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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
WBT CORP.
The undersigned, Bruce R. Barnes, certifies that he is the
Secretary of Element K Corporation (the "CORPORATION"), a corporation organized
and existing under the General Corporation Laws of the State of Delaware (the
"GCL"), and does hereby further certify as follows:
(1) The name of the Corporation is Element K Corporation.
(2) The original certificate of incorporation of the Corporation was
filed in the office of the Secretary of State of the State of Delaware on
January 18, 2000, under the name of WBT Corp. and the Amended and Restated
Certificate of Incorporation was filed on February 14, 2000 under the name of
WBT Corp.
(3) This Amended and Restated Certificate of Incorporation was duly
adopted in accordance with Sections 228, 242 and 245 of the GCL of the State of
Delaware.
(4) The text of the Amended and Restated Certificate of Incorporation
of the Corporation is hereby amended and restated in its entirety to read as
follows:
FIRST: The name of the Corporation is Element K Corporation
(hereinafter the "Corporation").
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 1013 Centre Road, in the City of Wilmington, County of
New Castle, Delaware 19801. The name of its registered agent at that address is
Corporation Service Company.
THIRD:
(a) CORPORATE PURPOSE. Subject to clause (b) below, the purpose of the
Corporation is to engage in any lawful act or activity for which a corporation
may be
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organized under the General Corporation Law of the State of Delaware as set
forth in Title 8 of the Delaware Code (hereinafter, the "GCL"), including,
without limitation, to act as the Manager of Element K Holdings LLC, a Delaware
limited liability company or any successor entity thereto ("ELEMENT K LLC")
following a LLC IPO Event (as defined in the Limited Liability Company Agreement
of Element K LLC (as the same may be amended from time to time, the "ELEMENT K
LLC")).
(b) LIMITATIONS ON HOLDING ASSETS AND INCURRING CERTAIN LIABILITIES.
The Corporation shall not (i) hold any assets, other than (A) working capital
cash and cash equivalents held for the payment of current obligations and
receivables from Element K LLC; (B) Units (as defined in Clause (b) of this
Article Third; (C) back-to-back obligations and mirror equity interests of
Element K LLC, consisting of obligations and equity securities (other than Units
but including convertible securities), which are substantially equivalent to
liabilities or obligations or securities of the Corporation to third parties
("Mirror Securities"); (D) assets subject to an existing obligation to
contribute such assets (or successor assets) to Element K LLC in exchange for
Units; (E) assets acquired as a result of the issuance of Common Stock (as
defined in Clause (a) of Article Fourth) of the Corporation and/or Preferred
Stock (as defined in Clause (a) of Article Fourth) of the Corporation and/or
liabilities or obligations of the Corporation, subject to an existing obligation
to contribute such assets (or successor assets) to Element K LLC in exchange for
Common Units (in respect of the Common Stock issued) and/or for mirror equity
securities (other than Common Units, but including convertible securities, in
respect of the mirror equity securities issued) of Element K LLC and/or
liabilities or obligations of Element K LLC (in respect of the liabilities or
obligations incurred), which are substantially equivalent to the equity
securities and/or liabilities and obligations of the Corporation issued to
acquire such assets; or (F) goodwill or deferred tax assets or (ii) incur any
liabilities or obligations for borrowed money, for acquisition of assets or
under any capital lease, other than (A) in connection with back-to-back
obligations of Element K LLC to the Corporation, consisting of liabilities or
obligations of Element K LLC which are substantially equivalent to liabilities
or obligations of the Corporation to a third party; (B) liabilities or
obligations incident to the acquisition of Units in exchange for Common Stock or
(C) liabilities or obligations as contemplated by Clauses (b) (i) (D) and (E) of
this Article Third. "UNITS" shall mean the limited liability company interests
in Element K LLC issued under the Element K LLC Agreement.
