EXHIBIT 3.1(ii)
---------------
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BRIDGELINE SOFTWARE, INC.
Pursuant to Sections 241 and 245 of the
General Corporation Law
of the State of Delaware
Bridgeline Software, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. The name of the Corporation is "Bridgeline Software, Inc."
2. The original Certificate of Incorporation of the Corporation (the
"CERTIFICATE") was filed in the office of the Secretary of State of the State of
Delaware on August 28, 2000. An amendment to the Certificate was filed in the
office of the Secretary of State of the State of Delaware on April 7, 2006
3. In the manner prescribed by Sections 242 and 245 of the General
Corporation Law of the State of Delaware (the "DGCL"), this Amended and Restated
Certificate of Incorporation was duly adopted at a meeting of the Board of
Directors of the Corporation held on August 18, 2006 pursuant to Section 141 of
the DGCL, and by written consent of the stockholder of the Corporation on
September 29, 2006 pursuant to Section 228 of the DGCL.
4. The Certificate is hereby amended and restated in its entirety and
the text of the Amended and Restated Certificate of Incorporation (the "AMENDED
AND RESTATED CERTIFICATE") is to read as follows:
ARTICLE 1. NAME
The name of this corporation is Bridgeline Software, Inc. (the
"Corporation").
ARTICLE 2. REGISTERED OFFICE AND AGENT
The address of the registered office of the Corporation in the State
of Delaware is 1209 Orange Street, in the city of Wilmington, in the county of
New Castle. The registered agent of the Corporation at such address is The
Corporation Trust Company.
ARTICLE 3. PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the DGCL.
ARTICLE 4. CAPITAL STOCK
4.1. AUTHORIZED SHARES
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 that the Corporation shall have the authority
to issue is Twenty-One Million (21,000,000), of which Twenty Million
(20,000,000) shares shall be Common Stock, having a par value of $.001 per
share, and of which One Million (1,000,000) shares shall be Preferred Stock,
having a par value of $.001 per share.
4.2. COMMON STOCK
4.2.1. RELATIVE RIGHTS
The Common Stock shall be subject to all of the rights, privileges,
preferences and priorities of the Preferred Stock as set forth in one or more
the certificates of designations, preferences and relative rights filed with the
State of Delaware to establish the respective series of Preferred Stock. Each
share of Common Stock shall have the same relative rights as, and be identical
in all respects to, all the other shares of Common Stock.
4.2.2. DIVIDENDS
Whenever there shall have been paid, or declared and set aside for
payment, to the holders of shares of any class of stock having preference over
the Common Stock as to the payment of dividends, the full amount of dividends
and of sinking fund or retirement payments, if any, to which such holders are
respectively entitled in preference to the Common Stock, then dividends may be
paid on the Common Stock and on any class or series of stock entitled to
participate therewith as to dividends, out of any assets legally available for
the payment of dividends thereon, but only when and as declared by the Board of
Directors of the Corporation.
4.2.3. DISSOLUTION, LIQUIDATION, WINDING UP
In the event of any dissolution, liquidation, or winding up of the
Corporation, whether voluntary or involuntary, the holders of the Common Stock,
and holders of any class or series of stock entitled to participate therewith,
in whole or in part, as to the distribution of assets in such event, shall
become entitled to participate in the distribution of any assets of the
Corporation remaining after the Corporation shall have paid, or provided for
payment of, all debts and liabilities of the Corporation and after the
Corporation shall have paid, or set aside for payment, to the holders of any
class of stock having preference over the Common Stock in the event of
dissolution, liquidation or winding up the full preferential amounts (if any) to
which they are entitled.
2
4.2.4. VOTING RIGHTS
Each holder of shares of Common Stock shall be entitled to attend all
special and annual meetings of the stockholders of the Corporation and, share
for share and without regard to class, together with the holders of all other
classes of stock entitled to attend such meetings and to vote (except any class
or series of stock having special voting rights), to cast one vote for each
outstanding share of Common Stock so held upon any matter or thing (including,
without limitation, the election of one or more directors) properly considered
and acted upon by the stockholders.
