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EXHIBIT 3.01
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CUPERTINO ELECTRIC, INC.
James S. Ryley hereby certifies that:
1. He is the duly elected and acting Chief Executive Officer of
Cupertino Electric, Inc., a Delaware corporation (the "Corporation").
2. The date of the filing of the original Certificate of Incorporation
of the Corporation with the Secretary of State of the State of Delaware is May
31, 2000 under the name of Synergism, Inc.
3. The Certificate of Incorporation of the Corporation is hereby
amended and restated to read as follows:
ARTICLE I
The name of the corporation is Cupertino Electric, Inc.
ARTICLE II
The address of the registered office of the corporation in the
State of Delaware is 15 East North Street, in the City of Dover, County of
Kent, 19901. The name of its registered agent at such address is: Incorporating
Services, Ltd.
ARTICLE III
The nature of the business or purposes 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 Delaware.
ARTICLE IV
A. Authorized Shares.
This corporation is authorized to issue only two classes
of shares of stock which shall be designated "Common Stock." The total
number of shares which the corporation is authorized to issue is
seventy-five million (75,000,000) shares as follows:
1. Sixty-two million five hundred thousand (62,500,000)
shares of Class A Common Stock, par value $.00004 per share (the "Class
A Common"); and
2. Twelve million five hundred thousand (12,500,000)
shares of Class B Common Stock, par value $.00004 per share (the "Class
B Common").
The Class A Common and Class B Common (collectively, the
"Common Stock") shall have the rights, preferences and limitations
separately set forth below.
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B. Voting Rights.
1. The holder of each share of Class A Common Stock shall
have the right to one (1) vote for each such share, and shall be
entitled to vote upon such matters and in such manner in which the
stockholders of the corporation shall be entitled to vote or as
otherwise provided by law.
2. The holders of Class B Common shall not have any
voting rights, except as otherwise required by applicable law, in which
case holders of Class B Common shall vote (at the rate of one (1) vote
per share of Class B Common held) as a single class on such matter
unless otherwise required by law.
C. Conversion.
1. Class A Conversion. At any time and from time to time,
each share of Class A Common shall be convertible, at the option of the
holder thereof and without the payment of any additional consideration
thereby, at the office of the corporation or any transfer agent for the
Class B Common, on a share-for-share basis into one (1) fully paid and
nonassessable share of Class B Common.
2. Class B Conversion. At any time and from time to time,
each share of Class B Common shall be convertible, at the option of the
holder thereof and without the payment of any additional consideration
thereby, at the office of the corporation or any transfer agent for the
Class A Common, on a share-for-share basis into one (1) fully paid and
nonassessable share of Class A Common.
3. Manner of Conversion. Before any holder of shares of
Class A Common or Class B Common shall be entitled to convert the same
into shares of Class B Common or Class A Common, as the case may be, he
or it shall surrender the certificate or certificates therefor,
endorsed or accompanied by written instrument or instruments of
transfer, in form satisfactory to the corporation, duly executed by the
registered holder or by his attorney duly authorized in writing, at the
office of the corporation or of any transfer agent for the corporation,
and shall give written notice to the corporation at such office that
such holder elects to convert the same and shall state therein such
holder's name or the names of the nominees in which such holder wishes
the certificate or certificates for shares of Class A Common or Class B
Common, as the case may be, to be issued. The corporation shall, as
soon as practicable thereafter, issue and deliver at such office to
such holder, or to his or its nominee or nominees, a certificate or
certificates for the number of shares of Class B Common or Class A
Common, as the case may be, to which such holder shall be entitled as
aforesaid. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of such
surrender of the shares to be converted, and the person or persons
entitled to receive the shares issuable upon conversion shall be
treated for all purposes as the record holder or holders of such shares
of Class A Common or Class B Common, as the case may be, on such date.
From and after such date, all rights of the holder with respect to the
shares so converted shall terminate, except only the right of such
holder, upon the surrender of his or its certificate or certificates
therefor, to receive certificates for the number of shares of
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Class A Common or Class B Common, as the case may be, issuable upon
conversion thereof.