(c) At any time the Corporation issues a share of capital stock or
other equity security pursuant to a Registration (as defined in the Element K
LLC Agreement), in connection with a private placement or in connection with an
acquisition or merger, the net proceeds received by the Corporation with respect
to such share, if any, shall
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be concurrently transferred to Element K LLC and Element K LLC shall issue to
the Corporation one Unit registered in the name of the Corporation.
FOURTH:
(a) AUTHORIZED CAPITAL STOCK. The total number of shares of stock that
the Corporation shall have authority to issue is two hundred million one
thousand (200,001,000) shares, consisting of: (1) one hundred fifty million
(150,000,000) shares of Class A Common Stock, par value $.01 per share (the
"CLASS A COMMON STOCK"); (2) one thousand (1,000) shares of Class B Common
Stock, par value $.01 per share (the "CLASS B COMMON STOCK"); and (3) fifty
million (50,000,000) shares of Preferred Stock, par value $.01 per share (the
"PREFERRED STOCK"), issuable in one or more series as hereinafter provided. The
Class A Common Stock and the Class B Common Stock are herein sometimes
collectively or individually referred to as the "COMMON STOCK."
(b) COMMON STOCK. The powers, preferences and rights, and the
qualifications, limitations and restrictions, of each class of Common Stock are
as follows:
(i) RANKING. Except as otherwise provided in this Amended and
Restated Certificate of Incorporation, the powers, preferences and rights of the
holders of Class A Common Stock and holders of Class B Common Stock, and the
qualifications, limitations and restrictions thereof, shall be in all respects
identical.
(ii) RESERVATION OF SHARES. The Corporation shall at all times
reserve and keep available out of its authorized but unissued shares of Class A
Common Stock, solely for the purpose of issuance upon conversion or exchange of
the outstanding shares of Class B Common Stock and Units, such number of shares
of Class A Common Stock that shall be issuable (1) upon the conversion of all
outstanding shares of Class B Common Stock and (2) upon the conversion or
exchange of all outstanding Units; provided, however, that nothing contained
herein shall be construed to preclude the Corporation from satisfying its
obligations in respect of the conversion or exchange of the outstanding shares
of Class B Common Stock and Units by delivery of shares of Class A Common Stock
which are held in the treasury of the Corporation. All shares of Class A Common
Stock issued upon the conversion or exchange of shares of Class B Common Stock
or Units shall, upon issue, be validly issued, fully paid and non-assessable.
(iii) LIMITATIONS RESPECTING RATIO OF COMMON STOCK TO UNITS.
The Corporation shall not issue, transfer from treasury stock or repurchase
shares of
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Common Stock unless in connection with any such issuance, transfer or repurchase
the Corporation takes all requisite action such that, after giving effect to all
such issuances, transfers or repurchases, the number of outstanding shares of
Common Stock will equal on a one-for-one basis the number of Units owned by the
Corporation. The Corporation shall not issue, transfer from treasury stock or
repurchase shares of Preferred Stock unless in connection with any such
issuance, transfer or repurchase the Corporation takes all requisite action such
that, after giving effect to all such issuances, transfers or repurchases, the
Corporation holds mirror equity interests of Element K LLC which are in the
aggregate substantially equivalent to the outstanding Preferred Stock. Upon any
reclassification of the Units, whether by combination, division or otherwise,
the Corporation shall take all requisite action so that the number of
outstanding shares of Common Stock will equal on a one-for-one basis the number
of Units owned by the Corporation.
