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EXHIBIT 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NEXTERA ENTERPRISES, INC.
Nextera Enterprises, Inc., a corporation organized and existing under the
laws of the state of Delaware (the "Corporation"), hereby certifies as follows:
ONE: The name of this Corporation is Nextera Enterprises, Inc. The
original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of Delaware on July 20, 1998. The Amended and Restated
Certificate of Incorporation of the Corporation was filed with the Secretary of
State of Delaware on December 23, 1998.
TWO: Pursuant to Sections 242 and 245 of the General Corporation Law of
the State of Delaware, this Second Amended and Restated Certificate of
Incorporation restates and integrates and further amends the provisions of the
Amended and Restated Certificate of Incorporation of this Corporation.
THREE: The text of the Amended and Restated Certificate of Incorporation
as heretofore in effect is hereby restated and further amended to read in its
entirety as follows:
ARTICLE ONE
NAME
The name of the corporation (hereinafter the "Corporation") is:
NEXTERA ENTERPRISES, INC.
ARTICLE TWO
REGISTERED OFFICE
The address, including street, number, city and county, of the registered
office of the Corporation in the State of Delaware is c/o The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, 19801; and the name of the registered agent of
the Corporation in the State of Delaware is The Corporation Trust Company.
ARTICLE THREE
PURPOSE
The nature of the business and of the purposes to be conducted and
promoted by the Corporation shall be to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law. The
Corporation shall possess and exercise all the powers and privileges granted by
the General Corporation Law, by any other law or by this Second Amended and
Restated Certificate of Incorporation, together with any powers incidental
thereto as far as such powers
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and privileges are necessary or convenient to the conduct, promotion or
attainment of the purposes of the Corporation.
ARTICLE FOUR
CAPITAL STRUCTURE
The total number of shares of capital stock which the Corporation shall
have the authority to issue is 89,300,000 shares, consisting of three classes of
capital stock:
(a) 75,000,000 shares of Class A Common Stock, par value $0.001
per share (the "Class A Common Stock");
(b) 4,300,000 shares of Class B Common Stock, par value $0.001 per
share (the "Class B Common Stock," and together with the Class A Common
Stock, the "Common Stock"); and
(c) 10,000,000 shares of Preferred Stock, par value $0.001 per
share (the "Preferred Stock").
ARTICLE FIVE
COMMON STOCK
5.1 Identical Rights. Except as otherwise set forth in this ARTICLE FIVE,
the rights and privileges of the Common Stock shall be identical, including,
without limitation, the right to participate ratably in dividends and other
distributions (including distributions upon liquidation, dissolution or other
winding up of the Corporation), payable in cash, stock or property, except that
in the case of dividends or distributions payable in shares of a class of Common
Stock, only shares of Class A Common Stock may be distributed with respect to
Class A Common Stock and only shares of Class B Common Stock may be distributed
with respect to Class B Common Stock, and the number of shares of Common Stock
payable per share will be equal for each class. In addition, neither the shares
of Class A Common Stock nor the shares of Class B Common Stock may be
subdivided, consolidated, reclassified or otherwise changed unless concurrently
the shares of the other class of Common Stock are subdivided, consolidated,
reclassified or otherwise changed in the same proportion and the same manner.
The Corporation may not make any dividend or distribution with respect to any
class of Common Stock unless at the same time the Corporation makes a ratable
dividend or distribution with respect to each outstanding share of Common Stock
regardless of class. The rights of holders of Class A Common Stock and Class B
Common Stock are subject to the rights of holders of shares of any series of
Preferred Stock that the Corporation may designate and issue from time to time.
5.2 Voting Rights. The holders of the Common Stock shall vote as a single
class on all matters submitted to a vote of the stockholders to which the
holders of Common Stock are entitled to vote, except as may be required by
Delaware law or as otherwise expressly specified in this Second Amended and
Restated Certificate of Incorporation. Each share of Class A Common Stock shall
be entitled to one vote and each share of Class B Common Stock shall be entitled
to ten votes. The Corporation, by action of its Board of Directors and the
affirmative vote of the holders of a majority of the voting power of the capital
stock of the Corporation entitled to vote, may increase or decrease the number
of authorized shares of Common Stock or Preferred Stock of the Corporation (but
not below the number of shares of Common Stock or Preferred Stock, respectively,
then outstanding) irrespective
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of the provisions of Section 242(b)(2) of the General Corporation Law; provided,
however, that any increase or decrease the number of authorized shares of Class
B Common Stock shall in addition to the foregoing, require the affirmative vote
of the holders of a majority of the voting power of the Class B Common Stock,
voting as a separate class.
