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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
RESOURCEPHOENIX.COM
A DELAWARE CORPORATION
ReSourcePhoenix.com, a corporation organized and existing under and by
virtue of the Delaware General Corporation Law (the "Corporation"), does hereby
certify as follows:
FIRST: That the Corporation was originally incorporated on July 27, 1999
pursuant to the Delaware General Corporation Law.
SECOND: That the Corporation's Certificate of Incorporation is hereby
amended and restated to read in its entirety as follows:
"FIRST: The name of this corporation is ReSourcePhoenix.com (the
"Corporation").
SECOND: The address of the Corporation's registered office in the State
of Delaware is 1209 Orange Street, Wilmington, New Castle County, Delaware
19801. The name of its registered agent at such address is The Corporation Trust
Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware General
Corporation Law.
FOURTH: This Corporation is authorized to issue two classes of stock to
be designated, respectively, "common stock" and "preferred stock." The total
number of shares which this Corporation is authorized to issue is fifty million
(50,000,000) shares. Forty-five million (45,000,000) shares shall be designated
common stock (the "Common Stock"), of which thirty-seven million eight hundred
thousand (37,800,000) shares shall be designated Class A common stock (the
"Class A Common Stock") and seven million two hundred thousand (7,200,000)
shares shall be designated Class B common stock (the "Class B Common Stock").
Five million (5,000,000) shares shall be undesignated preferred stock (the
"Preferred Stock"). Each share of Preferred Stock shall have a par value of
$0.001, and each share of Common Stock shall have a par value of $0.001.
Any Preferred Stock not previously designated as to series may be issued
from time to time in one or more series pursuant to a resolution or resolutions
providing for such issue duly adopted by the Board of Directors (authority to do
so being hereby expressly vested in the Board), and such resolution or
resolutions shall also set forth the voting powers, full or limited or none, of
each such series of Preferred Stock and shall fix the designations, preferences
and relative, participating, optional or other special rights and
qualifications, limitations or restrictions of each such series of Preferred
Stock. The Board of Directors is authorized to alter the designation, rights,
preferences, privileges and restrictions granted to or imposed upon any wholly
unissued series of Preferred Stock
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and, within the limits and restrictions stated in any resolution or resolutions
of the Board of Directors originally fixing the number of shares constituting
any series of Preferred Stock, to increase or decrease (but not below the number
of shares of any such series then outstanding) the number of shares of any such
series subsequent to the issue of shares of that series.
Each share of Preferred Stock issued by the Corporation, if reacquired
by the Corporation (whether by redemption, repurchase, conversion to Common
Stock or other means), shall upon such reacquisition resume the status of
authorized and unissued shares of Preferred Stock, undesignated as to series and
available for designation and issuance by the Corporation in accordance with the
immediately preceding paragraph.
FIFTH: The shares of Class A Common Stock and Class B Common Stock shall
be identical in all respects and shall have equal rights and privileges, except
as expressly set forth in this Article FIFTH.
1. Dividends. Subject to any preferential dividend rights of any series
of Preferred Stock as may then be outstanding, dividends or distributions upon
the Class A Common Stock and Class B Common Stock may be declared by the Board
of Directors and paid by the Board of Directors of the Corporation from time to
time in such amounts as the Board shall determine, out of any source at the time
lawfully available therefor, provided that identical dividends or distributions
per share are declared and paid concurrently upon the shares of each such class.
In the case of dividends or other distributions payable in Class A Common Stock
or Class B Common Stock, only shares of Class A Common Stock shall be
distributed with respect to Class A Common Stock and only shares of Class B
Common Stock shall be distributed with respect to Class B Common Stock. In the
case of dividends or other distributions consisting of other voting securities
of the Corporation, the Corporation shall declare and pay such dividends in two
separate classes of such voting securities, identical in all respects, except
that the voting rights of each such security paid to the holders of Class A
shall be one-fifth of the voting rights of each such security paid to the
holders of Class B Common Stock. In the case of dividends or other distributions
consisting of non-voting securities convertible into, or exchangeable for,
voting securities of the Corporation, the Corporation shall provide that such
convertible or exchangeable securities and the underlying securities be
identical in all respects (including, without limitation, the conversion or
exchange rate), except that the voting rights of each security underlying the
convertible or exchangeable securities paid to the holders of Class A Common
Stock shall be one-fifth of the voting rights of each security underlying the
convertible or exchangeable securities paid to the holders of Class B Common
Stock, and such underlying securities paid to the holders of Class B Common
Stock shall convert into the underlying securities paid to the holders of Class
A Common Stock upon the same terms and conditions applicable to the conversion
of Class B Common Stock into Class A Common Stock.
2. Stock Splits, Combinations and the Like. Neither the Class A Common
Stock nor the Class B Common Stock shall be split, combined or subdivided unless
at the same time there shall be a proportionate split, combination or
subdivision of such other class of Common Stock.
