Certificate of Incorporation - Identix Inc.
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
IDENTIX INCORPORATED
The undersigned, for purposes of incorporating and organizing a corporation
under the General Corporation Law of the State of Delaware, does hereby certify
as follows:
FIRST. The name of the corporation is Identix Incorporated.
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SECOND. The name of its registered office in the State of Delaware is
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National Corporate Research, Ltd. The address of its registered agent in the
State of Delaware is 9 E. Loockerman Street, City of Dover, County of Kent,
Delaware 19901.
THIRD. The nature of the business or purposes to be conducted or
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promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of the State of Delaware.
FOURTH. The total number of shares of all classes of capital stock which
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the corporation shall have authority to issue is 102,000,000 shares, comprised
of 100,000,000 shares of Common Stock with a par value of $.01 per share (the
"Common Stock") and 2,000,000 shares of Preferred Stock with a par value of $.01
per share (the "Preferred Stock"). A description of the respective classes of
stock and a statement of the designations, preferences, voting powers (if any),
relative, participating, optional or other special rights and privileges and the
qualifications, limitations and restrictions of the Preferred Stock and Common
Stock are as follows:
A. PREFERRED STOCK
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1. In General. The Preferred Stock may be issued in one or
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more series at such time or times and for such consideration as the board of
directors may determine. Each series shall be designated so as to distinguish
the shares of that series from the shares of all other series and classes.
Except as may be expressly provided in this Certificate of Incorporation,
including any certificate of designation for a series of Preferred Stock,
different series of Preferred Stock shall not be construed to constitute
different classes of shares for the purpose of voting by classes.
2. Certificates of Designation. The board of directors is
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authorized, subject to any limitations prescribed by law, to provide for the
issuance of the shares of Preferred Stock in one or more series, and by filing a
certificate pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of
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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 any qualifications,
limitations or restrictions thereof. The number of authorized share of Preferred
Stock may be increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a majority of the
Common Stock, without a vote of the holders of the Preferred Stock, or of any
series thereof, unless a vote of any such holders is required pursuant to the
certificate or certificates establishing the series of Preferred Stock.
B. COMMON STOCK
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1. Relative Rights of Preferred Stock and Common Stock. Except
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as otherwise required by this Certificate of Incorporation, all powers,
preferences and rights and qualifications, limitations, or restrictions of the
Common Stock are subject to those that may be fixed with respect to any shares
of the Preferred Stock.
2. Voting Rights. Except as otherwise required by law or this
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Certificate of Incorporation, including any certificate of designation for a
series of Preferred Stock, each holder of Common Stock shall have one vote in
respect of each share of stock held of record by that holder on the books of the
corporation for the election of directors and on all matters submitted to a vote
of stockholders of the corporation.
3. Dividends. Subject to any preferential rights of the
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Preferred Stock, the holders of shares of Common Stock shall be entitled to
receive, when and if declared by the board of directors, out of the assets of
the corporation which by law are available therefor, dividends payable in cash,
in property or in shares of capital stock.
4. Dissolution, Liquidation or Winding Up. In the event of any
dissolution, liquidation or winding up of the affairs of the corporation, after
distribution in full of the preferential amounts, if any, to be distributed to
the holders of shares of the Preferred Stock, holders of Common Stock shall be
entitled, unless otherwise provided by law or this Certificate of Incorporation,
including any certificate of designation for a series of Preferred Stock, to
receive all of the remaining assets of the corporation of whatever kind
available for distribution to stockholders ratably in proportion to the number
of shares of Common Stock held by them.
FIFTH. The corporation is to have perpetual existence.
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SIXTH. Any action required or permitted to be taken by the stockholders
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of the corporation must be effected at an annual or special meeting of
stockholders of the corporation and may not be effected by any consent in
writing of the stockholders.
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Special meetings of stockholders of the corporation may be called only by the
corporation's Board of Directors, its Chair of the Board of Directors or its
President. Business transacted at special meetings shall be confined to the
purpose or purposes stated in the notice of meeting.
SEVENTH.
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A. In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the board of directors of the corporation is
expressly authorized to adopt, amend or repeal the by-laws of the corporation.
B. Elections of directors need not be by written ballot unless the
by-laws of the corporation so provide.
C. The books of the corporation may be kept at such place within or
without the State of Delaware as the by-laws of the corporation may provide or
as may be designated from time to time by the board of directors of the
corporation.
EIGHTH. Whenever a compromise or arrangement is proposed between this
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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
Section 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
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 that 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 a consequence of
such compromise or arrangement, the compromise or arrangement and the
reorganization shall, if sanctioned by the court to which the 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.
NINTH. No director of the corporation shall be personally liable to the
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corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability: (a) for any breach of the director's
duty of loyalty to the corporation or its stockholders; (b) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (c) under Section 174 of the Delaware General Corporation Law;
or (d) for any transaction from which the director
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derived any improper personal benefit. If the Delaware General Corporation Law
is amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
corporation shall be eliminated or limited to the fullest extent permitted by
the Delaware General Corporation Law, as so amended. Any repeal or modification
of this paragraph shall not adversely affect any right or protection of a
director of the corporation existing at the time of the repeal or modification.
