Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
ANUBIS CORP.
The following Restated Certificate of Incorporation of Anubis Corp.,
the original Certificate of Incorporation of which was filed with the Delaware
Secretary of State on May 12, 1988, was duly adopted in accordance with the
provisions of Section 245 of the Delaware General Corporation Law;
ARTICLE 1 - NAME
The name of the corporation is Anubis Corp.
ARTICLE 2 - REGISTERED OFFICE AND AGENT
The registered office of the corporation in the State of Delaware is
229 South State Street, in the City of Dover, County of Kent, Delaware, 19901.
The name of its registered agent at such address is The Prentice-Hall
Corporation System, Inc.
ARTICLE 3 - PURPOSES
The nature of the business or purposes to be conducted or promoted by
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 - CAPITAL STOCK
4.1) The aggregate number of shares the corporation has authority to
issue shall be 25,000,00 shares of which 20,000,000 shares of the par value of
$.01 shall be designated as "Common Stock", 3,000,000 of the par value of $.01
shall be designated as "Class B Common Stock" and 2,000,000 of the par value of
$.01 shall be designated as "Preferred Stock".
4.2) The Board of Directors has the authority, without first obtaining
approval of the stockholders of the corporation, or any class thereof:
(a) To grant rights or options to subscribe for or purchase,
and issue, shares of authorized and unissued stock of the corporation
of any class now or hereafter authorized, to any person, including
officers and directors of the corporation, upon such terms and
conditions as the Board may deem appropriate.
(b) To make distributions to its stockholders out of its
capital surplus, and to purchase its own shares out of its unreserved
and unrestricted capital surplus, upon such terms as the Board may deem
appropriate.
(c) To the extent permitted by the applicable laws of the
State of Delaware, to guarantee or assume liability for the payment of
the principal of, or dividends or interest on, or sinking fund payments
in respect to, stocks, bonds, debentures, warrants, rights, scrip,
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notes, evidences of indebtedness, or other securities or obligations of
any kind by whomsoever issued; and to the extent permitted by law, to
guarantee or assume liability for the performance of any other contract
or obligation, made or issued by any domestic or foreign corporation,
partnership, association, trustee, group, individual or entity.
(d) To establish, by resolution adopted and filed in the
manner provided by law, one or more series of Class B Common Stock and
to fix the powers, preferences, rights, and limitations of such class
or series.
(e) To establish, by resolution adopted and filed in the
manner provided by law, one or more series of Preferred Stock and to
fix the powers, preferences, rights and limitations of such class or
series.
4.3) No holder of shares of the corporation of any class now or
hereafter authorized has any preferential or preemptive right to subscribe for,
purchase or receive any shares of the corporation of any class now or hereafter
authorized, or any options or warranties for such shares, which may at any time
be issued, sold or offered for sale by the corporation.
4.4) No holder of shares of the corporation of any class now or
hereafter authorized shall be entitled to cumulative voting.
ARTICLE 5 - MEETINGS AND BOOKS
Meetings of the stockholders may be held outside the State of Delaware,
as the Bylaws may provide. Elections of directors need not be by written ballot
unless and except to the extent that the Bylaws so 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 6 - INCORPORATOR
The name and mailing address of the incorporator are as follows:
Timothy M. Heaney
1100 International Centre
900 Second Avenue South
Minneapolis, MN 55402
ARTICLE 7 - DIRECTORS
7.1) The powers of the incorporator shall terminate upon the filing of
the Certificate of Incorporation, whereafter the persons who are to serve as
directors until the first annual meeting of stockholders or until their
successors are elected and shall qualify are:
Name Mailing Address
---- ---------------
Carter G. Bishop 1221 Nicollet Mall
Minneapolis, Minnesota 55403
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Sheldon T. Fleck 1221 Nicollet Mall
Minneapolis, Minnesota 55403
James A. Ionson 6141 Nightsheet Hill
Columbia, Maryland 21045
7.2) 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 a director shall be liable to the extent provided by
applicable law (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 a 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. If the Delaware
General Corporation Law is hereafter amended to authorize the further
elimination or limitation of the liability of a director, then the liability of
a director of the corporation shall be so further eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing provisions of this Section 7.2 by
the stockholders of the corporation shall not adversely affect a right or
protection of a director of the corporation existing at the time of such repeal
or modification.
ARTICLE 8 - INDEMNIFICATION
8.1) The corporation shall indemnify, to the fullest extent authorized
or permitted by law as now enacted or hereafter amended, any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he, his testator or intestate, is or
was a director or officer of the corporation or by reason of the fact that such
director or officer, at the request of the corporation, is or was serving any
other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, in any capacity.
8.2) The corporation shall, to the fullest extent authorized or
permitted by law as now enacted or hereafter amended, pay the expenses incurred
by persons identified in the preceding Section 8.1 in defending such action,
suit or proceeding in advance of the final disposition of the same.
8.3) The rights conferred on any person pursuant to this Article 8
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statutes, other provisions of the Certificate of
Incorporation, Bylaw, agreement, vote of stockholders or disinterested directors
or otherwise.