5.3 Conversion Rights.
(a) Voluntary Conversion. Each share of Class B Common Stock is
convertible into one fully paid and non-assessable share of Class A
Common Stock at any time at the option of the holder. In order to
exercise the conversion privilege, the holder of any shares of Class B
Common Stock to be converted shall present and surrender the certificate
or certificates representing such shares during usual business hours at
the principal executive offices of the Corporation, or if any agent for
the registration of transfer of shares of Class B Common Stock is then
duly appointed and acting (said agent being hereinafter called the
"Transfer Agent"), then at the office of the Transfer Agent, accompanied
by written notice that the holder elects to convert the shares of Class B
Common Stock represented by such certificate or certificates, to the
extent specified in such notice. Such notice shall also state the name or
names (with addresses) in which the certificate or certificates for
shares of Class A Common Stock which shall be issuable on such conversion
shall be issued. If required by the Corporation, any certificate for
shares of Class B Common Stock surrendered for conversion shall be
accompanied by instruments of transfer, in form satisfactory to the
Corporation and the Transfer Agent, duly executed by the holder of such
shares or his or her duly authorized representative. As promptly as
practicable after the receipt of such notice and the surrender of the
certificate or certificates representing such shares of Class B Common
Stock as aforesaid, the Corporation shall issue and deliver at such
office to such holder, or on his or her written order, a certificate or
certificates for the number of full shares of Class A Common Stock
issuable upon the conversion of such shares. Each conversion of shares of
Class B Common Stock shall be deemed to have been effected on the date on
which such notice shall have been received by the Corporation or the
Transfer Agent, as applicable, and the certificate or certificates
representing such shares shall have been surrendered (subject to receipt
by the Corporation or the Transfer Agent, as applicable, within thirty
(30) days thereafter of any required instruments of transfer as
aforesaid), and the person or persons in whose name or names any
certificate or certificates for shares of Class A Common Stock shall be
issuable upon such conversion shall be deemed to have become on said date
the holder or holders of record of the shares represented thereby.
(b) Automatic Conversion.
(i) Each share of Class B Common Stock shall convert
automatically into one fully paid and non-assessable share of Class A
Common Stock immediately prior to its sale, assignment, pledge, gift or
other transfer (an "Assignment" or to "Assign"), other than (a) to a
Controlled Affiliate of the transferor; or (b) pursuant to a Qualified
Transfer (as defined below). For purposes of this Section 5.3(b), the
term "Controlled Affiliate" shall mean, with respect to a transferor, any
individual or entity that is controlled directly or indirectly (by
ownership of voting securities, contract or otherwise) by such
transferor. "Qualified Transfer" means (i) any transfer of shares of
Class B Common Stock by will or pursuant to the laws of descent and
distribution to any member or members of a stockholder's Family, (ii) any
transfer of shares of Class B Common Stock by a stockholder to a domestic
trust created for the sole benefit of one or more of the stockholder or
any member or members of the stockholder's Family, (iii) any transfer of
shares of Class B Common Stock from a trust
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described in clause (ii) above to the stockholder (or former stockholder)
who transferred shares of Class B Common Stock to such trust, (iv) any
transfer to a domestic limited partnership or a domestic limited
liability company if there are no partners or members of such limited
partnership or limited liability company other than a stockholder and
members of a stockholder's Family; (v) any transfer of Class B Common
Stock from a limited partnership or limited liability company described
in clause (iv) above to a stockholder (or former stockholder) who
transferred Class B Common Stock to such limited partnership or limited
liability company; and (vi) any transfer of shares of Class B Common
Stock from one holder of Class B Common Stock to another holder of Class
B Common Stock as of August 31, 1998. "Family" means a person's spouse,
lineal descendants, parents, siblings, and lineal descendants of
siblings. Any such relationship by legal adoption shall be included.
(ii) Upon any Assignment of Class B Common Stock by
Knowledge Enterprises, Inc. ("KE"), other than to a Controlled Affiliate
or pursuant to a Qualified Transfer, a proportionate amount of the Class
B Common Stock held by the other holders of Class B Common Stock will
also automatically convert into fully paid and non-assessable shares of
Class A Common Stock. For example, if KE Assigns 25% of its Class B
Common Stock to a third party who is not a Controlled Affiliate and not
pursuant to a Qualified Transfer, then those shares of Class B Common
Stock will automatically convert into Class A Common Stock on a one to
one basis and 25% of the Class B Common Stock held by each other holder
of Class B Common Stock will automatically convert into Class A Common
Stock on a one to one basis.
(iii) In the event that a group comprised of one or more of
Michael R. Milken, Lawrence J. Ellison or Lowell J. Milken ceases to
control, directly or indirectly (through the ownership of voting
securities, contract or otherwise), KE or any other Person that owns any
or all of the shares of Class B Common Stock owned by KE on the date
hereof, then all Class B Common Stock shall automatically convert into
fully paid and non-assessable shares of Class A Common Stock.
