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EXHIBIT 3.2
RESTATED
CERTIFICATE OF INCORPORATION
OF
SPEECHWORKS INTERNATIONAL, INC.
SpeechWorks International, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. The name of the Corporation is SpeechWorks International, Inc.
2. The Certificate of Incorporation of the Corporation was filed with the
Secretary of State of Delaware on July 24, 1995 under the name Applied Language
Technologies, Inc. A Certificate of Ownership, changing the Corporation's name
to SpeechWorks International, Inc. was filed on November 24, 1998. A Restated
Certificate of Incorporation was filed on April 29, 1999 and was thereafter
amended by a Certificate of Amendment filed on January 5, 2000 and a Certificate
of Amendment filed on April 10, 2000.
3. This Restated Certificate of Incorporation was duly adopted in
accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware pursuant to resolutions adopted by the
Board of Directors of the Corporation and pursuant to Section 228(a) of the
General Corporation Law of the State of Delaware, the holders of outstanding
shares of the Corporation having no less than the minimum number of votes that
would be necessary to authorize or take such actions at a meeting at which all
shares entitled to vote thereon were present and voted, consented to the
adoption of the aforesaid amendments, without a meeting, without a vote and
without prior notice and the written notice of the taking of such actions has
been given in accordance with section 228(d) of the General Corporation Law of
the State of Delaware.
4. This Restated Certificate of Incorporation restates, integrates,
amends and supersedes the provisions of the Restated Certificate of
Incorporation of this Corporation as heretofore amended.
5. The text of the Restated Certificate of Incorporation is to read as
follows:
FIRST: The name of the corporation is SpeechWorks International, Inc. (the
"Corporation").
SECOND: The address, including street, number, city and county, of the
registered office of the Corporation in the State of Delaware is 1013 Centre
Road, City of Wilmington, County of New Castle and the name of the registered
agent of the Corporation in the State of Delaware is The Prentice-Hall
Corporation System, Inc.
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.
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FOURTH:
A. Designation and Number of Shares.
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The total number of shares of all classes of stock which the Corporation
shall have the authority to issue is 135,000,000 shares, consisting of
125,000,000 shares of common stock, par value $0.001 per share (the "Common
Stock") and 10,000,000 shares of Preferred Stock, par value $0.001 per share
(the "Preferred Stock").
A statement of the designations of the different classes of stock of the
Corporation and of the powers, preferences and rights, and the qualifications,
limitations or restrictions thereof, and of the authority conferred upon the
Board of Directors to fix by resolution or resolutions any of the foregoing in
connection with the creation of one or more series of Preferred Stock and the
limitation of variations between or among such series, is set forth below in
this Article FOURTH.
B. Preferred Stock
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1. Shares of Preferred Stock may be issued in one or more series at
such time or times and for such consideration as the Board of Directors may
determine.
2. Authority is hereby expressly granted to the Board of Directors
to fix from time to time, by resolution or resolutions providing for the
establishment and/or issuance of any series of Preferred Stock, the designation
and number of the shares of such series and the powers, preferences and rights
of such series, and the qualifications, limitations or restrictions thereof, to
the fullest extent such authority may be conferred upon the Board of Directors
under the Delaware General Corporation Law.
The number of authorized shares of Preferred Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority of the Common Stock, without a
vote of the holders of the Preferred Stock, or of any series thereof, unless a
vote of any such holders is required pursuant to the terms of any Preferred
Stock designation.
C. Common Stock
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The relative powers, preferences, rights, qualifications, limitations and
restrictions of the shares of the Common Stock are as follows:
1. Dividends. Subject to the preferential rights, if any, of the
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Preferred Stock, the holders of shares of Common Stock shall be entitled to
receive, when and if declared by the Board of Directors, out of the assets of
the Corporation which are by law available therefor, dividends payable either in
cash, in property, or in shares of Common Stock.
2. Liquidation. In the event of any liquidation, dissolution or
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winding up of the Corporation, whether voluntary or involuntary, after payment
or provision for payment of the
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debts and other liabilities of the Corporation and the amounts to which the
holders of any Preferred Stock shall be entitled, the holders of Common Stock
shall be entitled to share ratably in the remaining assets of the Corporation.