(iv) VOTING. Except as otherwise expressly provided in this
Amended and Restated Certificate of Incorporation or required by applicable law,
and subject to any voting rights provided to holders of Preferred Stock at any
time outstanding, the holders of shares of any outstanding shares of Class A
Common Stock and the holders of any outstanding shares of Class B Common Stock
shall vote together as one class on all matters with respect to which
stockholders are entitled to vote under applicable law, this Amended and
Restated Certificate of Incorporation or the Amended and Restated Bylaws of the
Corporation, or upon which a vote of stockholders is otherwise duly called for
by the Corporation. At each annual or special meeting of stockholders, each
holder of record of shares of Common Stock shall have the following voting
rights and powers:
(A) CLASS A COMMON STOCK. Each holder of record of
Class A Common Stock shall be entitled, with respect to each share of Class A
Common Stock standing in such holder's name on the stock transfer records of the
Corporation on the applicable record date, to one (1) vote in person or by proxy
on all matters submitted to a vote of the holders of the Class A Common Stock,
whether voting separately as a class or otherwise.
(B) CLASS B COMMON STOCK. The holders of Class B
Common Stock shall be entitled, with respect to each share of Class B Common
Stock held by such holder on the applicable record date, to the following number
of votes per share in person or by proxy on all matters submitted to a vote of
the holders of the Class B Common Stock, whether voting separately as a class or
otherwise: the sum of (x) the number of shares of Class A Common Stock into
which the shares of Class B Common Stock held by such holders are convertible
into and (y) the number of Units
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held by all Members (as defined in the Element K LLC Agreement) of Element K LLC
(other than the Company).
(v) NO CUMULATIVE VOTING. Neither the holders of shares of
Class A Common Stock nor the holders of shares of Class B Common Stock shall
have cumulative voting rights.
(vi) AMENDMENTS AFFECTING STOCK. The number of authorized
shares of Class A Common Stock or Preferred Stock may be increased or decreased
(but the number of authorized shares of Class A Common Stock may not be
decreased below (1) the number of shares thereof then outstanding plus (2) the
number of shares of Class A Common Stock issuable upon the exercise of
outstanding options, warrants, exchange rights, conversion rights or similar
rights for Class A Common Stock plus (3) the number of shares of Class A Common
Stock issuable upon the conversion of Class B Common Stock plus (4) the number
of shares of Class A Common Stock issuable by the Corporation upon the
conversion or exchange of Units under agreements between the Corporation and
holders of such Units (including pursuant to the Element K LLC Agreement), and
the number of authorized shares of Preferred Stock may not be decreased below
the number of shares thereof then outstanding) by the affirmative vote of the
holders of a majority of the voting power of the stock of the Corporation
entitled to vote generally in the election of directors irrespective of the
provisions of Section 242(b) (2) of the GCL or any corresponding provision
hereinafter enacted.
(vii) DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the preferences applicable to any
series of Preferred Stock outstanding at any time, and subject to any other
provisions of this Amended and Restated Certificate of Incorporation, as it may
be amended from time to time, the holders of shares of Class A Common Stock and
Class B Common Stock shall be entitled to receive such dividends and other
distributions in cash, property or shares of stock of the Corporation when, as
and if declared thereon by the Board of Directors from time to time out of
assets or funds of the Corporation legally available therefor; provided,
however, that, subject to the provisions of this Clause (b)(vii) of Article
Fourth, the Corporation shall not pay dividends or make distributions to any
holders of any class of Common Stock unless simultaneously with such dividend or
distribution, as the case may be, the Corporation makes the same dividend or
distribution with respect to each outstanding share of Common Stock regardless
of class.
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(B) In the case of dividends or other distributions
on Common Stock payable in Class A Common Stock or Class B Common Stock,
including without limitation distributions pursuant to stock splits or divisions
of 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 any such dividend or distribution payable in shares of
Class A Common Stock or Class B Common Stock, (1) the number of shares of each
class of Common Stock payable per share of such class of Common Stock shall be
equal in number and (2) the Corporation shall not make any such dividend or
distribution unless all outstanding Units, and any option, warrant, exchange
right, convertible right or similar rights in respect of Units, shall be
correspondingly adjusted.