Notwithstanding the foregoing, any holder of Class B Common Stock
may pledge his shares of Class B Common Stock to a financial institution
(the "Pledgee") pursuant to a bona fide pledge of such shares as
collateral security for indebtedness due to the Pledgee, and, if the
Pledgee forecloses or takes similar action, such pledged shares of Class
B Common Stock shall be converted automatically into fully paid and
non-assessable shares of Class A Common Stock immediately prior to such
foreclosure or similar action.
(c) Unconverted Shares. If less than all of the shares of Class B
Common Stock evidenced by a certificate or certificates surrendered to
the Corporation (in accordance with such procedures as the Board of
Directors may determine) are converted, the Corporation shall execute and
deliver to or upon the written order of the holder of such certificate or
certificates a new certificate or certificates evidencing the number of
shares of Class B Common Stock which are not converted without charge to
the holder.
(d) Converted Shares. Any share of Class B Common Stock converted
pursuant to this Article Five shall thereupon be retired and may not be
reissued.
(e) Class A Common Stock. The Class A Common Stock has no
conversion rights.
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5.4 Reservation. The Corporation hereby reserves, and shall at all times
reserve and keep available, out of its authorized and unissued shares of Class A
Common Stock, for the purposes of effecting conversions, such number of duly
authorized shares of Class A Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding shares of Class B Common
Stock. The Corporation covenants that all the shares of Class A Common Stock so
issuable shall, when so issued, be duly and validly issued, fully paid and
non-assessable. The Corporation shall take all such action as may be necessary
to assure that all such shares of Class A Common Stock may be so issued without
violation of any applicable law or regulation.
5.5 Merger. Upon the merger or consolidation of the Corporation, holders
of each class of Common Stock will be entitled to receive equal per share
payments or distributions, except that in any transaction in which shares of
capital stock are distributed, such shares may differ to the extent that the
Class A Common Stock and the Class B Common Stock differ as provided in this
Second Amended and Restated Certificate of Incorporation.
5.6 Liquidation. Upon any dissolution or liquidation of the Corporation,
the holders of the Class A Common Stock and Class B Common Stock will be
entitled to receive ratably all assets of the Corporation available for
distribution to stockholders, subject to any preferential rights of any then
outstanding shares of Preferred Stock.
ARTICLE SIX
PREFERRED STOCK
Shares of Preferred Stock may be issued from time to time in one or more
series, each of such series to have such terms as stated in the resolution or
resolutions providing for the establishment of such series adopted by the Board
of Directors of the Corporation as hereinafter provided. Except as otherwise
expressly stated in the resolution or resolutions providing for the
establishment of a series of Preferred Stock, any shares of Preferred Stock
which may be redeemed, purchased or acquired by the Corporation may be reissued
except as otherwise expressly provided by law.
Authority is hereby expressly granted to the Board of Directors of the
Corporation to issue, from time to time, shares of Preferred Stock in one or
more series, and, in connection with the establishment of any such series by
resolution or resolutions, to determine and fix such voting powers, full or
limited, or no voting powers, and such other powers, designations, preferences
and relative, participating, optional and other special rights, and the
qualifications, limitations and restrictions thereof, if any including, without
limitation, dividend rights, conversion rights, redemption and sinking fund
privileges, and liquidation preferences, as shall be stated in such resolution
or resolutions, all to the fullest extent permitted by the General Corporation
Law. Without limiting the generality of the foregoing, the resolution or
resolutions providing for the establishment of any series of Preferred Stock
may, to the extent permitted by law, provide that such series shall be superior
to, rank equally with or be junior to the Preferred Stock of any other series.
Except as otherwise expressly provided in the resolution or resolutions
providing for the establishment of any series of Preferred Stock, no vote of the
holders of shares of Preferred Stock or Common Stock shall be a prerequisite to
the issuance of any shares of any series of the Preferred Stock authorized by
and complying with the conditions of this Second Amended and Restated
Certificate of Incorporation.
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ARTICLE SEVEN
BOARD OF DIRECTORS
7.1 Number of Directors. The business and affairs of the Corporation
shall be managed by or under the direction of a Board of Directors consisting of
not less than seven nor more than thirteen directors, the exact number of
directors to be determined from time to time solely by resolution adopted by the
affirmative vote of a majority of the entire Board of Directors.
7.2 Removal. No director (other than directors elected by one or more
series of Preferred Stock) may be removed from office by the stockholders except
for cause and, in addition to any other vote required by law, upon the
affirmative vote of the holders of not less than 66 2/3% of the total voting
power of all outstanding securities of the Corporation then entitled to vote
generally in the election of directors, voting together as a single class.
