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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
OBJECTSPACE, INC.
FIRST: The name of the Corporation is ObjectSpace, Inc.
SECOND: The address of the initial registered office of the
Corporation in the State of Delaware is 1201 North Market Street in the City
of Wilmington, County of New Castle. The name and address of its initial
registered agent is Delaware Corporation Organizers, Inc., Wilmington,
Delaware 19801.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may be organized under the Delaware
General Corporation Law ("DGCL"). The Corporation is to have perpetual
existence.
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is 21,000,000 shares of capital stock,
classified as (i) 20,000,000 shares of common stock, $.01 par value ("Common
Stock"), and (ii) 1,000,000 shares of preferred stock, $1.00 par value
("Preferred Stock").
The designations and the powers, preferences, rights, qualifications,
limitations, and restrictions of the Preferred Stock and Common Stock are as
follows:
1. PROVISIONS RELATING TO THE PREFERRED STOCK.
(a) The Preferred Stock may be issued from time to time in one or more
classes or series, the shares of each class or series to have such designations
and powers, preferences, and rights, and qualifications, limitations, and
restrictions thereof, as are stated and expressed herein and in the resolution
or resolutions providing for the issue of such class or series adopted, as
hereinafter prescribed, by the entire board of directors of the Corporation
("Board of Directors") or by any duly designated committee thereof
("Committee").
(b) Authority is hereby expressly granted to and vested in the Board of
Directors or Committee to authorize the issuance of the Preferred Stock from
time to time in one or more classes or series, and with respect to each class or
series of the Preferred Stock, to fix and state by the resolution or resolutions
from time to time adopted providing for the issuance thereof the following:
(i) whether or not the class or series is to have voting
rights, full, special, or limited, or is to be without voting rights, and
whether or not such class or series is to be entitled to vote as a separate
class either alone or together with the holders of one or more other classes
or series of stock;
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EXHIBIT 3.1
(ii) the number of shares to constitute the class or series
and the designations thereof;
(iii) the preferences, and relative, participating, optional,
or other special rights, if any, and the qualifications, limitations, or
restrictions thereof, if any, with respect to any class or series;
(iv) whether or not the shares of any class or series shall be
redeemable at the option of the Corporation or the holders thereof or upon the
happening of any specified event, and, if redeemable, the redemption price or
prices (which may be payable in the form of cash, notes, securities, or other
property), and the time or times at which, and the terms and conditions upon
which, such shares shall be redeemable and the manner of redemption;
(v) whether or not the shares of a class or series shall be
subject to the operation of retirement or sinking funds to be applied to the
purchase or redemption of such shares for retirement, and, if such retirement or
sinking fund or funds are to be established, the annual amount thereof, and the
terms and provisions relative to the operation thereof;
(vi) the dividend rate, whether dividends are payable in cash,
stock of the Corporation, or other property, the conditions upon which and the
times when such dividends payable on any other class or classes or series of
stock, whether or not such dividends shall be cumulative or noncumulative, and
if cumulative, the date or dates from which such dividends shall accumulate;
(vii) the preferences, if any, and the amounts thereof which
the holders of any class or series thereof shall be entitled to receive upon the
voluntary or involuntary dissolution of, or upon any distribution of the assets
of, the Corporation;
(viii) whether or not the shares of any class or series, at
the option of the Corporation or the holder thereof or upon the happening of any
specified event, shall be convertible into or exchangeable for, the shares or
any other class or classes or of any other series of the same or any other class
or classes of stock, securities, or other property of the Corporation and the
conversion price or prices or ratio or ratios or the rate or rates at which such
exchange may be made, with such adjustments, if any, as shall be stated and
expressed or provided for in such resolution or resolutions; and
(ix) such other special rights and protective provisions with
respect to any class or series as may to the Board of Directors or Committee
deem advisable.
