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Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SEEDSTOCK ONE, INC.
Seedstock One, Inc., a corporation organized and existing under the laws of
the State of Delaware, does hereby certify:
1. The name of the corporation is Seedstock One, Inc. Seedstock One, Inc.
was originally incorporated under the same name, and the original Certificate of
Incorporation was filed with the Secretary of State of the State of Delaware on
March 28, 2000.
2. Pursuant to Sections 242 and 228 of the General Corporation Law of the
State of Delaware, the amendments and restatement herein set forth have been
duly approved by the Board of Directors and stockholder of Seedstock One, Inc.
3. Pursuant to Section 245 of the General Corporation Law of the State of
Delaware, this Amended and Restated Certificate of Incorporation restates and
amends the provisions of the Certificate of Incorporation of this corporation.
4. The text of the Certificate of Incorporation is hereby restated and
amended to read in its entirety as follows:
ARTICLE 1
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The name of the Corporation is Insession Technologies, Inc. (the
"Corporation").
ARTICLE 2
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The address of the Corporation's registered office in the State of Delaware
is 30 Old Rudnick Lane, Suite 100, in the City of Dover, County of Kent 19901.
The name of the Corporation's registered agent at such address is Lexis Document
Services Inc.
ARTICLE 3
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The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE 4
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A. The aggregate number of shares of capital stock which the Corporation
shall have authority to issue is 175,000,000 shares, consisting of 25,000,000
shares of preferred stock, par value $.01 per share ("Preferred Stock"), and
150,000,000 shares of common stock, par value $.01 per share (the "Common
Stock").
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B. The Preferred Stock may be issued from time to time in one or more
classes or series, the shares of each class or series to have such designations
and powers, preferences and rights, and qualifications, limitations and
restrictions thereof, as are stated and expressed herein and in the resolution
or resolutions providing for the issue of such class or series adopted by the
Board of Directors of the Corporation as hereafter prescribed. Authority is
hereby expressly granted to and vested in the Board of Directors of the
Corporation to authorize the issuance of the Preferred Stock from time to time
in one or more classes or series, and with respect to each class or series of
the Preferred Stock, to fix and state by the resolution or resolutions from time
to time adopted providing for the issuance thereof the following:
(i) whether or not the class or series is to have voting rights, full,
special, or limited, or is to be without voting rights, and whether or not such
class or series is to be entitled to vote as a separate class either alone or
together with the holders of one or more other classes or series of stock;
(ii) the number of shares to constitute the class or series and the
designations thereof;
(iii) the preferences, and relative, participating, optional or other
special rights, if any, and the qualifications, limitations or restrictions
thereof, if any, with respect to any class or series;
(iv) whether or not the shares of any class or series shall be
redeemable at the option of the Corporation or the holders thereof or upon the
happening of any specified event, and, if redeemable, the redemption price or
prices (which may be payable in the form of cash, notes, securities, or other
property), and the time or times at which, and the terms and conditions upon
which, such shares shall be redeemable and the manner of redemption;
(v) whether or not the shares of a class or series shall be subject to
the operation of retirement or sinking funds to be applied to the purchase or
redemption of such shares for retirement, and, if such retirement or sinking
fund or funds are to be established, the annual amount thereof, and the terms
and provisions relative to the operation thereof;
(vi) the dividend rate, whether dividends are payable in cash, stock
of the Corporation, or other property, the conditions upon which and the times
when such dividends are payable, the preference to or the relation to the
payment of dividends payable on any other class or classes or series of stock,
whether or not such dividends shall be cumulative or noncumulative, and if
cumulative, the date or dates from which such dividends shall accumulate;
(vii) the preferences, if any, and the amounts thereof which the
holders of any class or series thereof shall be entitled to receive upon the
voluntary or involuntary dissolution of, or upon any distribution of the assets
of, the Corporation;
(viii) whether or not the shares of any class or series, at the option
of the Corporation or the holder thereof or upon the happening of any specified
event, shall be convertible into or exchangeable for, the shares of any other
class or classes or of any other
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series of the same or any other class or classes of stock, securities or other
property of the Corporation and the conversion price or prices or ratio or
ratios or the rate or rates at which such exchange may be made, with such
adjustments, if any, as shall be stated and expressed or provided for in such
resolution or resolutions; and
(ix) such other special rights and protective provisions with respect
to any class or series as may to the Board of Directors of the Corporation seem
advisable.
