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Exhibit 3.1
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
iGATE CAPITAL CORPORATION
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1. Name.
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The name of the corporation shall be iGate Capital Corporation (herein
called the "Corporation").
2. Registered Office.
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The location and post office address of the Corporation's registered office
in the Commonwealth of Pennsylvania is 1004 McKee Road, Oakdale, Pennsylvania
15701.
3. Purpose and Powers.
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The Corporation was incorporated under the Business Corporation Law of 1933
and is currently subject to the Business Corporation Law of 1988, as amended
(hereinafter, the "BCL"), and shall have unlimited power to engage in and to do
any lawful act concerning any or all lawful business for which corporations may
be incorporated under the BCL.
4. Term of Existence.
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The term for which the Corporation shall exist is perpetual.
5. Capital Stock.
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5.1 Authorized Shares.
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The Corporation is authorized to issue two classes of shares designated
Common Stock and Preferred Stock, respectively. The aggregate number of shares
which the Corporation shall have authority to issue is:
(a) 100,000,000 shares of Common Stock, $.01 par value;
(b) 1 share of Series A Preferred Stock, without par value; and
(c) 19,999,999 shares of additional Preferred Stock, without par value.
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5.2 Preferred Stock.
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The Board of Directors is authorized, from time to time, to divide the
Preferred Stock into series and, as to each series, to determine the designation
and number of shares of such series and the voting rights, preferences,
limitations and special rights, if any, of the shares of such series. Such
divisions and determinations shall be set forth in these Second Amended and
Restated Articles of Incorporation, as they may be amended from time to time
("Articles"), adopted by the Board of Directors.
The following is a statement of the designations, preferences, voting
rights, limitations and special rights in respect of the Series A Preferred
Stock.
NO DIVIDENDS. The holder of Series A Preferred Stock shall not be entitled
to receive any dividends declared and paid by the Corporation.
VOTING RIGHTS. Except as otherwise required by law or these Articles, (i)
the holder of record of the share of Series A Preferred Stock shall have a
number of votes equal to the number of outstanding Non-Voting Exchangeable
Shares ("Exchangeable Shares") of Quantum Information Resources Limited, a
Canadian corporation ("Quantum"), from time to time which are not owned by the
Corporation, any of its subsidiaries or any person directly or indirectly
controlled by or under common control of the Corporation, in each case for the
election of directors and on all matters submitted to a vote of the shareholders
of the Corporation, and (ii) in respect of all matters concerning the voting
shares, the Series A Preferred Stock and the Common Stock of the Corporation
shall vote as a single class.
LIQUIDATION PREFERENCE. Upon any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, and subject to any prior
rights of holders of shares of Preferred Stock ranking senior to the Series A
Preferred Stock, the holder of the share of Series A Preferred Stock shall be
paid an amount equal to $1.00, together with payment to any class of stock
ranking on liquidation junior to the Series A Preferred Stock (such amount
payable with respect to the Series A Preferred Stock being referred to as the
"Series A Preferred Liquidation Preference Payment").
RANKING. The Series A Preferred Stock shall rank junior in all respects to
any other series of Preferred Stock now or hereafter issued by the Corporation.
OTHER PROVISIONS. (a) Pursuant to the terms of that certain Combination
and Exchange Agreement, dated as of June 1, 1998, as amended (the "Purchase
Agreement"), among the Corporation and Quantum, Quantum Management Investments
Limited, Lyon Gould, King Moore Consultants Limited, King Moore, 412977 Ontario
Limited and Hilary Bruun, the one share of Series A Preferred Stock is being
issued to the trustee (the "Trustee") under the Trust Agreement, dated as of
June 1, 1998 by and between the parties to the Purchase Agreement and the
Trustee. (b) The holder of the share of Series A Preferred Stock is entitled to
exercise the voting rights attendant thereto in such manner as such holder
desires. (c) At such time as the Series A Preferred Stock has no votes attached
to it because there are no Exchangeable Shares of
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Quantum outstanding which are not owned by the Corporation or any of its
subsidiaries, the Series A Preferred Stock shall be cancelled.
5.3 Common Stock.
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Except for and subject to those rights expressly granted to holders of the
Preferred Stock, or any series thereof, by one or more amendments to these
Articles adopted by the Board of Directors, and except as provided by the laws
of the Commonwealth of Pennsylvania, holders of the Common Stock shall have
exclusively all other rights of shareholders. All shares of Common Stock issued
or to be issued shall be alike in every particular.
