EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
SECURE COMPUTING CORPORATION
The undersigned, James E. Nicholson, the Secretary of Secure Computing
Corporation, a Delaware corporation (the "Corporation"), hereby certifies as
follows:
1. The Corporation was originally incorporated pursuant to the General
Corporation Law of the State of Delaware under the name "SCC of Delaware, Inc.",
on September 5, 1995.
2. Pursuant to that certain Agreement and Plan of Merger (the "Agreement
of Merger") dated as of September 30, 1995, by and between the Corporation and
Secure Computing Corporation, a Maryland corporation ("Secure-Maryland"),
Secure-Maryland merged with and into the Corporation, and the name of the
Corporation was changed to "Secure Computing Corporation".
3. At a meeting of the Board of Directors of the Corporation held on
December 13, 1995, the board duly adopted an Amended and Restated Certificate of
Incorporation of the Corporation.
4. In accordance with Section 245 of the General Corporation Law of the
State of Delaware, the Corporation is restating and integrating its Certificate
of Incorporation in its entirety without further amendment to its provisions as
heretofore adopted or supplemented, there being no discrepancy between the
provisions and the provisions of the Restated Certificate of Incorporation
attached hereto as Exhibit A.
5. The Restated Certificate of Incorporation shall be effective as of
March 6, 1996.
IN WITNESS WHEREOF, the undersigned hereunto set his hand.
/S/ JAMES E. NICHOLSON
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James E. Nicholson
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me on this 6th day of
March, 1996 by James E. Nicholson, Secretary of Secure Computing Corporation, a
Delaware corporation, on behalf of the corporation.
/S/ ANNE. M. LONSBURY
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Notary Public
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EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
OF
SECURE COMPUTING CORPORATION
FIRST: The name of the Corporation shall be Secure Computing Corporation.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, City of Wilmington, County of New
Castle. The registered agent of the Corporation at that address is the
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations maybe organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of all classes of capital stock which
the Corporation shall have authority to issue is 27,000,000 shares, consisting
of 2,000,000 shares of Preferred Stock, par value $.01 per share, and 25,000,000
shares of Common Stock, par value $.01 per share.
The designations and the voting powers, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, of the Preferred Stock and the Common Stock
which are fixed by this Certificate of Incorporation and the express grant of
authority to the Board of Directors to fix by resolution or resolutions the
designations and the voting powers, preferences and relative participating,
optional or other special rights, and the qualifications, limitations or
restrictions thereof, of the Preferred Stock which are not fixed by this
Certificate of Incorporation are as follows and as elsewhere set forth in
Articles Fifth and Sixth:
1. The Preferred Stock may be issued at any time or from time to
time in any amount, provided not more than 2,000,000 shares thereof shall be
outstanding at any time, as Preferred Stock of one or more class or series, as
hereinafter provided. Each share of any one series of Preferred Stock shall be
identical in all respects except as to the date from which dividends thereof may
be cumulative, each class and series of Preferred Stock shall be distinctly
designated by letter or descriptive words, and all classes and series or
Preferred Stock shall rank equally and be identical in all respects except as
permitted by the provisions of Section 2 of this Article Fourth. Shares of
Preferred Stock shall be issued only as fully paid and nonassessable shares.
2. Authority is hereby expressly granted to and vested in the Board
of Directors at any time or from time to time, without action by or approval of
the stockholders, to issue the Preferred Stock as Preferred Stock of one or more
class or series, to fix by resolution or resolutions providing for the issuance
of shares of any class or series the designations and the voting powers,
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions thereof, of such class or series
so far as not inconsistent with the provisions of this Article Fourth applicable
to all classes and series of Preferred Stock, and to the full extent now or
hereafter permitted by the laws of the State of Delaware, including the
following:
(A) the distinctive designation of such class or series and
the number of shares which shall constitute such class or series,
which number may be increased (except where otherwise provided by
the Board of Directors in creating such series) or decreased (but
not below the number of shares thereof then outstanding) from time
to time by action of the Board of Directors;
(B) the rate or rates of dividends payable on shares of such
class or series, whether dividends shall be cumulative and, if so,
the date or dates from which dividends shall be cumulative on the
shares of such class or series, the preferences, restrictions,
limitations and conditions upon the payment of dividends, and the
dates on which dividends, if declared, shall be payable;
(C) whether shares of such class or series shall be redeemable
and, if so, the terms and provisions of such redemption, including
the date or dates upon or after which they shall be redeemable, the
amount per share payable in case of redemption, which amount may
vary under different conditions and at different redemption dates,
and the manner of selecting shares for redemption;
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(D) the rights of the shares of such class or series in the
event of voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation, and the relative
rights of priority, if any, of payment of shares of such class or
series;
(E) whether shares of such class or series shall have a
purchase, retirement or sinking fund for the purchase, retirement or
redemption of shares of such class or series and, if so, the terms
and provisions thereof;
(F) whether shares of such class or series shall have
conversion privileges and, if so, the terms and provisions thereof,
including provisions for adjustment of the conversion rate in such
events as the Board of Directors shall determine;
(G) whether shares of such class or series shall have voting
rights, in addition to voting rights provided by law, and, if so,
the terms and provisions thereof; and
(H) any other preferences and relative, participating,
optional and other special rights and the qualifications,
limitations or restrictions thereof.
