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Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HARRIS INTERACTIVE INC.
Harris Interactive Inc., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
A. The name of the corporation is Harris Interactive Inc. The
corporation was originally incorporated under the name Harris
Black International Ltd. and the original Certificate of
Incorporation of the corporation was filed with the Secretary
of State of the State of Delaware on July 1, 1997.
B. Pursuant to Sections 228, 242 and 245 of the General
Corporation Law of the State of Delaware, this Restated
Certificate of Incorporation restates and integrates and
further amends the provisions of the Certificate of
Incorporation of this corporation.
C. The text of the Certificate of Incorporation as heretofore
amended or supplemented is hereby amended and restated in its
entirety to read as follows:
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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HARRIS INTERACTIVE INC.
ARTICLE I
The name of this Corporation is Harris Interactive Inc.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle,
Delaware 19801. The name of its registered agent at such office is The
Corporation Trust Company.
ARTICLE III
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 Delaware.
ARTICLE IV
This Corporation is authorized to issue two classes of stock to be
designated Common Stock and Preferred Stock. The total number of shares of
Common Stock which this Corporation has authority to issue is One Hundred
Million (100,000,000) with par value of $.001 per share. The total number of
shares of Preferred Stock which this Corporation has authority to issue is Five
Million (5,000,000) with a par value of $.01 per share.
The shares of Preferred Stock shall be undesignated Preferred Stock and
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). The Board of
Directors is further authorized to determine or alter the rights, preferences,
privileges and restrictions granted to or imposed upon any wholly unissued
series of Preferred Stock and to fix the number of shares of any series of
Preferred Stock and the designation of any such series of Preferred Stock. The
Board of Directors, 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, may increase or decrease (but not below the number of
shares in any such series then outstanding) the number of shares of any series
subsequent to the issue of shares of that series. In case the number of shares
of any such series shall be so decreased, the shares constituting such decrease
shall resume the status that they had prior to the adoption of the resolution
originally fixing the number of shares of such series. All shares of the
Preferred Stock of any one series shall be identical to each other in all
respects, except that shares of any one series issued at different times may
differ as to the dates from which dividends thereon, if cumulative, shall be
cumulative.
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The authority of the Board of Directors with respect to each such class
or series shall include, without limitation of the foregoing, the right to
determine and fix:
i. the distinctive designation of such class or series and the
number of shares to constitute such class or series;
ii. the rate at which dividends on the shares of such class or
series shall be declared and paid, or set aside for payment,
whether dividends at the rate so determined shall be
cumulative or accruing, and whether the shares of such class
or series shall be entitled to any participating or other
dividends in addition to dividends at the rate so determined,
and if so, on what terms;
iii. the right or obligation, if any, of the Corporation to redeem
shares of the particular class or series of Preferred Stock
and, if redeemable, the price, terms and manner of such
redemption;
iv. the special and relative rights and preferences, if any, and
the amount or amounts per share, which the shares of such
class or series of Preferred Stock shall be entitled to
receive upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
v. the terms and conditions, if any, upon which shares of such
class or series shall be convertible into, or exchangeable
for, shares of capital stock of any other class or series,
including the price or prices or the rate or rates of
conversion or exchange and the terms of adjustment, if any;
vi. the obligation, if any, of the Corporation to retire, redeem
or purchase shares of such class or series pursuant to a
sinking fund or fund of a similar nature or otherwise, and
the terms and conditions of such obligation;
vii. voting rights, if any, on the issuance of additional shares
of such class or series or any shares of any other class or
series of Preferred Stock;
viii. limitations, if any, on the issuance of additional shares of
such class or series or any shares of any other class or
series of Preferred Stock; and
ix. such other preferences, powers, qualifications, special or
relative rights and privileges thereof as the Board of
Directors of the Corporation, acting in accordance with this
Certificate of Incorporation, may deem advisable and are not
inconsistent with law and the provisions of this Certificate
of Incorporation.
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ARTICLE V
The number of directors of the Corporation shall not be less than three
(3) nor more than thirteen (13), the exact number to be fixed from time to time
by the Board of Directors.
