Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
of
WAM!NET INC.
ARTICLE 1.1.
NAME
The name of the corporation is WAM!NET Inc., which shall be referred to
in these Amended and Restated Articles of Incorporation as the "Corporation."
ARTICLE 2.2.
REGISTERED OFFICE
The address of the registered office of the Corporation in Minnesota is
655 Lone Oak Drive, Eagan, Minnesota 55121.
ARTICLE 3.3.
DURATION
The duration of the Corporation shall be perpetual.
ARTICLE 4.4.
PURPOSE
The Corporation is organized for general business purposes.
ARTICLE 5.5.
POWERS
The Corporation shall have the unlimited power to engage in and to do
any act necessary or incidental to the carrying out of its purposes, together
with the power to do or perform any acts consistent with or which may be implied
from the powers expressly conferred upon corporations by Minnesota Statutes,
Chapter 302A.
ARTICLE 6.6.
STOCK
6.1) Capitalization. The aggregate number of shares of stock that the
Corporation has authority to issue shall be five hundred million (500,000,000)
shares, which shall consist of (a) four hundred eighty million (480,000,000)
shares of common stock, with a par value of One Cent ($.01) per share ("Common
Stock"); and (b) twenty million (20,000,000) shares of undesignated stock
("Undesignated Stock"). The Board of Directors of the Corporation is authorized
to establish from the
Undesignated Stock, by resolution adopted and filed in the manner provided by
law, one or more classes or series of shares, to designate each such class or
series (which may include but is not limited to designation as additional Common
Stock), and to fix the relative rights and preferences of each such class or
series.
6.2) Prior Certificates of Designation. A number of shares of
Undesignated Stock have already been designated by the Board of the Directors of
the Corporation pursuant to those certain Certificates of Designation, and
amendments and corrections thereto, previously adopted by the Board of Directors
of the Corporation and filed with the Minnesota Secretary of State as further
described on Schedule 1 attached hereto (collectively, the "Certificates). The
Certificates shall remain in full force and effect in accordance with their
respective terms after the effective date of these Amended and Restated Articles
of Incorporation. Any other Certificates of Designation filed by the Company
prior to the effective date of these Amended and Restated Articles of
Incorporation and not described on Schedule 1 attached hereto are hereby
canceled. Any shares currently issued and outstanding pursuant to the
Certificates, as amended and identified on Schedule 1, shall remain issued and
outstanding shares after the Effective Date subject to the same designations,
rights and preferences stated in the Certificates, as amended, and these Amended
and Restated Articles of Incorporation. Any such shares that are hereafter
converted into shares of Common Stock pursuant to the terms of the Certificates,
as amended, or redeemed, purchased or otherwise acquired by the Company shall be
retired and canceled promptly after such conversion, redemption, purchase or
acquisition and shall become authorized but unissued shares of Undesignated
Stock and may be reissued subject to the conditions and restrictions on issuance
in these Amended and Restated Articles of Incorporation, in any other
Certificate of Designation creating a series of preferred stock or any similar
stock, or as otherwise required by law.
6.3) Preemptive Rights. Shareholders shall not have any preemptive or
preferential rights for or to shares of this Corporation, whether now or
hereafter authorized, or to any obligations convertible into shares of this
Corporation, or to any options, warrants or other rights to acquire shares of
this Corporation, or to any subscription or right of subscription therefor,
except such, if any, as may be provided in any Certificate or as the Board of
Directors in its sole discretion may determine from time to time, and at such
price or terms as the Board of Directors may fix. The Board of Directors may, at
any time and from time to time, issue and sell for such consideration as may be
permitted by law and these Amended and Restated Articles of Incorporation, any
or all of the authorized shares of the Corporation not then issued and any and
all of any stock of any class or series that may hereafter be authorized.
6.4) Issuance of Shares. Subject to this Article 6, the Board of
Directors may issue any or all shares of the Corporation
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authorized by these Amended and Restated Articles of Incorporation and not
already issued, including any shares previously issued and reacquired by the
Corporation. Upon approval by the Board of Directors, shares may be issued (i)
for any consideration determined appropriate by the Board of Directors, or (ii)
for no consideration in order to effectuate share conversions, dividends or
splits, including reverse splits.
6.5) Issuance of Rights to Acquire Shares. Subject to Section 6.4, the
Board of Directors may issue rights to purchase shares of the Corporation, and
shall fix the terms, provisions and conditions of such rights to purchase,
including the conversion basis and the price at which shares may be purchased or
subscribed for. Shares to be issuable upon the exercise of all outstanding
rights to purchase, including such rights to be issued, must be authorized by
these Amended and Restated Articles of Incorporation and not already issued.
ARTICLE 7.7.
SHAREHOLDERS
Unless otherwise provided in these Amended and Restated Articles of
Incorporation or in any Certificate of Designation, all shareholder actions
shall require an affirmative vote of the holders of a majority of the voting
power of the shares represented and entitled to vote at a duly held meeting,
except where the law requires a vote with respect to all outstanding shares of
the Corporation, in which case the affirmative vote of a majority of the shares
entitled to vote (by class or series if more than one class or series of shares
is outstanding and entitled to vote separately as a class or series on such
matter) shall be sufficient to authorize the action.