3. The holders of the Preferred Stock of each class and series shall
be entitled to receive such dividends, when and as declared by the Board of
Directors, out of funds legally available therefor, as they may be entitled to
in accordance with the resolution or resolutions adopted by the Board of
Directors providing for the issuance of such class or series, payable on such
dates as may be fixed in such resolution or resolutions. So long as there shall
be outstanding any shares of Preferred Stock of any class or series entitled to
cumulative dividends pursuant to the resolution or resolutions providing for the
issuance of such class or series, no dividend, whether in cash or property,
shall be paid or declared, nor shall any distribution be made, on the Common
Stock, nor shall any shares of Common Stock be purchased, redeemed or otherwise
acquired for value by the Corporation, if at the time of making such payment,
declaration, distribution, purchase, redemption or acquisition the Corporation
shall be in default with respect to any dividend payable on, or obligation to
maintain a purchase, retirement or sinking fund with respect to or to redeem,
shares of Preferred Stock of any class of series. Unless otherwise provided by
the Board of Directors pursuant to Section 2 of this Article Fourth, the
foregoing provisions of this Section 3 shall not, however, apply to a dividend
payable in Common Stock or to the acquisition of shares of Common Stock in
exchange for, or through application of the proceeds of the sale of, shares of
Common Stock. Subject to the foregoing and to any further limitations prescribed
in accordance with the provisions of Section 2 of this Article Fourth, the Board
of Directors may declare, out of funds legally available therefor, dividends
upon the then outstanding shares of Common Stock, and shares of Preferred Stock
of any class or series shall not be entitled to participate therein.
4. In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of the Preferred Stock
of each class and series shall be entitled to receive, out of the assets of the
Corporation available for distribution to its stockholders, before any
distribution of assets shall be made to the holders of the Common Stock, the
amount per share provided by the Board of Directors pursuant to Section 2 of
this Article Fourth, which may include an amount equal to any cumulative
dividends thereon to the date of final distribution to the holders of the
Preferred Stock; and the holders of the Common Stock shall be entitled, to the
exclusion of the holders of the Preferred Stock of all classes and series, to
participate ratably in all the assets of the Corporation then remaining in
accordance with their respective rights and preferences. If upon any
liquidation, dissolution or winding up of the Corporation the assets available
for distribution shall be insufficient to pay the holders of all outstanding
shares of Preferred Stock the full amounts to which they respectively shall be
entitled, unless otherwise provided by the Board of Directors pursuant to
Section 2 of this Article Fourth, the holders of shares of Preferred Stock of
all classes and series shall participate ratably in any distribution of assets
according to the respective amount which would be payable in respect of the
shares of Preferred Stock held by them upon such distribution if all amounts
payable in respect of the Preferred Stock of all classes and series were paid in
full. Unless otherwise provided by the Board of Directors pursuant to Section 2
of this Article Fourth, neither a statutory merger nor consolidation of the
Corporation into or with any other corporation, nor a statutory merger or
consolidation of any other corporation into or with the Corporation, nor a sale,
transfer, exchange or lease of all or any part of the assets of the Corporation,
shall be deemed to be a liquidation, dissolution or winding up of the
Corporation within the meaning of this Section 4.
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5. The Corporation, at the option of the Board of Directors, may
redeem the whole or any part of the Preferred Stock of any class or series at
the price or prices and on the terms and conditions provided in the resolution
or resolutions of the Board of Directors providing for the issuance of such
series.
6. Anything herein or in an resolution or resolutions of the Board
of Directors providing for the issuance of any class or series of Preferred
Stock to the contrary notwithstanding, the rights of holders of all classes and
series of capital stock of the Corporation in respect of dividends and purchase,
retirement or sinking funds, if any, shall at all times be subject to the power
of the Board of Directors from time to time to set aside such reserves and to
make such other provisions, if any, as the Board of Directors shall deem to be
necessary or advisable for working capital, for expansion of the Corporation's
business (including the acquisition of real and personal property for that
purpose) and for any other purpose of the Corporation.