TENTH.
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A. RIGHT TO INDEMNIFICATION
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Each person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (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, employee or agent 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, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the corporation to the fullest extent authorized by the Delaware General
Corporation Law, 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 that law permitted
the corporation to provide before the amendment) against all expenses,
liabilities and losses including, without limitation, attorneys' fees,
judgments, fines, ERISA excise taxes and penalties and amounts paid or to be
paid in settlement) reasonably incurred or suffered by such person in connection
therewith. Such indemnification shall continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of his
or her heirs, executors and administrators. However, the corporation shall
indemnify any such person seeking indemnity in connection with an action, suit
or proceeding (or part thereof) initiated by that person only if that action,
suit or proceeding (or part thereof) was authorized by the board of directors of
the corporation. The rights set forth in this Article TENTH shall be contract
rights and shall include the right to be paid expenses incurred in defending any
such proceeding in advance of its final disposition. However, the payment of
such expenses incurred by a director or officer of the corporation in his or her
capacity as a director or 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 an employee benefit plan) in advance
of the final disposition of such proceeding shall be made only upon delivery to
the corporation of an undertaking, by or on behalf of such
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director or officer, to repay all amounts so advanced if it should be determined
ultimately that such director or officer is not entitled to be so indemnified.
B. RIGHT OF CLAIMANT TO BRING SUIT
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If a claim under Paragraph A of this Article TENTH is not paid in full
by the corporation within 90 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. If successful in whole
or in part, the claimant shall be entitled to be paid the expense of prosecuting
that 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, has
been tendered to this corporation) that the claimant has not met the standards
of conduct which make it permissible under the Delaware General Corporation Law
for the corporation to indemnify the claimant for the amount claimed. However,
the burden of proving such defense shall be on the corporation. Neither the
failure of the corporation (including its board of directors, independent legal
counsel or its stockholders) to have made a determination before the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual determination
by the corporation (including its board of directors, independent legal counsel
or its 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. NON EXCLUSIVITY OF RIGHTS
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The rights conferred on any person by Paragraphs A and B of this
Article TENTH shall not be exclusive of any other rights which such person may
have or hereafter may acquire under any statute, provision of the Certificate of
Incorporation, by law, agreement, vote of stockholders or of disinterested
directors, or otherwise.
D. EXPENSES AS A WITNESS
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To the extent that any director, officer, employee, or agent of the
corporation is by reason of such position, or a position with another entity at
the request of the corporation, a witness in any action, suit or proceeding, he
or she shall be indemnified and held harmless against all costs and expenses
actually and reasonably incurred by him or her on his or her behalf in
connection therewith.
E. INDEMNITY AGREEMENTS
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The corporation may enter into agreements with any director, officer,
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employee or agent of the corporation or any person who serves at the request of
the corporation as a director, officer, employee, or agent of another
corporation or other enterprise, providing for indemnification to the fullest
extent permissible under the Delaware General Corporation Law and the
corporation's Certificate of Incorporation.
F. EFFECT OF REPEAL OR MODIFICATION
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Any repeal or modification of this Article TENTH shall not adversely
affect any right of indemnification or advancement of expenses of a director or
officer, employee or agent of the corporation existing at the time of such
repeal or modification with respect to any action or omission occurring before
the repeal or modification.
G. SEPARABILITY
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Each and every paragraph, sentence, term and provision of this Article
TENTH is separate and distinct. If any paragraph, sentence, term or provision is
held to be invalid or unenforceable for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of any other
such paragraph, sentence, term or provision. To the extent required in order to
make any such paragraph, sentence, term or provision of this Article TENTH valid
or enforceable, the corporation shall, and the indemnitee or potential
indemnitee may, request a court of competent jurisdiction to modify the
paragraph, sentence, term or provision in order to preserve its validity and
provide the broadest possible indemnification permitted by applicable law.
H. INSURANCE
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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 of the type referred to in this Article
TENTH, whether or not the corporation would have the power to indemnify such
person against such expense, liability or loss under applicable law.
I. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION
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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 to any employee or agent of the corporation to the fullest extent of
the provisions of this Article with respect to the indemnification and
advancement of expenses of directors and officers of the corporation.
ELEVENTH. The corporation reserves the right to amend or repeal any
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provision
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of this Certificate of Incorporation, in the manner now or hereafter prescribed
by statute, and all rights conferred upon any stockholders by this Certificate
of Incorporation are granted subject to this reservation.
TWELFTH. The powers of the incorporator are to terminate upon the filing
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of this Certificate of Incorporation with the Secretary of the State of
Delaware. The name and mailing address of the person who is to serve as the
initial director of the corporation until the first annual meeting of
stockholders of the corporation, or until his successor is elected and qualified
is: James P. Scullion, Identix Incorporated, 510 North Pastoria Avenue,
Sunnyvale, CA 94086
The undersigned Secretary of the Corporation hereby acknowledges that the
foregoing is a true and correct copy of the of Amended and Restated Certificate
of Incorporation as of this 26th day of October, 2000.
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Mark S. Molina
Secretary
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