4.3. PREFERRED STOCK
The Board of Directors of the Corporation is authorized, subject to
limitations prescribed by the DGCL and the provisions of this Amended and
Restated Certificate, to provide, by resolution or resolutions from time to time
and by filing a certificate or certificates of designations pursuant to the
DGCL, for the issuance of the shares of Preferred Stock in series, to establish
from time to time the number of shares to be included in each such series, the
voting powers (if any) of the shares to be included in each such series, to fix
the powers, designations, preferences and relative, participating, optional or
other special rights of the shares of each such series and to fix the
qualifications, limitations or restrictions thereof, including without
limitation thereof, dividend rights, special voting rights, conversion rights,
redemption privileges and liquidation preferences, as shall be stated and
expressed in such resolutions, all to the full extent now or hereafter permitted
by the DGCL. Without limiting the generality of the foregoing, the resolutions
providing for issuance of any series of Preferred Stock may provide that such
series shall be superior or rank equally or be junior to the Preferred Stock of
any other series to the extent permitted by law. Except as otherwise
specifically provided in this Amended and Restated Certificate, no vote of the
holders of the Preferred Stock or Common Stock shall be a prerequisite to the
issuance of any shares of any series of the Preferred Stock authorized by and
complying with the conditions of this Amended and Restated Certificate, the
right to have such vote being expressly waived by all present and future holders
of the capital stock of the Corporation..
ARTICLE 5. BOARD OF DIRECTORS
5.1. NUMBER; TERM; ELECTION
The number of directors of the Corporation shall be such number as
from time to time shall be fixed by, or in the manner provided in, the bylaws of
the Corporation. Unless and except to the extent that the bylaws of the
Corporation shall otherwise require, the election of directors of the
Corporation need not be by written ballot. Except as otherwise provided in this
Amended and Restated Certificate, each director of the Corporation shall be
entitled to one vote per director on all matters voted or acted upon by the
Board of Directors.
3
Subject to the rights of holders of any series of Preferred Stock to
elect additional directors under specified circumstances, the directors shall be
divided into three classes, designated as Class I, Class II and Class III,
respectively, as nearly equal in number as possible. The number of directors in
each class shall be determined in the manner provided in the bylaws of the
Corporation. Directors shall be assigned to each class in accordance with a
resolution or resolutions adopted by the Board of Directors.
The term of office of the first class (Class I) shall expire at the
first annual meeting of stockholders or any special meeting in lieu thereof
following the closing of the initial public offering of the Corporation's
securities pursuant to an effective registration statement filed with the U.S.
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "INITIAL PUBLIC OFFERING"); the term of office of the second class (Class
II) shall expire at the second annual meeting of stockholders or any special
meeting in lieu thereof following the Initial Public Offering; and the term of
office of the third class (Class III) shall expire at the third annual meeting
of stockholders or any special meeting in lieu thereof following the Initial
Public Offering. At each annual meeting of stockholders or special meeting in
lieu thereof, directors elected to succeed those directors whose terms expire
shall be elected for a term of office to expire at the third succeeding annual
meeting of the stockholders or special meeting in lieu thereof after their
election and until their successors are duly elected and qualified. Directors
need not be residents of the state of incorporation or stockholders of the
Corporation.
Notwithstanding the foregoing provisions of this ARTICLE 5, each
director shall 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 shall shorten the terms of any
incumbent director.
With respect to newly created directorships resulting from an increase
in the number of directors, the Board of Directors shall determine and designate
to which class of directorships each director belongs.
