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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
APERIAN, INC.
Aperian, Inc. (the "Corporation") is a corporation organized and
existing under and by virtue of the Delaware General Corporation Law. Pursuant
to the provisions of Section 242 and Section 245 of the Delaware General
Corporation Law, the Corporation adopts the following Amended and Restated
Certificate of Incorporation. The original Certificate of Incorporation was
filed with the Delaware Secretary of State on April 24, 2000 (the "Original
Certificate of Incorporation").
This Amended and Restated Certificate of Incorporation, which amends
and restates the Original Certificate of Incorporation, was duly adopted as of
September 5, 2000 in accordance with the provisions of Sections 228, 242 and 245
of the Delaware General Corporation Law. The provisions of the Original
Certificate of Incorporation are hereby amended and restated to read in their
entirety as follows:
FIRST: The name of the Corporation is Aperian, Inc.
SECOND: The registered office of the Corporation in the State of
Delaware is located at 1209 Orange Street, the City of Wilmington, County of New
Castle. The name of the registered agent of the Corporation at such address is
the Corporation Trust Company.
THIRD: The purpose for which the Corporation is organized is to engage
in any and all lawful acts and activity for which corporations may now or
hereafter be organized under the Delaware General Corporation Law. The
Corporation shall have all powers that may now or hereafter be lawful for a
corporation to exercise under the Delaware General Corporation Law and shall
have perpetual existence.
FOURTH: The name of the incorporator is Kyle Fox and his mailing
address is c/o Vinson & Elkins L.L.P., One American Center, 600 Congress Avenue,
Suite 2700, Austin, Texas 78701.
FIFTH: The name and mailing address of the director, who shall serve
until the first annual meeting of stockholders or until his successor is elected
and qualified, is as follows:
Name Address
Robert J. Gibbs 1121 East 7th Street
Austin, Texas 78702
SIXTH: The total number of shares of capital stock of all classes that
the Corporation shall have authority to issue is Eighty-five Million
(85,000,000) shares consisting of two classes of capital stock: (a) Ten Million
(10,000,000) shares of preferred stock, par value $.01 per share (the "Preferred
Stock"); and (b) Seventy-five Million (75,000,000) shares of common stock, par
value $.01 per share (the "Common Stock").
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The designations, powers, preferences, rights, qualifications,
limitations and restrictions of the Preferred Stock and the Common Stock are as
follows:
1. Provisions relating to the Preferred Stock
(a) The shares of Preferred Stock of the Corporation may be
issued from time to time in one or more classes or series thereof, the shares of
each class or series thereof to have such voting powers, full or limited, or no
voting powers, and such designations, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, as are stated and expressed herein or in the resolution or
resolutions providing for the issue of such class or series, adopted by the
board of directors of the Corporation (the "Board of Directors") as hereinafter
provided.
(b) Authority is hereby expressly granted to and vested in the
Board of Directors, subject to the provisions of this Article SIXTH and to the
limitations prescribed by the Delaware General Corporation Law, to authorize the
issuance of the Preferred Stock from time to time in one or more classes or
series, and with respect to each such class or series to fix by resolution or
resolutions providing for the issue of such class or series the voting powers,
full or limited, if any, of the shares of such class or series and the
designations, preferences and relative, participating, optional or other special
rights, and qualifications, limitations and restrictions thereof. The authority
of the Board of Directors with respect to each class or series thereof shall
include, but not be limited to, the determination or fixing of 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 capital 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;
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(vi) the dividend rate, whether dividends are
payable in cash, securities 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 capital 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 series of the same or any other class or classes of capital
stock, securities, or other property of the Corporation or any other
entity and the conversion price or prices, ratio or ratios, or the rate
or rates at which such conversion or 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 the Board of Directors
may provide.
2. Provisions Relating to the Common Stock
(a) General. Except as otherwise provided herein or as otherwise
provided by applicable law, all shares of Common Stock shall have identical
rights and privileges in every respect.
