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Exhibit 3.1
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
DIGIMARC CORPORATION
DIGIMARC CORPORATION, a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware (the "Corporation"),
does hereby certify:
1. That the name of the Corporation is Digimarc Corporation. The
Corporation was originally incorporated under the name Digimarc-Delaware, Inc.;
and the original Certificate of Incorporation of the Corporation and Restated
Certificate of Incorporation were filed with the Secretary of State of the State
of Delaware on the 27th day of September, 1999 and the 5th day of November,
1999, respectively.
2. That the Corporation filed a Certificate of Merger effective
December 1, 1999, merging Digimarc Corporation, an Oregon corporation ("Digimarc
Oregon"), with and into Digimarc-Delaware, Inc., and succeeded to the
resolutions passed by the Board of Directors of Digimarc Oregon.
3. That by unanimous written consent of the Board of Directors of
Digimarc Oregon, dated as of the 14th day of September, 1999, filed with the
minutes of the Corporation, resolutions were duly adopted setting forth the
proposed amendment and restatement of the Restated Certificate of Incorporation
of the Corporation and declaring said amendment and restatement to be advisable.
The resolution setting forth the proposed amendment and restatement is as
follows:
RESOLVED, that conditioned upon the closing of the Initial
Public Offering and subject to the approval of the stockholders, the
Certificate of Incorporation of the Corporation shall be amended and
restated in its entirety to read as set forth in the attached Second
Restated Certificate of Incorporation.
4. That thereafter, pursuant to resolutions of its Board of
Directors, the shareholders of Digimarc Oregon approved such amendment and
restatement at a special meeting of the stockholders called and held upon notice
in accordance with Title VII, Chapter 60 of the Oregon Revised Statutes. A
majority of the outstanding stock entitled to vote thereon has been voted in
favor of said amendment and restatement.
5. That said amendment and restatement was duly adopted in
accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware. This Second Restated Certificate of
Incorporation restates and integrates and further amends the provisions of the
Restated Certificate of Incorporation of the Corporation as follows:
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SECTION 1.
The name of the corporation is Digimarc Corporation (the
"Corporation").
SECTION 2.
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, Delaware 19801,
County of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
SECTION 3.
The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the Delaware General Corporation Law.
SECTION 4.
4.1 The aggregate number of shares of capital stock which the
Corporation shall have authority to issue is 35,000,000, consisting of
30,000,000 shares of common stock, $.001 par value per share ("Common Stock"),
and 5,000,000 shares of preferred stock ("Preferred Stock"), $.001 par value per
share.
4.2 Any of the shares of Preferred Stock may be issued from time to
time in one or more series. The rights privileges, preferences and restrictions
of any such series may be subordinated to, made pari passu with (including,
without limitation, inclusion in provisions with respect to liquidation and
acquisition preferences, redemption and/or approval of matters by vote or
written consent), or made senior to any of those of any present or future class
or series of Preferred Stock or Common Stock. Subject to the limitations and
restrictions set forth in this Section 4 , the Board of Directors or a Committee
of the Board of Directors, to the extent permitted by law and the bylaws of the
Corporation or a resolution of the Board of Directors, by resolution or
resolutions, is authorized to create or provide for any such series, and to fix
the designations, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions thereof,
including, without limitation, the authority to fix or alter the dividend
rights, dividend rates, conversion rights, exchange rights, voting rights,
rights and terms of redemption (including sinking and purchase fund provisions),
the redemption price or prices, the dissolution preferences and the rights in
respect to any distribution of assets of any wholly unissued series of Preferred
Stock and the number of shares constituting any such series, and the designation
thereof, or any of them and to increase or decrease the number of shares of any
series so created, subsequent to the issue of that series but not below the
number of shares of such series then outstanding. In case the number of shares
of any series shall be so decreased, the shares constituting such decrease shall
resume the status which they had prior to the adoption of the resolution
originally fixing the number of shares of such series.
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There shall be no limitation or restriction on any variation between
any of the different series of Preferred Stock as to the designations,
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions thereof; and the several series
of Preferred Stock may, except as otherwise expressly provided herein, vary in
any and all respects as fixed and determined by the resolution or resolutions of
the Board of Directors or by Committee of the Board of Directors, providing for
the issuance of the various series; PROVIDED, HOWEVER, that all shares of any
one series of Preferred Stock shall have the same designation, preferences and
relative, participating, optional or other special rights and qualifications,
limitations and restrictions.
Except as otherwise required by law, or as otherwise fixed by
resolution or resolutions of the Board of Directors with respect to one or more
series of Preferred Stock, the entire voting power and all voting rights shall
be vested exclusively in the Common Stock, and each stockholder of the
Corporation who at the time possesses voting power for any purpose shall be
entitled to one vote for each share of such stock standing in his name on the
books of the Corporation.
SECTION 5.
