation.
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(1) Upon the voluntary or involuntary liquidation, winding up or
dissolution of the corporation, out of the assets available for distribution to
stockholders, (A) the holders of
Series A Preferred Stock shall be entitled to receive, in preference to any
payment to the holders of Common Stock, the Liquidation Amount for the Series
A Preferred Stock for each share of Series A Preferred Stock then held by them
plus any dividends previously declared and unpaid on such Series A Preferred
Stock, (B) the holders of Series B Preferred Stock shall be entitled to
receive, in preference to any payment to the holders of Common Stock, the
Liquidation Amount for the Series B Preferred Stock for each share of Series B
Preferred Stock then held by them plus any dividends previously declared and
unpaid on such Series B Preferred Stock, and (C) the holders of Series C
Preferred Stock shall be entitled to receive, in preference to any payment to
the holders of Common Stock, the Liquidation Amount for the Series C Preferred
Stock for each share of Series C Preferred Stock then held by them plus any
dividends previously declared and unpaid on such Series C Preferred Stock. In
the event the assets of the corporation are insufficient to pay the entirety
of such amount required to be paid to the holders of Series A Preferred Stock,
to the holders of Series B Preferred Stock and to the holders of Series C
Preferred Stock under this paragraph (1), the entire remaining assets shall be
paid ratably to the holders of Series A Preferred Stock, to the holders of
Series B Preferred Stock, and to the holders of Series C Preferred Stock (so
that each shall receive the same percentage of the applicable preferential
amount) and the Common Stock shall receive nothing.
(2) After the entirety of the amount required under paragraph (1) has
been paid to the holders of Series A Preferred Stock, to the holders of Series B
Preferred Stock, and to the holders of Series C Preferred Stock, the remaining
assets shall be paid ratably to the holders of Common Stock.
(3) For the purposes of this subdivision (b), a liquidation, winding
up or dissolution is deemed to include the acquisition of the corporation by
another entity, whether by merger, transfer of all or substantially all the
assets or otherwise, or a transaction or series of related transactions in which
more than 50% of the voting power of the corporation is transferred.
(4) Whenever the distribution provided for in this subdivision (b)
shall be payable in securities or property other than cash, the value of such
distribution shall be the fair market value of such securities or other property
as determined in good faith by the Board of Directors.
(c) Voting Rights.
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(1) Each holder of Common Stock is entitled to one vote per share of
Common Stock and each holder of Preferred Stock is entitled to a number of votes
equal to the number of shares of Common Stock into which the holder's Preferred
Stock is then convertible; for such purpose, any and all fractional shares
otherwise issuable to each holder of Preferred Stock shall be aggregated and any
resulting fractional shall be rounded off to the nearest whole number of shares
(with one-half being rounded up). Except as provided by law or by paragraph (2)
following, the Common Stock and Preferred Stock shall vote together as a single
class on all matters to come before the stockholders for approval.
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(2) In addition to any class or series voting rights under applicable
law, without the approval of at least two-thirds of the outstanding shares of
Preferred Stock voting as a separate class, the corporation shall not:
(i) amend the Certificate of incorporation or the bylaws;
(ii) redeem or otherwise acquire any Common Stock, either
directly or through a subsidiary, other than pursuant to redemption or
repurchase provisions approved by the Board of Directors;
(iii) redeem or otherwise acquire any Preferred Stock, either
directly or through a subsidiary;
(iv) authorize or issue another class or series of equity
securities or any securities convertible into, or exchangeable for, equity
securities having rights, preferences or privileges greater than, senior to or
on a parity with the Series A Preferred Stock, the Series B Preferred Stock,
or the Series C Preferred Stock;
(v) merge or consolidate with or into any other corporation
(directly or indirectly through one or more subsidiaries), sell all or
substantially all its assets, or engage in any reorganization or
recapitalization of the Company or change of control transaction or any
reclassification or other similar change of, or with respect to, any stock; or
(vi) voluntarily elect to wind up and dissolve.
(d) Conversion.
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(1) Subject to paragraph (2) below, the Preferred Stock shall be
convertible into Common Stock at any time at the option of the respective
holders of Preferred Stock.
(2) The Preferred Stock shall automatically be converted into Common
Stock immediately upon the closing of a firm commitment underwritten public
offering of Common Stock pursuant to an effective registration statement on Form
S-1 under the Securities Act of 1933 covering the offer and sale of Common Stock
by the corporation to the public at an aggregate offering price of at least
$10,000,000 and a per share offering price to the public at least equal to seven
dollars and fifty cents ($7.50).
(3) For the purposes of any conversion under either paragraph (1) or
paragraph (2) above, the number of shares of Common Stock issuable with respect
to shares of a series of Preferred Stock upon conversion shall be determined by
dividing the aggregate dollar equivalent Liquidation Amount of all shares of
such series of Preferred Stock at any one time surrendered for conversion by any
one holder thereof by the applicable conversion price for such series in effect
at the date of conversion. The initial conversion price per share for each
series of the Preferred Stock shall be the Liquidation Amount for such series
per share, and such conversion price shall be subject to adjustment from time to
time as provided in paragraph (5) of
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this subdivision (d). Upon conversion, no fractional shares shall be issued
and the corporation shall in lieu thereof pay in cash the value of any
remaining fraction, taking the conversion price in effect at the time as the
value of a whole share of Common Stock; for such purpose, any and all
fractional shares otherwise issuable to each holder of shares of a series of
Preferred Stock shall be aggregated and any resulting fractional share shall
be paid in cash as provided earlier in this sentence. The corporation shall
reserve and keep reserved out of its authorized but unissued shares of Common
Stock sufficient shares to effect the conversion of all shares of Preferred
Stock outstanding from time to time.