(C) If, at any time, a dividend or other distribution
payable in shares of Common Stock or other voting securities of the Corporation,
or rights, options or warrants to purchase shares of Common Stock or other
voting securities of the Corporation, or securities convertible into or
exchangeable for shares of Common Stock or other voting securities of the
Corporation is paid or declared on shares of Class A Common Stock or Class B
Common Stock, a like dividend or other distribution shall also be paid or
declared, as the case may be, on shares of Class B Common Stock or Class A
Common Stock, as the case may be, in an equal amount per share; provided, that,
for this purpose, if shares of Class A Common Stock or other voting securities
of the Corporation, or rights, options or warrants to purchase shares of Class A
Common Stock or other voting securities of the Corporation or securities
convertible into or exchangeable for shares of Class A Common Stock or other
voting securities of the Corporation, are paid on shares of Class A Common
Stock, and shares of Class B Common Stock or voting securities identical to the
other voting securities paid on the shares of Class A Common Stock (except that
the voting securities paid on the Class B Common Stock may have the Class B Vote
Ratio (as defined below) per share as the other voting securities to be received
by the holders of the Class A Common Stock) or rights, options or warrants to
purchase shares of Class B Common Stock or such other voting securities or
securities convertible into or exchangeable for shares of Class B Common Stock
or such other voting securities, are paid on shares of Class B Common Stock, in
an equal amount per share of Class A Common Stock and Class B Common Stock, such
dividend or other distribution shall be deemed to be a like dividend or other
distribution.
(viii) STOCK SPLITS. The Corporation shall not in any manner
subdivide (by any stock split, stock dividend, reclassification,
recapitalization or otherwise) or combine (by reverse stock split,
reclassification, recapitalization or
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otherwise) the outstanding shares of one class of Common Stock unless (1) the
outstanding shares of all classes of Common Stock shall be proportionately
subdivided or combined and (2) all outstanding Units, and any option, warrant,
exchange right, convertible right (including with respect to Class B Common
Stock) or similar rights in respect of Units or Common Stock, shall be
correspondingly adjusted.
(ix) OPTIONS, RIGHTS OR WARRANTS. The Corporation shall have
the power to create and issue, whether or not in connection with the issue and
sale of any shares of stock or other securities of the Corporation, options,
exchange rights, warrants, convertible rights, and similar rights permitting the
holders thereof to purchase from the Corporation any shares of its capital stock
of any class or classes at the time authorized, such options, exchange rights,
warrants, convertible rights and similar rights to have such terms and
conditions, and to be evidenced by or in such instrument or instruments, as
shall be approved by the Board of Directors.
(x) MERGERS, CONSOLIDATION, ETC. In the event that the
Corporation shall enter into any consolidation, merger, combination or other
transaction (in each case other than incident to an exchange of Units, Common
Stock and/or other securities for Common Stock pursuant to agreements between
the holders of such Units and the Corporation or the holder of the Class B Stock
and the Corporation) in which shares of Common Stock are exchanged for or
converted into other stock or securities, cash and/or any other property, then,
and in such event, the shares of each class of Common Stock (calculated on an
as-converted basis) shall be exchanged for or converted into either (A) the same
kind and amount of stock, securities, cash and/or any other property, as the
case may be, into which or for which each share of any other class of Common
Stock is exchanged or converted; provided, however, that if shares of Common
Stock are exchanged for or converted into shares of capital stock, such shares
received upon such exchange or conversion may differ in a manner similar to the
manner in which the Class A Common Stock and the Class B Common Stock differ
(without regard to the provisions of Clause (b) (viii) (C)), or (B) if holders
of each class of Common Stock are to receive different kinds (other than as
contemplated by the preceding Clause A) or amounts of stock, securities, cash
and/or any other property, an amount of stock, securities, cash and/or property
per share having a value, as determined by an independent investment banking
firm of national reputation selected by the Board of Directors, substantially
equivalent to the value per share into which or for which each share of any
other class of Common Stock is exchanged or converted. To the fullest extent
permitted by law, any construction, calculation or interpretation made by the
Board of Directors in determining the application of the provisions of this
Clause (b) (v) of this Article Fourth in good faith shall be conclusive and
binding on the Corporation and its stockholders.
