<PAGE>
EXHIBIT 2.2
RESTATED
CERTIFICATE OF INCORPORATION
OF
DIGITAL DESCRIPTOR SYSTEMS, INC.
The Restated Certificate of Incorporation amends and restates the
Certificate of Incorporation of Digital Descriptor Systems, Inc. (the
"corporation") filed with the Secretary of State of Delaware on June 13, 1994.
ARTICLE I. The name of the corporation is
Digital Descriptor Systems, Inc.
ARTICLE II. The address of its registered office in the State of Delaware
is 1013 Centre Road, in the City of Wilmington, County of New Castle. The name
of its registered agent at such address is Corporation Service Company.
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. The total number of shares of stock which the corporation is
authorized to issue is Eleven Million (11,000,000), of which stock Ten Million
(10,000,000) shares of the par value of $0.001 each shall be Common Stock, and
of which One Million (1,000,000) shares of the par value of one cent ($0.01)
each shall be Preferred Stock. Preferred Stock may be issued from time to time
(1) in one or more series, with such distinctive serial designations; and (2)
may have such voting powers, full or limited, or may be without voting powers;
and (3) may be subject to redemption at such time or times and at such prices;
and (4) may be entitled to receive dividends (which may be cumulative or
noncumulative) at such rate or rates, on such conditions, and at such times and
payable in preference to, or in such relation to, the dividends payable on any
other class or classes of stock; and (5) may have such rights upon dissolution
of, or upon any distribution of the assets of the corporation; and (6) may be
made convertible into, or exchangeable for, shares of any other class or classes
or of any other series of the same or any other class or classes of stock of the
corporation, at such price or prices or at such rates of exchange, and with such
adjustments; and (7) shall have such other relative, participating, optional and
other special rights and qualifications, limitations or restrictions thereof,
all as shall hereafter be stated and expressed in the resolution or resolutions
providing for the issue of such preferred stock from time to time adopted by the
Board of Directors pursuant to authority to do so which is hereby vested in the
Board of Directors.
ARTICLE V. The corporation is to have perpetual existence.
ARTICLE VI. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the by-laws of the corporation.
ARTICLE VII. Elections of directors need not be by written ballot unless
the by-laws of the corporation shall so provide.
ARTICLE VIII. 1. Limitation on Liability. A director of the corporation
shall not be personally liable to the corporation or its stockholders for
monetary damages for a 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 a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, as the same exists or
hereafter may be amended, or (iv) for any transaction from which the director
derived an improper personal benefit. If the Delaware General Corporation Law
hereafter is amended to authorize the further elimination or limitation of the
liability of directors, then the liability of a director
<PAGE>
of the corporation, in addition to the limitation on personal liability provided
herein, shall be eliminated or limited to the fullest extent permitted by the
amended Delaware General Corporation Law. Any repeal or modification of this
subsection 1 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 existing at the time of such repeal or modification.
2. Indemnification and Insurance. (a) Each person who was or is made a
party or is threatened to be made a party to or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she, or a person of whom he or she is the legal representative,
is or was a director or officer of the corporation or is or was serving at the
request of the corporation as a director or officer of another corporation or of
a partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director or officer or in any other
capacity while serving as a director or officer, shall be indemnified and held
harmless by the corporation to the fullest extent authorized by the General
Corporation Law of the State of Delaware as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the corporation to provide broader indemnification rights than
said law permitted the corporation to provide prior to such amendment), against
all expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that except as provided in subsection 2(b) of
this Article Eight with respect to proceedings seeking to enforce rights to
indemnification, the corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the corporation. The right to indemnification conferred in
this subsection 2 shall be a contract right and shall include the right to be
paid by the corporation the expenses incurred in defending any such proceeding
in advance of its final disposition; provided, however, that if the General
Corporation Law of the State of Delaware requires, an advance payment of
expenses incurred by a director or officer in his or her capacity as a director
of officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to any employee benefit plan) shall be made only upon delivery to the
corporation of an undertaking by or on behalf of such director or officer, to
repay all amounts so advanced if it shall be finally adjudicated that such
director or officer is not to be indemnified under this subsection 2 or
otherwise.
(b) If a claim under subsection 2(a) is not paid in full by the corporation
within thirty 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 be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the corporation) that the claimant has not met the standards of
conduct which make it permissible under the General Corporation Law of the State
of Delaware for the corporation to indemnify the claimant for the amount
claimed. Neither the failure of the corporation (including its Board of
Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because the claimant has met the
applicable standard of conduct set forth in the General Corporation Law of the
State of Delaware, nor an actual determination by the corporation (including its
Board of Directors, independent legal counsel or stockholders) that the claimant
has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met the applicable
standard of conduct.
(c) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
subsection 2 shall not be exclusive of any other right which any person
2
<PAGE>
may have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
(d) The corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the corporation would
have the power to indemnify such person against such expense, liability or loss
under the General Corporation Law of the State of Delaware.
(e) The corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification, and to the advancement of
expenses incurred in defending any proceeding to any employee or agent of the
corporation to the fullest extent of the provisions of this subsection 2 with
respect to the indemnification and advancement of expenses of directors and
officers of the corporation.
(f) For purposes of this subsection 2, the term "corporation" shall
include, in addition to the corporation, any constituent corporation absorbed in
a consolidation or merger with the corporation, to the extent such constituent
corporation would have had power and authority to indemnify its directors,
officers, employees and agents if its separate existence had survived.
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, directors, or any other person herein are granted subject to this
reservation.
ARTICLE X. 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
ss. 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
ss. 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
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.
This Restated Certificate of Incorporation has been duly adopted in
accordance with the provisions of Section 245 and 141 of the General
Corporation Law of the State of Delaware.
I, THE UNDERSIGNED, being the President of the corporation, do make this
certificate, hereby declaring and certifying that this is the act and deed of
the corporation and the facts stated herein are true, and accordingly have
hereunto set my hand this ___ day of ___________, 1997.
DIGITAL DESCRIPTOR SYSTEMS, INC.
--------------------------------------
Garrett U. Cohn, President
3
