STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "QUICKRESPONSE DELAWARE, INC.", FILED IN THIS OFFICE ON THE
TWENTY-THIRD DAY OF JUNE, A.D. 1997, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL]
/s/ Edward J. Freel
[SEAL] -----------------------------------
EDWARD J. FREEL, SECRETARY OF STATE
AUTHENTICATION: 8527432
DATE: 06-24-97
CERTIFICATE OF INCORPORATION OF
QUICKRESPONSE DELAWARE, INC.
FIRST: The name of this corporation is QuickResponse Delaware, Inc.
SECOND: The address of the registered office of the corporation in the State of
Delaware is 1013 Centre Road, Wilmington, New Castle, Delaware 19805, and the
name of its registered agent at that address is The Corporation Service Company.
THIRD: The name and mailing address of the incorporator of the
corporation is:
Andrew Baw
Brobeck, Phleger & Harrison LLP
Two Embarcadero Place
2200 Geng Road
Palo Alto, California 94303
FOURTH: 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.
FIFTH: The corporation is authorized to issue 30,000,000 shares,
20,000,000 of which are designated "Common Stock," $0.001 par value, and
10,000,000 of which are designated "Preferred Stock," $0.001 par value. The
Board of Directors is hereby authorized to fix or alter the rights, preferences,
privileges and restrictions granted to or imposed upon any series of Preferred
Stock, and the number of shares constituting any such series and the designation
thereof, or of any of them. The Board of Directors is also authorized to
increase or decrease the number of shares of any series, prior or subsequent to
the issue of that series, but not below the number of shares of such series then
outstanding. In case the number of shares of any series shall be so decreased,
the shares constituting such decrease shall resume the status which they had
prior to the adoption of the resolution originally fixing the number of shares
of such series.
SIXTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, repeal,
alter, amend and rescind from time to time any or all of the bylaws of the
corporation; provided, however, that any bylaw amendment adopted by the Board of
Directors increasing or reducing the authorized number of directors or amending,
repealing, altering or rescinding Article 3,
Section 3.2 of the Bylaws of the corporation shall require a resolution adopted
by the affirmative vote of not less than sixty-six and two-thirds percent
(66-2/3%) of the directors. Any Bylaw amendment adopted by the stockholders
increasing or reducing the authorized number of directors or amending,
repealing, altering or rescinding Article 3, Section 3.2 of the Bylaws of the
corporation shall require the approval of not less than sixty-six and two-thirds
percent (66-2/3%) of the total voting power of all outstanding shares of stock
of the corporation entitled to vote thereon.
SEVENTH: The number of directors of the corporation shall be fixed
from time to time by a Bylaw or amendment thereof duly adopted by the Board of
Directors.
The Board of Directors shall be classified with respect to the time
for which they severally hold office into three classes designated Class I,
Class II and Class III, as nearly equal in number as possible. Each director
shall serve for a term ending on the date of the third annual meeting of
stockholders following the annual meeting at which the director was elected;
provided, however, that the directors first elected to Class I shall serve for a
term ending on the annual meeting next following the end of fiscal year 1997,
the directors first elected to Class II shall serve for a term ending on the
annual meeting next following the end of fiscal year 1998 and the directors
first elected to Class III shall serve for a term ending on the annual meeting
next following the end of fiscal year 1999. Notwithstanding the foregoing, each
director shall serve until his successor shall have been duly elected and
qualified, unless he shall resign, become disqualified, disabled or shall
otherwise be removed.
At each annual election, directors chosen to succeed those whose terms
then expire shall be of the same class as the directors they succeed, unless by
reason of any intervening changes in the authorized number of directors, the
Board shall designate one or more directorships whose term then expires as
directorships of another class in order more nearly to achieve equality of
number of directors among the classes.
Notwithstanding the rule that the three classes shall be as nearly
equal in number of directors as possible, in the event of any change in the
authorized number of directors, each director then continuing to serve as such
shall nevertheless continue as a director of the class of which he is a member
until the expiration of his current term, or his prior death, resignation or
removal. If any newly created directorship may, consistently with the rule that
the three classes shall be as nearly equal in number of directors as possible,
be allocated to any class, the Board shall allocate it to that of the available
class whose term of office is due to expire at the earliest date following such
allocation.
EIGHTH: No stockholder will be permitted to cumulate votes in any
election of directors.
NINTH: Special meetings of the stockholders of this corporation for
any purpose or purposes may be called at any time upon the request in writing of
a majority of
2.
the Board of Directors or by the Chairman of the Board or the President of the
corporation. Any such request shall state the purpose or purposes of the
proposed meeting. As soon as reasonably practicable after receipt of such a
request, written notice of such meeting, stating the place, date (which shall be
sixty (60) days from the date of the notice) and hour of the meeting, shall be
given to each stockholder entitled to vote at such meeting. Special meetings
may not be called other than as provided in this ARTICLE NINTH.
TENTH: Stockholders of the corporation shall take action by meetings
held pursuant to this Certificate of Incorporation and the Bylaws. Stockholders
may not take any action by written consent in lieu of a meeting. Meetings of
stockholders may be held within or outside of the State of Delaware, as the
Bylaws may provide. The books of the corporation may be kept (subject to any
provision contained in the statute) outside 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.
ELEVENTH: 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, and all rights conferred on
stockholders herein are granted subject to this reservation. Notwithstanding
the foregoing, the provisions set forth in ARTICLES SIXTH, SEVENTH, TENTH,
TWELFTH and this ARTICLE ELEVENTH may not be repealed or amended in any respect
unless such repeal or amendment is approved by the affirmative vote of not less
than sixty-six and two-thirds percent (66-2/3%) of the total voting power of all
outstanding shares of stock of this corporation entitled to vote thereon, unless
such amendment or repeal has been previously approved by the vote of not less
than sixty-six and two-thirds percent (66-2/3%) of the members of the Board of
Directors, in which case those Articles of this Certificate of Incorporation may
be so amended or repealed by a vote of not less than a majority of the total
voting power of all outstanding shares of stock of the corporation entitled to
vote thereon.
TWELFTH: 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, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived any
improper personal benefit. If the Delaware General Corporation Law is hereafter
amended to authorize, with the approval of a corporation's stockholder, further
reductions in the liability of the directors of a corporation for breach of
fiduciary duty, then a director of the corporation shall not be liable for any
such breach to the fullest extent permitted by the Delaware General Corporation
Law as so amended. Any repeal or modification of the foregoing provisions of
this ARTICLE TWELFTH by the stockholders of the corporation shall not adversely
affect any right or protection of a director of the corporation existing at the
time of such repeal or modification.
3.
THIRTEENTH: Elections of directors need not be by written ballot
unless the Bylaws of the corporation shall so provide.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation to do business both within and without the
State of Delaware, and in pursuance of the Delaware General Corporation Law,
does hereby make this Certificate, hereby declaring and certifying that this is
my act and deed and the facts herein stated are true, and accordingly have
hereunto set my hand this 19th day of June 1997.
/s/ Andrew Baw
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Andrew Baw
4.