C. No holders of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive rights to subscribe for,
purchase or receive any shares of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any rights to
subscribe for, purchase or receive any securities convertible to or exchangeable
for such shares, which may at any time be issued, sold or offered for sale by
the Corporation, except in the case of any shares of Preferred Stock to which
such rights are specifically granted by any resolution or resolutions of the
Board of Directors adopted pursuant to this Article 4.
ARTICLE 5
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The Corporation shall have perpetual existence.
ARTICLE 6
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Effective as of the time at which Transaction Systems Architects, a
Delaware corporation, and its affiliates shall cease to be the beneficial owner
of an aggregate of at least a majority of the then outstanding shares of Common
Stock (the "Trigger Date"), 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 such holders and may not be effected by any consent in
writing by such holders. Effective as of the Trigger Date, except as otherwise
required by law and subject to the rights of the holders of any class or series
of stock having a preference over the Common Stock as to dividends or upon
liquidation, special meetings of stockholders of the Corporation for any purpose
or purposes may be called only by the Board of Directors or by the Chairman of
the Board of Directors of the Corporation and, effective as of the Trigger Date,
any power of stockholders to call a special meeting is specifically denied. No
business other than that stated in the notice shall be transacted at any special
meeting.
ARTICLE 7
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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 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 this Corporation shall be fixed and may be changed from time to time by
resolution of the Board of Directors.
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B. The Directors, other than those who may be elected by the holders of
any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, shall be classified, with respect to the time for
which they severally hold office, into three classes, as nearly equal in number
as possible, one class to be originally elected for a term expiring at the
annual meeting of stockholders to be held in 2001, another class to be
originally elected for a term expiring at the annual meeting of stockholders to
be held in 2002, and another class to be originally elected for a term expiring
at the annual meeting of stockholders to be held in 2003, with each class to
hold office until its successor is duly elected and qualified. At each
succeeding annual meeting of stockholders, directors elected to succeed those
directors whose terms then expire shall be elected for a term of office to
expire at the third succeeding annual meeting of stockholders after their
election. 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.
C. Notwithstanding the foregoing provisions of this Article 7, each
director shall hold office until the annual meeting of the year in which his
term expires and until his successor shall be elected and shall qualify,
subject, however, to death, resignation or removal from office.
D. Any vacancies on the Board of Directors resulting from death,
resignation or removal unless the Board of Directors determines by resolution
that any such vacancies or newly created directorships shall be filled by
stockholders, and except as otherwise provided by law, shall be filled only 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, or by a sole remaining
director, and not by the stockholders.
E. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, amend or
repeal the by-laws of the Corporation; provided, however, that such
authorization shall not divest the stockholders of the power or limit their
power to adopt, amend or repeal the by-laws of the Corporation.
F. The directors of the Corporation need not be elected by written ballot
unless the by-laws of the Corporation so provide.
ARTICLE 8
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Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws of the Corporation may provide. The books of the
Corporation may be kept 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.
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ARTICLE 9
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The Corporation shall have the power to indemnify its directors, officers,
employees or agents to the full extent permitted by the General Corporation Law
of the State of Delaware as now in force or hereafter amended.
ARTICLE 10
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No director shall be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director except as provided
for in Section 102(b)(7) of the General Corporation Law of the State of Delaware
as now in force or as hereafter amended. Any repeal or modification of this
Article 10 shall not adversely affect any right or protection of a director of
the Corporation existing at the time of such repeal or modification.
ARTICLE 11
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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 Section 291 of
Title 8 of the General Corporation Law of the State of Delaware or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under Section 279 of Title 8 of the General Corporation Law
of the State of Delaware 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 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.
ARTICLE 12
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A. Notwithstanding any other provision of this Certificate of
Incorporation to the contrary, the provisions set forth in Article 6, Article 7
and in this Article 12 may not be amended, altered, changed, or repealed in any
respect unless such amendment, alteration, change or repealing is approved by
the affirmative vote of not less than 80% of the combined voting power of all
shares of the Corporation entitled to vote generally in the election of
directors then outstanding, voting together as a single class.
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B. Subject to the provisions of Section 12.A. of this Article 12, 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 the laws of the State of Delaware, and all rights and powers
conferred upon stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF, Seedstock One, Inc. has caused this Amended and
Restated Certificate of Incorporation to be executed by Neal Klegerman, its
Secretary this 16th day of May, 2000.
/s/
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Neal Klegerman, Secretary
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