Exhibit 3.1
Amended and Restated
Certificate of Incorporation
of
Imtek Office Solutions, Inc.
Imtek Office Solutions, Inc., a Delaware corporation (the "Corporation")
hereby files this Amended and Restated Certificate of Incorporation.
NOW, THEREFORE, IT IS HEREBY CERTIFIED THAT:
1. The name of the corporation filing this Amended and Restated Certificate of
Incorporation is Imtek Office Solutions, Inc., a Delaware corporation.
2. The Corporation was originally incorporated under the name of Vision
Capital, Inc., a Delaware corporation ("Vision"). Vision originally filed
its Certificate of Incorporation with the Secretary of State of Delaware on
November 9, 1987.
3. This Amended and Restated Certificate of Incorporation hereby amends and
restates in its entirety the Certificate of Incorporation of the
Corporation to read as follows:
Amended and Restated
Certificate of Incorporation
Of
Imtek Office Solutions, Inc.
Article I.
Name
The name of this corporation is Imtek Office Solutions, Inc.
Article II.
Registered Office; Registered Agent
The address of the registered office of the corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the registered agent of the
corporation in the State of Delaware at such address is The Corporation Trust
Company.
Article III.
Purpose
The purpose of the 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.
Article IV.
Capital Stock
A. General Authorization. The Corporation is authorized to issue
two classes of stock to be designated, respectively, "Common Stock" and
"Preferred Stock". The total number of shares of all classes of stock which
the Corporation shall have the authority to issue shall be Two Hundred and
Fifty-Five Million (255,000,000) shares. Two Hundred and Fifty Million
(250,000,000) shares shall be Common Stock, each having a par value of
$.000001 per share. Five Million (5,000,000) shares shall be Preferred
Stock, each having a par value of $0.01 per share.
B. Common Stock. The Common Stock of the Corporation shall have such
designations, voting powers, preferences, and such other special rights and
qualifications, limitations and restrictions thereon as are provided by
Delaware General Corporation Law.
C. Preferred Stock. (1) 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 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 thereof, including without limitation the dividend rights,
dividend rate, conversion rights, voting rights, rights and terms of
redemption (including sinking fund provisions), redemption price or prices,
and the liquidation preferences of any wholly unissued series of Preferred
Stock, and to establish from time to time the number of shares constituting
any such series and the designation thereof, or any of them (a "Preferred
Stock Designation"), 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 shall be decreased in accordance with the foregoing
sentence, the shares constituting such decrease shall resume the status that
they had prior to the adoption of the resolution originally fixing the number
of shares of such series. Different series of Preferred Stock shall not be
considered to constitute different classes of shares for the purpose of
voting by classes (except as otherwise fixed by the Board of Directors with
respect to any series at the time of the creation thereof).
(2) The Corporation has authority to issue 75,000 shares of its
Preferred Stock as Series A Convertible Preferred Stock, par value $.01 per
share, pursuant to that certain Certificate of Designation of Series A
Convertible Preferred Stock of the Corporation filed with the Secretary of
State of
Delaware on March 23, 1998 (the "Series A Convertible Preferred
Designation"). The designation, voting powers or lack thereof, preferences,
and such other special rights and qualifications, limitations and
restrictions of the Series A Convertible Preferred Stock are as set forth in
the Series A Convertible Preferred Designation.
D. Negation of Preemptive Rights. Except as set forth in a duly adopted
resolution of the Board of Directors or pursuant to a written agreement duly
authorized by the Board of Directors, the holders of the capital stock of the
Corporation shall have no preemptive rights to subscribe for any shares of any
class of stock of the Corporation whether now or hereafter authorized.
Article V.
Board of Directors and Stockholders
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:
A. 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 shall constitute the whole Board of Directors shall be fixed
exclusively by one or more resolutions adopted from time to time by the Board
of Directors.