3. Rights Upon Liquidation or Dissolution. Subject to any preferential
liquidation rights of any series of Preferred Stock as may then be outstanding,
the holders of the Class A Common
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Stock and the holders of the Class B Common Stock shall be entitled to share
ratably in the assets of the Corporation available for distribution to the
holders of Common Stock upon any dissolution, liquidation or winding up of the
affairs of the Corporation, whether voluntary or involuntary, after payment or
provision for the payment of the debts and other liabilities of the Corporation.
4. Voting. Except as otherwise required by law, on all matters on which
the holders of Common Stock shall be entitled to vote, each holder of Class A
Common Stock shall be entitled to one (1) vote for each share of Class A Common
Stock held by such holder, and each holder of Class B Common Stock shall be
entitled to five (5) votes for each share of Class B Common Stock held by such
holder. Except as otherwise required by applicable law, the holders of shares of
Class A Common Stock and Class B Common Stock shall vote together as one class
on all matters submitted to a vote of stockholders of the Corporation.
5. Conversion.
(a) Optional Conversion. Subject to the provisions of this
subparagraph 5, each holder of record of Class B Common Stock may, at the sole
discretion and option of such holder, convert any whole number or all of such
holder's shares of Class B Common Stock into fully paid and nonassessable shares
of Class A Common Stock at the rate of one share of Class A Common Stock for
each share of Class B Common Stock surrendered for conversion; provided,
however, that such conversion shall not be effective unless and until any
consents or approvals required under applicable securities laws shall have been
obtained.
(b) Automatic Conversion. The outstanding shares of Class B
Common Stock shall automatically be converted into Class A Common Stock at the
conversion rate specified in paragraph (a) above, without further action by the
respective holder or holders of such shares immediately upon any sale, pledge,
conveyance, hypothecation, assignment or other transfer of such share, whether
or not for value, or attempt thereof, by the initial registered holder thereof,
other than any such transfer by such holder that does not result in any change
of Beneficial Ownership of such share. The term "Beneficial Ownership" shall
have the meaning ascribed to such term in Rule 13d-3 adopted under the
Securities Exchange Act of 1934, as amended, as in effect on July 31, 1999.
(c) Mechanics of Conversion. To exercise the optional conversion
right set forth herein, the holder of shares of Class B Common Stock shall
surrender the shares to be converted, accompanied by instruments of transfer
satisfactory to the Corporation and the payment in cash of any amount required
pursuant to subparagraph 5(e) below and sufficient to transfer the Class B
Common Stock being converted to the Corporation free of any adverse interest, at
the principal offices of the Corporation or any of the offices or agencies
maintained for such purpose by the Corporation ("Conversion Agent") and shall
give written notice (by registered or certified mail, overnight courier or hand
delivery) to the Corporation through such Conversion Agent that the holder
elects to convert such shares. Such notice shall also state the name or names,
together with the address or addresses, in which the certificate or certificate
for Class A Common Stock which shall be issuable upon such conversion shall be
issued. As promptly as practicable after the surrender of such shares of Class B
Common Stock as aforesaid, the Corporation shall issue and deliver through such
Conversion Agent to such holder, or on the holder's written order, a certificate
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or certificates for the number of full shares of Class A Common Stock issuable
upon the conversion of such shares in accordance with the provisions hereof.
Certificates will be issued for the balance of the shares of Class B Common
Stock in any case in which fewer than all of the shares of Class B Common Stock
represented by a certificate are converted.
Each conversion pursuant to paragraph 5 shall be deemed to have been
effected immediately prior to the close of business on the date the optional
conversion or transfer of Beneficial Ownership, as the case may be, occurs. In
each such case the person or persons in whose name or names any certificate or
certificates for Class A Common Stock shall be issuable upon such conversion
shall be deemed to have become the holder or holders of record of the Class A
Common Stock represented thereby at the effective date of such conversion,
unless the stock transfer books of the Corporation shall be closed on such date,
in which event such conversion shall be deemed to have been effected immediately
following the opening of business on the next day on which the stock transfer
books of the Corporation shall be open. Following any such automatic conversion,
the share or shares of Class B Common Stock so converted shall cease to be
outstanding, notwithstanding the fact that the holder or holders may not have
surrendered the certificate or certificates representing such Class B Common
Stock for conversion, and such certificate or certificates shall thereafter
represent solely the right to receive a certificate or certificates for Class A
Common Stock issuable upon conversion of the Class B Common Stock so converted,
upon surrender of such certificate or certificates to the Corporation or its
Conversion Agent, of the certificate or certificates for Class B Common Stock so
converted.
(d) Reservation of Shares. The Corporation shall at all times
reserve and keep available out of the authorized and unissued shares of Class A
Common Stock, solely for the purposes of effecting the conversion of the
outstanding Class B Common Stock, such number of shares of Class A Common Stock
as shall from time to time be sufficient to effect conversion of all outstanding
Class B Common Stock.
(e) Payment of Transfer Taxes. The Corporation will pay any and
all documentary stamp or similar issue or transfer taxes payable in respect of
the issue or delivery of shares of Class A Common Stock on conversion of the
Class B Common Stock pursuant hereto; provided however, that the Corporation
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issue or delivery of shares of Class A Common Stock in
a name other that of the original holder of the Class B Common Stock to be
converted and that no such issue or delivery shall be made unless and until the
person requesting such issue or delivery has paid to the Corporation the amount
of any such tax or has established, to the satisfaction of the Corporation, that
such tax has been paid.