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(xi) LIQUIDATION RIGHTS. In the event of any dissolution,
liquidation or winding-up of the affairs of the Corporation, whether voluntary
or involuntary, after payment or provision for payment of the debts and other
liabilities of the Corporation and after making provision for the holders of any
series of Preferred Stock entitled thereto, the remaining assets and funds of
the Corporation, if any, shall be divided among and paid ratably to the holders
of the shares of the Class A Common Stock and the Class B Common Stock
(calculated on an as converted basis) treated as a single class.
(xii) NO PREEMPTIVE RIGHTS. The holders of shares of Common
Stock are not entitled to any preemptive right to subscribe for, purchase or
receive any part of any new or additional issue of stock of any class, whether
now or hereafter authorized, or of bonds, debentures or other securities
convertible into or exchangeable for stock.
(xiii) POWER TO SELL AND PURCHASE SHARES. Subject to the
requirements of applicable law, the Corporation shall have the power to issue
and sell all or any part of any shares of any class of stock herein or hereafter
authorized to such persons, and for such consideration, as the Board of
Directors shall from time to time, in its discretion, determine, whether or not
greater consideration could be received upon the issue or sale of the same
number of shares of another class, and as otherwise permitted by law. Subject to
the requirements of applicable law, the Corporation shall have the power to
purchase any shares of any class of stock herein or hereafter authorized from
such persons, and for such consideration, as the Board of Directors shall from
time to time, in its discretion, determine, whether or not less consideration
could be paid upon the purchase of the same number of shares of another class,
and as otherwise permitted by law.
(xiv) CONVERSION OF CLASS B COMMON STOCK.
(A) The holder of Class B Common Stock shall have the
right to convert each such share held into two hundred and fifty (250) fully
paid and non-assessable shares of Class A Common Stock, at any time and from
time to time.
(B) As promptly as practicable following the
surrender by a holder of a certificate representing shares of Class B Common
Stock to be converted pursuant to Clause (b) (viii) (A) of this Article Fourth,
and the payment in cash of any amount required by the provisions of Clause (b)
(viii) (E) of this Article Fourth, the Corporation shall deliver or cause to be
delivered at the office of the transfer agent a
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certificate or certificates representing the number of shares of Class A Common
Stock issuable upon such conversion, issued in such name or names as such holder
may direct. Such conversion shall be deemed to have been effected immediately
prior to the close of business of the Corporation on the date of the surrender
of the certificate or certificates representing shares of Class B Common Stock
in the case of a conversion under Clause (b) (viii) (A) of this Article Fourth.
At the close of business of the Corporation on the date any such conversion is
made or deemed to be effected, all rights of the holder of such shares of Class
B Common Stock as a holder thereof shall cease, and the person or persons in
whose name or names the certificate or certificates representing the shares of
Class A Common Stock are to be issued shall be treated for all purposes as
having become the record holder or holders of such shares of Class A Common
Stock as of such date; provided, however, that if any such conversion is made or
deemed to be effected on any date when the stock transfer books of the
Corporation shall be closed, the person or persons in whose name or names the
certificate or certificates representing shares of Class A Common Stock are to
be issued shall be deemed the record holder or holders thereof for all purposes
upon the opening of business of the Corporation on the next succeeding day on
which the stock transfer books are open.
(C) Shares of Class B Common Stock that are converted
into shares of Class A Common Stock as provided herein shall be retired and
restored to the status of authorized but unissued shares of Class B Common Stock
and be available for reissue by the Corporation.
(xv) EXCHANGE OF UNITS.
