EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ZIPLINK, INC.
ARTICLE I
The name of the corporation is ZipLink, Inc.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, City of Wilmington, County of New Castle, State of
Delaware 19805. The name of its registered agent at such address is Corporation
Service Company.
ARTICLE III
The nature of the business 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 the State of Delaware (the
"DGCL").
ARTICLE IV
A. The Corporation shall have authority to issue the following classes
of stock, in the number of shares and at the par value as indicated opposite the
name of the class:
- ---------------------------------------- ------------------------- ---------------
NUMBER OF SHARES PAR VALUE
CLASS AUTHORIZED PER SHARE
- ---------------------------------------- ------------------------- ---------------
Common Stock (the "Common Stock") 50,000,000 $.001
Preferred Stock (the "Preferred Stock") 1,000,000 $.001
- ---------------------------------------- ------------------------- ---------------
A. The designations and the powers, preferences and relative,
participating, optional or other rights of the capital stock and the
qualifications, limitations or restrictions thereof are as follows:
1. COMMON STOCK.
a. VOTING RIGHTS: Except as otherwise required by law
or expressly provided herein, the holders of shares of Common
Stock shall be entitled to one vote per share on each matter
submitted to a vote of the stockholders of the Corporation.
b. DIVIDENDS: Subject to the rights of the holders,
if any, of Preferred Stock, the holders of Common Stock shall
be entitled to receive and share ratably in cash dividends as,
when and if declared, and at such times and in such amounts as
may be determined, by the Board of Directors of the
Corporation.
c. LIQUIDATION RIGHTS: In the event of any
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, after payment or provision
for payment of the debts and other liabilities of the
Corporation and the preferential amounts to which the holders
of any outstanding shares of Preferred Stock shall be entitled
upon dissolution, liquidation or winding up, the assets of the
Corporation available for distribution to stockholders shall
be distributed ratably among the holders of the shares of
Common Stock.
2 PREFERRED STOCK. Preferred Stock may be issued from time to
time in one or more series. Subject to the other provisions of this
Certificate of Incorporation and any limitations prescribed by law, the
Board of Directors is authorized to provide for the issuance of and to
issue shares of the Preferred Stock in one or more series, and by
filing a certificate pursuant to the laws of the State of Delaware, to
establish from time to time the number of shares to be included in each
such series, and to fix the designation, powers, preferences and rights
of the shares of each such series and any qualifications, limitations
or restrictions thereof. The number of authorized shares of Preferred
Stock may be increased or decreased (but not below the number of shares
thereof then outstanding) by the affirmative vote of the holders of a
majority of the Common Stock, without a vote of the holders of any
Preferred Stock, or of any series thereof, unless a vote of any such
holders is required pursuant to the certificate or certificates
establishing such series of Preferred Stock.
ARTICLE V
The business and affairs of the Corporation shall be managed by or
under the direction of a Board of Directors. The number of directors shall be
determined from time to time by resolution adopted by the affirmative vote of a
majority of the directors in office at the time of adoption of such resolution.
Initially, the number of directors shall be three.
At each annual meeting of stockholders, directors will be elected by
those stockholders entitled to vote for directors. A director shall hold office
until the next annual meeting of
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stockholders and until his or her successor shall be elected and shall qualify,
subject, however, to such director's prior death, resignation or removal from
office. Except as required by law or the provisions of this Amended and Restated
Certificate of Incorporation, all vacancies on the Board of Directors and
newly-created directorships shall be filled by the Board of Directors. Any
director elected to fill a vacancy shall hold office until the next annual
meeting of stockholders and until his or her successor shall be elected and
shall qualify, or until his or her earlier death, resignation or removal from
office.
ARTICLE VI
The Board of Directors of the Corporation may adopt a resolution
proposing to amend, alter, change or repeal any provision contained in this
Amended and Restated Certificate of Incorporation, in the manner now or
hereafter prescribed by statute.
