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EXHIBIT 3.1.3
FOURTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CLEARCOMMERCE CORPORATION
ClearCommerce Corporation, a corporation organized and existing under laws
of the State of Delaware, hereby certifies as follows:
A. The name of the Corporation is ClearCommerce Corporation.
ClearCommerce Corporation was originally incorporated under the name Outreach
Communications Corporation, and the original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the state of Delaware on
September 21, 1995, and was amended and restated on September 15, 1997, January
8, 1999 and December 30, 1999.
B. Pursuant to Sections 228, 242 and 245 of the General Corporation Law
of the State of Delaware, this Amended and 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 to read in its entirety as follows:
ARTICLE I
The name of this corporation is ClearCommerce Corporation.
ARTICLE II
The address of the corporation's registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of
New Castle, State of Delaware 19801. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE III
The purpose of this 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, respectively, "Common Stock" and "Preferred Stock." The total number
of shares which the corporation is authorized to issue is 105,000,000 shares.
100,000,000 shares shall be Common Stock, par value $.001 per share, and
5,000,000 shares shall be Preferred Stock, par value $.001 per share.
The Preferred Stock 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
powers, rights, preferences and privileges and the qualifications, limitations
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 limitations or 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 of 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 series shall be so decreased, the shares constituting such decrease shall
resume
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the status which they had prior to the adoption of the resolution originally
fixing the number of shares of such series.
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:
a. the distinctive designation of such class or series and the number of
shares to constitute such class or series;
b. 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,
if so, from which date or dates, and the relative rights of priority,
if any, of payment of dividends on shares of that series 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;
c. the right or obligation, if any, of this corporation to redeem shares
of the particular class or series of Preferred Stock and, if
redeemable, the price, terms and manner 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 rates;
d. 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 this corporation
and the relative rights of priority, if any of payment of shares of
that series;
e. 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 or 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;
f. the obligation, if any, of this corporation to retire, redeem or
purchase shares of such class or series pursuant to a sinking fund or
fund of similar nature or otherwise, and the terms and conditions of
such obligations;
g. 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 including multiple or fractional votes per share;
h. 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
i. 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 Restated Certificate of
Incorporation, may deem advisable and are not inconsistent with law
and the provisions of this Restated Certificate of Incorporation.
ARTICLE V
1. 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
exclusively by one or more resolutions adopted from time to time by the Board of
Directors.
Holders of stock of any class or series of this 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.
The Board of Directors shall be divided into three classes designated as
Class I, Class II and Class III, respectively. Directors shall be assigned to
each class in accordance with a resolution or resolutions adopted by the Board
of Directors. At the first annual meeting of stockholders following the date
hereof, the term of office of the Class I directors shall expire and Class I
directors shall be elected for a full term of three years. At the second annual
meeting of stockholders following the date hereof, the term of office of the
Class II directors shall expire and Class II directors shall be elected for a
full term of three years. At the third annual meeting of stockholders following
the date hereof, the term of office of the Class III directors shall expire and
Class III directors shall be elected for a full term of three years. At each
succeeding annual meeting of stockholders, directors shall be elected for a full
term of three years to succeed the directors of the class whose terms expire at
such annual meeting.
Notwithstanding the foregoing provisions of this Article, each director
shall serve until his or her successor is duly elected and qualified or until
his or her death, resignation or removal. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
Any vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal, or other causes shall be filled by either (i) the
affirmative vote of the holders of a majority of the voting power of the then-
outstanding shares of voting stock of the corporation entitled to vote generally
in the election of directors (the "Voting Stock") voting together as a single
class; or (ii) by the affirmative vote of a majority of the remaining directors
then in office, even though less than a quorum of the Board of Directors. Newly
created directorships resulting from any increase in the number of directors
shall, unless the Board of Directors determines by resolution that any such
newly created directorship shall be filled by the stockholders, be filled
only by the affirmative vote of the directors then in office, even though less
than a quorum of the Board of Directors. Any director elected in accordance
with the preceding sentence shall hold office for the remainder of the full term
of the class of directors in which the new directorship was created or the
vacancy occurred and until such director's successor shall have been elected and
qualified.
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2. 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 this corporation.
3. The directors of this corporation need not be elected by written ballot
unless a stockholder demands election by written ballot at the meeting and
before voting begins, or unless the Bylaws so provide.
4. The affirmative vote of sixty-six and two-thirds percent (66-2/3%) of
the voting power of the then outstanding shares of Voting Stock, voting together
as a single class, shall be required for the adoption, amendment or repeal of
the following sections of the corporation's Bylaws by the stockholders of this
corporation: 2.2 (Annual Meeting) and 2.3 (Special Meeting).
5. 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.
6. 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.
7. Any director, or the entire Board of Directors, may be removed from
office at any time (i) with cause by the affirmative vote of the holders of at
least a majority of the voting power of all of the then-outstanding shares of
the Voting Stock, voting together as a single class; or (ii) without cause by
the affirmative vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of the voting power of all of the then-outstanding shares of the
Voting Stock.
ARTICLE VI
Notwithstanding any other provisions of this Certificate of Incorporation
or any provision of law which might otherwise permit a lesser vote or no vote,
but in addition to any affirmative vote of the holders of any particular class
or series of the Voting Stock required by law, this Certificate of Incorporation
or any Preferred Stock Designation, the affirmative vote of the holders of at
least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of
the then-outstanding shares of the Voting Stock, voting together as a single
class, shall be required to amend or repeal Article v or this Article VI.
ARTICLE VII
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, except as provided in Article VI of this
Certificate, and all rights conferred upon the stockholders herein are granted
subject to this right.
ARTICLE VIII
The corporation is to have perpetival existence.
ARTICLE IX
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
this corporation shall not be personally liable to this Corporation or its
stockholders for monetary damages for breach fiduciary duty as a director.
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2. To the fullest extent permitted by law this corporation may indemnify
(and advance expenses to) 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, employee or other agent of this corporation or any predecessor of this
corporation (and any other persons to which Delaware law permits this
corporation to provide indemnification).
3. Neither any amendment nor repeal of this Article IX, nor the adoption
of any provision of this corporation's Certificate of Incorporation inconsistent
with this Article IX, shall eliminate or reduce the effect of this Article IX,
in respect of any matter occurring, or any action or proceeding accruing or
arising or that, but for this Article IX, would accrue or arise, prior to such
amendment, repeal, or adoption of an inconsistent provision.
ARTICLE X
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of this corporation may be kept
(subject to any provision contained in the statutes) 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 this corporation.
IN WITNESS WHEREOF, this Fourth Amended and Restated Certificate of
Incorporation has been signed this ____ day of ______________, 2000.
ClearCommerce Corporation
By:
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Robert J. Lynch
President and Chief Executive Officer
ATTEST:
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Michael S. Grajeda, Secretary
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