(f) Additional Rights of Class B Common Stock. In the event that
the Corporation shall enter into any consolidation, merger, combination or other
transaction in which shares of any class of Common Stock are exchanged for or
changed into other stock or securities, then, and in such event, the shares of
each class of Common Stock shall be exchanged for or changed into an amount per
share equal to the amount of stock, securities, cash and/or any other property,
as the case may be, into which or for which each share of the other class of
Common Stock is exchanged or changed. Notwithstanding the foregoing, if shares
of Class A Common Stock and
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Class B Common Stock are exchanged for or changed into shares of capital stock,
such shares so exchanged for or changed into may (but are not required to)
differ to the extent and only to the extent that the Class A Common Stock and
Class B Common Stock differ as provided herein.
In the event of a reclassification, change of outstanding shares (other
than a change in par value or as a result of any subdivision or combination) or
other similar transaction as a result of which the shares of Class A Common
Stock are converted into another security, then a holder of Class B Common Stock
shall be entitled to receive upon conversion the amount of such security that
such holder would have received upon the reclassification or other similar
transaction if such conversion had occurred immediately prior to the record date
of such reclassification or other similar transaction.
If a share of Class B Common Stock shall be converted subsequent to the
record date for the payment of a dividend or other distribution on shares of
Class B Common Stock but prior to such payment, then the registered holder of
such share at the close of business on such record date shall be entitled to
receive the dividend or other distribution payable on such share on such date
notwithstanding the conversion thereof.
SIXTH: For so long as any shares of Class B Common Stock are
outstanding, any action required or permitted to be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, by written consent setting forth the action to be taken signed by the
holders of outstanding capital stock entitled to vote thereon having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a stockholders' meeting at which all shares entitled to vote
thereon were present and voted. Commencing at such time as there are no shares
of Class B Common Stock outstanding, 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 Delaware General Corporation Law and may not be taken by
written consent of stockholders without a meeting.
SEVENTH: The management of the business and the conduct of the affairs
of the Corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be fixed in
the Bylaws of the Corporation.
EIGHTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter, amend or
repeal the Bylaws of the Corporation.
NINTH: The directors of the Corporation need not be elected by written
ballot unless a stockholder or stockholders holding a majority of the voting
power of the outstanding capital stock entitled to vote demands election by
written ballot at the meeting and before voting.
TENTH: Advance notice of stockholder nomination for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
Bylaws of the Corporation.
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ELEVENTH: Special meetings of the stockholders of the Corporation may be
called, for any purpose or purposes, by (i) the Chairman of the Board of
Directors, (ii) the Chief Executive Officer or (iii) the Board of Directors.
TWELFTH: 1. To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or as may hereafter be amended, a director of
the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for a breach of fiduciary duty as a director.
2. The Corporation may indemnify to the fullest extent
permitted by law any person made or threatened to be made a party to an action
or proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that he, his testator or intestate is or was a director,
officer or employee of the Corporation or any predecessor of the Corporation or
serves or served at any other enterprise as a director, officer or employee at
the request of the Corporation or any predecessor to the Corporation.
3. Neither any amendment nor repeal of this Article TWELFTH,
nor the adoption of any provision of the Corporation's Certificate of
Incorporation inconsistent with this Article TWELFTH, shall eliminate or reduce
the effect of this Article TWELFTH, in respect of any matter occurring, or any
action or proceeding accruing or arising or that, but for this Article TWELFTH,
would accrue or arise, prior to such amendment, repeal or adoption of an
inconsistent provision.
THIRTEENTH: Meetings of stockholders may be held within or without the
State of Delaware, as the Bylaws may provide. The books of the Corporation may
be kept (subject to any provision contained under the Delaware General
Corporation Law) outside of the State of Delaware at such place or places as may
be designated from time to time by the Board of Directors or in the Bylaws of
the Corporation.
FOURTEENTH: 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 herein and under the Delaware General
Corporation Law, except as otherwise provided in article TWELFTH, and all rights
conferred upon stockholders herein are granted subject to this reservation."
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THIRD: The foregoing amendment and restatement of the Certificate of
Incorporation has been duly adopted by the Board of Directors of the Corporation
in accordance with the provisions of Section 242 of the General Corporation Law
of Delaware.
FOURTH: The foregoing amendment and restatement of the Certificate of
Incorporation has been duly adopted by a majority of the holders of Class A
Common Stock and Class B Common Stock of the Corporation in accordance with the
provisions of Section 242 of the General Corporation Law of Delaware.
FIFTH: The foregoing amendment and restatement of the Certificate of
Incorporation has been duly adopted in accordance with Section 245 of the
General Corporation Law of Delaware.
IN WITNESS WHEREOF, ReSourcePhoenix.com has caused this certificate to
be executed by W. Corey West, its President and Chief Operating Officer, this
3rd day of October, 2000.
RESOURCEPHOENIX.COM,
a Delaware corporation
By: /s/ W. COREY WEST
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W. Corey West,
President & Chief Operating Officer
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