5.4 Uncertificated Shares.
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The Corporation may utilize uncertificated shares of Common Stock and
Preferred Stock to represent stock interests of its shareholders.
Notwithstanding any provision of law or any bylaw to the contrary, the rights
and obligations of the holders of shares represented by certificates and the
rights and obligations of the holders of uncertificated shares of the same class
and series shall be identical.
5.5 Cumulative Voting.
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The holders of the outstanding shares of the Corporation entitled to vote
shall not be entitled to cumulate their votes in the election of directors.
6. Board of Directors.
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6.1 Number, Election, etc.
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The Board of Directors shall be comprised as follows:
(a) Number.
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The Board of Directors shall have such number of members as determined from
time to time by the Board of Directors; provided that the number of such members
shall in no case be less than three or greater than nine.
(b) Classes, Election and Terms.
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The directors elected by the holders of voting stock shall be classified in
respect to the time for which they shall severally serve on the Board of
Directors by dividing them into three classes, each of whose members shall serve
for staggered three-year terms. At each annual meeting of the shareholders, the
holders of outstanding shares of the Corporation entitled to vote shall elect
directors of the class whose term then expires, to serve until the third
succeeding annual meeting. Except as otherwise provided in these Articles, each
director shall serve for the term for which elected and until his or her
successor shall be elected and shall qualify.
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(c) Quorum and Board Action.
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Notwithstanding any provision of law or any bylaw to the contrary, a
majority of the directors then serving shall constitute a quorum for the
transaction of business, and the actions of a majority of the directors then
serving shall be the actions of the Board of Directors.
(d) Removal of Directors.
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Notwithstanding any provision of law or any bylaw to the contrary, a
director or directors may be removed from the Board of Directors at any time
without cause by the affirmative vote of holders of at least 66 2/3% of the
outstanding shares of the Corporation entitled to vote, voting together as a
single class.
(e) Vacancies.
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Vacancies on the Board of Directors shall be filled only by a majority vote
of the remaining directors. All such directors elected to fill vacancies shall
serve on the Board for a term expiring at the annual meeting of shareholders at
which the term of the class to which they have been elected expires. No
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
7. Shareholders Meetings.
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7.1 Nominations of Director Candidates.
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Nominations for the election of directors may be made only by the Board of
Directors or a committee appointed by the Board of Directors, or by any record
holder of stock entitled to vote in the election of the directors; provided,
however, that a nomination may be made by a shareholder only if written notice
of such nomination has been received by the Secretary of the Corporation not
later than 120 days in advance of the meeting at which the election is to be
held; provided further, however, that in the event that less than 130 days'
notice or prior public disclosure of the date of the annual meeting is given,
notice from the shareholder to be timely must be received not later than the
tenth day following the date on which such notice of the date of the annual
meeting was mailed or such public disclosure was made, whichever first occurred.
Each such notice shall set forth: (a) the name and address of the shareholder
who intends to make the nomination, and of the person or persons to be
nominated; (b) a representation that the shareholder is a holder of record of
stock of the Corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice; (c) a description of all arrangements or understandings between
the shareholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made by the shareholder; (d) such other information regarding each nominee
proposed by such shareholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission, had the nominee been nominated by the Board of Directors; and (e)
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the consent of each nominee to serve as a director of the Corporation if so
elected. If the Corporation receives notice from a shareholder pursuant to this
Article 7.1 and such notice, in the judgment of the Board of Directors, fails to
comply with the requirements set forth in this Article 7.1 in any respect, the
Corporation shall notify the shareholder of the deficiencies with such notice
within ten days of the Corporation's receipt of such notice. Commencing on the
day of receipt of the deficiency notification from the Corporation, the
shareholder shall have ten days to cure all deficiencies and provide the
Corporation with notice which conforms to the requirements of this Article 7.1.
A shareholder shall be entitled to re-submit a notice as provided in this
Article 7.1 only once for each annual meeting of the shareholders. Only
candidates who have been nominated in accordance with this Article 7.1 shall be
eligible for election by the shareholders as directors of the Corporation.
