EXHIBIT 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
KANA COMMUNICATIONS, INC.
AS AMENDED BY THE CERTIFICATE OF AMENDMENT
DATED APRIL 18, 2000
The undersigned, Michael J. McCloskey and David A. Makarechian, hereby
certify that:
ONE: They are the duly elected and active Chief Executive Officer and
Assistant Secretary, respectively, of Kana Communications, Inc., a Delaware
corporation (the "Corporation").
TWO: The Second Amended and Restated Certificate of Incorporation of the
Corporation as amended shall read in its entirety as follows:
ARTICLE I
The name of this corporation is Kana Communications, Inc. (the
"Corporation").
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,
Delaware 19801. The name of the Corporation's registered agent at such address
is the Corporation Service Company.
ARTICLE III
The nature of the business or purposes to be conducted or
promoted 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
"GCL").
ARTICLE IV
The Corporation is authorized to issue two classes of stock to
be designated, respectively, "Common Stock" and "Preferred Stock." The total
number of shares that the Corporation is authorized to issue is One Billion Five
Million (1,005,000,000). One Billion (1,000,000,000) shares shall be Common
Stock, par value $0.001 per share, and Five Million (5,000,000) shares shall be
Preferred Stock, par value $0.001 per share.
The Preferred Stock may be issued from time to time in one or
more series, without further stockholder approval. The Board of Directors of the
Corporation is hereby authorized to fix or alter the rights, preferences,
privileges and restrictions granted to or imposed upon each series of Preferred
Stock, and the number of shares constituting any such series and the designation
thereof, or of any of them. The rights, privileges, preferences and restrictions
of any such additional series may be subordinated to, PARI PASSU with
(including, without limitation, inclusion in provisions with respect to
liquidation and acquisition preferences, redemption and/or approval of matters
by vote), or senior to any of those of any present or future class or series of
Preferred Stock or Common Stock. 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.
ARTICLE V
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 any or all of the Bylaws of the Corporation. In
addition, the Bylaws may be amended by the affirmative vote of holders of at
least sixty-six and two-thirds percent (66 2/3%) of the outstanding shares of
voting stock of the Corporation entitled to vote at an election of directors.
ARTICLE VI
The number of directors of the Corporation shall be determined
by resolution of the Board of Directors.
Elections of directors need not be by written ballot unless
the Bylaws of the Corporation shall so provide. Advance notice of stockholder
nominations for the election of directors and of any other business to be
brought before any meeting of the stockholders shall be given in the manner
provided in the Bylaws of this Corporation.
At each annual meeting of stockholders, directors of the
Corporation shall be elected to hold office until the expiration of the term for
which they are elected, or until their successors have been duly elected and
qualified; except that if any such election shall not be so held, such election
shall take place at a stockholders' meeting called and held in accordance with
the GCL.
The directors of the Corporation shall be divided into three
(3) classes as nearly equal in size as is practicable, hereby designated Class
I, Class II and Class III. For the purposes hereof, the initial Class I, Class
II and Class III directors shall be those directors so designated by a
resolution of the Board of Directors. At the first annual meeting of
stockholders following the closing of the initial public offering of the
Corporation's Common Stock, the term of office of the Class I directors shall
expire and Class I directors shall be elected for a full term of three (3)
years. At the second annual meeting of stockholders following the closing of the
initial public offering of the Corporation's Common Stock, the term of office of
the Class II directors shall expire and Class II directors shall be elected for
a full term of three (3) years. At the third annual meeting of stockholders
following the initial public offering of the Corporation's Common Stock, the
term of office of the Class III directors shall expire and Class III directors
shall be elected for a full term of three (3) years. At each succeeding annual
meeting of stockholders, directors shall be elected for a full term of three (3)
years to succeed the directors of the class whose terms expire at such annual
meeting. If the number of directors is hereafter changed, each director then
serving as such shall nevertheless continue as a director of the Class of which
he is a member until the expiration of his current term and any newly created
directorships or decrease in directorships shall be so apportioned among the
classes as to make all classes as nearly equal in number as is practicable.
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Vacancies occurring on the Board of Directors for any reason
may be filled by vote of a majority of the remaining members of the Board of
Directors, even if less than a quorum, at any meeting of the Board of Directors.
A person so elected by the Board of Directors to fill a vacancy shall 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 shall have been duly
elected and qualified. A director may be removed from office by the affirmative
vote of the holders of 66 2/3% of the outstanding shares of voting stock of the
Corporation entitled to vote at an election of directors, provided that such
removal is for cause.
ARTICLE VII
Stockholders of the Corporation shall take action by meetings
held pursuant to this Amended and Restated Certificate of Incorporation and the
Bylaws and shall have no right to take any action by written consent without a
meeting. Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. Special meetings of the stockholders, for
any purpose or purposes, may only be called by the Board of Directors of the
Corporation. The books of the Corporation may be kept (subject to any provision
contained in the statutes) 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.