(A) Subject to adjustment as provided in Article
Fourth clause (b) (viii), the Corporation shall upon the election of the
Directed Sale Group (as defined in the Element K LLC Agreement) in accordance
with Section 10.6 of the Element K LLC Agreement convert (or otherwise effect a
transaction in the form directed by the Directed Sale Group which shall have the
effect of converting) all outstanding Units (other than those held by the
Corporation), on a one-for-one basis, into the same number of fully-paid and
non-assessable shares of the applicable Mirror Securities.
(B) Upon the written demand of the Directed Sale
Group (as defined in the Element K LLC Agreement), the Corporation shall form a
new holding company ("HOLDCO") in accordance with the provisions of Section 251
of the GCL pursuant to which each stockholder of the Corporation shall become a
stockholder of
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Holdco and concurrently (but deemed immediately thereafter) the Directed
Conversion (as defined in the Element K LLC Agreement) shall be consummated in
accordance with Section 10.6 of the Element K LLC Agreement, with Holdco being
treated as the Corporation for all purposes thereunder. The Corporation
covenants to take all actions reasonably required to effect the foregoing.
(C) In the event the Directed Sale Group elects to
effect the foregoing Directed Conversion (as defined in the Element K LLC
Agreement), written notice (a "DIRECTED CONVERSION NOTICE") shall be sent by
facsimile transmission or first class mail to each holder of Units being
converted into Mirror Securities, setting forth the terms and conditions of such
transaction. Promptly upon receipt of such Directed Conversion Notice, but in
any event no later than 3 Business Days (as defined in the Element K LLC
Agreement) following such receipt, each holder of Units being converted into
Mirror Securities shall surrender to the Corporation each of his, her or its
certificates representing the Unit or Units being converted at any time during
business hours at the principal executive offices of the Corporation, Duly
Endorsed (as defined in the Element K LLC Agreement), together with any other
documentation reasonably required by the Directed Sale Group to be executed in
connection with a Directed Conversion.
(D) Subject to adjustment as provided in Article
Fourth, Clause (b)(viii), each holder (other than the Corporation) of a Unit
shall be entitled to exchange, at any time and from time to time, any or all of
such holder's Units, on a one-for-one basis, into the same number of fully paid
and non-assessable shares of the applicable Mirror Security. A holder of a Unit
shall exercise such right by surrendering to the Corporation the certificate or
certificates, Duly Endorsed, representing the Units to be exchanged at any time
during normal business hours at the principal executive offices of the
Corporation, accompanied by written notice from the holder of such Units stating
that he, she or it desires to exchange such Units, or a stated number of Units
represented by such certificate or certificates, into the applicable amount of
Mirror Securities calculated as set forth above, together with any other
documentation reasonably required by the Corporation to be executed with such
exchange, and transfer tax stamps or funds therefor, if required pursuant to
Article Fourth, Clause (b)(iii)(F) below.
(E) In the event of a reclassification 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 or Units
shall be entitled to receive upon conversion or exchange of such Class B Common
Stock or Units the amount of
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such security that such holder would have received if such conversion or
exchange had occurred immediately prior to the record date of such
reclassification or other similar transaction. No adjustments in respect of
dividends (other than dividends paid in stock or securities of the Corporation)
shall be made upon the conversion or exchange of any share of Class B Common
Stock or Unit; provided, however, that if a share of Class B Common Stock or
Unit shall be converted or exchanged subsequent to the record date for the
payment of a dividend or other distribution on shares of Class B Common Stock or
Units but prior to such payment, then the registered holder of such share or
Unit at the close of business on such record date shall be entitled to receive
the dividend or other distribution payable on such shares or Units on such date
notwithstanding the conversion or exchange thereof or the default in payment of
the dividend or distribution due on such date.
(F) The issuance of certificates for shares of Class
A Common Stock or an applicable Mirror Security or upon the conversion or
exchange of Class B Common Stock or Units shall be made without charge to the
holders of such shares or Units for any transfer or other similar tax in respect
of such issuance; provided, however, that if any such certificate is to be
issued in a name other than that of the holder of the share or shares of Class B
Common Stock or Units to be converted or exchanged, then the person or persons
requesting the issuance thereof shall pay to the Corporation the amount of any
tax that may be payable in respect of any transfer involved in such issuance or
shall establish to the satisfaction of the Corporation that such tax has been
paid or is not payable.
