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EXHIBIT 3.1.2
RESTATED
CERTIFICATE OF INCORPORATION
OF
E-CENTIVES, INC.
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Pursuant to Section 245 of the
General Corporation Law
of the State of Delaware
E-CENTIVES, INC., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), hereby certifies as follows:
1. The Corporation was originally incorporated under the name
"Imaginex, Inc. " The present name of the Corporation is "e-centives, Inc. "
2. The Certificate of Incorporation (as amended, the
"CERTIFICATE OF INCORPORATION") of the Corporation was filed in the office of
the Secretary of State of the State of Delaware on August 2, 1996.
3. The text of the Certificate of Incorporation, as heretofore
amended, is hereby amended and restated to read in its entirety as follows:
ARTICLE 1. NAME
The name of this Corporation is e-centives, Inc.
ARTICLE 2. REGISTERED OFFICE AND AGENT
The registered office of the Corporation in the State of Delaware
shall be located at 1209 Orange Street, Centre Road, in the City of Wilmington,
County of New Castle 19801. The registered agent of the Corporation at such
address shall be Corporation Trust Company.
ARTICLE 3. PURPOSE AND POWERS
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 (the "DELAWARE GENERAL CORPORATION LAW"). The
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Corporation shall have all power necessary or convenient to the conduct,
promotion or attainment of such acts and activities.
ARTICLE 4. CAPITAL STOCK
4.1. AUTHORIZED SHARES
The total number of shares of all classes of stock that the
Corporation shall have the authority to issue is thirty-five Million
(35,000,000), of which twenty-five million (25,000,000) of such shares shall be
Common Stock, having a par value of $.01 per share ("COMMON STOCK"), and ten
million (10,000,000) of such shares shall be Preferred Stock, having a par value
of $.01 per share ("PREFERRED STOCK").
4.2. COMMON STOCK
4.2.1. RELATIVE RIGHTS
The Common Stock shall be subject to all of the rights,
privileges, preferences and priorities of the Preferred Stock as set forth in
the certificate of designations filed to establish each series of Preferred
Stock. Each share of Common Stock shall have the same relative rights as and be
identical in all respects to all the other shares of Common Stock.
4.2.2. DIVIDENDS
Whenever there shall have been paid, or declared and set
aside for payment, to the holders of shares of any class of stock having
preference over the Common Stock as to the payment of dividends, the full amount
of dividends and of sinking fund or retirement payments, if any, to which such
holders are respectively entitled in preference to the Common Stock, then
dividends may be paid on the Common Stock and on any class or series of stock
entitled to participate therewith as to dividends, out of any assets legally
available for the payment of dividends thereon, but only when and as declared by
the Board of Directors of the Corporation (the "BOARD").
4.2.3. DISSOLUTION, LIQUIDATION, WINDING UP
In the event of any dissolution, liquidation or winding up
of the Corporation, whether voluntary or involuntary, the holders of the Common
Stock, and holders of any class or series of stock entitled to participate
therewith, in whole or in part, as to the distribution of assets in such event,
shall become entitled to participate in the distribution of any assets of the
Corporation remaining after the Corporation shall have paid, or provided for
payment of, all debts and liabilities of the Corporation and after the
Corporation shall have paid, or set aside for payment, to the holders of any
class of stock having preference over the Common Stock in the
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event of dissolution, liquidation or winding up the full preferential amounts
(if any) to which they are entitled.
4.2.4. VOTING RIGHTS
Each holder of shares of Common Stock shall be entitled to
attend all special and annual meetings of the stockholders of the Corporation
and, share for share and without regard to class, together with the holders of
all other classes of stock entitled to attend such meetings and to vote (except
any class or series of stock having special voting rights), to cast one vote for
each outstanding share of Common Stock so held upon any matter or thing
(including, without limitation, the election of one or more directors) properly
considered and acted upon by the stockholders.
4.3. PREFERRED STOCK
The Board of Directors is authorized, subject to limitations
prescribed by the Delaware General Corporation Law and the provisions of this
Restated Certificate of Incorporation, to provide, by resolution or resolutions
from time to time and by filing a certificate of designations pursuant to the
Delaware General Corporation Law, for the issuance of the shares of Preferred
Stock in series, to establish from time to time the number of shares to be
included in each such series, to fix the powers, designations, preferences and
relative, participating, optional or other special rights of the shares of each
such series and to fix the qualifications, limitations or restrictions thereof.
4.4. SPECIAL MEETINGS
Special meetings of the stockholders, for any purpose or purposes,
unless otherwise prescribed by statute, may be called (a) by the Board on its
own behalf or one or more officers of the Corporation as provided in the bylaws
or (b) by stockholders of the Corporation upon the written request of the
holders of at least 40% of the securities of the Corporation outstanding and
entitled to vote generally in the election of directors.
ARTICLE 5. BOARD OF DIRECTORS
5.1. NUMBER; ELECTION
The number of directors of the Corporation shall be such number as
from time to time shall be fixed by, or in the manner provided in, the bylaws of
the Corporation.
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Except as otherwise provided by statute, this Restated Certificate
of Incorporation or the Bylaws of the Corporation, directors shall be elected by
a plurality of the votes of the shares present in person or represented by proxy
at the meeting and entitled to vote on the election of directors. Unless and
except to the extent that the bylaws of the Corporation shall otherwise require,
the election of directors of the Corporation need not be by written ballot.
5.2. MANAGEMENT OF BUSINESS AND AFFAIRS OF THE CORPORATION
The business and affairs of the Corporation shall be managed by or
under the direction of the Board. Except as otherwise provided in this Restated
Certificate of Incorporation, each director of the Corporation shall be entitled
to one vote per director on all matters voted or acted upon by the Board.
5.3. LIMITATION OF LIABILITY
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, 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 Delaware General Corporation Law relating to unlawful payment
of dividends or unlawful stock purchase or redemption of stock or (d) for any
transaction from which the director derived an improper personal benefit. Any
repeal or modification of this Article 5.3 shall be prospective only and shall
not adversely affect any right or protection of, or any limitation of the
liability of, a director of the Corporation existing at, or arising out of facts
or incidents occurring prior to, the effective date of such repeal or
modification.
ARTICLE 6. COMPROMISE OR ARRANGEMENTS
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
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 the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the 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 the
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 the 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
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creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of the 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 the Corporation, as the case may be,
and also on the Corporation.
ARTICLE 7. AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred by
the Delaware General Corporation Law, the Board is expressly authorized and
empowered to adopt, amend and repeal the bylaws of the Corporation.
ARTICLE 8. RESERVATION OF RIGHT TO AMEND THIS RESTATED CERTIFICATE OF
INCORPORATION
The Corporation reserves the right at any time, and from time to
time, to amend, alter, change, or repeal any provision contained in this
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 any nature conferred upon stockholders, directors, or any other
persons by and pursuant to this Restated Certificate of Incorporation in its
present form or as hereafter amended are granted subject to the rights reserved
in this ARTICLE 8.
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4. This Restated Certificate of Incorporation was duly adopted
by the Board of Directors of the Corporation in accordance with the provisions
of Sections 242 and 245 of the General Corporation Law of the State of Delaware
and was duly adopted by vote of the stockholders of the Corporation in
accordance with the provisions of Sections 228 and 242 of the General
Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, the undersigned hereby certifies that the
facts hereinabove stated are truly set forth, and accordingly executes this
Restated Certificate of Incorporation this ____ day of August, 2000.
E-CENTIVES, INC.
By:
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Kamran Amjadi
Chief Executive Officer
ATTEST:
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Mehrdad Akhavan
President and Secretary
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