ARTICLE VIII
To the fullest extent permitted by applicable law, this
Corporation is authorized to provide indemnification of (and advancement of
expenses to) directors, officers, employees and agents (and any other persons to
which Delaware law permits this Corporation to provide indemnification) through
Bylaw provisions, agreements with such agents or other persons, vote of
stockholders or disinterested directors or otherwise, in excess of the
indemnification and advancement otherwise permitted by Section 145 of the GCL,
subject only to limits created by applicable Delaware law (statutory or
non-statutory), with respect to action for breach of duty to the Corporation,
its stockholders, and others.
No director of the Corporation shall be personally liable to
the Corporation or any stockholder for monetary damages for breach of fiduciary
duty as a director, except for any matter in respect of which such director
shall be liable under Section 174 of the GCL or any amendment thereto or shall
be liable by reason that, in addition to any and all other requirements for such
liability, such director (1) shall have breached the director's duty or loyalty
to the Corporation or its stockholders, (2) shall have acted in manner involving
intentional misconduct or a knowing violation of law or, in failing to act,
shall have acted in a manner involving intentional misconduct or a knowing
violation of law, or (3) shall have derived an improper personal benefit. If the
GCL is hereafter amended to authorize the further elimination or limitation of
the liability of a director, the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the GCL, as so
amended.
Each person who was or is made a party or is threatened to be
made a party to or is in any way involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), including any appeal therefrom, by
reason of the fact that he or she, or a person of whom he or she is the
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legal representative, is or was a director or officer of the Corporation or a
direct or indirect subsidiary of the Corporation, or is or was serving at the
request of the Corporation as a director or officer of another entity or
enterprise, or was a director or officer of a foreign or domestic corporation
which was predecessor corporation of the Corporation or of another entity or
enterprise at the request of such predecessor corporation, shall be indemnified
and held harmless by the Corporation, and the Corporation shall advance all
expenses incurred by any such person in defense of any such proceeding prior to
its final determination, to the fullest extent authorized by the GCL. In any
proceeding against the Corporation to enforce these rights, such person shall be
presumed to be entitled to indemnification and the Corporation shall have the
burden of proving that such person has not met the standards of conduct for
permissible indemnification set forth in the GCL. The rights to indemnification
and advancement of expenses conferred by this Article VIII shall be presumed to
have been relied upon by the directors and officers of the Corporation in
serving or continuing to serve the Corporation and shall be enforceable as
contract rights. Said rights shall not be exclusive of any other rights to which
those seeking indemnification may otherwise be entitled. The Corporation may,
upon written demand presented by a director or officer of the Corporation or of
a direct or indirect subsidiary of the Corporation, or by a person serving at
the request of the Corporation as a director or officer of another entity or
enterprise, enter into contracts to provide such persons with specified rights
to indemnification, which contracts may confer rights and protections to the
maximum extent permitted by the GCL, as amended and in effect from time to time.
If a claim under this Article VIII is not paid in full by the
Corporation within sixty (60) days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expenses of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce the right to be advanced expenses incurred in
defending any proceeding prior to its final disposition where the required
undertaking, if any, has been tendered to the Corporation ) that the claimant
has not met the standards of conduct which make it permissible under the GCL for
the Corporation to indemnify the claimant for the amount claimed, but the
claimant shall be presumed to be entitled to indemnification and the Corporation
shall have the burden of proving that the claimant has not met the standards of
conduct for permissible indemnification set forth in the GCL.
If the GCL is hereafter amended to permit the Corporation to
provide broader indemnification rights than said law permitted the Corporation
to provide prior to such amendment, the indemnification rights conferred by this
Article VIII shall be broadened to the fullest extent permitted by the GCL, as
so amended.
ARTICLE IX
The Corporation reserves the right 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, and all
rights conferred upon stockholders herein are granted subject to this
reservation. Notwithstanding the foregoing, the provisions set forth in Articles
V, VI, VII, VIII and IX of this Amended and Restated Certificate of
Incorporation may not be
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repealed or amended in any respect without the affirmative vote of holders at
least 66-2/3% of the outstanding voting stock of the Corporation entitled to
vote at election of directors.
THREE: The Certificate of Amendment has been duly adopted by the
Board of Directors of the Corporation in accordance with Sections 141(f) and 242
of the General Corporation Law of the State of Delaware.
FOUR: The Certificate of Amendment was approved by the holders of
the requisite number of shares of the Corporation in accordance with the
appliable provisions of Sections 216 and 242 of the General Corporation Law of
the state of Delaware.
IN WITNESS WHEREOF, the undersigned have executed this certificate on
April 18, 2000.
/s/Michael J. McCloskey
----------------------------------------------------
Michael J. McCloskey, CHIEF EXECUTIVE OFFICER
/s/David A. Makarechian
----------------------------------------------------
David A. Makarechian, ASSISTANT SECRETARY
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