3. Voting. The holders of the Common Stock are entitled to one vote
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for each share held; provided, however, that, except as otherwise required by
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law or set forth in any Preferred Stock designation, holders of Common Stock
shall not be entitled to vote on any amendment to this Restated Certificate of
Incorporation (including any certificate of designation relating to Preferred
Stock) that relates solely to the terms of one or more outstanding series of
Preferred Stock if the holders of such affected series are entitled, either
separately or together as a class with the holders of one or more other such
series, to vote thereon by law or pursuant to this Restated Certificate of
Incorporation (including any certificate of designation relating to Preferred
Stock). There shall be no cumulative voting.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: 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:
A. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the powers and
authority expressly conferred upon them by statute or by this Restated
Certificate of Incorporation or the By-Laws of the Corporation as in effect from
time to time, 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.
B. The directors of the Corporation need not be elected by written ballot
unless the By-Laws so provide.
C. Any action required or permitted to be taken by the stockholders of
the Corporation may be effected only at a duly called annual or special meeting
of stockholders of the Corporation and not by written consent.
D. Special meetings of the stockholders may only be called by the Board
of Directors.
SEVENTH: A. Subject to the rights of the holders of shares of any series
of Preferred Stock then outstanding to elect additional directors under
specified circumstances, the number of directors shall be fixed from time to
time exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the Board of Directors.
B. Subject to the rights of the holders of shares of any series of
Preferred Stock then outstanding to elect additional directors under specified
circumstances, the Board of Directors of the Corporation shall be divided into
three classes, with the term of office of the first class to expire at the 2001
annual meeting of stockholders or any special meeting in lieu thereof, the term
of office of the second class to expire at the 2002 annual meeting of
stockholders or any special
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meeting in lieu thereof, and the term of office of the third class to expire at
the 2003 annual meeting of stockholders or any special meeting in lieu thereof.
At each annual meeting of stockholders or special meeting in lieu thereof,
directors elected to succeed those directors whose terms expire, other than
directors elected by the holders of any series of Preferred Stock, shall be
elected for a term of office to expire at the third succeeding annual meeting of
stockholders or special meeting in lieu thereof after their election and until
their successors are duly elected and qualified.
C. Subject to the rights of the holders of any series of Preferred Stock
then outstanding, newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall be filled only by a majority vote of the directors
then in office even though less than a quorum, or by a sole remaining director
and not by stockholders.
D. Advance notice of stockholder nominations 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
By-Laws of the Corporation.
E. Subject to the rights of the holders of any series of Preferred Stock
then outstanding, any director, or the entire Board of Directors, may be removed
from office at any time only for cause and only by the affirmative vote of the
holders of at least eighty percent (80%) of the voting power of all of the
outstanding shares of capital stock then entitled to vote at an election of the
directors. A director may be removed for cause only after a reasonable notice
and opportunity to be heard by the stockholders.
EIGHTH: The Board of Directors is expressly empowered to adopt, amend or
repeal By-Laws of the Corporation. Any adoption, amendment or repeal of the By-
Laws of the Corporation by the Board of Directors shall require the approval of
a majority of the Board of Directors. The stockholders shall also have power to
adopt, amend or repeal the By-Laws of the Corporation; provided, 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 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 for the stockholders to adopt,
amend or repeal any provision of the By-Laws of the Corporation.
NINTH: A. To the fullest extent permitted by the Delaware General
Corporation Law as the same now exists or may hereafter be amended, the
Corporation shall indemnify, and advance expenses to, its directors and officers
and to any person who is or was serving at the request of the Corporation as a
director, officer, trustee, employee or agent of another corporation, or of a
partnership, joint venture, trust or other enterprise, if such person was or is
made a party to or is threatened to be made a party to or is otherwise involved
(including, without limitation, as a witness) in any action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, trustee,
employee or agent of
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another corporation, or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan;
provided, that except with respect to proceedings to enforce rights to
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indemnification or as is otherwise required by law, the Corporation shall not be
required to indemnify, and advance expenses to, any director, officer or other
person in connection with a proceeding (or part thereof) initiated by such
director, officer or other person, unless such proceeding (or part thereof) was
authorized by the Board of Directors.
B. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article NINTH shall not be deemed exclusive of any
other rights to which a person seeking indemnification or advancement of
expenses may be entitled under any By-Law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
C. The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, trustee, employee or agent of another corporation, or of
a partnership, joint venture, trust or other enterprise, against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the Corporation
would have the power to indemnify such person against such liability under this
Article NINTH.
D. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article NINTH shall, unless otherwise specified when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person. No repeal or amendment of this
Article NINTH shall adversely affect any rights of any person pursuant to this
Article NINTH which existed at the time of such repeal or amendment with respect
to acts or omissions occurring prior to such repeal or amendment.
TENTH: No director shall be personally liable to the Corporation or its
stockholders for any monetary damages for breaches of fiduciary duty as a
director, notwithstanding any provision of law imposing such liability; provided
that this provision shall not eliminate or limit the liability of a director, to
the extent that such liability is imposed by applicable law, (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 or successor provisions
of the Delaware General Corporation Law; or (iv) for any transaction from which
the director derived an improper personal benefit. This provision shall not
eliminate or limit the liability of a director for any act or omission if such
elimination or limitation is prohibited by the Delaware General Corporation Law.
No amendment to or repeal of this provision shall apply to or have any effect on
the liability or alleged liability of any director for or with respect to any
acts or omissions of such director occurring prior to such amendment or repeal.
If the Delaware General Corporation Law is amended to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
All
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references in this Article TENTH to a director shall also be deemed to refer to
any such director acting in his or her capacity as a Continuing Director (as
defined in Article THIRTEENTH).
ELEVENTH: The Corporation reserves the right to amend or repeal any
provision contained in this Restated Certificate of Incorporation in the manner
prescribed by the Delaware General Corporation Law and all rights conferred upon
stockholders are granted subject to this reservation; provided that in addition
to the 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 of the holders of shares of voting stock of the Corporation
representing 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, alter or repeal, or adopt any provision inconsistent with,
Articles SIXTH, SEVENTH, EIGHTH, NINTH, TENTH, and this Article ELEVENTH of this
Restated Certificate of Incorporation.
TWELFTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of the Delaware General Corporation Law or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of the Delaware General
Corporation Law, order a meeting of the creditors or class of creditors, and/or
of the stockholders or class of stockholders of this Corporation, as the case
may be, to be summoned in such manner as the said court directs. If a majority
in number representing three-fourths (3/4) in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
THIRTEENTH: The Board of Directors is expressly authorized to cause the
Corporation to issue rights pursuant to Section 157 of the Delaware General
Corporation Law and, in that connection, to enter into any agreements necessary
or convenient for such issuance, and to enter into other agreements necessary
and convenient to the conduct of the business of the Corporation. Any such
agreement may include provisions limiting, in certain circumstances, the ability
of the Board of Directors of the Corporation to redeem the securities issued
pursuant thereto or to take other action thereunder or in connection therewith
unless there is a specified number or percentage of Continuing Directors then in
office. Pursuant to Section 141(a) of the Delaware General Corporation Law, the
Continuing Directors shall have the power and authority to make all decisions
and determinations, and exercise or perform such other acts, that any such
agreement provides that such Continuing Directors shall make, exercise or
perform. For purposes of this Article THIRTEENTH and any such agreement, the
term, "Continuing
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Directors," shall mean (1) those directors who were members of the Board of
Directors of the Corporation at the time the Corporation entered into such
agreement and any director who subsequently becomes a member of the Board of
Directors, if such director's nomination for election to the Board of Directors
is recommended or approved by the majority vote of the Continuing Directors then
in office or (2) such members of the Board of Directors designated in, or in the
manner provided in, such agreement as Continuing Directors.
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IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate of
Incorporation to be signed by its President and Chief Executive Officer this
____ day of July, 2000.
SPEECHWORKS INTERNATIONAL, INC.
By: _____________________________________
Stuart R. Patterson
President and Chief Executive Officer
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