7.2 Business to be Transacted.
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At any annual meeting or special meeting of shareholders, only such
business as is properly brought before the meeting in accordance with this
Article 7.2 may be transacted. To be properly brought before any meeting, any
proposed business must be either (i) specified in the notice of the meeting (or
any supplement thereto) given by or at the direction of the Board of Directors,
(ii) otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (iii) if brought before the meeting by a shareholder,
then (x) the shareholder must have been a shareholder of record on the record
date for the determination of shareholders entitled to vote at the annual
meeting, and (y) only if written notice of such proposed business has been
received by the Secretary of the Corporation not later than 120 days in advance
of the meeting at which the business is proposed to be transacted; provided,
however, that in the event that less than 130 days' notice or prior public
disclosure of the date of the annual meeting is given, notice from the
shareholder to be timely must be received not later than the tenth day following
the date on which such notice of the date of the annual meeting was mailed or
such public disclosure was made, whichever first occurred. There will be no
opportunity to cure any deficiencies within any notice given pursuant to this
Article 7.2.
7.3 Vote Required for Fundamental Changes.
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In addition to any vote required by law, the affirmative vote of holders of
at least 66 2/3% of the votes cast by shareholders eligible to vote thereon,
voting together as a single class, shall be necessary to approve any action for
which shareholder approval is required under Subchapters B, C, D, E and F of
Chapter 19 (Fundamental Changes) of the BCL (the "Fundamental Change"), and any
successor provisions thereto; provided, however, that the additional affirmative
vote required by this Article 7.3 shall not apply to any Fundamental Change if
such Fundamental Change is approved, recommended and submitted to the
shareholders for their consideration by the unanimous vote of the directors of
the Corporation then serving.
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7.4 Partial Written Consents.
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Any action required or permitted to be taken at a meeting of the
shareholders, or of a class of shareholders, may be taken without a meeting upon
the written consent of shareholders who would have been entitled to cast the
minimum number of votes that would be necessary to authorize the action at a
meeting at which all shareholders entitled to vote thereon were present and
voting. The consents shall be filed with the secretary of the Corporation. The
action shall become effective immediately upon its authorization, or at such
later time as shall be specified in said written consent, but prompt notice of
the action shall be given to those shareholders entitled to vote thereon who
have not consented thereto.
8. Inapplicability of Certain Provisions.
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Notwithstanding any law or bylaw of the Corporation to the contrary, the
provisions of Subchapters E, F, G and H of Chapter 25 (Registered Corporations)
of the BCL, and any successors thereto, shall not be applicable to the
Corporation.
9. Personal Liability of Directors.
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9.1 Personal Liability of Directors; Indemnification.
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A director of the Corporation shall not be personally liable for monetary
damages for any action taken, or any failure to take any action, unless the
director has breached or failed to perform the duties of his or her office under
Subchapter B of Chapter 17 of the BCL and such breach or failure to perform
constitutes self-dealing, willful misconduct or recklessness; provided, however,
that the foregoing provision shall not eliminate or limit (i) the responsibility
or liability of a director pursuant to any criminal statute or (ii) the
liability of a director for the payment of taxes pursuant to local, state or
federal law. Any repeal, modification or adoption of any provision inconsistent
with Article 9.1 shall be prospective only, and neither the repeal or
modification of this provision nor the adoption of any provision inconsistent
with this provision shall adversely affect any limitation on the personal
liability of a director of the Corporation existing at the time of such repeal
or modification or the adoption of such inconsistent provision.
9.2 Indemnification of Directors and Officers.
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(a) The Corporation shall indemnify and hold harmless, to the full extent
permitted by law, each person who was or is made a party or is threatened to be
made a party to or is otherwise involved in (as a witness or otherwise) any
threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative or investigative and whether or not by or in the right
of the Corporation or otherwise (hereinafter, a "proceeding"), by reason of the
fact that he or she, or a person of whom he or she is the heir, executor or
administrator, is or was a director or executive officer of the Corporation or
is or was serving at the request of the Corporation as a director, officer or
trustee of another corporation or of a partnership, joint venture, trust or
other enterprise (including without limitation service with respect to employee
benefit plans), or where the basis of such proceeding is any alleged action or
failure to take any action by such person while acting in an official capacity
as a director or executive officer of the Corporation, or in any other capacity
on behalf of the Corporation while such person is or was serving as a director
or executive officer of the Corporation, against all expenses, liability and
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loss, including but not limited to attorneys' fees, judgments, fines, excise
taxes or penalties and amounts paid or to be paid in settlement (whether with or
without court approval), actually and reasonably incurred or paid by such person
in connection therewith.