(c) PREFERRED STOCK. The Board of Directors is hereby expressly
authorized to provide for the issuance of all or any shares of the Preferred
Stock in one or more classes or series, and to fix for each such class or series
such voting powers, full or limited, or no voting powers, and such designations,
preferences and relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors
providing for the issuance of such class or series, including, without
limitation, the authority to provide that any such class or series may be (i)
subject to redemption at such time or times and at such price or prices; (ii)
entitled to receive dividends (which may be cumulative or non-cumulative) at
such rates, on such conditions, and at such times, and payable in preference to,
or in such relation to, the dividends payable on any other class or classes or
any other series; (iii) entitled to such rights upon the dissolution of, or upon
any distribution of the assets of, the Corporation; or (iv) convertible into, or
exchangeable for, shares of any other class or classes of stock, or of any other
series of the same or any other class or
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classes of stock, of the Corporation at such price or prices or at such rates of
exchange and with such adjustments; all as may be stated in such resolution or
resolutions.
FIFTH:
(a) BOARD OF DIRECTORS. The following provisions are inserted 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 directors and stockholders:
(i) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors.
(ii) The Board of Directors shall consist of not less than one
or more than twelve (12) members, the exact number of which shall be fixed from
time to time by resolution adopted by the affirmative vote of a majority of the
active Board of Directors.
(iii) A director shall hold office until the annual meeting
for the year in which his or her term expires and until his or her successor
shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office.
(iv) The directors shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as nearly
as may be possible, of one-third of the total number of directors constituting
the entire Board of Directors. The initial division of the Board of Directors
into classes shall be made by the decision of the affirmative vote of a majority
of the entire Board of Directors. The term of the initial Class I directors
shall terminate on the date of the 2001 annual meeting; the term of the initial
Class II directors shall terminate on the date of the 2002 annual meeting; and
the term of the initial Class III directors shall terminate on the date of the
2003 annual meeting. At each succeeding annual meeting of stockholders beginning
in 2001, successors to the class of directors whose term expires at that annual
meeting shall be elected for a three-year term. If the number of directors is
changed, any increase or decrease shall be apportioned among the classes so as
to maintain the number of directors in each class as nearly equal as possible,
and any additional director of any class elected to fill a vacancy resulting
from an increase in such class shall hold office for a term that shall coincide
with the remaining term of that class, but in no case will a decrease in the
number of directors shorten the term of any incumbent director.
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(v) Subject to the terms of any one or more classes or series
of Preferred Stock, any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of
Directors then in office, provided that a quorum is present, and any other
vacancy occurring on the Board of Directors may be filled by a majority of the
Board of Directors then in office, even if less than a quorum, or by a sole
remaining director. Any director of any class elected to fill a vacancy
resulting from an increase in the number of directors of such class shall hold
office for a term that shall coincide with the remaining term of that class. Any
director elected to fill a vacancy not resulting from an increase in the number
of directors shall have the same remaining term as that of his predecessor.
Subject to the rights, if any, of the holders of shares of Preferred Stock then
outstanding, any or all of the directors of the Corporation may be removed from
office at any time, but only for cause and only by the affirmative vote of the
holders of at least a majority of the voting power of the Corporation's then
outstanding capital stock entitled to vote generally in the election of
directors. Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of Preferred Stock issued by the Corporation shall have
the right, voting separately by class or series, to elect directors at an annual
or special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Amended and Restated Certificate of Incorporation applicable
thereto, and such directors so elected shall not be divided into classes
pursuant to this Article Fifth unless expressly provided by such terms.
