Certificate of Incorporation - TSC/ECM Inc.
CERTIFICATE OF INCORPORATION
OF
TSC/ECM INC.
ARTICLE I
The name of the corporation (which is hereinafter referred to as the
"Corporation") is:
TSC/ECM INC.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is The Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of the Corporation's registered agent
at such address is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized and incorporated under the
General Corporation Law of the State of Delaware.
ARTICLE IV
(A) Authorized Capital Stock. The total number of shares of capital
stock which the Corporation shall have authority to issue is 5,500, consisting
of 5,000 shares of common stock, with the par value of $.01 per share ("Common
Stock"), and 500 shares of preferred stock, with the par value of $.01 per share
("Preferred Stock").
(B) Preferred Stock. The Preferred Stock may be issued from time to
time in one or more series. The Board of Directors is hereby authorized to
create and provide for the issuance of shares of Preferred Stock in series and,
by filing a certificate pursuant to the applicable law of the State of Delaware
(hereinafter referred to as a "Preferred Stock Designation"), to establish from
time to time the number of shares to be included in each such series, and to fix
the designation, powers, preferences and rights of the shares of each such
series and the qualifications, limitations or restrictions thereof.
The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following:
(i) The designation of the series, which may be by
distinguishing number, letter or title;
(ii) The number of shares of the series, which number the
Board of Directors may thereafter (except where otherwise provided in
the Preferred Stock
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Designation) increase or decrease (but not below the number of shares
thereof then outstanding);
(iii) Whether dividends, if any, shall be cumulative or
noncumulative and the dividend rate of the series;
(iv) The dates at which dividends, if any, shall be payable;
(v) The redemption rights and price or prices, if any, for
shares of the series;
(vi) The terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series;
(vii) The amounts payable on, and the preferences, if any, of
shares of the series in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation;
(viii) Whether the shares of the series shall be convertible
into shares of any other class or series, or any other security, of the
Corporation or any other corporation, and, if so, the specification of
such other class or series of such other security, the conversion price
or prices or rate or rates, any adjustments thereof, the date or dates
at which such shares shall be convertible and all other terms and
conditions upon which such conversion may be made;
(ix) Restrictions on the issuance of shares of the same series
or of any other class or series;
(x) The voting rights, if any, of the holders of shares of the
series; and
(xi) Such other powers, preferences and relative,
participating, optional and other special rights, and the
qualifications, limitations and restrictions thereof as the Board of
Directors shall determine.
(C) Common Stock. The Common Stock shall be subject to the express
terms of the Preferred Stock and any series thereof. Each share of Common Stock
shall be equal to each other share of Common Stock. The holders of shares of
Common Stock shall be entitled to one vote for each such share upon all
questions presented to the stockholders.
(D) Vote. Except as may be provided in this Certificate of
Incorporation or in a Preferred Stock Designation, or as may be required by
applicable law, the Common Stock shall have the exclusive right to vote for the
election of directors and for all other purposes, and holders of shares of
Preferred Stock shall not be entitled to receive notice of any meeting of
stockholders at which they are not entitled to vote.
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(E) Record Holders. The Corporation shall be entitled to treat the
person in whose name any share of its stock is registered on the stock transfer
books of the Corporation as the owner thereof for all purposes and shall not be
bound to recognize any equitable or other claim to, or interest in, such share
on the part of any other person, whether or not the Corporation shall have
notice thereof, except as expressly provided by applicable law.
ARTICLE V
The name and mailing address of the incorporator is as follows:
Name Mailing Address
---- ---------------
Jessie Couch Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
ARTICLE VI
The Board of Directors is hereby authorized to create and issue,
whether or not in connection with the issuance and sale of any of its stock or
other securities or property, rights entitling the holders thereof to purchase
from the Corporation shares of stock or other securities of the Corporation or
any other corporation. The times at which and the terms upon which such rights
are to be issued will be determined by the Board of Directors and set forth in
the contracts or instruments that evidence such rights. The authority of the
Board of Directors with respect to such rights shall include, but not be limited
to, determination of the following:
(A) The initial purchase price per share or other unit of the stock or
other securities or property to be purchased upon exercise of such rights;
(B) Provisions relating to the times at which and the circumstances
under which such rights may be exercised or sold or otherwise transferred,
either together with or separately from, any other stock or other securities of
the Corporation;
(C) Provisions which adjust the number or exercise price of such rights
or amount or nature of the stock or other securities or property receivable upon
exercise of such rights in the event of a combination, split or recapitalization
of any stock of the Corporation, a change in ownership of the Corporation's
stock or other securities or a reorganization, merger, consolidation, sale of
assets or other occurrence relating to the Corporation or any stock of the
Corporation, and provisions restricting the ability of the Corporation to enter
into any such transaction absent an assumption by the other party or parties
thereto of the obligations of the Corporation under such rights;
(D) Provisions which deny the holder of a specified percentage of the
outstanding stock or other securities of the Corporation the right to exercise
such rights and/or cause the rights held by such holder to become void;
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(E) Provisions which permit the Corporation to redeem or exchange such
rights; and
(F) The appointment of a rights agent with respect to such rights.