ARTICLE VII
A. Indemnification of Officers, Directors, Employees and Agents:
The Corporation shall:
1. indemnify, to the fullest extent permitted by the DGCL, any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by or in the right of the Corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in
good faith and in a manner such person reasonably believed to be in, or
not opposed to, the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause
to believe such person's conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith
and in a manner which such person reasonably believed to be in, or not
opposed to, the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that
such person's conduct was unlawful; and
2. indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that such person is or was a director,
officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or
agent of another
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corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the
best interests of the Corporation and except that no indemnification
shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper; and
3. to the extent that a present or former director or officer
of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Article
VII.A.1. and 2., or in defense of any claim, issue or matter therein,
indemnify such person against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection
therewith; and
4. make any indemnification under Article VII.A.1. and 2.
(unless ordered by a court) only as authorized in the specific case
upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because such person
has met the applicable standard of conduct set forth in Article
VII.A.1. and 2. Such determination shall be made, with respect to a
person who is an officer or director at the time of such determination,
(1) by the Board of Directors by a majority vote of the directors who
are not parties to such action, suit or proceeding, even if less than a
quorum, or (2) by a committee of such directors designated by a
majority vote of such directors, even if less than a quorum, or (3) if
there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (4) by the
stockholders of the Corporation; and
5. pay expenses (including attorneys' fees) incurred by a
director or officer in defending a civil or criminal action, suit or
proceeding in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the
Corporation as authorized in this Article VII; such expenses (including
attorneys' fees) incurred by former directors and officers or other
employees and agents to be so paid upon such terms and conditions, if
any, as the Corporation deems appropriate.
Notwithstanding anything to the contrary contained in this
Article VII.A, (i) the Corporation shall not be obligated to pay
expenses incurred by a director or officer with respect to any
threatened, pending, or completed claims, suits or actions, whether
civil, criminal, administrative, investigative or otherwise
("Proceedings"), initiated or brought voluntarily by such director or
officer and not by way of defense (other than Proceedings brought to
establish or enforce a right to indemnification under the provisions of
this
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Article VII, unless a court of competent jurisdiction determines that
each of the material assertions made by such director or officer in
such Proceedings were not made in good faith or were frivolous) and
(ii) the Corporation shall not be obligated to indemnify such director
or officer for any amount paid in settlement of a Proceeding covered
hereby without the prior written consent of the Corporation to such
settlement; and
6. not deem the indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of this
Article VII as exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
By-law, agreement, or vote of stockholders or disinterested directors,
or otherwise, both as to action in such person's official capacity and
as to action in another capacity while holding such office; and
7. have the right, authority and power to purchase and
maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the Corporation would have the
power to indemnify such person against such liability under the
provisions of this Article VII; and
8. deem the provisions of this Article VII to be a contract
between the Corporation and each director, or appropriately designated
officer, employee or agent who serves in such capacity at any time
while this Article VII is in effect, and any repeal or modification of
this Article VII shall not affect any rights or obligations then
existing with respect to any state of facts then or theretofore
existing or any action, suit or proceeding theretofore or thereafter
brought or threatened based in whole or in part upon such state of
facts. The provisions of this Article VII shall not be deemed to be a
contract between the Corporation and any directors, officers, employees
or agents of any other corporation (the "Second Corporation") which
shall merge into or consolidate with the Corporation when the
Corporation shall be the surviving or resulting Corporation, and any
such directors, officers, employees or agents of the Second Corporation
shall be indemnified to the extent required under the DGCL only at the
discretion of the Board of Directors of the Corporation; and
9. continue the indemnification and advancement of expenses
provided by, or granted pursuant to, this Article VII, unless otherwise
provided when authorized or ratified, as to a person who has ceased to
be a director, officer, employee or agent of the Corporation, and the
indemnification and advancement of expenses provided by, or granted
pursuant to, this Article VII shall inure to the benefit of the heirs,
executors and administrators of such a person.
B. ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS: No director of the
Corporation shall
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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 DGCL,
as the same exists or hereafter may be amended, or (iv) for any transaction from
which the director derived an improper personal benefit. If the DGCL is amended
to authorize the further elimination or limitation of liability of directors,
then the liability of a director of the Corporation existing at the time of such
elimination or limitation, in addition to the limitation on personal liability
provided herein, shall be limited to the fullest extent permitted by the amended
DGCL. Any repeal or modification of this Article VII shall be prospective only,
and shall not adversely affect any limitation on the personal liability of a
director of the Corporation existing at the time of such repeal or modification.
ARTICLE VIII
A director of the Corporation shall not, in the absence of fraud, be
disqualified by his office from dealing or contracting with the Corporation
either as a vendor, purchaser or otherwise, nor in the absence of fraud shall a
director of the Corporation be liable to account to the Corporation for any
profit realized by him from or through any transaction or contract of the
Corporation by reason of the fact that such director, or any firm of which such
director is a member or any corporation of which such director is an officer,
director or stockholder, was interested in such transaction or contract if such
transaction or contract has been authorized, approved or ratified in a manner
provided in the DGCL for authorization, approval or ratification of transactions
or contracts between the Corporation and one or more of its directors or
officers or between the Corporation and any other corporation, partnership,
association or other organization in which one or more of its directors or
officers are directors or officers or have a financial interest.
ARTICLE IX
A. WRITTEN CONSENT. At any time after the closing of an initial public
offering of the Corporation's Common Stock, any action required or permitted to
be taken by the stockholders of the Corporation shall be effected only at a duly
called annual or special meeting of stockholders of the Corporation and shall
not be effected by consent in writing by the holders of outstanding stock
pursuant to Section 228 of the DGCL or any other provision of the DGCL.
B. SPECIAL MEETINGS. Special meetings of stockholders of the
Corporation may be called upon not less than ten (10) nor more than sixty (60)
days' written notice only by the Board of Directors pursuant to a resolution
approved by a majority of the Board of Directors.
C. AMENDMENT. Notwithstanding anything contained in this Amended and
Restated Certificate of Incorporation to the contrary, the affirmative vote of
the holders of at least 80% of
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the shares entitled to vote generally in the election of directors shall be
required to amend, alter or repeal, or to adopt any provision inconsistent with,
this Article IX.
ARTICLE X
Meetings of stockholders may be held within or without the State of
Delaware as the By-laws of the Corporation may provide. The books of the
Corporation may be kept outside the State of Delaware at such place or places as
may be designated from time to time by the Board of Directors of the Corporation
or in the By-laws of the Corporation. Election of directors need not be by
written ballot unless the By-laws of the Corporation so provide.
ARTICLE XI
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
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 the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of the DGCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation under
the provisions of Section 279 of the DGCL, order a meeting of the creditors or
class of creditors and/or the stockholders or class of stock of the 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 (3/4) of the value of the
creditors or class of creditors and/or the stockholders or class of stockholders
of the Corporation, as the case may be, agree to any compromise or arrangement
or to any reorganization of the Corporation as a consequence of such compromise
or arrangement, said compromise or arrangement or said reorganization shall, if
sanctioned by the Court to which 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 the Corporation, as the case may be, and also on the
Corporation.
ARTICLE XII
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, alter amend or
repeal the By-laws of the Corporation. The By-laws of the Corporation may be
altered, amended, or repealed or new By-laws may be adopted, by the Board of
Directors in accordance with the preceding sentence or by the vote of the
holders of at least 80% of the voting power of the shares of the Corporation
entitled to vote generally in the election of directors at an annual or special
meeting of stockholders, provided that if such alteration, amendment, repeal or
adoption of new By-laws is effected at a duly called special meeting, notice of
such alteration, amendment, repeal or adoption of new By-laws is contained in
the notice of such special meeting.