ARTICLE 8.8.
NON-CUMULATIVE VOTING
Unless otherwise provided in these Amended and Restated Articles of
Incorporation or in a Certificate of Designation, cumulative voting for
directors shall not be permitted.
ARTICLE 9.9.
DIRECTORS
9.1) Power; Voting. The Board of Directors shall have the power and
authority to take any action required or permitted by law or by these Amended
and Restated Articles of Incorporation. The Board of Directors shall take action
by the affirmative vote of a majority of directors present at a duly held
meeting, except where law requires the affirmative vote of a larger proportion
or number.
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9.2) Written Action. Any action required or permitted to be taken at a
board meeting may be taken by written action signed by a majority of directors.
If the action must also be approved by the shareholders, then the action must be
taken by written action of all the directors.
9.3) Indemnification. A director of the Corporation shall not be
personally liable to the Corporation or its shareholders for monetary damages
for breach of fiduciary duty as a director, except for (i) liability based on a
breach of the duty of loyalty to the Corporation or the shareholders (ii)
liability for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law; (iii) liability under Minnesota
Statutes Section 302A.559 or 80A.23; or (iv) liability for any transaction from
which the director derived an improper personal benefit. If Chapter 302A of the
Minnesota Statutes is hereafter 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 Chapter 302A of the
Minnesota Statutes, as amended. Any repeal or modification of this Section 9.3
by the shareholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the
Corporation at the time of such repeal or modification.
ARTICLE 10.10.
BYLAWS
The Board of Directors may adopt bylaws which may contain any provision
relating to the management of the business or the regulation of the affairs of
the Corporation not inconsistent with law or these Amended and Restated Articles
of Incorporation. The power to adopt, amend or repeal the bylaws shall be vested
in the Board of Directors.
ARTICLE 11.11.
INAPPLICABILITY OF
MINNESOTA CONTROL SHARE ACQUISITION ACT
Section 302A.671 of the Minnesota Statutes shall not apply to the
Corporation, and these Amended and Restated Articles of Incorporation may not be
amended to make Section 302A.671 of the Minnesota Statutes applicable to the
Corporation without the affirmative vote of at least three-quarters (3/4) of the
voting power of the shares outstanding and entitled to vote.
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SCHEDULE 1
Certificates of Designation
---------------------------
Date Filed With
Number of Shares Minnesota Secretary
Certificate and Amendments and Corrections Designated of State
- -------------------------------------------------------------- ---------------- -------------------
Certificate of Designation of Rights and Preferences of 115,206 March 7, 2000
Class A Preferred Stock
March 17, 2000
As corrected by Articles of Correction of Certificate of
Designation of Rights and Preferences of Class A
Preferred Stock
Certificate of Designation of Rights and Preferences of 5,710,425 March 4, 1999
Class B Convertible Preferred Stock
As corrected by Articles of Correction of Certificate of August 17, 1999
Designation of Rights and Preferences of Class A
Preferred Stock, Class B Convertible Preferred Stock,
Class C Convertible Preferred Stock and Class D
Convertible Preferred Stock
Certificate of Designation of Rights and Preferences of 878,527 March 4, 1999
Class C Convertible Preferred Stock
As corrected by Articles of Correction of Certificate of August 17, 1999
Designation of Rights and Preferences of Class A
Preferred Stock, Class B Convertible Preferred Stock,
Class C Convertible Preferred Stock and Class D
Convertible Preferred Stock
SCHEDULE 1 (Continued)
Date Filed With
Number of Shares Minnesota Secretary
Certificate and Amendments and Corrections Designated of State
- -------------------------------------------------------------- ---------------- -------------------
Certificate of Designation of Rights and Preferences of 2,196,317 March 4, 1999
Class D Convertible Preferred Stock
As corrected by Articles of Correction of Certificate of August 17, 1999
Designation of Rights and Preferences of Class A
Preferred Stock, Class B Convertible Preferred Stock,
Class C Convertible Preferred Stock and Class D
Convertible Preferred Stock
Amendment to Certificate of Designation of Rights and 116,725 March 8, 2000
Preferences of Class E Convertible Preferred Stock
As corrected by Articles of Correction of Certificate of
Designation of Rights and Preferences of Class E March 17, 2000
Convertible Preferred Stock
Certificate of Designation of Rights and Preferences of 50,000 February 11, 2000
Class F Convertible Preferred Stock
As corrected by Articles of Correction of Certificate of March 1, 2000
Designation of Rights and Preferences of Class E
Convertible Preferred Stock and Class F Convertible
Preferred Stock
As further corrected by Articles of Correction of March 9, 2000
Certificate of Designation of Rights and Preferences of
Class F Convertible Preferred Stock
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SCHEDULE 1 (Continued)
Date Filed With
Number of Shares Minnesota Secretary
Certificate and Amendments and Corrections Designated of State
- -------------------------------------------------------------- ---------------- -------------------
Certificate of Designation of Rights and Preferences of 10,000 March 6, 2000
Class G Convertible Preferred Stock
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