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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
VELOCITYHSI, INC.
VelocityHSI, Inc., a corporation organized and existing under the laws of
the State of Delaware, does hereby certify that:
First. VelocityHSI, Inc. has not received any payment for any of its stock
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and this Amended and Restated Certificate of Incorporation has been duly adopted
in accordance with the provisions of Section 241 of the General Corporation Law
of the State of Delaware.
Second. This Amended and Restated Certificate of Incorporation, which
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amends and restates the Certificate of Incorporation of the Corporation, was
duly adopted in accordance with the provisions of Section 245 of the General
Corporation Law of the State of Delaware. The date of filing of the
Corporation's original Certificate of Incorporation was April 19, 2000.
Third. The Certificate of Incorporation of the Corporation is hereby
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amended and restated so as to read in its entirety as follows:
ARTICLE I
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NAME
The name of this corporation (hereinafter referred to as this
"Corporation") is VelocityHSI, Inc.
ARTICLE II
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REGISTERED OFFICE
The address of the Corporation's registered office in Delaware is 1209
Orange Street, in the City of Wilmington, County of New Castle, State of
Delaware. The name of the Corporation's registered agent at such address is The
Corporation Trust Company.
ARTICLE III
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PURPOSE
The nature of the business or purpose to be conducted or promoted 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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ARTICLE IV
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AUTHORIZED STOCK
The total number of shares of all classes of stock which this Corporation
shall have authority to issue is One Hundred Fifty Million (150,000,000) shares,
consisting of One Hundred Million (100,000,000) shares of common stock, par
value $.01 per share (the "Common Stock"), and Fifty Million (50,000,000) shares
of preferred stock, par value $.01 per share (the "Preferred Stock").
The Board of Directors is authorized, subject to limitations prescribed by
law and the provisions of this Article IV, 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
qualifications, limitations or restrictions thereof.
The authority of the Board of Directors with respect to each series shall
include, but not be limited to, determination of the following:
(a) The number of shares constituting that series and the distinctive
designation of that series;
(b) 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;
(c) 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;
(d) 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;
(e) 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
or the formula to determine the amount per share payable in case of redemption,
which amount may vary under different conditions and at different redemption
dates;
(f) Whether that series shall have a sinking fund for the redemption or
purchase of shares of that series, and, if so, the terms and amount of such
sinking fund;
(g) The rights of the shares of that series in the event of 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; and
(h) Any other relative rights, preferences and limitations of that series.
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Dividends on outstanding shares of Preferred Stock shall be paid or
declared and set apart for payment before any dividends shall be paid or
declared and set apart for payment on the Common Stock with respect to the same
dividend period.
If upon any voluntary or involuntary liquidation, dissolution or winding up
of this Corporation, the assets available for distribution to holders of shares
of Preferred Stock of all series shall be insufficient to pay such holders the
full preferential amount to which they are entitled, then such assets shall be
distributed ratably among the shares of all series of Preferred Stock in
accordance with the respective preferential amounts (including unpaid cumulative
dividends, if any) payable with respect thereto.
ARTICLE V
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DIRECTORS
SECTION A
NUMBER OF DIRECTORS
The business and affairs of this Corporation shall be managed by or under
the direction of the Board of Directors. The authorized number of directors
which shall constitute the whole Board of Directors shall be determined as set
forth in the Bylaws of this Corporation and the actual number of directors shall
be fixed by the Board of Directors by resolution. Election of directors need not
be by written ballot.
SECTION B
CLASSIFICATION OF THE BOARD
The Board of Directors shall be and is divided into three classes,
designated as Class I, Class II and Class III. The number of directors in each
class shall be the whole number contained in the quotient arrived at by dividing
the number of directors as shall be fixed by the Board of Directors in
accordance with the provisions of the Bylaws of this Corporation by three, and
if a fraction is also contained in such quotient then if such fraction is one-
third (), the extra director shall be a member of Class III and if the fraction
is two-thirds (), one of the two extra directors shall be a member of Class III
and the other shall be a member of Class II. Each director shall serve for a
term ending on the date of the third annual meeting following the annual meeting
at which such director was elected; provided, however, that the initial
directors of this Corporation shall each be assigned to a class at the time of
their election, and the directors assigned to Class I shall serve for a term
ending on the date of the 2001 annual meeting of stockholders, the directors
assigned to Class II shall serve for a term ending on the date of the 2002
annual meeting of stockholders and the directors assigned to Class III shall
serve for a term ending on the date of the 2003 annual meeting of stockholders.
In the event of any increase or decrease in the number of directors (a)
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, or
his prior death, retirement, resignation, removal, disqualification or other
cause, and (b) the newly created or eliminated directorships resulting from such
increase or decrease shall be
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assigned by the Board of Directors to such class or classes as shall, so far as
possible, bring the number of directors in the respective classes into
conformity with the formula in this Article V, as applied to the new authorized
number of directors.
Notwithstanding any of the foregoing provisions of this Article V, a
director shall hold office until the annual meeting of stockholders for the year
in which his term expires and until his successor is elected and qualified or
until his prior death, retirement, resignation, removal, disqualification or
other cause. Should a vacancy occur or be created, the remaining directors (even
though less than a quorum) may fill the vacancy for the full term of the class
in which the vacancy occurs or is created.
SECTION C
REMOVAL OF DIRECTORS
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, but only for cause and only by the affirmative vote of the
holders of at least 66-2/3% of the shares of the Corporation entitled to vote
for the election of directors.