ARTICLE VII
(A) In furtherance and not in limitation of the powers conferred by
law, the Board of Directors is expressly authorized and empowered:
(i) to adopt, amend or repeal the By-Laws of the Corporation,
provided, however, that the By-Laws may also be altered, amended or
repealed by the affirmative vote of the holders of at least 80 percent
of the voting power of the then outstanding Voting Stock (as defined
below), voting together as a single class; and
(ii) from time to time to determine whether and to what
extent, and at what times and places, and under what conditions and
regulations, the accounts and books of the Corporation, or any of them,
shall be open to inspection of stockholders; and, except as so
determined, or as expressly provided in this Certificate of
Incorporation or in any Preferred Stock Designation, no stockholder
shall have any right to inspect any account, book or document of the
Corporation other than such rights as may be conferred by applicable
law.
(B) In addition to any other considerations which the Board of
Directors may lawfully take into account, in determining whether to take or to
refrain from taking corporate action on any matter, including proposing any
matter to the stockholders of the Corporation, the Board of Directors may take
into account the long-term as well as short-term interests of the Corporation
and its stockholders (including the possibility that these interests may be best
served by the continued independence of the Corporation), and the interests of
creditors, customers, employees and other constituencies of the Corporation and
its subsidiaries, including the effect upon communities in which the Corporation
and its subsidiaries do business.
(C) The Corporation may in its By-Laws confer powers upon the Board of
Directors in addition to the foregoing and in addition to the powers and
authorities expressly conferred upon the Board of Directors by law.
ARTICLE VIII
Effective from and after the date upon which the Corporation shall be
subject to the reporting requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, subject to the rights of the holders of any
series of Preferred Stock to elect additional directors under specific
circumstances or to consent to specific actions taken by the Corporation, any
action required or permitted to be taken by the stockholders of the Corporation
must be effected at a duly called annual or special meeting of stockholders of
the Corporation and may not be effected by any consent in writing in lieu of a
meeting of such stockholders.
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ARTICLE IX
(A) Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specific circumstances, the number of
directors that shall constitute the whole Board of Directors of the Corporation
shall be the number from time to time fixed by the Board of Directors.
(B) Subject to the rights of the holders of any series of Preferred
Stock to fill any newly created directorships or vacancies, any vacancy on the
Board of Directors that results from an increase in the number of directors or
for any other reason may be filled by a majority of the directors then in
office, although less than a quorum, or by a sole remaining director.
(C) Unless and except to the extent that the By-Laws of the Corporation
shall so require, the election of directors of the Corporation need not be by
written ballot.
(D) The directors, other than those who may be elected by the holders
of any series of Preferred Stock, shall be divided into three classes, as nearly
equal in number as possible, and designated as Class I, Class II and Class III.
Class I directors shall be initially elected for a term expiring at the 2000
annual meeting of stockholders, Class II directors shall be initially elected
for a term expiring at the 2001 annual meeting of stockholders, and Class III
directors shall be initially elected for a term expiring at the 2002 annual
meeting of stockholders. Members of each class shall hold office until their
successors are duly elected and qualified. At each succeeding annual meeting of
the stockholders of the Corporation, the successors of the class of directors
whose term expires at that meeting shall be elected by a plurality of the votes
of the shares of Voting Stock present in person or represented by proxy at such
meeting and entitled to vote on the election of directors and shall hold office
for a term expiring at the annual meeting of stockholders held in the third year
following the year of their election, and until their successors are duly
elected and qualified, subject to death, resignation or removal from office.
(E) Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of Preferred Stock issued by the Corporation shall have
the right, voting separately by class or series, to elect directors at an annual
or special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation applicable thereto, and such
directors shall not be divided into classes pursuant to this Article IX unless
expressly provided by such terms.
(F) Subject to the rights of the holders of any series of Preferred
Stock, any director may be removed from office at any time, but only for cause
and only by the affirmative vote of the holders of at least 80 percent of the
voting power of the then outstanding Voting Stock, voting together as a single
class.
ARTICLE X
Notwithstanding anything contained in this Certificate of Incorporation
to the contrary, the affirmative vote of at least 80 percent of the voting power
of the then outstanding Voting
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Stock, voting together as a single class, shall be required to amend or repeal,
or adopt any provisions inconsistent with, Article VI, subparagraph (i) of
paragraph (A) of Article VII, Article VIII, Article IX or this Article X of this
Certificate of Incorporation. For the purposes of this Certificate of
Incorporation, "Voting Stock" shall mean the outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of directors.
ARTICLE XI
No director of the Corporation shall 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 a knowing
violation of law, (iii) under Section 174 of the General Corporation Law of the
State of Delaware, or (iv) for any transaction from which the director derived
an improper personal benefit. Any amendment or repeal of this Article XI by the
stockholders shall not adversely affect any right or protection of a director of
the Corporation existing hereunder in respect of any act or omission occurring
prior to such amendment or repeal.