(c) The shares of each class or series of the Preferred Stock may vary
from the shares of any other class or series thereof in any or all of the
foregoing respects. The Board of Directors or Committee may increase the number
of shares of the Preferred Stock designated for any existing class or series by
a resolution adding to such class or series authorized and unissued shares of
the
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EXHIBIT 3.1
Preferred Stock not designated for any other class or series. The Board of
Directors or Committee may decrease the number of shares of the Preferred
Stock designated for any existing class or series by a resolution subtracting
from such class or series authorized and unissued shares of the Preferred
Stock designated for such existing class or series, and the shares so
subtracted shall become authorized, unissued, and undesignated shares of the
Preferred Stock. The number of authorized shares of Preferred Stock may be
increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the
Common Stock, without a vote of the holders of the Preferred Stock, or any
series thereof, unless a vote of any such holders is required pursuant to the
terms fixed therefor in the resolution or resolutions providing for the
issuance of such class or series adopted by the Board of Directors or any
Committee.
2. PROVISIONS RELATING TO THE COMMON STOCK.
(a) Each share of Common Stock of the Corporation shall have identical
rights and privileges in every respect. The holders of shares of Common Stock
shall be entitled to vote upon all matters submitted to a vote of the
stockholders of the Corporation and shall be entitled to one vote for each share
of Common Stock held.
(b) Subject to the prior rights and preferences, if any, applicable to
shares of the Preferred Stock or any series thereof, the holders of shares of
the Common Stock shall be entitled to receive such dividends (payable in cash,
stock, or otherwise) as may be declared thereon by the Board of Directors or
Committee at any time and from time to time out of any funds of the Corporation
legally available therefor.
(c) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Corporation, after distribution in full of the
preferential amounts, if any, to be distributed to the holders of shares of the
Preferred Stock or any series thereof, the holders of shares of the Common Stock
shall be entitled to receive all of the remaining assets of the Corporation
available for distribution to its stockholders, ratably in proportion to the
number of shares of the Common Stock held by them. A liquidation, dissolution,
or winding-up of the Corporation, as such terms are used in this paragraph (c),
shall not be deemed to be occasioned by or to include any consolidation or
merger of the Corporation with or into any other corporation or corporations or
other entity or a sale, lease, exchange, or conveyance of all or a part of the
assets of the Corporation.
3. GENERAL.
(a) Subject to the foregoing provisions of this Certificate of
Incorporation and the applicable provisions of the DGCL, the Corporation may
issue shares of its Preferred Stock and Common Stock from time to time for such
consideration (not less than the par value thereof) as may be fixed by the Board
of Directors or Committee, which is expressly authorized to fix the same in its
absolute and uncontrolled discretion subject to the foregoing conditions. Shares
so issued for which the consideration shall have been paid or delivered to the
Corporation shall be deemed fully paid stock and shall not be liable to any
further call or assessment thereon, and the holders of such shares shall not be
liable for any further payments in respect of such shares.
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EXHIBIT 3.1
(b) The Corporation shall have authority to create and issue rights and
options entitling their holders to purchase shares of the Corporation's capital
stock of any class or series or other securities of the Corporation, and such
rights and options shall be evidenced by instrument(s) approved by the Board of
Directors or Committee. The Board of Directors or Committee shall be empowered
to set the exercise price, duration, times for exercise, and other terms of such
options or rights; PROVIDED, HOWEVER, that the consideration to be received for
any shares of capital stock subject thereto shall not be less than the par value
thereof.
FIFTH: The number of directors constituting the Board of Directors
shall be fixed by, or in the manner provided in, the bylaws of the Corporation,
provided that such number shall be no less than one (plus such number of
directors as may be elected from time to time pursuant to the terms of any
series of Preferred Stock that may be issued and outstanding from time to time)
and until changed in accordance with the manner prescribed by the bylaws shall
be two (2).
The directors of the Corporation, whether now serving as such or
hereafter elected (exclusive of directors who are elected pursuant to the
terms of, and serve as representatives of the holders of, any series of
Preferred Stock), shall be referred to herein as "Classified Directors" and
shall be divided into three classes, with the first class referred to herein
as "Class 1," the second class as "Class 2," and the third class as "Class 3."