5.1 COMMON STOCK. Except as expressly set forth in this Second Amended
and Restated Certificate of Incorporation, the shares of Common Stock have
voting rights of one vote per share on all matters, and are entitled to receive
the net assets of the Corporation upon liquidation.
5.2 REPURCHASE OF SHARES. Subject to Delaware law, this Corporation is
authorized to purchase shares of Common Stock from holders thereof pursuant to
arrangements approved by the Board of Directors, without taking into account the
preferential liquidation rights of holders of Preferred Stock set forth herein
when applying the provisions of the Delaware General Corporation Law to
determine the lawfulness of the purchase.
SECTION 6.
6.1 DIRECTORS. Except as otherwise provided herein or the General
Corporation Law of the State of Delaware, the business and affairs of the
Corporation shall be managed by or under the direction of a board of directors
consisting of one or more members. Directors need not be stockholders of the
Corporation. The number of directors shall be fixed from time to time, within
the limits specified in the Bylaws, by a Bylaw or amendment thereof duly adopted
by the vote of a majority of the shares entitled to vote represented at a duly
held meeting at which a quorum is present, or by the board of directors.
The directors shall be divided into three classes, designated Class I,
Class II and Class III, as nearly equal in number as the then total number of
directors permits, serving staggered terms so that the initial terms of each
such class will expire, respectively, at the 2000, 2001, and 2002 annual
meetings of the stockholders. At each such succeeding annual meeting of
stockholders, directors elected to succeed those directors whose terms are
expiring at such meeting shall be elected for a term of office to expire at the
third succeeding annual meeting of stockholders following such election. If the
number of directors is changed, any increase or decrease shall be
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apportioned among the classes so as to maintain the number of directors in each
class as nearly equal as possible, and any additional directors 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 director. 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 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
terms of this Certificate of Incorporation or the Bylaws applicable thereto, and
such directors so elected shall not be divided into classes pursuant to this
Section 6.1 unless expressly provided by such terms.
Any amendment, change or repeal of this Section 6.1, or any other
amendment to this Certificate of Incorporation that will have the effect of
permitting circumvention of or modifying this Section 6.1, shall require the
favorable vote, at a stockholders' meeting, of the holders of at least eighty
percent (80%) of the then-outstanding shares of stock of the Corporation
entitled to vote.
Except as provided below, the directors shall be elected by a plurality
vote of the shares represented in person or by proxy at the stockholders annual
meeting in each year and entitled to vote on the election of directors. Elected
directors shall hold office until the next annual meeting for the years in which
their terms expire and until their successors shall be duly elected and
qualified. If, for any cause, the board of directors shall not have been elected
at an annual meeting, they may be elected as soon thereafter as convenient at a
special meeting of the stockholders called for that purpose in the manner
provided in this Certificate of Incorporation or the Bylaws.
6.2 VACANCIES. Except as otherwise provided by the Certificate of
Incorporation or any amendments thereto, vacancies and newly created
directorships resulting from any increase in the 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, and each director so elected shall
hold office for the unexpired portion of the term of the director whose place
shall be vacant, and until his successor shall have been duly elected and
qualified. A vacancy in the board of directors shall be deemed to exist under
this Section 6.2 in the case of the death, removal or resignation of any
director, or if the stockholders fail at any meeting of stockholders at which
directors are to be elected to elect the number of directors then constituting
the whole board.
6.3 RESIGNATION. Any director may resign by delivering his written
resignation to the Corporation at its principal office, addressed to the
president or secretary. Such resignation shall be effective upon receipt unless
it is specified to be effective at some other time or upon the happening of some
other event. When one or more directors shall resign from the board, effective
at a future date, a majority of the directors then in office, including those
who have so resigned, shall have power to fill such vacancy or vacancies, the
vote thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office for the unexpired
portion of the term of the director whose place shall be vacated and until
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his successor shall have been duly elected and qualified.
SECTION 7.
7.1 INDEMNIFICATION. To the fullest extent permitted by Delaware
statutory or decisional law, as amended or interpreted, no director of this
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director. This Section
7.1 does not affect the availability of equitable remedies for breach of
fiduciary duties.
7.2 AMENDMENTS. Any amendment, change or repeal of this Section shall
only be prospective and no repeal or modification hereof shall adversely affect
the rights under this Section in effect at the time of the alleged occurrence of
any action or omission to act that is the cause of any Proceeding.
SECTION 8.
The board of directors is expressly authorized to make, alter, or
repeal the Bylaws of the Corporation.
SECTION 9.
Elections of directors need not be by written ballot unless the bylaws
of the Corporation shall so provide.
SECTION 10.
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
the provisions of 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 the provisions of 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, 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 this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a 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.
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SECTION 11.
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
IN WITNESS WHEREOF, the Corporation has caused this Second Amended and Restated
Certificate of Incorporation to be signed by its duly authorized officer, this
10th day of December, 1999.
By: /S/ BRUCE DAVIS ,
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Bruce Davis, President