(vi) In addition to the powers and authority hereinbefore or
by statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation, subject, nevertheless, to the provisions of the GCL,
this Amended and Restated Certificate of Incorporation, and any Bylaws adopted
by the stockholders; provided, however, that no Bylaws hereafter adopted by the
stockholders shall invalidate any prior act of the directors which would have
been valid if such Bylaws had not been adopted.
SIXTH: No director shall be personally liable to the Corporation or
any of its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the GCL as the same exists or may hereafter be
amended. If the GCL is amended hereafter to authorize the further elimination or
limitation of the liability of directors, then the liability of a director of
the Corporation shall be eliminated or limited to the fullest extent authorized
by the GCL, as so amended. Any repeal or
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modification of this Article SIXTH by the stockholders of the Corporation shall
not adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification with respect to acts or
omissions occurring prior to such repeal or modification.
SEVENTH: The Corporation shall indemnify its directors and officers
to the fullest extent authorized or permitted by law, as now or hereafter in
effect, and such right to indemnification shall continue as to a person who has
ceased to be a director or officer of the Corporation and shall inure to the
benefit of his or her heirs, executors and personal and legal representatives;
provided, however, that, except for proceedings to enforce rights to
indemnification, the Corporation shall not be obligated to indemnify any
director or officer (or his or her heirs, executors or personal or legal
representatives) in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented
to by the Board of Directors. The right to indemnification conferred by this
Article SEVENTH shall include the right to be paid by the Corporation the
expenses incurred in defending or otherwise participating in any proceeding in
advance of its final disposition.
The Corporation may, to the extent authorized from time to
time by the Board of Directors, provide rights to indemnification and to the
advancement of expenses to employees and agents of the Corporation similar to
those conferred in this Article SEVENTH to directors and officers of the
Corporation.
The rights to indemnification and to the advance of expenses
conferred in this Article SEVENTH shall not be exclusive of any other right
which any person may have or hereafter acquire under this Amended and Restated
Certificate of Incorporation, the Bylaws of the Corporation, any statute,
agreement, vote of stockholders or disinterested directors or otherwise.
Any repeal or modification of this Article SEVENTH by the
stockholders of the Corporation shall not adversely affect any rights to
indemnification and to the advancement of expenses of a director or officer of
the Corporation existing at the time of such repeal or modification with respect
to any acts or omissions occurring prior to such repeal or modification.
EIGHTH: Any action required or permitted to be taken by the
stockholders of the Corporation may be taken (1) upon the vote of such
stockholders at any duly noticed and called annual or special meeting of
stockholders of the Corporation as provided in this Amended and Restated
Certificate of Incorporation and the Bylaws of
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the Corporation or (2) by written consent of a majority of such stockholders
represented and entitled to vote thereon, voting as a single class, in lieu of
any annual or special meeting of stockholders of the Corporation in accordance
with Section 228 of the GCL.
NINTH: Meetings of stockholders may be held within or without the
State of Delaware, as the By-Laws may provide. The books of the Corporation may
be kept (subject to any provision contained in the GCL) 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 By-Laws of the Corporation.
TENTH: In furtherance and not in limitation of the powers conferred
upon it by the laws of the State of Delaware, the Board of Directors shall have
the power to adopt, amend, alter or repeal the Corporation's Bylaws. The
affirmative vote of at least a majority of the entire Board of Directors shall
be required to adopt, amend, alter or repeal the Corporation's Bylaws. The
Corporation's Bylaws also may be adopted, amended, altered or repealed by the
affirmative vote of the holders of at least eighty percent (80%) of the voting
power of the shares entitled to vote at an election of directors.
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IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation, which restates, integrates and further amends the provisions of
the Certificate of Incorporation of the Corporation, and which was duly adopted
in accordance with Sections 228, 242 and 245 of the GCL, has been signed on
April 11, 2000.
ELEMENT K CORP.
By: /s/ Bruce R. Barnes
Name: Bruce R. Barnes
Title: Secretary
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