The Board of Directors shall be divided into three classes in respect
of term of office, each class to contain as near as may be one-third of the
whole number of the total number of directors, with the terms of office of one
class expiring each year. At each annual meeting of stockholders, one class of
directors shall be elected to serve until the annual meeting of stockholders
held three years next following and until their successors shall be elected and
shall qualify.
Newly created directorships and vacancies on the Board of Directors
shall only be filled by a majority vote of the directors then in office,
although less than a quorum, or by a sole remaining director.
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter, amend,
rescind or repeal from time to time any of the By-laws of the Corporation.
Notwithstanding the foregoing, the provisions of Article II, Section 3 and
Section 9; Article III, Sections 1 through 3; and Article IX of the By-Laws of
the Corporation shall only be altered, amended, rescinded or repealed by (A)
vote of a majority of the entire Board of Directors of the Corporation or (B)
the affirmative vote of the holders of not less than sixty six and two-thirds
percent (66 2/3%) of the shares of each class of the capital stock of the
Corporation entitled to vote.
ARTICLE VI
The provisions set forth in Article V, Article VIII, Article IX and
this Article VI may not be altered, amended, rescinded, or repealed in any
respect unless such action is approved by the affirmative vote of the holders of
not less than sixty six and two-thirds percent (66 2/3%) of the shares of each
class of the capital stock of the Corporation entitled to vote.
ARTICLE VII
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 provisions contained in the statutes) outside 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.
ARTICLE VIII
Holders of stock of any class or series of the Corporation shall not be
entitled to cumulate their votes for the election of directors or any other
matter submitted to a vote of the stockholders.
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ARTICLE IX
No action shall be taken by the stockholders of the Corporation except
at an annual or special meeting of the stockholders called in accordance with
the Bylaws and no action shall be taken by the stockholders by written consent.
ARTICLE X
The Corporation shall indemnify each of the Corporation's directors and
officers in each and every situation where, under Section 145 of the General
Corporation Law of the State of Delaware, as amended from time to time ("Section
145"), the Corporation is permitted or empowered to make such indemnification.
The Corporation may, in the sole discretion of the Board of Directors of the
Corporation, indemnify any other person who may be indemnified pursuant to
Section 145 to the extent the Board of Directors deems advisable, as permitted
by Section 145. The Corporation shall promptly make or cause to be made any
determination required to be made pursuant to Section 145.
No person shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided, however, that the foregoing shall not eliminate or limit the liability
of a director (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
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the General Corporation Law of the State of Delaware or (iv) for
any transaction from which the director derived an improper personal benefit. If
the General Corporation Law of the State of Delaware is subsequently amended to
further eliminate or limit the liability of a director, then a director of the
corporation, in addition to the circumstances in which a director is not
personally liable as set forth in the preceding sentence, shall not be liable to
the fullest extent permitted by the amended General Corporation Law of the State
of Delaware. For purposes of this Article X, "fiduciary duty as a director"
shall include any fiduciary duty arising out of serving at the Corporation's
request as a director of another corporation, partnership, joint venture or
other enterprise, and "personal liability to the corporation or its
stockholders" shall include any liability to such other corporation,
partnership, joint venture, trust or other enterprise, and any liability to the
corporation in its capacity as a security holder, joint venture, partner,
beneficiary, creditor or investor of or in any such other corporation,
partnership, joint venture, trust or other enterprise.
Neither any amendment nor repeal of this Article X nor the adoption of
any provision of this Certificate of Incorporation inconsistent with this
Article X, shall eliminate or reduce the effect of this Article X in respect of
any matter occurring, or any cause of action, suit or claim that, but for this
Article X, would accrue or arise, prior to such amendment, repeal or adoption of
an inconsistent provision.
ARTICLE XI
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Advance notice of new business and stockholder nominations for the
election of directors shall be given in the manner and to the extent provided in
the Bylaws of the Corporation.
ARTICLE XII
The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Gordon S. Black, its Chief Executive Officer, and attested by Bruce A.
Newman, its Secretary, this 9th day of December, 1999.
HARRIS INTERACTIVE INC.
By: /s/ Gordon S. Black
Gordon S. Black, Chief Executive Officer
Attest:
By /s/ Bruce A. Newman
Bruce A. Newman, Secretary
