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EXHIBIT 3.1
FORM OF SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SIGNALSOFT CORPORATION
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
SIGNALSOFT CORPORATION, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware (the "GCL"),
DOES HEREBY CERTIFY:
1. The name of the corporation is SignalSoft Corporation. The date of
filing of the original Certificate of Incorporation with the Secretary of State
was October 24, 1998. A Restated Certificate of Incorporation was filed with the
Secretary of State on December 20, 1999.
2. This Second Amended and Restated Certificate of Incorporation was
duly adopted by the Directors and Stockholders of the Corporation in accordance
with Sections 242 and 245 of the GCL.
3. This Second Amended and Restated Certificate of Incorporation amends
and restates the Certificate of Incorporation to read as follows:
ARTICLE I
NAME
The name of the corporation is SignalSoft Corporation (the
"Corporation").
ARTICLE II
REGISTERED AGENT
The address of its 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 address is The Corporation Trust
Company.
ARTICLE III
PURPOSES
The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the GCL.
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ARTICLE IV
AUTHORIZED CAPITAL STOCK
1. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is seventy-five million (75,000,000)
shares, par value $0.001 per share, sixty-five million (65,000,000) of which
shall be designated "Common Stock" and ten million (10,000,000) of which shall
be designated "Preferred Stock".
2. Each holder of record of Common Stock entitled to vote shall have
one vote for each share of Common Stock standing in his name on the books of the
Corporation, except that in the election of directors such holder shall have the
right to vote such number of shares for as many persons as there are directors
to be elected. Cumulative voting shall not be allowed in the election of
directors or for any other purpose.
3. The Board of Directors of the Corporation is authorized, subject to
applicable law and the provisions of this Article IV, (a) to provide for the
issuance from time to time in one or more series of any number of shares of
Preferred Stock and (b) by filing a certificate pursuant to the GCL, to
establish the number of shares to be included in each such series and to fix the
designation, relative rights, preferences, qualifications and limitations of the
shares of each such series.
4. Shares of Preferred Stock which have been issued and reacquired in
any manner by the Corporation shall have the status of authorized but unissued
shares of Preferred Stock and may be reissued as a part of the series of which
they were originally a part or may be reissued as a part of another series of
Preferred Stock, all subject to the conditions or restrictions on issuance set
forth in the resolution or resolutions adopted by the Board of Directors
providing for the issuance of any series of Preferred Stock.
5. Except as otherwise provided by the resolution or resolutions
providing for the issuance of any series of Preferred Stock, after payment shall
have been made to the holders of Preferred Stock of the full amount of dividends
to which they shall be entitled pursuant to the resolution or resolutions
providing for the issuance of any series of Preferred Stock, the holders of
Common Stock shall be entitled, to the exclusion of the holders of Preferred
Stock of any and all series, to receive such dividends as from time to time may
be declared by the Board of Directors.
6. Except as otherwise provided by the resolution or resolutions
providing for the issuance of any series of Preferred Stock, in the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, after payment shall have been made to the holders of Preferred
Stock of the full amounts to which they shall be entitled pursuant to such
resolution or resolutions, the holders of Common Stock shall be entitled, to the
exclusion of the holders of Preferred Stock of any and all series, to share
ratably according to the number of shares of Common Stock held by them, in all
remaining assets of the Corporation available for distribution to its
stockholders.
7. The holders of Preferred Stock shall not have any preemptive rights
except to
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the extent such rights shall be specifically provided for in the resolution or
resolutions providing for the issuance thereof adopted by the Board of
Directors.
8. Except as otherwise specifically required by law or as specifically
provided in any resolution of the Board of Directors providing for the issuance
of any particular series of Preferred Stock, the exclusive voting power of the
Corporation shall be vested in the Common Stock of the Corporation. Each share
of Common Stock shall entitle the holder thereof to one vote at all meetings of
the stockholders of the Corporation.
9. Any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or special meeting of
the stockholders of the Corporation and may not be effected by any consent in
writing of such stockholders. At any annual or special meeting of stockholders
of the Corporation, only such business will be conducted or considered as has
been brought before such meeting in the manner provided in the Bylaws of the
Corporation.
ARTICLE V
INDEMNIFICATION/LIMITATION OF LIABILITY
1. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty as a director, except for liability (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 GCL or any successor provision,
or (iv) for any transaction from which the director derived an improper personal
benefit. If the GCL is amended after approval by the stockholders of this
Article to authorize corporate actions further eliminating or limiting the
personal liability of directors, then the liability of a director shall be
eliminated or limited to the fullest extent permitted by the GCL, as so amended.