SECTION D
LIMITATION ON LIABILITY
1. Limitation On Liability.
A director shall not be personally liable to this Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director to
the fullest extent permitted by Section 102(b)(7) of the General Corporation Law
of the State of Delaware, provided that this Article V, Section D shall not
eliminate or limit the liability of a director (i) for any breach of his duty of
loyalty to this Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
the law, (iii) under Section 174 of the General Corporation Law of the State of
Delaware, (iv) for any transaction from which the director derives an improper
personal benefit or (v) for acts or omissions that occurred prior to the
enactment of this Article V, Section D.
If the General Corporation Law of the State of Delaware is hereafter
amended to authorize corporate action further limiting or eliminating the
personal liability of directors, then the liability of the directors to this
Corporation or its stockholders shall be limited or eliminated to the fullest
extent permitted by the General Corporation Law of the State of Delaware, as so
amended from time to time.
2. Amendment or Repeal.
Any repeal or modification of this Article V, Section D shall be
prospective only, and shall not adversely affect any right or protection
hereunder of any persons in respect of any act or omission or any limitation on
the personal liability of a director of this Corporation existing at or
occurring prior to the time of such repeal or modification.
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SECTION E
AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred by statute and
set forth in Article IX of this Certificate of Incorporation, the Board of
Directors, acting alone, is expressly authorized to adopt, repeal, alter, amend
or rescind the Bylaws of this Corporation.
ARTICLE VI
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TERM
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The term of existence of this Corporation shall be perpetual.
ARTICLE VII
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STOCK NOT ASSESSABLE
The capital stock of this Corporation shall not be assessable. It shall be
issued as fully paid, and the private property of the stockholders shall not be
liable for the debts, obligations or liabilities of this Corporation. This
Certificate of Incorporation shall not be subject to amendment in this respect.
ARTICLE VIII
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STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any action required to be taken at any annual or special meeting of
stockholders of this Corporation, or any action that may be taken at any annual
or special meeting of such stockholders, may be taken without a meeting, without
prior notice, and without a vote if a consent in writing, setting forth the
action so taken, is signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted.
Notwithstanding anything to the contrary contained in the first paragraph
of this Article VIII, upon the effective date of this Corporation's Registration
Statement on Form S-1 (File No. 333-36162) filed by this Corporation in
connection with the distribution by BRE Properties, Inc., a Maryland
corporation, of the common stock of this Corporation, any action required to be
taken at any annual or special meeting of stockholders of this Corporation, or
any action that may be taken at any annual or special meeting of such
stockholders, must be taken at an annual or special meeting of stockholders of
this Corporation, as the case may be, with prior notice and with a vote, and the
power of stockholders to act by a consent in writing, without a meeting, shall
cease and the stockholders of this Corporation may not thereafter take action by
written consent without a meeting.
ARTICLE IX
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ACTIONS REQUIRING SUPERMAJORITY STOCKHOLDER VOTE
The affirmative vote of the holders of at least 66-2/3% of the outstanding
voting stock of this Corporation, voting together as a single class at a meeting
specifically called for such purpose, shall be required in order for this
Corporation to take any action to authorize:
(a) the amendment, alteration, repeal or recission of any provision of this
Certificate of Incorporation or the addition or insertion of other provisions
therein;
(b) the adoption, amendment, alteration, repeal or recission of any
provision of the Bylaws of this Corporation; provided, however, that this clause
(b) shall not apply to, and no vote of the stockholders of this Corporation
shall be required to authorize, the adoption, amendment, alteration, repeal or
recission of any provisions of the Bylaws of this Corporation by the Board of
Directors in accordance with the power conferred upon it pursuant to Article V,
Section E of this Certificate of Incorporation;
(c) the merger or consolidation of this Corporation with or into any other
corporation; provided, however, that this clause (c) shall not apply to any
merger or consolidation (i) as to which the laws of the State of Delaware, as
then in effect, do not require the consent of this Corporation's stockholders,
or (ii) which at least 75% of the members of the Board of Directors then in
office have approved;
(d) the sale, lease, exchange or other disposition of all, or substantially
all, of this Corporation's property and assets, with or without goodwill, if not
made in the usual and regular course of this Corporation's business; and
(c) the voluntary dissolution of this Corporation.
All rights at this time conferred upon the stockholders of this Corporation
pursuant to this Certificate of Incorporation are granted subject to the
provisions of this Article IX.
ARTICLE X
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APPOINTMENT AND REMOVAL OF OFFICERS
The officers of this Corporation shall be chosen in such a manner, shall
hold their offices for such terms and shall carry out such duties as are
prescribed by the Bylaws of this Corporation or determined by the Board of
Directors, subject to the right of the Board of Directors to remove any officer
or officers at any time with or without cause.
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IN WITNESS WHEREOF, VelocityHSI, Inc. has caused this Amended and Restated
Certificate of Incorporation to be signed by Stephen E. Carlson, its President
and Chief Executive Officer, and attested by Charles P. Wingard, its Senior Vice
President, Chief Financial Officer, Secretary and Treasurer, this 2nd day of
August, 2000.
VELOCITYHSI, INC.
By: /s/ Stephen E. Carlson
_____________________________________
Stephen E. Carlson
President and Chief Executive Officer
ATTEST:
By: /s/ Charles P. Wingard
____________________________
Charles P. Wingard
Senior Vice President, Chief
Financial Officer, Secretary
and Treasurer
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