(b) Dividends. Subject to the prior rights and preferences, if
any, applicable to shares of the Preferred Stock, the holders of the Common
Stock shall be entitled to participate ratably, on a share-for-share basis, in
such dividends, whether in cash, stock or otherwise, as may be declared by the
Board of Directors from time to time out of funds of the Corporation legally
available therefor.
Dividends payable under this Subsection 2(b) shall be paid to
the holders of record of the outstanding Common Stock as their names shall
appear on the stock register of the Corporation on the record date fixed by the
Board of Directors in advance of the declaration and payment of each dividend.
Any shares of Common Stock issued as a dividend pursuant to this Subsection 2(b)
shall, when so issued, be duly authorized, validly issued, fully paid and
non-assessable, and free of all liens and charges. The Corporation shall not
issue fractions of shares of Common Stock on payment of such dividend but shall
issue a whole number of shares to such holder of shares of Common Stock rounded
up or down in the Corporation's sole discretion to the nearest whole number,
without compensation to the stockholder whose fractional share has been rounded
down or from any stockholder whose fractional share has been rounded up.
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(c) Voting. The holders of Common Stock shall vote on all matters
submitted to a vote of the stockholders, with each share of Common Stock
entitled to one vote. The holders of Common Stock are not entitled to cumulate
votes in the election of any directors.
(d) Reservation of Shares. The Corporation shall at all times
reserve and keep available out of its authorized but unissued shares of Common
Stock, or out of shares of Common Stock held in its treasury, the full number of
shares of Common Stock into which all shares of any series of Preferred Stock
having conversion privileges from time to time outstanding are convertible.
(e) Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution, or winding-up of the Corporation, after all creditors
of the Corporation shall have been paid in full and after payment of all sums
payable in respect of Preferred Stock, if any, the holders of the Common Stock
shall share ratably on a share-for-share basis in all distributions of assets
pursuant to such voluntary or involuntary liquidation, dissolution, or
winding-up of the Corporation. For the purposes of this Subsection 2(e), neither
the merger nor the consolidation of the Corporation into or with another entity
or the merger or consolidation of any other entity into or with the Corporation,
or the sale, transfer, or other disposition of all or substantially all the
assets of the Corporation, shall be deemed to be a voluntary or involuntary
liquidation, dissolution, or winding-up of the Corporation.
3. General.
(a) Subject to the foregoing provisions of this Amended and
Restated Certificate of Incorporation, the Corporation may issue shares of its
Common Stock or Preferred Stock from time to time for such consideration (not
less than the par value thereof) as may be fixed by the Board of Directors,
which is expressly authorized to fix the same in its absolute and uncontrolled
discretion. Shares so issued for which the consideration shall have been paid or
delivered to the Corporation shall be deemed fully paid capital stock and shall
not be liable to any further call or assessment thereon, and the holders of such
shares shall not be liable for any further payments in respect of such shares.
(b) Subject to the foregoing provisions of this Amended and
Restated Certificate of Incorporation, the Corporation shall have authority to
create and issue rights and options entitling their holders to purchase shares
of the Corporation's capital stock of any class or series or other securities of
the Corporation, and such rights and options shall be evidenced by instrument(s)
approved by the Board of Directors or a committee of the Board of Directors. The
Board of Directors or a committee of the Board of Directors shall be empowered
to set the exercise price, duration, times for exercise, and other terms of such
options or rights; provided, however, that the consideration to be received for
any shares of capital stock subject thereto shall not be less than the par value
thereof.
SEVENTH: The number of directors constituting the Board of Directors
shall be no less than one, as set from time to time by the Board of Directors
pursuant to the bylaws of the Corporation, plus such number of directors as may
be elected from time to time by the holders of any class or series of Preferred
Stock. The directors of the Corporation need not be elected by written ballot
unless the bylaws of the Corporation otherwise provide.
