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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
PENSON WORLDWIDE, INC.
Penson Worldwide, Inc., a corporation organized and existing under the
Delaware General Corporation Law (the "DGCL"), DOES HEREBY CERTIFY:
FIRST: The original Certificate of Incorporation of this corporation
was filed with the Secretary of State of Delaware on August 30, 2000 under the
name "Penson Worldwide, Inc."
SECOND: The Amended and Restated Certificate of Incorporation of
Penson Worldwide, Inc. in the form attached hereto as Annex A has been duly
adopted in accordance with the provisions of Sections 228, 245 and 242 of the
DGCL by the directors and stockholders of this corporation.
THIRD: The Amended and Restated Certificate of Incorporation so
adopted reads in full as set forth in Annex A attached hereto and is
incorporated herein by this reference.
IN WITNESS WHEREOF, Penson Worldwide, Inc. has caused this Amended and
Restated Certificate of Incorporation to be signed by its duly authorized and
elected Chairman of the Board this _____ day of September, 2000.
PENSON WORLDWIDE, INC.
By:
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Roger J. Engemoen, Jr.
Chairman of the Board
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ANNEX A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
PENSON WORLDWIDE, INC.
ARTICLE I
The name of this corporation shall be Penson Worldwide, Inc.
(the "Company").
ARTICLE II
The address of the registered office of the Company in the
State of Delaware is 1209 Orange Street, City of Wilmington, County of New
Castle, State of Delaware. The name of the registered agent at that address is
The Corporation Trust Company.
ARTICLE III
The purpose of the Company is to engage in any lawful act or
activity for which corporations may be organized under the Delaware General
Corporation Law.
ARTICLE IV
A. Authorized Shares. The aggregate number of shares that the Company
shall have authority to issue is Seventy Five Million (75,000,000), (a) Sixty
Five Million (65,000,000) shares of which shall be Common Stock, par value
$0.001 per share, and (b) Ten Million (10,000,000) shares of which shall be
Preferred Stock, par value $0.001 per share.
B. Common Stock. Each share of Common Stock shall have one vote on
each matter submitted to a vote of the stockholders of the Company. Subject to
the provisions of applicable law and the rights of the holders of the
outstanding shares of Preferred Stock, if any, the holders of shares of Common
Stock shall be entitled to receive, when and as declared by the Board of
Directors of the Company, out of the assets of the Company legally available
therefor, dividends or other distributions, whether payable in cash, property
or securities of the Company. The holders of shares of Common Stock shall be
entitled to receive, in proportion to the number of shares of Common Stock
held, the net assets of the Company upon dissolution after any preferential
amounts required to be paid or distributed to holders of outstanding shares of
Preferred Stock, if any, are so paid or distributed.
C. Preferred Stock.
(1) Series. The Preferred Stock may be issued from time to time by
the Board of Directors as shares of one or more series. The description of
shares of each additional series of Preferred Stock, including any
designations, preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications, and terms and
conditions of redemption shall be as set forth in resolutions adopted by the
Board of Directors.
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(2) Rights and Preferences. The Board of Directors is expressly
authorized, at any time, by adopting resolutions providing for the issuance of,
or providing for a change in the number of, shares of any particular series of
Preferred Stock and, if and to the extent from time to time required by law, by
filing certificates of amendment or designation which are effective without
stockholder action, to increase or decrease the number of shares included in
each series of Preferred Stock, but not below the number of shares then issued,
and to set in any one or more respects the designations, preferences,
conversion or other rights, voting powers, restrictions, limitations as to
dividends, qualifications, or terms and conditions of redemption relating to
the shares of each such series. The authority of the Board of Directors with
respect to each series of Preferred Stock shall include, but not be limited to,
setting or changing the following:
2A. the dividend rate, if any, on shares of such series, the
times of payment and the date from which dividends shall be accumulated, if
dividends are to be cumulative;
2B. whether the shares of such series shall be redeemable
and, if so, the redemption price and the terms and conditions of such
redemption;
2C. the obligation, if any, of the Company to redeem shares
of such series pursuant to a sinking fund;
2D. whether shares of such series shall be convertible into, or
exchangeable for, shares of stock of any other class or classes and, if so, the
terms and conditions of such conversion or exchange, including the price or
prices or the rate or rates of conversion or exchange and the terms of
adjustment, if any;
2E. whether the shares of such series shall have voting rights,
in addition to the voting rights provided by law, and, if so, the extent of
such voting rights;
2F. the rights of the shares of such series in the event of
voluntary or involuntary liquidation, dissolution or winding-up of the Company;
and
2G. any other relative rights, powers, preferences,
qualifications, limitations or restrictions thereof relating to such series.