7.3 Limitation of Liability. No director of the Corporation shall be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director; provided that this provision shall
not eliminate or limit the liability of a director (a) for any breach of the
director's duty of loyalty 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) under section 174 of the General Corporation Law
or (d) for any transaction from which the director derived any improper personal
benefits.
If the General Corporation Law is amended after approval by the
stockholders of this ARTICLE SEVEN to authorize 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 permitted by the General Corporation Law, as so amended. No amendment to
or repeal of this provision 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 such director occurring prior to such amendment.
ARTICLE EIGHT
CORPORATE GOVERNANCE
The following provisions are inserted for the management of the business
and the conduct of the affairs of the Corporation and for the further definition
of the powers of the Corporation and its directors and stockholders:
1. The Board of Directors shall have the power to adopt, amend or
repeal the by-laws of the Corporation.
2. The stockholders may adopt, amend, alter, repeal or rescind the
by-laws of the Corporation only with, in addition to any other vote
required by law, the affirmative vote of the holders of not less than
66 2/3% of the total voting power of all outstanding securities of the
Corporation then entitled to vote generally in the election of directors,
voting together as a single class.
3. Elections of directors need not be by written ballot unless the
by-laws of the Corporation so provide.
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4. Any action required or permitted to be taken at any annual or
special meeting of stockholders may be taken only upon the vote of
stockholders at an annual or special meeting duly noticed and called in
accordance with the General Corporation Law, and may not be taken by
written consent of stockholders without a meeting.
5. Special meetings of stockholders may be called by the Board of
Directors, the Chairman of the Board of Directors or the President of the
Corporation and may not be called by any other person. Notwithstanding
the foregoing, whenever holders of one or more series of Preferred Stock
shall have the right, voting separately as a series, to elect directors,
such holders may call special meetings of such holders pursuant to the
certificate of designation for such series.
ARTICLE NINE
STOCKHOLDER LOCK-UP
Until the date that is 180 days after the date of the final prospectus
relating to the Corporation's initial public offering of equity securities (the
"Initial Public Offering"), each holder of shares of Common Stock, other than
shares of Common Stock acquired in such Initial Public Offering, hereby:
(a) agrees not to (x) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable
for Common Stock (including, without limitation, shares of Common Stock
or securities convertible into or exercisable or exchangeable for Common
Stock which may be deemed to be beneficially owned by such holder in
accordance with the rules and regulations of the Securities and Exchange
Commission) or (y) enter into any swap or other arrangement that
transfers all or a portion of the economic consequences associated with
the ownership of Common Stock (regardless of whether any of the
transactions described in clause (x) or (y) is to be settled by the
delivery of Common Stock, or such other securities in cash or otherwise),
without the prior written consent of the lead managing underwriter of
such Initial Public Offering;
(b) agrees not to make any demand for, or exercise any right with
respect to, the registration of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common
Stock, without the prior written consent of the lead managing underwriter
of such Initial Public Offering; and
(c) authorizes the Corporation to cause the transfer agent to
decline to transfer and/or to note stop transfer restrictions on the
transfer books and records of the Corporation with respect to any shares
of Common Stock and any securities convertible into or exercisable or
exchangeable for Common Stock for which the holder is the record holder
and, in the case of any shares or securities for which the holder if the
beneficial but not the record holder, agrees to cause the transfer agent
to decline to transfer and/or to note stop transfer restrictions on such
books and records with respect to such shares or securities.
Notwithstanding the foregoing, the restrictions set forth in clauses (a), (b),
and (c) above shall not apply to any Assignment to a Controlled Affiliate or any
Qualified Transfer; provided that in connection with any such transfer the
transferee agrees to be bound by the terms of the lock-up
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restrictions set forth in clauses (a), (b) and (c) above for the remainder of
the 180 day period described above.
ARTICLE TEN
AMENDMENT
The Corporation reserves the right at any time, and from time to time, to
amend, alter, change or repeal any provision contained in this Second Amended
and Restated Certificate of Incorporation, 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 now or hereafter prescribed by law; and all rights, preferences
and privileges of whatsoever nature conferred upon stockholders, directors or
any other persons whomsoever by and pursuant to this Second Amended and Restated
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the rights reserved in this ARTICLE TEN."
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The foregoing Second Amended and Restated Certificate of Incorporation
has been approved by the Board of Directors of the Corporation.
The foregoing Second Amended and Restated Certificate of Incorporation
has been approved by the outstanding shares of the Corporation in accordance
with Section 242 and 245 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the Second Amended and Restated Certificate of
Incorporation has been has been executed by the undersigned duly authorized
officer of the Corporation on this 15th day of June, 2000.
/s/ Stanley E. Maron
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Stanley E. Maron, Secretary