7. Except as otherwise provided by law or by the Certificate of
Incorporation or by the resolution or resolutions of the Board of Directors
providing for the issuance of any class or series of Preferred Stock, the
holders of the Preferred Stock shall not be entitled to vote and shall not be
entitled to receive notice of any meeting of stockholders at which they are not
entitled to vote. Except as otherwise provided by law or by this Certificate of
Incorporation or by the resolution or resolutions of the Board of Directors
providing for the issuance of any class or series of Preferred Stock, the vote
of the holders of all or any portion of any class or series of capital stock, as
a class or series, shall not be required for any action to be taken or
authorized by the stockholders of the Corporation, including any amendment of
this Certificate of Incorporation. Except as otherwise provided by law, each
holder of shares of Common Stock shall be entitled to one vote for each share of
Common Stock held by such holder.
8. Except as otherwise provided by law or the resolution or
resolutions of the Board of Directors providing for the issuance of any class or
series of Preferred Stock or by the instrument governing the security,
obligation, warrant, option or right, no holder of shares of any class or series
of capital stock of the Corporation or of any security or obligation convertible
into, or of any warrant, option or right to subscribe for, purchase or otherwise
acquire, shares of any class or series of capital stock of the Corporation,
whether now or hereafter authorized, shall, as such holder, have any preemptive
right to subscribe for, purchase or otherwise acquire shares of any class or
series of capital stock of the Corporation or any security or obligation
convertible into, or any warrant, option or right to subscribe for, purchase or
otherwise acquire, shares of any class or series of capital stock of the
Corporation, whether now or hereafter authorized.
9. Authority is hereby expressly granted to and vested in the Board
of Directors at any time and from time to time, without action by or approval of
the stockholders, to declare, create and issue, with respect to shares of any
class or series of capital stock of the Corporation, dividends or distributions
in, or options or rights to acquire, shares of any class or series of capital
stock of the Corporation, or other securities, and to fix by resolution or
resolutions providing for the declaration, creation and issuance of any such
dividend, distribution, option or right the terms, provisions, rights,
qualifications, limitations or restrictions thereof so far as not inconsistent
with the provisions of this Article Fourth, and to the full extent now or
hereafter permitted by the laws of the State of Delaware.
FIFTH: The following provisions shall govern the management of the
business and the conduct of the affairs of the Corporation and shall define,
limit and regulate the rights and powers of the Corporation and the Board of
Directors and stockholders:
1. The business and affairs of the Corporation shall be managed by
or under the direction of a Board of Directors.
2. The Board of Directors shall consist of the number of directors
provided for in the By-laws but shall at no time consist of less than three
directors. From and after the 1996 annual meeting of stockholders, the directors
shall be divided into three classes as nearly equal in number as possible; the
term of one class shall expire at the 1997 annual meeting of stockholders; the
term of a second class shall expire at the 1998 annual meeting of stockholders;
and the term of a third class shall expire at the 1999 annual meeting of
stockholders; and at each annual meeting of stockholders successors to the class
of directors whose term shall then expire shall be elected to hold office for a
term expiring at the third annual meeting of stockholders next succeeding such
annual meeting of stockholders. The number of directors in the class to be
elected at an annual meeting of stockholders shall be determined by the Board of
Directors prior to such meeting or, in the absence of such determination, by the
stockholders at such meeting.
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3. In the event of a vacancy occurring in any class, the Board of
Directors may reduce the number of directors in such class to eliminate the
vacancy, but in no case may the number of directors in such class be less than
one. The Board of Directors may increase the number of directors in a class. In
the event of a vacancy occurring in any class or a newly created directorship
resulting from an increase in the number of directors in any class, the Board of
Directors may fill such vacancy or newly created directorship for the remainder
of the unexpired term by vote of the majority of the remaining directors, though
less than a quorum. The directors of each class shall hold office for the term
for which elected and until the successors to such class have been duly elected
and qualified.
4. The stockholders of the Corporation shall not have the right to
remove any directors except for cause.
5. Notwithstanding the foregoing, whenever the holders of anyone or
more series of Preferred Stock issued by the Corporation shall have the right,
voting separately, to elect directors at an annual or special meeting of
stockholders, the election, term of office, filling of vacancies and other
provisions relating to such directorships shall be governed by the provisions of
this Certificate of Incorporation applicable thereto, including the resolution
or resolutions adopted by the Board of Directors pursuant to Section 2 of
Article Fourth and such directors so elected shall not be divided into classes
pursuant to Section 2 of this Article Fifth unless expressly provided by such
provisions.
6. Elections of directors need not be by written ballot unless the
By-laws of the Corporation so provide.
