EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
GODIGITAL NETWORKS CORPORATION
GoDigital Networks Corporation, a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
A. The name of the corporation is GoDigital Networks Corporation. The
corporation was originally incorporated under the same name and the original
Certificate of Incorporation of the corporation was filed with the Secretary of
State of the State of Delaware on November 18, 1999.
B. This Restated Certificate of Incorporation has been duly adopted in
accordance with the provisions Sections 211 and 242 of the General Corporation
Law of the State of Delaware by the Board of Directors and the stockholders of
the corporation.
C. Pursuant to Section 245 of the General Corporation Law of the State of
Delaware, this Restated Certificate of Incorporation restates the provisions of
the Certificate of Incorporation of this corporation.
D. The Certificate of Incorporation is hereby restated in its entirety to
read as follows :
"Article I.
The name of the corporation is GoDigital Networks Corporation (the
"Corporation").
Article II.
The address of the Corporation's registered office in the State of Delaware is
1209 Orange Street, in the City of Wilmington, Delaware 19801, County of New
Castle. The name of its registered agent at such address is The Corporation
Trust Company.
Article III.
The nature of the business or purposes to be conducted or promoted by 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.
This Corporation is authorized to issue two classes of stock to be
designated, respectively, Common Stock and Preferred Stock. The total number of
shares of Common Stock which the Company is authorized to issue is 100,000,000,
$0.001 par value, and the total number of shares of Preferred Stock the Company
is authorized to issue is 1,000,000, $0.001 par value. The Preferred Stock may
be issued from time to time in one or more series pursuant to a resolution or
resolutions providing for such issue duly adopted by the Board of Directors
(authority to do so being hereby expressly vested in the Board). The Board of
Directors is further authorized to determine or alter the rights, preferences,
privileges and restrictions granted to or imposed upon any wholly unissued
series of Preferred Stock and to fix the number of shares of any series of
Preferred Stock and the designation of any such series of Preferred Stock. The
Board of Directors, within the limits and restrictions stated in any resolution
or resolutions of the Board of Directors originally fixing the number of shares
constituting any series, may increase or decrease (but not below the number of
shares in any such series then outstanding), the number of shares of any series
subsequent to the issue of shares of that series.
Article V.
The Corporation is to have perpetual existence.
Article VI.
1. The management of the business and the conduct of the affairs of the
Corporation shall be vested in its Board of Directors. The number of directors
which constitute the whole Board of Directors of the corporation shall be
designated in the Bylaws of the corporation.
2. The Board of Directors shall be divided into three classes designated
as Class I, Class II and Class III, respectively. Directors shall be assigned
to each class in accordance with a resolution or resolutions adopted by the
Board of Directors. At the first annual meeting of stockholders following the
date hereof, the term of office of the Class I directors shall expire and Class
I directors shall be elected for a full term of three years. At the second
annual meeting of stockholders following the date hereof, the term of office of
the Class II directors shall expire and Class II directors shall be elected for
a full term of three years. At the third annual meeting of stockholders
following the date hereof, the term of office of the Class III directors shall
expire and Class III directors shall be elected for a full term of three years.
At each succeeding annual meeting of stockholders, directors shall be elected
for a full term of three years to succeed the directors of the class whose terms
expire at such annual meeting.
3. Notwithstanding the foregoing provisions of this Article, each director
shall serve until his or her successor is duly elected and qualified or until
his or her death, resignation or removal. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
4. Any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal, or other causes shall be filled by
either (i) the affirmative vote of the holders of a majority of the voting power
of the then-outstanding shares of voting stock of the corporation entitled to
vote generally in the election of directors ("Voting Stock") voting together as
a single class; or (ii) by the affirmative vote of a majority of the remaining
directors then in office, even though less than a quorum of the Board of
Directors. Newly created directorships resulting from any increase in the
number of directors shall, unless the Board of Directors determines by
resolution that any such newly created directorship shall be filled by the
stockholders, be filled only by the affirmative vote of the directors then in
office, even though less than a quorum of the Board of Directors. Any director
elected 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 elected and qualified.
5. The affirmative vote of sixty-six and two-thirds percent (66-2/3%) of
the voting power of the then outstanding shares of Voting Stock, voting together
as a single class, shall be required for the adoption, amendment or repeal of
the following sections of the corporation's Bylaws by the stockholders of this
corporation: 2.2 (Annual Meeting) and 2.3 (Special Meeting).
6. No action shall be taken by the stockholders of the corporation except at an
annual or special meeting of the stockholders called in accordance with the
Bylaws.
7. Any director, or the entire Board of Directors, may be removed from office
at any time (i) with cause by the affirmative vote of the holders of at least a
majority of the voting power of all of the then-outstanding shares of the Voting
Stock, voting together as a single class; or (ii) without cause by the
affirmative vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of the voting power of all of the then-outstanding shares of the
Voting Stock
ARTICLE VII
Notwithstanding any other provisions of this Certificate of Incorporation or
any provision of law which might otherwise permit a lesser vote or no vote, but
in addition to any affirmative vote of the holders of any particular class or
series of the Voting Stock required by law, this Certificate of Incorporation or
any Preferred Stock Designation, the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the
then-outstanding shares of the Voting Stock, voting together as a single class,
shall be required to alter, amend or repeal ARTICLE VI or this ARTICLE VII.
ARTICLE VIII
The corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, except as provided in ARTICLE VII of this
Certificate, and all rights conferred upon the stockholders herein are granted
subject to this right.
ARTICLE IX
In furtherance and not in limitation of the powers conferred by statute, the
Board of Directors is expressly authorized to make, alter, amend or repeal the
Bylaws of the Corporation.
ARTICLE X
1. 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 be indemnified by the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director.
2. 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.
3. Neither any amendment nor repeal of this Article X, nor the adoption of
any provision of this Corporation's Certificate of Incorporation inconsistent
with this Article X, shall eliminate or reduce the effect of this Article X, in
respect of any matter occurring, or any action or proceeding accruing or arising
or that, but for this Article X, would accrue or arise, prior to such amendment,
repeal or adoption of an inconsistent provision.
ARTICLE XII
Meetings of stockholders may be held within or without the State of Delaware,
as the Bylaws may provide. The books of the Corporation may be kept (subject to
any provision contained in the statutes) outside of the State of Delaware at
such place or places as may be designated from time to time by the Board of
Directors or in the Bylaws of the Corporation.
ARTICLE XIII
Advance notice of new business and stockholder nominations for the election of
directors shall be given in the manner and to the extent provided in the Bylaws
of the Corporation."
The undersigned certifies under penalty of perjury that the foregoing Restated
Certificate of Incorporation of GoDigital Networks Corporation is the act and
deed of this corporation and that the statements therein are true.
IN WITNESS WHEREOF, the Board of Directors of the Company has caused this
Restated Certificate of Incorporation to be signed by Dennis Haar, its President
and Chief Executive Officer, effective as of December __, 1999.
GODIGITAL NETWORKS CORPORATION
By:
-------------------------
Dennis Haar
President and Chief Executive Officer