(4) A holder of Preferred Stock desiring to convert shall deliver the
share certificate to the corporation at its principal executive office,
accompanied by a written request to convert, specifying the number of shares to
be converted. The endorsement of the share certificate and the request to
convert shall be in form reasonably satisfactory to the corporation. At the
close of business on the date of such delivery, the conversion shall be deemed
to have occurred and the person entitled to receive share certificates for
Common Stock to which he is entitled upon the conversion. Upon the automatic
conversion of Preferred Stock pursuant to paragraph (2) above, the holder of
Preferred Stock shall similarly deliver the share certificate to the corporation
and the Preferred Stock shall not be deemed to have been converted to Common
Stock until immediately prior to the closing of a sale of securities as
described in paragraph (2).
(5) If at any time or from time to time the corporation shall declare
or pay, without consideration, any dividend on the Common Stock payable in
Common Stock or in any right to acquire Common Stock for no consideration, or
shall subdivide its outstanding shares of Common Stock into a greater number of
shares, the conversion price in effect immediately prior to such subdivision
shall be proportionately and equitably reduced and conversely, in case the
outstanding shares of Common Stock of the corporation shall be combined into a
smaller number of shares, the conversion price in effect immediately prior to
such combination shall be proportionately and equitably increased.
(6) If at any time or from time to time the corporation alters its
capital structure so as to change the rights, privileges and preferences of the
Common Stock or changes the Common Stock into the same or a different number of
shares of any other class or classes of stock, whether by capital
reorganization, reclassification or otherwise (except pursuant to a transaction
constituting a liquidation pursuant to paragraph (b)(3) above), then each series
of Preferred Stock shall be convertible into such number and type of other
securities as the holders of such series of Preferred Stock would have received
if they had converted the shares of such series of Preferred Stock held by them
immediately prior to such reorganization or recapitalization.
(7) Promptly after any change in the conversion price for a series of
Preferred Stock, the corporation shall cause to be prepared a written statement
setting forth in detail the facts and the revised conversion ratio. The
statement shall be signed by the chief executive officer and by the chief
financial officer and filed with the secretary of the corporation. A copy
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of the statement shall be promptly mailed to each holder of such series of
Preferred Stock at its last known address on the stock records of the
corporation.
(e) Dividends.
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(1) The holders of Series A Preferred Stock, the holders of Series B
Preferred Stock, and the holders of Series C Preferred Stock are entitled to
receive, out of funds legally available therefor, if, when and as declared by
the board of directors, an annual per share, non-cumulative dividend equal to
ten percent (10%) of the Liquidation Amount for their respective series of
Preferred Stock prior and in preference to any dividends (whether in cash or
other property, and whether or not any such property consists of securities of
any third party) payable on account of the Common Stock.
(2) No dividends shall be paid on any share of Common Stock unless a
dividend is paid with respect to all outstanding shares of Series A Preferred
Stock, all outstanding shares of Series B Preferred Stock, and all outstanding
shares of Series C Preferred Stock in amounts equal to or greater than (on an
as-converted basis) the amount paid on the Common Stock.
(3) No dividend shall be payable without the approval of the Board of
Directors.
(f) Board of Directors.
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(1) The Board of Directors of the corporation shall consist of five
members. Two members shall be elected by (and may only be removed by) the
holders of the Preferred Stock, voting as a separate class. One member shall be
elected by (and may only be removed by) the holders of Common Stock, voting as a
separate class. Two members shall be elected only by (and may only be removed
by) the holders of the Preferred Stock and Common Stock, voting together as a
single class.
(2) If the office of any director becomes vacant, such director's
replacement shall be elected by the class (or classes, as applicable) of shares
of which such director is the representative.
(g) No Impairment. The corporation will not, through any reorganization,
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transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action not permitted hereunder, avoid or seek
to avoid the observance or performance of any of the terms to be observed or
performed under this Article III and in the taking of all such action as may be
necessary or appropriate in order to protect the rights, privileges and
preferences of the holders of the Preferred Stock against impairment.
(h) Notices of Record Date. In the event of the establishment by the
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corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, or any
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right to subscribe for, purchase or otherwise acquire any shares of stock of
any class or any other securities or property, or to receive any other right,
the corporation shall mail to each holder of Preferred Stock at least twenty
(20) days prior to the date specified therein a notice specifying the date on
which any such record is to be taken for the purpose of such dividend,
distribution or rights, and the amount and character of such dividend,
distribution and right.
ARTICLE V
The Board of Directors of the Corporation is expressly authorized to make,
alter or repeal Bylaws of the Corporation.
ARTICLE VI
Elections of directors need not be by written ballot unless otherwise
provided in the Bylaws of the Corporation.
ARTICLE VII
(A) To the fullest extent permitted by the Delaware General Corporation
Law, 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 shall 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 testator or intestate is or was a director or officer of the
Corporation or any predecessor of the Corporation, or serves or served at any
other enterprise as a director or officer at the request of the Corporation or
any predecessor to the Corporation.
(C) Neither any amendment nor repeal of this Article VII, nor the adoption
of any provision of the Corporation's Certificate of Incorporation inconsistent
with this Article VII, shall eliminate or reduce the effect of this Article VII
in respect of any matter occurring, or any action or proceeding accruing or
arising or that, but for this Article VII, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
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ARTICLE VIII
The name and mailing address of the incorporator are as follows:
Edward Y. Kim
Venture Law Group
2775 Sand Hill Road
Menlo Park, CA 94025
Executed this 9th day of February, 1999.
/s/ Edward Y. Kim
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Edward Y. Kim, Incorporator
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