7. A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty by the director as a director; provided, however, that this Section 7 shall
not eliminate or limit the liability of a director to the extent provided by
applicable law (a) for any breach of the duty of loyalty of the director 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) for any
unlawful action under Section 174 of the General Corporation Law of the State of
Delaware, or (d) for any transaction from which the director derived an improper
personal benefit. No amendment to or repeal of this Section 7 shall apply to or
have any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of the director
occurring prior to such amendment or repeal. If the laws of the State of
Delaware are hereafter changed to permit further elimination or limitation of
the liability of directors, then the liability of each director of the
Corporation shall thereupon be eliminated or limited to the fullest extent then
permitted by law.
8. The Board of Directors shall have concurrent power with the
stockholders to adopt, alter, amend or repeal the By-laws of the Corporation.
The Board of Directors may so adopt or change the By-laws upon the affirmative
vote of the number of directors which shall constitute, under the provisions of
the By-laws, the action of the Board of Directors. The stockholders may not so
adopt or change the By-laws except upon the affirmative vote of at least 75% of
the votes entitled to be cast by the holders of all outstanding shares of stock
entitled to vote, voting together as a single class.
9. The Board of Directors may from time to time determine whether,
to what extent, at what times and places and under what conditions and
regulations the accounts, books and records of the Corporation, or any of them,
shall be open to the inspection of the stockholders, and no stockholder shall
have any right to inspect any account, book or document of the Corporation
except as and to the extent expressly provided by law or expressly authorized by
resolution of the Board of Directors.
10. In addition to the powers and authority herein or by law
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation, subject, nevertheless, to the provisions of the laws of the
State of Delaware, this Certificate of Incorporation and any By-laws adopted by
the stockholders; provided, however, that no By-laws hereafter adopted by the
stockholders shall invalidate any prior act of the directors which would have
been valid if such By-laws had not been adopted.
11. The stockholders of the Corporation may not take action by
written consent or otherwise without a meeting; any such action shall be taken
at an annual meeting of stockholders, or special meeting of the stockholders
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called for such purpose. The procedures for calling, and persons entitled to
call, a special meeting of the stockholders shall be specified in the By-laws.
SIXTH: Subject to the provisions of this Certificate of Incorporation, the
Corporation reserves the right to alter, amend or repeal any provision contained
in this Certificate of Incorporation, in the manner now or hereafter prescribed
by law, and all rights of stockholders or others hereunder are subject to such
reservation. Notwithstanding any other provisions of this Certificate of
Incorporation or the By-laws of the Corporation (and notwithstanding that a
lesser percentage or separate class or series vote may be specified by law of by
this Certificate or Incorporation or by the By-laws of the Corporation, or
otherwise), the affirmative vote of the holders of at least 74% of the votes
entitled to be cast by the holders of all outstanding shares of capital stock
entitled to vote on all matters submitted to stockholders of the Corporation
generally, voting together as a single class, shall be required to alter, amend
or repeal, or adopt any provisions inconsistent with, Sections 4, 7 (except to
permit further elimination or limitation of the liability of directors), 8, 9,
10 and 11 of Article Fifth or this Article Sixth.
SEVENTH: 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 or equitable
jurisdiction within the State of Delaware may, on the application n 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 General Corporation Law of the State of
Delaware 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 General Corporation Law of the State of Delaware, 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, 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 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.
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
SECURE COMPUTING CORPORATION
Secure Computing Corporation, a corporation organized and existing under
the laws of the State of Delaware (the "CORPORATION"), pursuant to the
provisions of the General Corporation Law of the State of Delaware (the "GCL"),
does hereby certify as follows:
FIRST: That the fourth paragraph of the Corporation's Restated Certificate
of Incorporation is hereby amended to read in its entirety as follows:
"FOURTH: The total number of shares of all classes of capital stock
which the corporation shall have authority to issue is 52,000,000
shares, consisting of 2,000,000 shares of Preferred Stock, par value
$.01 per share, and 50,000,000 shares of Common Stock, par value
$0.01 per share."
SECOND: The amendment to the Restated Certificate of Incorporation of the
Corporation set forth in this Certificate of Amendment has been duly adopted in
accordance with the provisions of Section 242 of the GCL: (a) the Board of
Directors of the Corporation having duly adopted a resolution setting forth such
amendment and declaring its advisability and submitting it to the stockholders
of the Corporation for their approval, and (b) the stockholders of the
Corporation having duly adopted such amendment by vote of the holders of a
majority of the outstanding stock entitled to vote thereon.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by the Secretary of the Corporation this 11th day of
December, 1998.
SECURE COMPUTING CORPORATION
By: /S/ JEFFREY D. SAPER
---------------------------------
Jeffrey D. Saper, Secretary
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