ARTICLE XII
Each person who is or was or had agreed to become a director or officer
of the Corporation, or each person who is or was serving or who had agreed to
serve at the request of the Board of Directors or an officer of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise (including the heirs, executors,
administrators of estate of such person), shall be indemnified by the
Corporation in accordance with and pursuant to the By-Laws of the Corporation.
The Corporation may provide indemnification to employees and agents of the
Corporation to the extent provided by action of the Board of Directors pursuant
to the By-Laws. Without limiting the generality or the effect of the foregoing,
the Corporation may enter into one or more agreements with any person which
provide for indemnification greater or different than that provided in this
Article XII. Any amendment or repeal of this Article XII shall not adversely
affect any right or protection existing hereunder in respect of any act or
omission occurring prior to such amendment or repeal.
ARTICLE XIII
In furtherance and not in limitation of the powers conferred by law or
in this Certificate of Incorporation, the Board of Directors (and any committee
of the Board of Directors) is expressly authorized, to the extent permitted by
law, to take such action or actions as the Board of Directors or such committee
may determine to be reasonably necessary or desirable to (A) encourage any
individual, limited partnership, general partnership, corporation or other firm
or entity (a "person") to enter into negotiations with the Board of Directors
and management of the Corporation with respect to any transaction which may
result in a change in control of the Corporation which is proposed or initiated
by such person or (B) contest or oppose any such transaction which the Board of
Directors or such committee determines to be unfair, abusive or otherwise
undesirable with respect to the Corporation and its business, assets or
properties or the
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stockholders of the Corporation, including, without limitation, the adoption of
such plans or the issuance of such rights, options, capital stock, notes,
debentures or other evidences of indebtedness or other securities of the
Corporation, which rights, options, capital stock, notes, debentures or other
evidences of indebtedness and other securities (i) may be exchangeable for or
convertible into cash or other securities on such terms and conditions as may be
determined by the Board of Directors or such committee and (ii) may provide for
the treatment of any holder or class of holders thereof designated by the Board
of Directors or any such committee in respect of the terms, conditions,
provisions and rights of such securities which is different from, and unequal
to, the terms, conditions, provisions and rights applicable to all other holders
thereof.
ARTICLE XIV
The Corporation reserves the right at any time and from time to time to
amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, or any Preferred Stock Designation, and any other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted, in the manner now or hereafter prescribed herein or by law;
and all rights, preferences and privileges of whatsoever nature conferred upon
stockholders, directors or any other persons whomsoever by and pursuant to this
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the right reserved in this Article XIV; provided, however,
that any amendment or repeal of Article XI or Article XII of this Certificate of
Incorporation shall not adversely affect any right or protection existing
hereunder in respect of any act or omission occurring prior to such amendment or
repeal; and provided further that no Preferred Stock Designation shall be
amended after the issuance of any shares of the series of Preferred Stock
created thereby, except in accordance with the terms of such Preferred Stock
Designation and the requirements of applicable law.
ARTICLE XV
In accordance with Section 203(b)(1) of the General Corporation Law of
the State of Delaware, the Corporation expressly elects not to be governed by
Section 203 of the General Corporation Law of the State of Delaware.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 10th day of May, 1999.
/s/ Jessie J. Couch
---------------------------------
Jessie J. Couch, Incorporator
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TSC/ECM INC.
(A DELAWARE CORPORATION)
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
TSC/ECM INC.
TSC/ECM INC., a Delaware corporation (the "Corporation"),
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware, DOES HEREBY CERTIFY:
1. That Article I of the Certificate of Incorporation of the
Corporation is hereby amended to read in its entirety as follows:
"The name of the corporation (which is hereinafter referred
to as the "Corporation") is:
eLoyalty Corporation."
2. That Article IV paragraph (A) of the Certificate of
Incorporation of the Corporation is hereby amended to read in its
entirety as follows:
"The total number of shares of capital stock which
the Corporation shall have authority to issue is
110,000,000, consisting of 100,000,000 shares of
common stock, with the par value of $.01 per share
("Common Stock"), and 10,000,000 shares of preferred
stock, with the par value of $.01 per share
("Preferred Stock")."
3. That, in accordance with the applicable provisions of
Sections 141(f), 228(a) and 242 of the General Corporation Law of the
State of Delaware, the aforesaid Amendments were duly adopted by the
unanimous written consent of the Board of Directors and the sole
stockholder of the Corporation.
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IN WITNESS WHEREOF, TSC/ECM INC. has caused this Certificate
of Amendment to be executed on its behalf by its Secretary Paul R. Peterson and
to be attested by its Treasurer Timothy P. Dimond, this 7th day of July, 1999.
TSC/ECM INC.
By: /s/ Paul R. Peterson
----------------------
Paul R. Peterson
Secretary
ATTEST: /s/ Timothy P. Dimond
----------------------------
Timothy P. Dimond
Treasurer
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