(b) Notwithstanding the foregoing clause (a), except as provided in Article
9.3 below, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation.
(c) Subject to the limitation set forth in the foregoing clause (b)
concerning proceedings initiated by the person seeking indemnification, the
right to indemnification conferred in this Article 9.2 shall be a contract right
and shall include the right to be paid by the Corporation the expenses incurred
in defending any such proceeding (or part thereof) or in enforcing his or her
rights under this Article 9.2 in advance of the final disposition thereof
promptly after receipt by the Corporation of a request therefor stating in
reasonable detail the expenses incurred; provided, however, that to the extent
required by law, the payment of such expenses incurred by a director or
executive officer of the Corporation in advance of the final disposition of a
proceeding shall be made only upon receipt of an undertaking, by or on behalf of
such person, to repay all amounts so advanced if and to the extent it shall
ultimately be determined by a court that he or she is not entitled to be
indemnified by the Corporation under this Article 9.2 or otherwise.
(d) The right to indemnification and advancement of expenses provided
herein shall continue as to a person who has ceased to be a director or
executive officer of the Corporation or to serve in any of the other capacities
described herein, and shall inure to the benefit of the heirs, executors and
administrators of such person.
9.3 Payment of Indemnification.
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If a claim for indemnification under Article 9.2 hereof is not paid in full
by the Corporation within thirty (30) days after a written claim therefor 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 on the merits or otherwise in
establishing his or her right to indemnification or to the advancement of
expenses, the claimant shall be entitled to be paid also the expense of
prosecuting such claim.
9.4 Non-Exclusivity of Rights.
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The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of a final disposition conferred in Article
9.2 and the right to payment of expenses conferred in Article 9.3 shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses hereunder may be entitled under any bylaw, agreement,
vote of shareholders, vote of directors or otherwise, both as to actions in his
or her official capacity and as to actions in any other capacity while holding
that office, the Corporation having the express authority to enter into such
agreements or arrangements as the Board of Directors deems appropriate for the
indemnification of and advancement of expenses to
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present or future directors and officers as well as employees, representatives
or agents of the Corporation in connection with their status with or services to
or on behalf of the Corporation or any other corporation, partnership, joint
venture, trust or other enterprise, including any employee benefit plan, for
which such person is serving at the request of the Corporation.
9.5 Funding.
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The Corporation may create a fund of any nature, which may, but need not
be, under the control of a trustee, or otherwise secure or insure in any manner
its indemnification obligations, including its obligation to advance expenses,
whether arising under or pursuant to this Article 9 or otherwise.
9.6 Insurance.
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The Corporation may purchase and maintain insurance on behalf of any person
who is or was a director or officer or representative of the Corporation, or is
or was serving at the request of the Corporation as a representative of another
corporation, partnership, joint venture, trust or other enterprise, against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of his or her status as such, whether or not the
Corporation has the power to indemnify such person against such liability under
the laws of Pennsylvania or any other state.
9.7 Modification or Repeal.
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Neither the modification, amendment, alteration or repeal of this Article 9
or any of its provisions nor the adoption of any provision inconsistent with
this Article 9 or any of its provisions shall adversely affect the rights of any
person to indemnification and advancement of expenses existing at the time of
such modification, amendment, alteration or repeal or the adoption of such
inconsistent provision.
10. Bylaw Amendments.
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The Board of Directors may adopt, amend or repeal the Bylaws with respect
to those matters which under the BCL are not reserved exclusively to the
shareholders. No Bylaw may be adopted, amended or repealed by the shareholders
unless, in addition to any other vote required by law, these Articles or
otherwise, such action is approved by the vote of holders of at least 66 2/3% of
the votes cast by shareholders eligible to vote thereon, voting together as a
single class; provided, however, that the additional affirmative vote required
by this Article shall not apply to any shareholder adoption, amendment or repeal
of any Bylaw provision if such action is approved, recommended and submitted to
the shareholders for their consideration by the unanimous vote of the directors
of the Corporation then serving.
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11. Reservation of Right to Amend Articles.
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The Corporation reserves the right to amend, alter, change or repeal any
provision contained in these Articles in the manner now or hereafter prescribed
by law and these Articles, and all rights conferred upon shareholders herein are
granted subject to this reservation.
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