D. Distributions. The Board of Directors of the corporation may
cause dividends to be paid to holders of shares of Common Stock out of
funds legally available for the payment of dividends. Any dividend or
other distribution on the Common Stock shall be payable ratably at the
same rate on shares of Class A Common and Class B Common, share and
share alike; provided, however, that in the case of options, warrants
or rights to acquire shares of such Common Stock or securities
convertible into or exchangeable for shares of such Common Stock, the
shares, options, warrants, rights or securities so payable shall be
payable in shares of, or options, warrants or rights to acquire or
securities convertible into or exchangeable for, Common Stock of the
same class upon which the dividend or distribution is being paid.
E. 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, the remaining assets
and funds of the corporation, if any, shall be divided among and paid
ratably to the holders of Class A Common and Class B Common, share and
share alike. A merger or consolidation of the corporation with or into
any other corporation or a sale or conveyance of all or any part of the
assets of the corporation (which shall not in fact result in the
liquidation of the corporation and the distribution of assets to
stockholders) shall not be deemed to be a voluntary or involuntary
liquidation or dissolution or winding up of the corporation within the
meaning of this Section.
F. Stock Splits and Stock Dividends.
(a) The corporation shall not in any manner subdivide (by
stock split, stock dividend or otherwise) or combine (by reverse stock
split or otherwise) the outstanding Common Stock of one class unless
the outstanding Common Stock of the other class shall be
proportionately subdivided or combined. All such subdivisions shall be
payable in Class A Common only to the holders of Class A Common and in
Class B Common only to the holders of Class B Common.
Except as otherwise provided in this Certificate of
Incorporation, in furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend and rescind any or all of the Bylaws of the corporation.
ARTICLE V
The number of directors of the corporation shall be fixed from
time to time by a bylaw or amendment thereof duly adopted by the Board of
Directors or by the stockholders.
ARTICLE VI
Elections of directors need not be by written ballot unless the
Bylaws of the corporation shall so provide.
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ARTICLE VII
Meetings of stockholders may be held within or without the State
of Delaware, as the Bylaws may provide. The books of the corporation may be
kept (subject to any provision contained in the statutes) 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 Bylaws of the corporation.
ARTICLE VIII
A director of the corporation shall, to the fullest extent
permitted by the General Corporation Law as it now exists or as it may
hereafter be amended, not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the General Corporation Law, or (iv) for any
transaction from which the director derived any improper personal benefit. If
the General Corporation Law is amended, after approval by the stockholders of
this Article, to authorize Company 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 General Corporation Law, as so amended.
Any amendment, repeal or modification of this Article IX, or the
adoption of any provision of this Certificate of Incorporation inconsistent
with this Article IX, by the stockholders of the corporation shall not apply to
or adversely affect any right or protection of a director of the corporation
existing at the time of such amendment, repeal, modification or adoption.
ARTICLE IX
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 statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
ARTICLE X
To the fullest extent permitted by applicable law, the
corporation is authorized to provide indemnification of (and advancement of
expenses to) agents of the corporation (and any other persons to which General
Corporation Law permits the corporation to provide indemnification) through
Bylaw provisions, agreements with such agents or other persons, vote of
stockholders or disinterested directors or otherwise, in excess of the
indemnification and advancement otherwise permitted by Section 145 of the
General Corporation Law, subject only to limits created by applicable General
Corporation Law (statutory or non-statutory), with respect to actions for
breach of duty to the corporation, its stockholders, and others.
Any amendment, repeal or modification of the foregoing
provisions of this Article XI shall not adversely affect any right or
protection of a director, officer, agent, or other person existing at the time
of, or increase the liability of any director of the corporation with
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respect to any acts or omissions of such director, officer or agent occurring
prior to, such amendment, repeal or modification."
* * *
4. This Amended and Restated Certificate of Incorporation has been duly
approved by the Board of Directors of this Corporation.
5. The Corporation has received payment for its stock and this Amended
and Restated Certificate of Incorporation has been duly adopted in accordance
with the provisions of Sections 242 and 245 of the Delaware General Corporation
Law.
IN WITNESS WHEREOF, this Certificate has been subscribed this 30th day
of September 2000 by the undersigned, who affirms that the statements made
herein are true and correct.
/s/ JAMES S. RYLEY
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James S. Ryley
Chief Executive Officer
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