2. The Corporation shall indemnify its directors, officers, employees,
fiduciaries, and agents to the full extent permitted by the GCL as it may be
amended from time to time; provided, however, that the Corporation's obligation
to provide indemnification shall be offset to the extent of any other source of
indemnification or any otherwise applicable insurance coverage under a policy
maintained by the Corporation or any other person.
3. The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise, and any procedure provided for by any of the foregoing, both as to
action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee, fiduciary or agent and shall inure to the benefit
of heirs, executors, and administrators of such a person.
4. Expenses incurred by a director of the corporation in defending a
civil or criminal action, suit or proceeding by reason of the fact that he is or
was a director of the Corporation (or
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was serving at the Corporation's request as a director or officer of another
corporation) shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such director to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
authorized by relevant sections of the GCL. Notwithstanding the foregoing, the
Corporation shall not be required to advance such expenses to an agent who is a
party to an action, suit or proceeding brought by the corporation and approved
by a majority of the Board of Directors of the Corporation which alleges willful
misappropriation of corporate assets by such agent, disclosure of confidential
information in violation of such agent's fiduciary or contractual obligations to
the Corporation or any other willful and deliberate breach in bad faith of such
agent's duty to the Corporation or its stockholders.
5. The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee, fiduciary or agent of the
Corporation or who is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation,
partnership, joint venture, trust, or other enterprise against any liability
asserted against him and incurred by him in any such capacity or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under provisions of this Article.
6. Any repeal or modification of this Article V shall only be
prospective and shall not affect the rights under this Article V in effect at
the time of the alleged occurrence of any action or omission to act giving rise
to liability.
ARTICLE VI
MANAGEMENT
For the management of the business and for the conduct of the affairs
of the Corporation, and in further definition, limitation and regulation of the
powers of the Corporation, its directors and its stockholders or any class
thereof, as the case may be, it is further provided that:
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
of the Corporation shall be fixed by the Board of Directors in the manner
provided in the Bylaws.
2. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend and rescind any or all of the Bylaws of the Corporation. In addition, the
Bylaws may be amended by the affirmative vote of holders of at least a majority
of the outstanding shares of voting stock of the Corporation entitled to vote at
an election of directors.
3. The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide. Advance notice of stockholder nominations
for the election of directors and of any other business to be brought before any
meeting of the stockholders shall be given in the manner provided in the Bylaws.
4. At each annual meeting of stockholders, directors of the Corporation
shall be elected to hold office until the expiration of the term for which they
are elected, or until their
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successors have been duly elected and qualified; except that if any such
election shall not be so held, such election shall take place at a stockholders'
meeting called and held in accordance with the GCL.
5. The directors of the Corporation shall be divided into three classes
as nearly equal in size as is practicable, hereby designated Class I, Class II
and Class III. For the purposes hereof, the initial Class I, Class II and Class
III directors shall be those directors so designated by a resolution of the
Board of Directors. At the annual meeting of stockholders held in 2001, 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 annual meeting of stockholders
held in 2002, 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
annual meeting of stockholders held in 2003, 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. If the number of directors is
hereafter changed, each director then serving as such shall nevertheless
continue as a director of the class of which he is a member until the expiration
of his current term and any newly created directorships or decrease in
directorships shall be so apportioned among the classes as to make all classes
as nearly equal in number as is practicable.
6. Vacancies occurring on the Board of Directors for any reason may be
filled only by vote of a majority of the remaining members of the Board of
Directors, even if less than a quorum, at any meeting of the Board of Directors;
provided, however, if there are no directors remaining in office, the vacancies
shall be filled by the stockholders in accordance with the Bylaws. A person so
elected by the Board of Directors to fill a vacancy shall hold office for the
remainder of the full term of the director for which the vacancy was created or
occurred and until such director's successor shall have been duly elected and
qualified. A director may be removed from office by the affirmative vote of the
holders of at least a majority of the outstanding shares of voting stock of the
Corporation entitled to vote at an election of directors, provided that such
removal is for cause.
IN WITNESS WHEREOF, SignalSoft Corporation has caused this Second
Amended and Restated Certificate of Incorporation to be signed by its Chief
Executive Officer this ______ day of June, 2000.
SIGNALSOFT CORPORATION
By:
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David A. Hose
President, Chief Executive Officer and
Chairman of the Board of Directors
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