8.4) The Board of Directors may authorize the purchase and maintenance
of insurance for the purpose of such indemnification or other rights granted
pursuant to this Article 8, against expense, liability or loss, whether or not
the corporation would have the power to indemnify such persons against such
expense, liability or loss under the Delaware General Corporation Law, as now
enacted or hereafter amended.
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ARTICLE 9 - COMPROMISE OR ARRANGEMENTS
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
the provisions of Section 291 of Title 8 of the Delaware Code, or on the
application of trustees in dissolution or of any receivers appointed for this
corporation under the provisions of section 279 of Title 8 of the Delaware Code,
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 application 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 10 - BYLAWS
The Board of Directors is expressly authorized to make and alter Bylaws
of this corporation, subject to the power of the stockholders to change or
repeal such Bylaws and subject to any other limitations on such authority
provided by the General Corporation Law of Delaware.
ARTICLE 11 - AMENDMENT OF CERTIFICATE OF INCORPORATION
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.
IN WITNESS WHEREOF, said Anubis, Corp. has caused this Restated
Certificate of Incorporation to be signed by its President and attested to by
its Secretary this 31st day of May, 1988.
ANUBIS CORP.
/s/ Sheldon T. Fleck
Its President
Attest:
/s/ Marilyn J. Hall
Its Secretary
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CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION
OF
ANUBIS CORP.
Anubis Corp., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, does hereby certify:
FIRST: That Article 1 of the Certificate of Incorporation of the
corporation has been amended to read as follows:
"ARTICLE 1 - NAME
The name of the corporation is CE Software Holdings, Inc."
SECOND: That the aforesaid amendment was duly adopted by written
consent in accordance with Section 228 of the General Corporation Law of the
State of Delaware.
THIRD: That written notice of the taking of such corporate action
without a meeting by less than unanimous written consent has been given to those
stockholders who have not consented in writing.
IN WITNESS WHEREOF, Anubis Corp. has caused this Certificate to be
signed by its President and attested by its Secretary this 6th day of April,
1990.
ANUBIS CORP.
By /s/ Richard A. Skeie
Richard A. Skeie
Its President
Attest:
/s/ John S. Kirk
John S. Kirk, Its Secretary
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CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
CE SOFTWARE HOLDINGS, INC.
CE Software Holdings, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delware, does
hereby certify:
FIRST: That Section 4.1 of Article 4 of the Restated Certificate of
Incorporation of the Corporation has been amended to read as follows:
"ARTICLE 4 - CAPITAL STOCK
4.1 The aggregate number of shares the corporation has
authority to issue shall be 15,000,000 shares, of which 10,000,000
shares of the par value of $.02 shall be designated as "Common Stock",
3,000,000 shares of the par value of $.01 shall be designated as "Class
B Common Stock, and 2,000,000 of the par value of $.01 shall be
designated as "Preferred Stock"."
SECOND: That the aforesaid amendment was duly adopted by written
consent in accordance with Section 228 of the General Corporation Law of the
State of Delaware.
THIRD: That written notice of the taking of such corporate action
without a meeting by less than unanimous written consent has been given to those
stockholders who have not consented in writing.
IN WITNESS WHEREOF, CE Software Holdings, Inc. has caused this
Certificate to be signed by its President and attested by its Secretary this
18th day of April, 1990.
CE Software Holdings, Inc.
By /s/ Richard A. Skeie
Richard A. Skeie, President
Attest:
/s/ John S. Kirk
John S. Kirk, Secretary
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CERTIFICATE OF AMENDMENT OF
RESTATED CERTIFICATE OF INCORPORATION OF
CE SOFTWARE HOLDINGS, INC.
CE Software Holdings, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, does
hereby certify:
FIRST: That Section 4.1 of Article 4 of the Restated Certificate of
Incorporation of the Corporation shall be amended to read as follows:
"ARTICLE 4 - CAPITAL STOCK
4.1 The aggregate number of shares the corporation has
authority to issue shall be 7,000,000 shares, of which
2,000,000 shares of the par value of $.10 shall be designated
as Common Stock, 3,000,000 shares of the par value of $.01
shall be designated as Class B Common Stock and 2,000,000 of
the par value of $.01 shall be designated as Preferred Stock.
All of the shares of Common Stock of the corporation of the
par value of $.02 issued and outstanding, or held as treasury
shares, immediately prior to the time this amendment becomes
effective shall be and are by this means automatically
reclassified and changed (without any further act) into shares
of the par value of $.10, the number of which shall equal the
quotient derived from dividing the number of such shares by 5.
This amendment shall become effective without increasing or
decreasing the amount of stated capital or paid-in surplus of
the corporation, and shall constitute a 1 for 5 reverse stock
split, provided that no fractional shares of less than one
share shall be issued. The holders of fractional share
interests of less than one share that occur as a result of the
foregoing reclassification and change shall be paid in money
by the Corporation the value of their fractional shares."
SECOND: That the aforesaid amendment was duly adopted by written
consent in accordance with Section 228 of the General Corporation Law of the
State of Delaware.
THIRD: That written notice of the taking of such corporate action
without a meeting by less than unanimous written consent was sent or given to
all stockholders at least 20 days prior to the effective date of the amendment.
