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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
LEVEL 8 SYSTEMS, INC.
as corrected August 23, 2000
1. The name of the corporation is Level 8 Systems, Inc. (the
"Corporation").
2. The address, including street, number, city, and county, of the
registered office of the Corporation in the State of Delaware is 1013 Centre
Road, City of Wilmington 19805, County of New Castle. The name of its registered
agent at such address is Corporation Service Company.
3. The name and mailing address of the sole incorporator are as follows:
NAME MAILING ADDRESS
Dennis McKinnie Level 8 Systems, Inc.
8000 Regency Parkway
Cary, North Carolina 27511
4. The name and mailing address of the initial director of the corporation
who shall serve until the first annual meeting of stockholders or until his
successor(s) are elected and qualified, is as follows:
NAME MAILING ADDRESS
Arie Kilman Level 8 Systems, Inc.
1250 Broadway, 35th Floor
New York, New York 1001
5. 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.
6. The total number of shares of capital stock which the Corporation is
authorized to issue is of fifty million (50,000,000), shares, consisting of:
(i) forty million (40,000,000) shares of common stock, par value $.001
per share ("Common Stock"); and
(ii) ten million (10,000,000) shares of preferred stock, par value
$.001 per share ("Preferred Stock").
The following is a statement of the designations and the powers, privileges
and rights, and the qualifications, limitations or restrictions thereof in
respect of each class of capital stock of the Corporation.
A. PREFERRED STOCK.
The Board of Directors is authorized to provide, without stockholder
action, for the issuance of shares of Preferred Stock, subject to limitations
prescribed by law and by this
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Certificate of Incorporation, without stockholder action in one or more series.
The description of shares of each series of Preferred Stock, including the
number of shares to be included in each such series, any 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 and Articles of Amendment to this
Certificate of Incorporation shall be filed with the Delaware Secretary of State
as required by law to be filed with respect to the issuance of such Preferred
Stock prior to such issuance. Unless otherwise required by law, this Certificate
of Incorporation or agreement, no Shareholder action is required for the
authorization and issuance of such shares of Preferred Stock.
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:
(a) the number of shares constituting each series and the
distinctive designation of that series;
(b) the annual dividend rate, if any, on shares of such series,
the times of payment, if dividends are to be cumulative and, if so, the date
from which dividends shall be accumulated, and the relative rights of priority
with respect to dividends;
(c) whether the shares of such series shall be redeemable and, if
so, the redemption price and the terms and conditions of such redemption;
(d) the obligation, if any, of the Corporation to redeem shares of
such series pursuant to a sinking fund;
(e) whether shares of such series shall be convertible into, or
exchangeable for, shares of stock or 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;
(f) 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;
(g) the rights of the shares of such series in the event of
voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation, and the relative rights of priority, if any, of payment of shares
of that series; and
(h) any other relative rights, powers, preferences,
qualifications, limitations or restrictions thereof relating to such series.
The shares of Preferred Stock of any one series shall be identical with
each other in all respects except as to the dates from and after which dividends
thereon shall cumulate, if cumulative.
B. COMMON STOCK
(1) GENERAL. The voting, dividend and liquidation rights of the
holders of the Common Stock are subject to and qualified by the rights of the
holders of the Preferred Stock, if any.
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(2) VOTING. The holders of the Common Stock are entitled to one vote
for each share held at all meetings of stockholders (and written actions in lieu
of meetings). There shall be no cumulative voting.
(3) DIVIDENDS. Dividends may be declared and paid on the Common Stock
from funds lawfully available therefor as and when determined by the Board of
Directors.
(4) LIQUIDATION. Upon the dissolution or liquidation of the
Corporation, whether voluntary or involuntary, and subject to the rights of the
holders of Preferred Stock, if any, holders of Common Stock will be entitled to
receive all assets of the Corporation available for distribution to its
stockholders.
7. In furtherance of and not in limitation of powers conferred by statute,
it is further provided that the election of directors need not be by written
ballot.
8. Except to the extent that the General Corporation Law of the State of
Delaware prohibits the elimination or limitation or liability of directors for
breaches of fiduciary duty, no director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for any
breach of fiduciary duty as director, notwithstanding any provision of law
imposing such liability. No amendment to or repeal of this provision shall apply
to or have any effect on the liability or alleged liability of any director of
the Corporation for or with respect to any acts or omissions such director
occurring prior to such amendment.
9. The Corporation shall, to the full extent permitted by Section 145 of
the General Corporation Law of Delaware, as amended from time to time, indemnify
each 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 is or
was, or has agreed to become, a director or officer of the Corporation, or is or
was serving, or has agreed to serve, at the request of the Corporation, as a
director, officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise (including
any employee benefit plan), or by reason of any action alleged to have been
taken or omitted in such capacity, against all expenses (including attorneys'
fees), judgements, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom.
Indemnification may include payment by the Corporation of expenses in
defending an action or proceeding in advance of the final disposition of such
action or proceeding upon receipt of an undertaking by the person indemnified to
repay such payment if it is ultimately determined that such person is not
entitled to the indemnification under this Article, which undertaking may be
accepted without reference to the financial ability of such person to make such
repayment.
The Corporation shall not indemnify any such person seeking indemnification
in connection with a proceeding (or part thereof) initiated by such person
unless the initiation thereof was approved by the Board of Directors of the
Corporation.
The indemnification rights provided in this Section (i) shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any law, agreement or vote of stockholder or disinterested directors or
otherwise, and (ii) shall inure to the benefit of the heirs, executors and
administrators of such persons. The Corporation may, to the extent authorized
from time to time by its Board of Directors, grant indemnification rights to
other employees or
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agents of the Corporation or other persons serving the Corporation and such
rights may be equivalent to, or greater or less than, those set forth in this
Article.
10. 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 the Certificate of Incorporation, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
11. The Board of Directors is authorized to make, adopt, amend, alter or
repeal the Bylaws of the Corporation. The stockholders shall also have the power
to make, adopt, amend, alter or repeal the Bylaws of the Corporation.
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THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the Delaware General Corporation
Law, does make this Certificate, hereby declaring and certifying that this is my
act and deed and the facts herein stated are true, and accordingly has hereunto
set my hand this 25th day of May 1999.
/s/ Dennis McKinnie
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Dennis McKinnie, Sole Incorporator