5.2. MANAGEMENT OF BUSINESS AND AFFAIRS OF THE CORPORATION.
The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
5.3. INDEMNIFICATION.
To the fullest extent permitted by the DGCL as it presently exists or
may hereafter be amended, the Corporation shall indemnify any person (and such
person's heirs, executors or administrators) who was or is made or is threatened
to be made a party to or is otherwise involved in any threatened, pending or
completed action, suit or proceeding (brought in the right of the Corporation or
otherwise), whether civil, criminal, administrative or investigative, and
whether formal or informal, including appeals, by reason of the fact that such
person, or a person for whom such person was the legal
4
representative, is or was a director or officer of the Corporation or, while a
director or officer of the Corporation, is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, limited liability
company, nonprofit entity or other enterprise, for and against all loss and
liability suffered and expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement reasonably incurred by such person or such heirs,
executors or administrators in connection with such action, suit or proceeding,
including appeals, if (i) 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 (ii) with respect to any criminal action or proceeding, such
person had no reasonable cause to believe his or her 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 such person did not act in good faith, did not
act in a manner that he or she reasonably believed to be in, or not opposed to,
the best interests of the Corporation or, with respect to any criminal action or
proceeding, did not have reasonable cause to believe that such person's conduct
was unlawful. The foregoing right of indemnification shall in no way be
exclusive of any other rights of indemnification to which any such person may be
entitled, under any by-law, agreement, vote of directors or stockholders or
otherwise. No amendment to or repeal of the provisions of this paragraph shall
deprive a person of the benefit of this paragraph with respect to any act or
failure to act of such person occurring prior to such amendment or repeal.
5.4. LIMITATION OF LIABILITY
No director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that this provision shall not eliminate or limit the
liability of a director (a) for any breach of the director's duty of loyalty to
the Corporation or its stockholders; (b) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law; (c) under
Section 174 of the DGCL; or (d) for any transaction from which the director
derived an improper personal benefit. Any repeal or modification of this Section
5.4 shall be prospective only and shall not adversely affect any right or
protection of, or any limitation of the liability of, a director of the
Corporation existing at, or arising out of facts or incidents occurring prior
to, the effective date of such repeal or modification.
ARTICLE 6. AMENDMENT OF CERTIFICATE
The Corporation reserves the right to amend, alter or repeal any
provision contained in this Amended and Restated Certificate in the manner
prescribed by the laws of the State of Delaware and all rights conferred upon
stockholders are granted subject to this reservation; provided, however, that,
notwithstanding any other provision of this Amended and Restated Certificate or
any provision of law that might otherwise permit a lesser vote or no vote, but
in addition to any vote of the holders of any class or series of the stock of
this Corporation required by law or by this Amended and Restated Certificate,
the affirmative vote of the holders of at least sixty-six and two-thirds percent
5
(66 2/3%) of the voting power of all of the then-outstanding shares of the
capital stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to amend or
repeal this Article 6 or Article 5 of this Amended and Restated Certificate.
ARTICLE 7. ADOPTION AND AMENDMENT OF BYLAWS.
The Board of Directors of the Corporation shall adopt, and may amend
and restate from time to time, the by-laws of the Corporation. Any amendment of
the by-laws shall require the affirmative vote of at least sixty-six and
two-thirds percent (66 2/3%) of the directors comprising the Board of Directors,
at a meeting called for the purpose of amending and/or restating the Bylaws.
Absent affirmative vote of at least sixty-six and two-thirds percent (66 2/3%)
of the directors comprising the Board of Directors, at a meeting called for the
purpose of amending and/or restating the Bylaws, the stockholders of the Company
may amend the by-laws by an affirmative vote of sixty-six and two-thirds percent
(66 2/3%) of each class of issued and outstanding shares of voting securities of
the Corporation.
ARTICLE 8. NO STOCKHOLDER ACTION BY WRITTEN CONSENT
After the Initial Public Offering, the stockholders of the Corporation
may not take action by written consent without a meeting and must take any
actions at a duly called annual or special meeting. Meetings of stockholders may
be called in the manner and by the persons specified in the Corporation's
by-laws.
ARTICLE 9. SURVIVAL
If any Article of this Amended and Restated Certificate or any portion
thereof is found to be void or unenforceable by a court of competent
jurisdiction, the remaining Articles or portions of said Article, as the case
may be, shall nevertheless remain in full force and effect as though the
unenforceable part had been severed and deleted.
6
IN WITNESS WHEREOF, the undersigned hereby certifies that the facts
hereinabove stated are truly set forth, and accordingly executes this Amended
and Restated Certificate of Incorporation this 18th day of October, 2006.
BRIDGELINE SOFTWARE, INC.
By: /s/Thomas Massie
---------------------
Thomas Massie
President
7