FOURTH: That the effective date of the aforesaid amendment shall be
June 30, 1997.
CE Software Holdings, Inc. has caused t his Certificate to be signed on
this 27th day of June 1997 by its Secretary and authorized officer, John S.
Kirk, who acknowledges that his signature is the act and deed of the corporation
and that the facts stated herein are true.
CE Software Holdings, Inc.
By /s/ John S. Kirk
John S. Kirk, Secretary
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CERTIFICATE OF AMENDMENT OF
RESTATED CERTIFICATE OF INCORPORATION OF
CE SOFTWARE HOLDINGS, INC.
CE Software Holdings, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, does
hereby certify:
FIRST: That Section 4.1 of Article 4 of the Restated Certificate of
Incorporation of the Corporation shall be amended to read as follows:
"ARTICLE 4 - CAPITAL STOCK
4.1 The aggregate number of shares of stock the corporation
has authority to issue shall be Two Million (2,000,000) shares, all of
which shall be classified as Common Stock with a par value of ten cents
($0.10) per share."
SECOND: That the aforesaid amendment was duly adopted in accordance
with Section 242(b)(1) of the General Corporation Law of the State of Delaware
at the annual meeting of the stockholders held on February 25, 1999.
THIRD: That the aforesaid amendment shall be effective upon filing with
the Delaware Secretary of State.
CE Software Holdings, Inc. has caused this Certificate to be signed on
this 10th day of May, 1999 by its Secretary and authorized officer, John S.
Kirk, who acknowledges that his signature is the act and deed of the corporation
and that the facts stated herein are true.
CE Software Holdings, Inc.
By /s/ John S. Kirk
John S. Kirk, Secretary
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CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
CE SOFTWARE HOLDINGS, INC.
CE Software Holdings, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, does
hereby certify:
FIRST: That Section 4.1 of Article 4 of the Restated Certificate of
Incorporation of the Corporation shall be amended to read as follows:
"ARTICLE 4-CAPITAL STOCK
4.1 The aggregate number of shares the corporation has authority to
issue shall be 10,000,000 shares of the par value of $.01 each, which shall be
designated as Common Stock."
SECOND: That the aforesaid amendments were duly adopted in accordance
with Section 242(b)(1) of the General Corporation Law of the State of Delaware
at the annual meeting of the stockholders held on April 27, 2000.
THIRD: That the aforesaid amendment shall be effective upon filing with
the Delaware Secretary of State.
CE Software Holdings, Inc. has caused this Certificate to be signed on
this 27th day of April, 2000 by its Secretary and authorized officer, John S.
Kirk, who acknowledges that his signature is the act and deed of the corporation
and that the facts stated herein are true.
CE Software Holdings, Inc.
By /s/ John S. Kirk
John S. Kirk, Secretary
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CERTIFICATE OF MERGER
of
LIGHTNING ROD SOFTWARE, INC., a Minnesota corporation
into
CE SOFTWARE HOLDINGS, INC., a Delaware corporation
Pursuant to Section 252 of the General Corporation Law of Delaware, the
undersigned corporation certifies the following:
1. The name and state of incorporation of each of the constituent
corporations of the merger are as follows: CE Software Holdings, Inc., a
Delaware corporation, and Lightning Rod Software, Inc., a Minnesota corporation.
2. An agreement and plan of merger entitled "Amended and Restated
Agreement and Plan of Merger" dated as of February 15, 2000, as amended, has
been approved, adopted, certified, executed, and acknowledged by each of the
constituent corporations in accordance with Section 252(c) of the General
Corporation Law of Delaware.
3. The name of the surviving corporation is CE Software Holdings, Inc.,
a Delaware corporation.
4. The Restated Certificate of Incorporation, as amended, of CE
Software Holdings, Inc., a Delaware corporation, which shall survive the merger
shall be the Restated Certificate of Incorporation, as amended, of the surviving
corporation; provided, however, that the following further amendments to the
Restated Certificate of Incorporation of CE Software Holdings, Inc. are effected
by the merger:
Article 1 of the Restated Certificate of Incorporation of CE Software
Holdings, Inc. shall be amended to read as follows:
"ARTICLE I - NAME
The name of the Corporation is Lightning Rod Software, Inc."
5. The executed Amended and Restated Agreement and Plan of Merger, as
amended, is on file at an office of the surviving corporation, the address of
which is 7031 Ohms Lane, Suite 600, Minneapolis, MN 55439.
6. A copy of the Amended and Restated Agreement and Plan of Merger, as
amended, will be furnished by the surviving corporation, on request and without
cost, to any stockholder of any constituent corporation.
7. The authorized capital stock of Lightning Rod Software, Inc.
consists of 50,000,000 shares, including 35,000,000 shares of common stock with
a par value of one cent ($.01) per share and 15,000,000 shares of preferred
stock with a par value of one cent ($.01) per share.
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8. This Certificate of Merger shall become effective at the date and
time of the filing with the Delaware Secretary of State.
CE SOFTWARE HOLDINGS, INC.
A Delaware corporation
/s/ John S. Kirk
John S. Kirk, Secretary
