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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SERVICEWARE TECHNOLOGIES, INC.
1. (a) The name of the corporation is ServiceWare Technologies, Inc.
(b) The original Certificate of Incorporation of the corporation was
filed with the Secretary of State of the State of Delaware on May 5, 2000.
2. Pursuant to Sections 228, 242 and 245 of the General Corporation Law of
the State of Delaware, this Amended and Restated Certificate of Incorporation
restates and further amends the provisions of the Amended and Restated
Certificate of Incorporation of the corporation as heretofore amended and
supplemented.
3. The text of the Amended and Restated Certificate of Incorporation as
heretofore amended and supplemented is hereby amended and restated in its
entirety to read as follows:
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ARTICLE I
NAME
The name of the corporation is ServiceWare Technologies, Inc.
ARTICLE II
REGISTERED AGENT
The address of the registered office of the corporation in the State of
Delaware is 1209 Orange Street, City of Wilmington 19801, County of New Castle.
The name of the corporation's registered agent at that address is The
Corporation Trust Company.
ARTICLE III
PURPOSE
The purpose of the corporation 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.
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ARTICLE IV
CAPITAL STOCK
The total number of shares of stock which the corporation shall have
authority to issue is One Hundred Five Million (105,000,000) shares, which shall
be divided into two classes as follows:
A. One Hundred Million (100,000,000) shares of Common Stock, $0.01 par
value per share; and
B. Five Million (5,000,000) shares of Preferred Stock, $0.01 par value per
share. The corporation's board of directors is hereby expressly authorized to
provide by resolution or resolutions from time to time for the issue of the
Preferred Stock in one or more series, the shares of each of which series may
have such voting powers, full or limited, or no voting powers, and such
designations, preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions thereof, as shall be
permitted under the General Corporation Law of the State of Delaware and as
shall be stated in the resolution or resolutions providing for the issue of such
stock adopted by the board of directors pursuant to the authority expressly
vested in the board of directors hereby.
ARTICLE V
DIRECTORS
A. The business and affairs of the corporation shall be managed by or
under the direction of a board of directors consisting of such total number of
authorized directors as shall be fixed by, or in the manner provided in, the
bylaws. The board of directors shall be divided into three classes, designated
Class I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the total number of authorized directors. Class I
directors shall serve for a term ending upon the annual meeting of stockholders
held in 2001, Class II directors shall serve for a term ending upon the annual
meeting of stockholders held in 2002 and Class III directors shall serve for a
term ending upon the annual meeting of stockholders held in 2003. At each
succeeding annual meeting of stockholders beginning with the annual meeting of
stockholders held in 2001, successors to the class of directors whose term
expires at such annual meeting shall be elected for a three-year term. If the
number of directors is changed, any increase or decrease shall be apportioned
among the classes so as to maintain the number of directors in each class as
nearly equal as possible, and any additional director of any class elected to
fill a vacancy resulting from an increase in such class shall hold office for a
term that shall coincide with the remaining term of that class, but in no case
will a decrease in the number of directors shorten the term of any incumbent
directors. A director shall hold office until the annual meeting for the year in
which his or her term expires and until his or her successor shall be elected
and shall qualify, subject, however, to prior death, resignation, incapacitation
or removal from office, and except as otherwise required by law.
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B. Except as otherwise required by law, vacancies and newly created
directorships resulting from any increase in the total number of authorized
directors may be filled by a majority of the directors then in office, although
less than a quorum, or by a sole remaining director. Any director elected to
fill a vacancy not resulting from an increase in the number of directors shall
have the same remaining term as that of his or her predecessor. A director may
be removed by the stockholders only for cause.
C. Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of stock issued by the corporation shall have the right,
voting separately by class or series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorships shall be governed by the term of this
certificate of incorporation applicable thereto and such directors so elected
shall not be divided into classes pursuant to this Article V, in each case
unless expressly provided by such terms.
ARTICLE VI
BYLAWS
In furtherance and not in limitation of the powers conferred by the laws
of the State of Delaware:
A. The board of directors of the corporation is expressly authorized to
adopt, amend or repeal the bylaws of the corporation.
B. Elections of directors need not be by written ballot unless the bylaws
of the corporation shall so provide.
C. The books of the corporation may be kept at such place within or
without the State of Delaware as the bylaws of the corporation may provide or as
may be designated from time to time by the board of directors of the
corporation.
ARTICLE VII
LIMITATION OF LIABILITY
No director shall be personally liable to the corporation or the holders
of shares of capital stock for monetary damages for breach of fiduciary duty as
a director, except (i) for any breach of the duty of loyalty of such director to
the corporation or such holders, (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 General Corporation Law of Delaware, or (iv) for any
transaction from which such director derives an improper personal benefit. No
amendment to or repeal of this Article VII shall apply to or have any effect on
the liability or alleged liability of any director for or with respect to any
acts or omissions of such director occurring prior to such amendment or repeal.
If the laws of the State of Delaware are hereafter amended to authorize
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corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the corporation shall be
eliminated or limited to the fullest extent then permitted. No repeal or
modification of this Article VII shall adversely affect any right of or
protection afforded to a director of the corporation existing immediately prior
to such repeal or modification.
ARTICLE VIII
INDEMNIFICATION
The corporation shall indemnify and may advance expenses to its officers
and directors to the fullest extent permitted by law from time to time in
effect. Without limiting the generality of the foregoing, the bylaws of the
corporation may provide for indemnification and advancement of expenses to the
corporation's officers, directors, employees and agents on such terms and
conditions as the board of directors may from time to time deem appropriate or
advisable.
ARTICLE IX
ACTION BY STOCKHOLDERS
Effective immediately upon the corporation becoming subject to the
periodic reporting requirements of Section 13 of the Securities Exchange Act of
1934, as amended, with respect to any class of its capital stock:
A. No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the corporation may be taken without a
meeting; and
B. The power of the stockholders to consent in writing, without a meeting,
to the taking of any action is specifically denied.
C. Special meetings of the stockholders of the corporation may be called
only by the board of directors pursuant to a resolution adopted by a majority of
the total number of authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the time any such resolution
is presented to the Board of Directors for adoption), the chairman of the board
of directors, or the chief executive officer.
ARTICLE X
AMENDMENTS
Except as provided herein, from time to time any of the provisions of this
Amended and Restated Certificate of Incorporation may be amended, altered or
repealed, and other provisions authorized by the laws of the State of Delaware
at the time in force may be added or inserted in the manner and at the time
prescribed by said laws, and all rights at any time conferred upon the
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stockholders of the corporation by this Amended and Restated Certificate of
Incorporation are granted subject to the provisions of this Article X.
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IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation
has been signed on the _____ day of __________, 2000, by the undersigned officer
thereunto duly authorized.
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Mark Tapling
President and Chief Executive Officer
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