If the total number of Classified Directors equals a number divisible by
three, then the number of directors in each of Class 1, Class 2, and Class 3
shall be that number of directors equal to the total number of directors
divided by three. If, however, the total number of Classified Directors equals
a number that is not divisible by three, each such class of directors shall
consist of that number of directors as nearly equal in number as reasonably
possible to the total number of directors divided by three, as determined by
the Board of Directors in advance of each respective election of directors by
holders of shares of capital stock of the Corporation then entitled to vote in
such election. The term of office of the initial Class 1 directors shall
expire at the 1998 annual meeting of stockholders, the term of office of the
initial Class 2 directors shall expire at the 1999 annual meeting of
stockholders and the term of office of the initial Class 3 directors shall
expire at the 2000 annual meeting of stockholders, with each director to hold
office until his successor shall have been duly elected and qualified. At each
annual meeting of stockholders, commencing with the 1998 annual meeting,
directors elected to succeed those directors whose terms then expire shall be
elected for a term of office to expire at the third succeeding annual meeting
of stockholders after their election, with each director to hold office until
his successor shall have been duly elected and qualified.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by series or by class (excluding holders of Common
Stock), to elect directors, the election, term of office, filling of vacancies,
and other features of such directorships shall be governed by the terms of this
Certificate of Incorporation (including any amendment to this Certificate of
Incorporation that designates a series of Preferred Stock), and such directors
so elected by the holders of Preferred Stock shall not be divided into classes
pursuant to this Article FIFTH unless expressly provided by such terms.
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EXHIBIT 3.1
Any or all Classified Directors may be removed, with cause, upon the
affirmative vote of the holders of a majority of the outstanding shares of each
class of capital stock of the Corporation then entitled to vote at an election
of such Classified Directors. Except as may otherwise be provided by law, cause
for removal shall exist only if the director whose removal is proposed (a) has
been convicted of a felony by a court of competent jurisdiction and such
conviction is no longer subject to direct appeal, (b) has been adjudged by a
court of competent jurisdiction to be liable for gross negligence or misconduct
in the performance of his duties to the Corporation in a matter of substantial
importance to the Corporation, and such adjudication has become final and
non-appealable, or (c) has missed twelve consecutive meetings of the Board of
Directors.
The name and address of each person who is to serve as a director until
his term of office expires (as described below) or until his successor be
elected and qualified, is as follows, and such person shall serve in the Class
designated:
NAME MAILING ADDRESS CLASS
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Graham Glass 14850 Quorum Drive 2
Suite 500
Dallas, Texas 75240
David Norris 14850 Quorum Drive 3
Suite 500
Dallas, Texas 75240
SIXTH: All the powers of the Corporation, insofar as the same may be
lawfully vested by this Certificate of Incorporation in the Board of Directors,
are hereby conferred upon the Board of Directors. In furtherance and not in
limitation of that power, the Board of Directors shall have the power, upon the
affirmative vote of at least two-thirds (2/3) of the Classified Directors then
serving to make, adopt, alter, amend, and repeal from time to time the bylaws of
the Corporation and to make from time to time new bylaws of the Corporation
(subject to the right of the stockholders entitled to vote thereon to adopt,
alter, amend, and repeal bylaws made by the Board of Directors or to make new
bylaws); PROVIDED, HOWEVER, that the stockholders of the Corporation shall be
entitled to adopt, alter, amend, or repeal bylaws made by the Board of Directors
or to make new bylaws solely upon the affirmative vote of the holders of at
least two-thirds (2/3) of the outstanding shares of each class of capital stock
of the Corporation then entitled to vote thereon.
SEVENTH: 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 stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
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,
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EXHIBIT 3.1
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
of 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.
EIGHTH: No director of the Corporation shall be 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 that involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit. If
the DGCL hereafter is amended to authorize the further elimination or
limitation of the liability of directors, then the liability of a director of
the Corporation, in addition to the limitation on personal liability provided
herein, shall be limited to the fullest extent permitted by the amended DGCL.
Any repeal or modification of this Article by the stockholders of the
Corporation shall be prospective only and shall not adversely affect any
limitation of the personal liability of a director of the Corporation existing
at the time of such repeal or modification.