ARTICLE V
A director of the Company shall not be personally liable to
the Company or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (a) for any breach of the director's
duty of loyalty to the Company or its stockholders, (b) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (c) under Section 174 of the Delaware General Corporation Law
or (d) for any transaction from which the director derived any improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this Article to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Company shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law as so amended.
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ARTICLE VI
The management of the business and the conduct of the affairs
of the Company shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be fixed
by, or in the manner provided in, the Bylaws of the Company.
ARTICLE VII
Meetings of stockholders may be held within or without the
State of Delaware, as the Bylaws of the Company may provide. The books of the
Company 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 Company.
ARTICLE VIII
Election of directors at an annual or special meeting of
stockholders need not be by written ballot unless the Bylaws of the Company
shall so provide.
ARTICLE IX
A. At each annual meeting of stockholders, directors of the Company
shall be elected to hold office until the expiration of the term for which they
are elected, and until their successors have been duly elected and qualified.
Effective immediately following the closing of the initial public offering of
the Company's capital stock pursuant to an effective registration statement
filed under the Securities Act of 1933, as amended (the "Initial Public
Offering"), the directors of the Company shall be divided into three classes as
nearly equal in size as is practicable, hereby designated as Class I, Class II
and Class III. The initial Class I, Class II and Class III directors shall be
those directors designated and elected by resolution of the Board of Directors
or stockholders prior to the Initial Public Offering. The term of office of the
initial Class I directors shall expire at the first annual meeting of
stockholders following the closing of the Initial Public Offering (the "First
Public Company Annual Meeting"); the term of office of the initial Class II
directors shall expire at the next succeeding annual meeting of stockholders;
and the term of office of the initial Class III directors shall expire at the
second succeeding annual meeting of stockholders. At each annual meeting after
the First Public Company Annual Meeting, directors to replace those of a Class
whose terms expire at such annual meeting shall be elected to hold office until
the third succeeding annual meeting and until their respective successors shall
have been duly elected and qualified. If the number of directors is hereafter
changed, any newly created directorships or decrease in directorships shall be
so apportioned among the classes as to make all classes as nearly equal in
number as is practicable.
B. Vacancies occurring on the Board of Directors for any reason may be
filled by vote of a majority of the remaining members of the Board of
Directors, although less than a quorum, at a meeting of the Board of Directors.
A person so elected by the Board of Directors to fill a vacancy shall hold
office until the next succeeding annual meeting of stockholders of the Company
and until his or her successor shall have been duly elected and qualified.
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ARTICLE X
Effective upon the closing of the Initial Public Offering,
stockholders of the Company may not take action by written consent in lieu of a
meeting but must take any actions at a duly called annual or special meeting.
ARTICLE XI
In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, alter,
amend or repeal the Bylaws of the Company.
ARTICLE XII
Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser
vote or no vote, but in addition to any affirmative vote of the holders of the
capital stock required by law or this Certificate of Incorporation, effective
as of the Initial Public Offering, the affirmative vote of the holders of at
least two-thirds (2/3) of the combined voting power of all of the
then-outstanding shares of the Company entitled to vote shall be required to
alter, amend or repeal Articles IX or X or this Article XII, or any provisions
thereof.
ARTICLE XIII
Subject to Article XII above, the Company 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 on stockholders herein are granted subject to this
reservation.
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