B. From and after the closing of the Corporation's initial public
offering pursuant to an effective registration statement under the Securities
Act of 1933, as amended, covering the offer and sale of the Common Stock (the
"Initial Public Offering"), the directors of the Corporation 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 prior to the
Initial Public Offering. At the first annual meeting of stockholders
following the Initial Public Offering, 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
closing of the Initial Public Offering, 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 closing of the Initial Public Offering, 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.
Notwithstanding the foregoing provisions of this Article, each director shall
serve until his
successor is duly elected and qualified or until his death, resignation or
removal. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
C. The Board of Directors is expressly authorized to alter,
amend, or repeal or adopt new Bylaws by the affirmative vote of a majority of
directors present and voting at a meeting of directors duly called and
noticed at which a quorum of directors is present.
D. The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
E. From and after the Initial Public Offering, any director, or
the entire Board of Directors, may be removed from office only (i) for cause,
and (ii) 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 VI.
Alteration, Amendment or Repeal of Certain Articles
From and after the Initial Public Offering and 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 V, Article VI ,
Article VIII or Article IX hereof.
Article VII.
Section 102(b)(2) Statement
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a
summary way of this Corporation or of any creditor or stockholder thereof or
on the application of any receiver or receivers appointed for this
corporation under Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this corporation under Section 279 of Title 8 of the Delaware
Code order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority
in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of
this Corporation, as the case may be, agree to any compromise or arrangement
and to any reorganization of this Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court at which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of stockholders, of this
Corporation, as the case may be, and also on this Corporation.
Article VIII.
Reservation of Right to Amend, Alter, Change or Repeal Certificate of
Incorporation
Subject to Article VI hereof, the corporation reserves the right at
any time, and from time to time, to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, and other
provisions authorized by the laws of the State of Delaware at the time in
force may be added or inserted, in the manner now or hereafter prescribed by
law, and all rights, preferences and privileges of whatsoever nature
conferred upon the stockholders, directors or any other persons whomsoever by
and pursuant to this Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the rights reserved in this Article.
Article IX.
Limitation of Liability and Indemnification
A. The liability of the directors of the Corporation for monetary
damages shall be eliminated to the fullest extent permissible under Delaware
law.
B. The Corporation is authorized to provide indemnification of
agents (as defined in Section 145 of the Delaware General Corporation Law)
for breach of duty to the Corporation and its stockholders through bylaw
provisions, through agreements with the agents, and/or through stockholder
resolutions, or otherwise, in excess of the indemnification otherwise
permitted by Section 145 of the Delaware General Corporation Law.
C. Any repeal or modification of this Article IX shall be
prospective and shall not affect the rights under this Article IX in effect
at the time of the alleged occurrence of any act or omission to act giving
rise to liability or indemnification.
4. The Board of Directors of the Corporation adopted a resolution
setting forth this Amended and Restated Certificate of Incorporation herein
certified, declaring its advisability and submitting this Amended and
Restated Certificate of Incorporation to the stockholders entitled to vote in
respect thereof in order to consider the adoption of this Amended and
Restated Certificate of Incorporation.
5. Pursuant to the aforementioned resolution of the Corporation's
Board of Directors, the Amended and Restated Certificate of Incorporation
herein certified was duly adopted in accordance with Section 242 of the
Delaware General Corporation Law by the consent of at least a majority of the
outstanding stock entitled to vote thereon, and a majority of the outstanding
stock of each class entitled to vote thereon as a class. This Amended and
Restated Certificate of Incorporation herein certified has been duly adopted
in accordance with the provisions of Sections 242 and 245 of the Delaware
General Corporation Law.
6. This Amended and Restated Certificate of Incorporation shall become
effective when filed with the Secretary of State of Delaware.
SIGNED AND ACKNOWLEDGED: IMTEK OFFICE SOLUTIONS, INC.
ATTEST:
By: /s/ Edwin C. Hirsch
/s/ Robert J. Brown --------------------------------
- -------------------------------- Edwin C. Hirsch, President
Robert J. Brown, Secretary