NINTH: The Corporation shall indemnify any person who was, is, or is
threatened to be made a party to a proceeding (as hereinafter defined) by
reason of the fact that he or she (i) is or was a director or officer of the
Corporation or (ii) while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, to the
fullest extent permitted under the DGCL, as the same exists or may hereafter
be amended.
Such rights shall be a contract right and as such shall run to the
benefit of any director or officer who is elected and accepts the position of
director or officer of the Corporation or elects to continue to serve as a
director or officer of the Corporation while this Article NINTH is in effect.
Any repeal or amendment of this article NINTH shall be prospective only and
shall not limit the rights of any such director or officer or the obligations of
the Corporation with respect to any claim arising from or related to the
services of such director or officer in any of the foregoing capacities prior to
any such repeal or amendment to this Article NINTH. Such right shall include the
right to be paid by the Corporation expenses incurred in defending any such
proceeding in advance of its final disposition to the maximum extent permitted
under the DGCL.
If a claim for indemnification hereunder is not paid in full by the
Corporation within sixty (60) days after a written claim 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, the claimant shall also be entitled to be paid the expenses of
prosecuting such claim. It shall be a defense to any such action that such
indemnification or
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EXHIBIT 3.1
advancement of costs of defense are not permitted under the DGCL, but the
burden of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including the Board of Directors or any Committee
thereof, independent legal counsel, or stockholders) to have made its
determination prior to the commencement of such action that indemnification
of, or advancement of costs of defense to, the claimant is permissible in the
circumstances nor an actual determination by the Corporation (including the
Board of Directors or any Committee thereof, independent legal counsel, or
stockholders) that such indemnification or advancement is not permissible
shall be a defense to the action or create a presumption that such
indemnification by the Corporation is not permissible.
In the event of the death of any person having rights of
indemnification under the foregoing provisions, such right shall inure to the
benefit of his or her heirs, executors, administrators, and personal
representatives. The rights conferred above shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
bylaw, resolution of stockholders or directors, agreement, or otherwise.
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by law.
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
TENTH: The Corporation expressly elects to be governed by Section 203
of the DGCL.
ELEVENTH: Special meetings of stockholders of the Corporation may only
be called by the Board of Directors pursuant to a resolution adopted by a
majority of the Classified Directors then serving, by the Chairman of the Board
of Directors, or by any holder or holders of at least twenty-five percent (25%)
of the outstanding shares of capital stock of the Corporation then entitled to
vote on any matter for which the respective special meeting is being called.
TWELFTH: Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, the affirmative vote of the holders of at least two-thirds (2/3) of
the outstanding shares of each class of capital stock of the Corporation then
entitled to vote thereon shall be required to amend, alter, or repeal any one or
more of Articles FIFTH, SIXTH, EIGHTH, NINTH, TENTH, ELEVENTH, TWELFTH AND
THIRTEENTH of this Certificate of Incorporation.
THIRTEENTH: Any action required to be taken at any annual or special
meeting of holders of Common Stock, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of two-thirds
(2/3) of the outstanding Common Stock and shall be delivered to the Corporation
by
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EXHIBIT 3.1
delivery to its registered office in the State of Delaware, the principal
place of business of the Corporation or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders
are recorded. Every written consent shall bear the date of signature of each
such stockholder who signs the consent, and no written consent shall be
effective to take the corporate action referred to therein unless, within 60
days of the earliest dated consent delivered in the manner required by this
Article THIRTEENTH to the Corporation, written consents signed by a sufficient
number of holders to take action are delivered to the Corporation by delivery
to its registered office in the State of Delaware, the principal place of
business of the Corporation or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by
hand or by certified or registered mail, return receipt requested. Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
FOURTEENTH: The name and the mailing address of the incorporator are:
NAME MAILING ADDRESS
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Greg R. Samuel 901 Main Street, Suite 3100
Dallas, Texas 75202-3789
* * * * *
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EXHIBIT 3.1
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this Certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 24th day of November, 1997.
/s/ GREG R. SAMUEL
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Greg R. Samuel, Incorporator
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