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EIGHTH: No contract or transaction between the Corporation and one or
more of its directors, officers, or stockholders or between the Corporation and
any Person (as hereinafter defined) in which one or more of its directors,
officers, or stockholders are directors, officers, or stockholders, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board of Directors or committee which authorizes the contract or
transaction, or solely because his, her, or their votes are counted for such
purpose, if: (i) the material facts as to his or her relationship or interest
and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum; (ii) the material facts as to his or her relationship or
interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved, or ratified by the Board of Directors, a committee
thereof, or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction. "Person" as used
herein means any corporation, partnership, limited liability company,
association, firm, trust, joint venture, political subdivision or
instrumentality.
NINTH: The Corporation shall indemnify any person who was, is, or is
threatened to be made a party to a proceeding (as hereinafter defined) by reason
of the fact that he or she (i) is or was a director or officer of the
Corporation or (ii) while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, to the
fullest extent permitted under the Delaware General Corporation Law, as the same
exists or may hereafter be amended. Such right shall be a contract right and as
such shall run to the benefit of any director or officer who is elected and
accepts the position of director or officer of the Corporation or elects to
continue to serve as a director or officer of the Corporation while this Article
NINTH is in effect. Any repeal or amendment of this Article NINTH shall be
prospective only and shall not limit the rights of any such director or officer
or the obligations of the Corporation with respect to any claim arising from or
related to the services of such director or officer in any of the foregoing
capacities prior to any such repeal or amendment to this Article NINTH. Such
right shall include the right to be paid by the Corporation expenses incurred in
investigating or defending any such proceeding in advance of its final
disposition to the maximum extent permitted under the Delaware General
Corporation Law, as the same exists or may hereafter be amended. If a claim for
indemnification or advancement of expenses hereunder is not paid in full by the
Corporation within sixty (60) days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim, and if successful in
whole or in part, the claimant shall also be entitled to be paid the expenses of
prosecuting such claim. It shall be a defense to any such action that such
indemnification or advancement of costs or expenses is not permitted under the
Delaware General Corporation Law, but the burden of proving such defense shall
be on the Corporation. Neither the failure of the Corporation (including its
Board of Directors or any committee thereof, independent legal counsel, or
stockholders) to have made its determination prior to the commencement of such
action that indemnification of, or advancement
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of costs of defense to, the claimant is permissible in the circumstances nor an
actual determination by the Corporation (including its Board of Directors or any
committee thereof, independent legal counsel, or stockholders) that such
indemnification or advancement is not permissible shall be a defense to the
action or create a presumption that such indemnification or advancement is not
permissible. In the event of the death of any Person having a right of
indemnification under the foregoing provisions, such right shall inure to the
benefit of his or her heirs, executors, administrators, and personal
representatives. The rights conferred above shall not be exclusive of any other
right which any Person may have or hereafter acquire under any statute, bylaw,
resolution of stockholders or directors, agreement, or otherwise.
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by law.
Without limiting the generality of the foregoing, to the extent
permitted by then applicable law, the grant of mandatory indemnification
pursuant to this Article NINTH shall extend to proceedings involving the
negligence of such Person.
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
TENTH: A director of the Corporation shall 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 which involve intentional misconduct or knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law; or (iv) for any transaction from which the director derived an improper
personal benefit. Any repeal or amendment of this Article TENTH by the
stockholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the
Corporation arising from an act or omission occurring prior to the time of such
repeal or amendment. In addition to the circumstances in which a director of the
Corporation is not personally liable as set forth in the foregoing provisions of
this Article TENTH, a director shall not be liable to the Corporation or its
stockholders to such further extent as permitted by any law hereafter enacted,
including without limitation any subsequent amendment to the Delaware General
Corporation Law.
ELEVENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon the stockholders of the Corporation herein are granted
subject to this reservation.
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IN WITNESS WHEREOF, the undersigned has executed this Certificate this
5th day of September, 2000.
APERIAN, INC.
By:/s/Robert J. Gibbs
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Robert J. Gibbs
President
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