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Exhibit 3.iii
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
KINETIKS.COM, INC.
It is hereby certified that:
1. The original name of the corporation (the "Corporation") was
KINETIKS.COM, INC., which is the name under which the Corporation was originally
incorporated, and the date of filing of the original Certificate of
Incorporation of the Corporation with the Secretary of State of the State of
Delaware is August 9, 1995.
2. The Certificate of Incorporation of the Corporation is hereby
amended by (i) in Paragraph 1, changing the Corporation's name from
"Kinetiks.com, Inc." to "eLINEAR, Inc." and (ii) in Paragraph 4, increasing the
number of shares of Common Stock which the Corporation shall have authority to
issue to 75,000,000 shares from 20,000,000 shares.
3. The provisions of the Certificate of Incorporation of the
Corporation as herein amended are hereby restated and integrated into the single
instrument which is hereinafter set forth, and which is entitled Amended And
Restated Certificate of Incorporation of eLINEAR, Inc.
4. The amendments and the amended restatement of the Certificate of
Incorporation hereinafter certified have been duly adopted by the board of
directors and the stockholders of the Corporation in accordance with the
provisions of Sections 228, 242 and 245 of the General Corporation Law of the
State of Delaware.
5. The Amended and Restated Certificate of Incorporation of the
Corporation, as amended and restated herein, reads as follows:
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
eLINEAR, INC.
1. The name of the corporation is eLINEAR, Inc.
2. The address of the registered office of this corporation in this state is c/o
The Corporation Trust Company, 1209 Orange Street, City of Wilmington, County of
New Castle, State of Delaware 19801 and the name of the registered agent at said
address is The Corporation Trust Company.
3. 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 Delaware.
4. The total number of shares of stock which the corporation shall have
authority to issue is Seventy Five Million Five Hundred Thousand (75,500,000) of
which Seventy Five Million (75,000,000) shares of the par value of No Dollars
and One-Tenth of One Cent ($0.001) each, amounting in the aggregate to Seventy
Five Thousand Dollars and No Cents ($75,000.00), shall be common stock and of
which Five Hundred Thousand (500,000) shares of the par value of No Dollars and
One-Tenth of One Cent ($0.001) each, amounting in the aggregate to Five Hundred
Dollars and No Cents ($500.00), shall be preferred stock.
The designations and the powers, preferences and rights, and the qualifications,
limitations or restrictions thereof are to be determined by the board of
directors.
5. The corporation is to have perpetual existence.
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6. In furtherance and not in limitation of the powers conferred by statute, the
board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
The board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. The by-laws may provide that in the absence or disqualification
of a member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the board of directors,
or in the by-laws of the corporation, shall have and may exercise all the powers
and authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation; and, unless the resolution or by-laws expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with law, to
sell, lease or exchange all or substantially all of the property and assets of
the corporation, including its good will and its corporate franchises, upon such
terms and conditions and for such consideration, which may consist in whole or
in part of money or property including shares of stock in, and/or other
securities of, any other corporation or corporations, as its board of directors
shall deem expedient and for the best interests of the corporation.
7. Elections of directors need not be by written ballot unless the by-laws of
the corporation shall so provide.
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. 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 or directors or in the by-laws of the corporation.
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 stockholders thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
this corporation under the provisions of 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 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 this corporation, as the case may be, and also on this
corporation.
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8. The corporation reserves the right to amend, alter, change or repeal any
provision contained in this 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.
9. A director of the corporation shall not 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 Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
