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Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GOAMERICA, INC.
GoAmerica, Inc., a corporation organized and existing under the laws of
the State of Delaware (hereinafter referred to as the "Corporation"), hereby
certifies as follows:
1. The name of the corporation is GoAmerica, Inc. The Corporation's
original Certificate of Incorporation was filed with the Secretary of State of
the State of Delaware on December 1, 1999.
2. This Amended and Restated Certificate of Incorporation (the
"Restated Certificate of Incorporation") was duly adopted in accordance with the
provisions of Sections 242 and 245 of the Delaware General Corporation Law. This
Restated Certificate of Incorporation restates, integrates and further amends
the provisions of the Corporation's Certificate of Incorporation as heretofore
amended or supplemented.
ARTICLES
FIRST: The name of the Corporation is GoAmerica, Inc.
SECOND: The Corporation's registered office in the State of Delaware is
located at Corporation Service Corporation, 1013 Centre Road, City of Wilmington
County of New Castle, Delaware 19805. The name of its registered agent at such
address is Corporation Service Corporation.
THIRD: The purpose for which the Corporation is organized 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.
FOURTH: (a) The total number of shares of capital stock which the
Corporation shall have the authority to issue is 204,351,943 shares, consisting
of: (i) two hundred million (200,000,000) shares of Common Stock, par value
$0.01 per share (the "Common Stock"); and (ii) four million three hundred fifty
one thousand nine hundred forty three (4,351,943) shares of Preferred Stock, par
value $0.01 per share (the "Preferred Stock").
(b) The authorized but undesignated Preferred Stock may be issued from
time to time in one or more series. The Board of Directors is authorized,
subject to limitations prescribed by law and the provisions of subsection (a)
above, to provide for the issuance of the shares of Preferred Stock in series,
and by filing a certificate pursuant to the applicable law of the State of
Delaware, to establish from time to time the number of shares to be included in
each such series, and to fix the designation, powers, preferences and rights of
the shares of each such series and the qualification, limitations or
restrictions thereof.
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The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following:
(i) The number of shares constituting that series and the distinctive
designation of that series;
(ii) The dividend rate on the shares of that series, whether dividends
shall be cumulative, and if so, from which date or dates, and the relative
rights of priority, if any, of payment of dividends on shares of that series;
(iii) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
(iv) Whether that series shall have conversion privileges, and, if so,
the terms and conditions of such conversion, including provision for adjustment
of the conversion rate in such events as the Board of Directors shall determine;
(v) Whether or not the shares of that series shall be redeemable, and,
if so, the terms and conditions of such redemption, including the date or dates
upon or after which they shall be redeemable, and the amount per share payable
in case of redemption, which amount may vary under different conditions and at
different redemption dates;
(vi) The rights of the shares of that series in the event of voluntary
or involuntary liquidation, dissolution or winding up of the Corporation, and
the relative rights of priority, if any, of payment of shares of that series;
and
(vii) Any other relative rights, preferences and limitations of that
series.
FIFTH: Directors elected by the holders of voting stock shall, in
accordance with the Corporation's By-laws, be classified in respect to the time
for which they shall severally serve on the Board of Directors by dividing them
into three staggered classes which shall be as nearly equal in number as
possible. Each member of each class shall serve for three-year terms. At each
annual meeting of the stockholders, the stockholders shall elect Directors of
the class which term then expires, to serve until the third succeeding annual
meeting. Except as otherwise provided in this Restated Certificate of
Incorporation, each Director shall serve for the term for which elected and
until his or her successor shall be duly elected and shall qualify.
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The following provisions are included for the management of
the business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its Board of Directors and stockholders:
(i) The Board of Directors of the Corporation is expressly authorized
to adopt, amend or repeal the Bylaws of the Corporation, subject to any
limitation thereof contained in the Bylaws. The stockholders also shall have the
power to adopt, amend or repeal the Bylaws of the Corporation; provided,
however, that, in addition to any vote of the holders of any class or series of
stock of the Corporation required by law or by this Restated Certificate of
Incorporation, the
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affirmative vote of the holders of at least eighty percent (80%) of the voting
power of all of the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to adopt, amend or repeal any
provision of the Bylaws of the Corporation.
(ii) Stockholders of the Corporation may not take any action by written
consent in lieu of a meeting.
(iii) Special meetings of stockholders may be called at any time only
by the President, the Chairman of the Board of Directors of the Corporation (if
any) or a majority of the Board of Directors of the Corporation. Business
transacted at any special meeting of stockholders shall be limited to matters
relating to the purpose or purposes set forth in the notice of such special
meeting.
(iv) The Board of Directors of the Corporation, when evaluating any
offer of another party (a) to make a tender or exchange offer for any equity
security of the Corporation or (b) to effect a business combination, shall, in
connection with the exercise of its judgment in determining what is in the best
interests of the Corporation as a whole, be authorized to give due consideration
to any such factors as the Board of Directors of the Corporation determines to
be relevant, including, without limitation:
(1) the interests of the Corporation's stockholders, including
the possibility that these interests might be best served by the
continued independence of the Corporation;
(2) whether the proposed transaction might violate federal or
state laws;
(3) not only the consideration being offered in the proposed
transaction, in relation to the then current market price for the
outstanding capital stock of the Corporation, but also to the market
price for the capital stock of the Corporation over a period of years,
the estimated price that might be achieved in a negotiated sale of the
Corporation as a whole or in part or through orderly liquidation, the
premiums over market price for the securities of other corporations in
similar transactions, current political, economic and other factors
bearing on securities prices and the Corporation's financial condition
and future prospects; and
(4) the social, legal and economic effects upon employees,
suppliers, customers, creditors and others having similar relationships
with the Corporation, upon the communities in which the Corporation
conducts its business and upon the economy of the state, region and
nation.
In connection with any such evaluation, the Board of Directors of the
Corporation is authorized to conduct such investigations and engage in such
legal proceedings as the Board of Directors of the Corporation may determine.
(v) in addition to any vote of the holders of any class or series of
stock of the Corporation required by law or by this Restated Certificate of
Incorporation, the affirmative vote
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of the holders of at least eighty percent (80%) of the voting power of all of
the then outstanding shares of the capital stock of the Corporation entitled to
vote generally in the election of directors, voting together as a single class,
shall be required to amend any provision of Articles SEVENTH or EIGHTH of this
Restated Certificate of Incorporation.
EIGHTH: A director of the Corporation shall not be personally liable
either to the Corporation or to any stockholder for monetary damages for breach
of fiduciary duty as a director, except (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, or (ii) for acts or
omissions which are not in good faith or which involve intentional misconduct or
knowing violation of the law, or (iii) for any matter in respect of which such
director shall be liable under Section 174 of Title 8 of the General Corporation
Law of the State of Delaware or any amendment thereto or successor provision
thereto, or (iv) for any transaction from which the director shall have derived
an improper personal benefit. Neither amendment nor repeal of this paragraph nor
the adoption of any provision of the Restated Certificate of Incorporation
inconsistent with this paragraph shall eliminate or reduce the effect of this
paragraph in respect of any matter occurring, or any cause of action, suit or
claim that, but for this paragraph of this Article, would accrue or arise, prior
to such amendment, repeal or adoption of an inconsistent provision.
NINTH: Election of directors need not be by written ballot.
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IN WITNESS WHEREOF, the undersigned, being the Chief Financial Officer,
Treasurer and Secretary of the Corporation, does hereby execute this Restated
Certificate of Incorporation this 5th day of May, 2000.
By: /s/ Francis J. Elenio
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Francis J. Elenio
Chief Financial Officer, Treasurer and Secretary
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