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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
EPS SOLUTIONS CORPORATION
(Originally Incorporated May 29, 1998)
EPS SOLUTIONS CORPORATION, a corporation organized and existing under
the laws of the State of Delaware (hereinafter called the "CORPORATION"), hereby
certifies pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware (the "GCL") as follows:
FIRST: The Corporation was incorporated on May 29, 1998.
SECOND: A Certificate of Amendment of the Corporation was filed with the
Secretary of State on July 10, 1998, changing the name of the Corporation to
ProfitSource Corporation.
THIRD: An Amended and Restated Certificate of Incorporation was filed
with the Secretary of State on August 25, 1998 under the name of ProfitSource
Corporation.
FOURTH: A Certificate of Amendment of the Corporation was filed with the
Secretary of State on December 15, 1998, changing the name of the Corporation to
EPS Solutions Corporation.
FIFTH: This Amended and Restated Certificate of Incorporation amends and
restates the Amended and Restated Certificate of Incorporation of the
Corporation, as previously amended and now in effect. This Amended and Restated
Certificate of Incorporation was adopted in accordance with the applicable
provisions of Sections 242 and 245 of the GCL to read as follows:
1. Name. The name of the Corporation is EPS Solutions Corporation.
2. Registered Office. The address of the registered office of the
Corporation in the State of Delaware is 9 East Loockerman Street, in the City of
Dover 19901, County of Kent, and the name of its registered agent at that
address is National Registered Agents, Inc.
3. Purpose. The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the GCL.
4. Authorized Capital Stock.
4.1 Number of Authorized Shares. The Corporation shall be
authorized to issue two classes of stock to be designated, respectively, "Common
Stock" and "Preferred Stock." The total number of shares which the Corporation
shall have authority to issue is two-
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hundred fifty million (250,000,000), of which two-hundred forty million
(240,000,000) shares shall be Common Stock having a par value of $0.001 per
share (the "COMMON STOCK"), and ten million (10,000,000) shares shall be
Preferred stock having a par value of $0.001 per share (the "PREFERRED STOCK").
All shares of Series A Common Stock and Series B Common Stock outstanding before
the effective date of this Amended and Restated Certificate of Incorporation
shall, as of the effectiveness of this Amended and Restated Certificate of
Incorporation, constitute a single class of Common Stock.
4.2 Common Stock. The Board of Directors of the Corporation (the
"BOARD") may authorize the issuance of shares of Common Stock from time to time.
Shares of Common Stock that are redeemed, purchased or otherwise acquired by the
Corporation may be reissued except as otherwise provided by law.
4.3 Preferred Stock. The Board may authorize the issuance of
shares of Preferred Stock from time to time in one or more series. Shares of
Preferred Stock that are redeemed, purchased or otherwise acquired by the
Corporation may be reissued except as otherwise provided by law. The Board is
hereby authorized to fix or alter the designations, powers and preferences, and
relative, participating, optional or other rights, if any, and qualifications,
limitations or restrictions thereof, including without limitation, dividend
rights, (and whether dividends are cumulative), conversion rights, if any,
voting rights (including the number of votes, if any, per share, as well as the
number of members, if any, of the Board or the percentage of members, if any, of
the Board each class or series of Preferred Stock may be entitled to elect),
rights and terms of redemption (including sinking fund provisions, if any),
redemption price and liquidation preferences of any wholly unissued series of
Preferred Stock, and the number of shares constituting any such series and the
designation thereof, and to increase or decrease the number of shares of any
such series subsequent to the issuance of shares of such series, but not below
the number of shares of such series then outstanding.
5. Election of Directors. Members of the Board may be elected either by
written ballot or voice vote.
6. Amendment of Corporate Documents.
6.1 Certificate of Incorporation. The Corporation reserves the
right to alter, amend, repeal or rescind any provision contained in this
Certificate of Incorporation in any manner now or hereafter prescribed by law,
and all rights conferred on stockholders herein are granted subject to this
reservation; provided, however, that any amendment of this Article 6 or Article
9 will require an affirmative vote of the holders of seventy-five percent (75%)
or more of the total voting power of all outstanding shares of voting stock of
the Corporation.
6.2 Bylaws. In furtherance and not in limitation of the powers
conferred by statute, the Board is expressly authorized to make, repeal, alter,
amend, and rescind the bylaws of the Corporation. Bylaws shall not be made,
repealed, altered, amended or rescinded by the stockholders of the Corporation,
except by a vote of the holders of seventy-five percent (75%) or more of the
total voting power of all outstanding shares of voting stock of the Corporation.
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7. Limitation of Director Liability and Indemnification. To the fullest
extent permitted by the GCL, as the same exists or may hereafter be amended
(provided that the effect of any such amendment shall be prospective only) and
as interpreted by the courts of the State of Delaware ("Delaware Law"), a
director of the Corporation shall not be liable to the Corporation or its
stockholders for monetary damages for breach of his or her fiduciary duty as a
director. The Corporation shall indemnify, in the manner and to the fullest
extent permitted by Delaware Law (but in the case of any amendment of Delaware
Law, only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than permitted prior thereto), any person (or the
estate of any person) who is or was a party to, or is threatened to be made a
party to, any threatened, pending or completed action, suit or proceeding,
whether or not by or in the right of the Corporation, and whether civil,
criminal, administrative, investigative or otherwise, by reason of the fact that
such person is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise.
8. California Law. This Article shall apply at any time and from time to
time only to the extent that the laws of California govern certain affairs of
the Corporation by virtue of the lawful application of Section 2115 of the
California General Corporation law.
8.1 Limitation of Director Liability. The liability of the
directors of the Corporation for monetary damages shall be eliminated to the
fullest extent permissible under California law.
8.2 Indemnification of Agents.
(a) The Corporation is authorized to provide indemnification of
agents, as that term is defined in Section 317 of the California General
Corporation Law, for breach of duty to the Corporation and its stockholders, to
the fullest extent permissible under California law, under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise. In the event that
any indemnification obligation provided for in any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, whether currently in
effect or hereafter adopted, exceeds the limits on indemnification of agents
allowed under California law, such indemnification obligation shall be
construed, and shall be deemed to be limited and modified, to the extent, but
only to the extent, necessary to prevent such indemnification obligation from
exceeding such limits on excess indemnification.
(b) Any repeal or modification of the foregoing provisions of this
Section 8.2 by the stockholders of the Corporation shall not adversely affect
any right or protection of an agent of the Corporation existing at the time of
such repeal or modification.
9. Stockholder Action by Written Consent. Any action required to be
taken at any annual or special meeting of stockholders of the Corporation, or
any action which may be taken at any annual or special meeting of such
stockholders, may, if such action has been earlier approved by the Board, be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than seventy-five percent (75%) of the votes
entitled to vote thereon and delivered to the Corporation at its principal place
of business. Prompt notice of the taking of the
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corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
10. Creditor Compromise or Arrangement. 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 GCL 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 GCL order a
meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders 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 in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to 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 the Corporation, as the case may be, and also on the
Corporation.
WITNESS the execution of this Amended and Restated Certificate of
Incorporation this 19th day of November, 1999.
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David H. Hoffmann, President
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