Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
SBE, INC.
The undersigned, a natural person (the "Sole Incorporator"), for the
purpose of organizing a corporation to conduct the business and promote the
purposes hereinafter stated, under the provisions and subject to the
requirements of the laws of the State of Delaware hereby certifies that:
I.
The name of this corporation is SBE, Inc.
II.
The address of the registered office of the corporation in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New Castle, and
the name of the registered agent of the corporation in the State of Delaware at
such address is the The Corporation Trust Company.
III.
The purpose of this 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.
IV.
A. This corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total
number of shares which the corporation is authorized to issue is Twelve Million
(12,000,000) shares. Ten Million (10,000,000) shares will be Common Stock, par
value $0.001 per share, and Two Million (2,000,000) shares will be Preferred
Stock, par value $0.001 per share.
B. The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized, by filing a certificate
(a "Preferred Stock Designation") pursuant to the Delaware General
Corporation Law, to fix or alter from time to time the designation, powers,
preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions of any wholly unissued series of
Preferred Stock, and to establish from time to time the number of shares
constituting any such series or any of them; and to increase or decrease the
number of shares of any series subsequent to the issuance of shares of that
series, but not below the number of shares of such series then outstanding.
In case the number of shares of any series is decreased in accordance with
the foregoing sentence, the shares constituting such decrease will resume the
status that they had prior to the adoption of the resolution originally
fixing the number of shares of such series.
V.
For the management of the business and for the conduct of the affairs of
the corporation, and in further definition, limitation and regulation of the
powers of the corporation, of its directors and of its stockholders or any
class thereof, as the case may be, it is further provided that:
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A. (1) The management of the business and the conduct of the affairs
of the corporation will be vested in its Board of Directors. The number of
directors that will constitute the whole Board of Directors will be fixed
exclusively by one or more resolutions adopted by the Board of Directors.
(2) Subject to the rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances,
the directors will be divided into three classes designated as Class I, Class
II and Class III, respectively. Directors will 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
adoption and filing of this Certificate of Incorporation, the term of office
of the Class I directors will expire and Class I directors will be elected
for a full term of three years. At the second annual meeting of stockholders
following the adoption and filing of this Certificate of Incorporation, the
term of office of the Class II directors will expire and Class II directors
will be elected for a full term of three years. At the third annual meeting
of stockholders following the adoption and filing of this Certificate of
Incorporation, the term of office of the Class III directors will expire and
Class III directors will be elected for a full term of three years. At each
succeeding annual meeting of stockholders, directors will be elected for a
full term of three years to succeed the directors of the class whose terms
expire at such annual meeting. Notwithstanding the foregoing provisions of
this Article, each director will 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 will
shorten the term of any incumbent director.
(3) Subject to the rights of the holders of any series of
Preferred Stock, no director will be removed without cause. Subject to any
limitations imposed by law, the Board of Directors or any individual director
may be removed from office at any time with cause by the affirmative vote of
the holders of sixty-six and two thirds percent (66K%) of the voting power of
all the then-outstanding shares of voting stock of the corporation entitled
to vote at an election of directors (the "Voting Stock").
(4) Subject to the rights of the holders of any series of
Preferred Stock, any vacancies on the Board of Directors resulting from
death, resignation, disqualification, removal or other causes and any newly
created directorships resulting from any increase in the number of directors
will, unless the Board of Directors determines by resolution that any such
vacancies or newly created directorships will be filled by the stockholders,
except as otherwise provided by law, be filled only by the affirmative vote
of a majority of the directors then in office, even though less than a quorum
of the Board of Directors, and not by the stockholders. Any director elected
in accordance with the preceding sentence will hold office for the remainder
of the full term of the director for which the vacancy was created or
occurred and until such director's successor has been elected and qualified.
(5) In the event that Section 2115(a) of the California
Corporations Code is applicable to this corporation, then the following will
apply:
(a) Every stockholder entitled to vote in any election of
directors of this corporation may cumulate such stockholder's votes and give
one candidate a number of votes equal to the number of directors to be
elected multiplied by the number of votes to which the stockholder's shares
are otherwise entitled, or distribute the stockholder's votes on the same
principle among as many candidates as such stockholder thinks fit;
(b) No stockholder, however, may cumulate such stockholder's
votes for one or more candidates unless (A) the names of such candidates have
been properly placed in nomination, in
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accordance with the Bylaws of the corporation, prior to the voting, (B) the
stockholder has given advance notice to the corporation of the intention to
cumulative votes pursuant to the Bylaws, and (C) the stockholder has given
proper notice to the other stockholders at the meeting, prior to voting, of
such stockholder's intention to cumulate such stockholder's votes; and
(6) If any stockholder has given proper notice, all stockholders
may cumulate their votes for any candidates who have been properly placed in
nomination. The candidates receiving the highest number of votes of the
shares entitled to be voted for them up to the number of directors to be
elected by such shares shall be declared elected.
B. (1) Subject to paragraph (h) of Section 43 of the Bylaws, the
Bylaws may be altered or amended or new Bylaws adopted by the affirmative
vote of sixty-six and two thirds percent (66K%) of the then outstanding
shares of the Voting Stock. The Board of Directors will also have the power
to adopt, amend, or repeal Bylaws.
(2) The directors of the corporation need not be elected by
written ballot unless the Bylaws so provide.
(3) Following the filing with the Secretary of State of the State
of Delaware of the Agreement and Plan of Merger effecting the merger between
the corporation and SBE, Inc., a California corporation, no action will be
taken by the stockholders of the corporation except at an annual or special
meeting of stockholders called in accordance with the Bylaws.
(4) Special meetings of the stockholders of the corporation may be
called, for any purpose or purposes, by (A) the Chairman of the Board of
Directors, (B) the Chief Executive Officer, or (C) the Board of Directors
pursuant to a resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented to the
Board of Directors for adoption) or (D) by the holders of the shares entitled
to cast not less than sixty-six and two thirds percent (66K%) of the votes at
the meeting, and will be held at such place, on such date, and at such time
as the Board of Directors fix therefor.
(5) Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the corporation must be given in the manner provided in
the Bylaws of the corporation.
VI.
A. A director of the corporation will not be personally liable to the
corporation or its stockholders for monetary damages for any breach of
fiduciary duty as a director, except for liability (1) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (2) for
acts or omissions not in good faith or that involve intentional misconduct or
a knowing violation of law (3) under Section 174 of the Delaware General
Corporation Law, or (4) for any transaction from which the director derived
an improper personal benefit. If the Delaware General Corporation Law is
amended after approval by the stockholders of this Article to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director will be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law as so
amended.
B. Any repeal or modification of this Article VI will be prospective
and will not affect the rights under this Article VI in effect at the time of
the alleged occurrence of any act or omission to act giving rise to liability
or indemnification.
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VII.
A. 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
paragraph B. of this Article VII, and all rights conferred upon the
stockholders herein are granted subject to this reservation.
B. Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law that 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 sixty-six and two thirds percent (66K%) of
the then outstanding shares of the Voting Stock, voting together as a single
class, will be required to alter, amend or repeal Articles V, VI, and VII.
VIII.
The name and the mailing address of the Sole Incorporator is as follows:
NAME MAILING ADDRESS
JODIE M. BOURDET Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, CA 94111-3580
IN WITNESS WHEREOF, this Certificate has been subscribed this ____ day of
__________, 1997 by the undersigned, who affirms that the statements made herein
are true and correct.
--------------------------------
JODIE M. BOURDET
Sole Incorporator
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