Certificate of Incorporation - Snap Appliances Inc.
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SNAP APPLIANCES, INC.
Snap Appliances, Inc., a corporation organized and existing under the
laws of the State of Delaware, does hereby certify:
1. The name of the corporation is Snap Appliances, Inc. Snap Appliances,
Inc. was originally incorporated under the name Meridian Data, Inc., and the
original Certificate of Incorporation was filed with the Secretary of State of
the State of Delaware on April 24, 1997.
2. Pursuant to Sections 242 and 228 of the General Corporation Law of the
State of Delaware, the amendments and restatement herein set forth have been
duly approved by the Board of Directors and stockholders of Snap Appliances,
Inc.
3. This Amended and Restated Certificate of Incorporation was duly
adopted in accordance with Section 245 of the General Corporation Law of the
State of Delaware and restates, integrates and amends the provisions of the
Amended and Restated Certificate of Incorporation of the corporation.
4. The text of the original Certificate of Incorporation is hereby
restated and amended to read in its entirety as follows:
ARTICLE I
The name of the Corporation is Snap Appliances, Inc. (the "Corporation").
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801, County of New Castle. The name of its registered agent at such address is
The Corporation Trust Company.
ARTICLE III
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 the State of Delaware, as
the same exists or may hereafter be amended.
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ARTICLE IV
The Corporation is authorized to issue two classes of stock to be
designated, respectively, Common Stock, par value $0.001 per share ("Common
Stock") and Preferred Stock, par value $0.001 per share ("Preferred Stock"). The
total number of shares of stock that the Corporation shall have authority to
issue is 510,000,000 shares, of which 10,000,000 shares shall constitute
Preferred Stock and 500,000,000 shares shall constitute Common Stock. The
Preferred Stock may be issued from time to time in one or more series. Upon the
filing of this Amended and Restated Certificate of Incorporation, each share of
Common Stock of the corporation outstanding immediately prior to such filing
shall be split and converted into five hundred twenty-six thousand five hundred
(526,500) shares of Common Stock.
The Corporation shall from time to time in accordance with the laws of
the State of Delaware increase the authorized number of shares of its Common
Stock if at any time the number of shares of Common Stock remaining unissued and
available for issuance shall not be sufficient to permit conversion of all
outstanding Preferred Stock.
The Board of Directors is hereby authorized, subject to limitations
prescribed by law and the provisions of this Article IV, by resolution to
provide for the issuance of the shares of Preferred Stock in one or more series,
and to establish from time to time the number of shares to be included in each
such series, and to fix the designation, powers, privileges, preferences, and
relative participating, optional or other rights, if any, 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:
A. The number of shares constituting that series (including an
increase or decrease in the number of shares of any such series (but not
below the number of shares in any such series then outstanding)) and the
distinctive designation of that series;
B. The dividend rate, if any, on the shares of that series,
whether dividends shall be cumulative, and, if so, from which date or
dates, and the relative rights of priority, if any, of payment of
dividends on shares of that series;
C. Whether that series shall have the voting rights (including
multiple or fractional votes per share) in addition to the voting rights
provided by law, and, if so, the terms of such voting rights;
D. Whether that series shall have conversion privileges, and, if
so, the terms and conditions of such privileges, including provision for
adjustment of the conversion rate in such events as the Board of
Directors shall determine;
E. Whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including the
date or dates upon or after which they shall be redeemable, and the
amount per share payable in case of redemption, which amount may vary
under different conditions and at different redemption rates;
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F. Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the terms
and the amount of such sinking funds;
G. The rights of the shares of that 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, preferences and limitations of that
series.
No holders of shares of the Corporation of any class or series, now or hereafter
authorized, shall have any preferential or preemptive rights to subscribe for,
purchase or receive any shares of the Corporation of any class or series, now or
hereafter authorized, or any options or warrants for such shares, or any rights
to subscribe for, purchase or receive any securities convertible to or
exchangeable for such shares, which may at any time be issued, sold or offered
for sale by the Corporation, except in the case of any shares of Preferred Stock
to which such rights are specifically granted by any resolution or resolutions
of the Board of Directors adopted pursuant to this Article IV.
1. Protective Covenants.
Until such time as Quantum Corporation shall have distributed all of the
shares of the Corporation that it owns as contemplated in the Master Separation
and Distribution Agreement between Quantum Corporation and the Corporation, in
addition to any other rights provided by law, the Corporation shall not, without
first obtaining the affirmative vote or written consent of the holders of not
less than a majority of the outstanding shares of Common Stock:
(a) authorize or issue shares of any class or series of stock;
authorize or issue shares of stock of any class or series of any bonds,
debentures, notes or other obligations convertible into or exchangeable for, or
having option rights to purchase, any shares of stock of this Corporation
(except for such shares issued pursuant to any of the Corporation's stock plans
to which Quantum Corporation has executed a shareholder's consent); or
(b) increase or decrease the authorized number of shares of Common
Stock or Preferred Stock.
ARTICLE V
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 such
holders and may not be effected by any consent in writing by such holders,
except as contemplated under Article IV above. Except as otherwise required by
law and subject to the rights of the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation,
dissolution or winding up, special meetings of stockholders of the Corporation
for any purpose or purposes may be called only by the Board of Directors or by
the Chairman of the Board of Directors of the Corporation and any power of
stockholders to call a special meeting is specifically denied. No business other
than that stated in the notice shall be transacted at any special meeting.
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ARTICLE VI
The Corporation is to have perpetual existence.
ARTICLE VII
For the management of the business and for the conduct of affairs of the
Corporation, and in further definition, limitation and regulation of powers of
the Corporation, of its directors and of its stockholders or any class thereof,
as the case may be, it is further provided that:
A. The management of the business and the conduct of the affairs of the
Corporation shall be vested in its Board of Directors. The number of directors
of this Corporation shall be fixed and may be changed from time to time by
resolution of the Board of Directors.
B. The Directors, other than those who may be elected by the holders of
any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, shall be classified, with respect to the time for
which they severally hold office, into three classes, as nearly equal in number
as possible, one class to be originally elected for a term expiring at the first
annual meeting of stockholders following fiscal year 2001, another class to be
originally elected for a term expiring at the first annual meeting of
stockholders following fiscal year 2002, and another class to be originally
elected for a term expiring at the first annual meeting of stockholders
following fiscal year 2003, with each class to hold office until its successor
is duly elected and qualified. At each succeeding annual meeting of
stockholders, directors elected to succeed those directors whose terms then
expire shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election.
C. Notwithstanding the foregoing provisions of this Article VII, each
director shall serve until his or her successor is duly elected and qualified or
until his or her death, resignation or removal. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
D. Any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes, shall, unless the Board
of Directors determines by resolution that any such vacancies or newly created
directorships shall be filled by stockholders and except as otherwise provided
by law, be filled only by the affirmative vote of a majority of the remaining
directors then in office, even though less than a quorum of the Board of
Directors and not by the stockholders.
E. In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors is expressly authorized to
make, alter, amend or repeal the Bylaws of the Corporation.
F. The directors of the Corporation need not be elected by written ballot
unless the Bylaws of the Corporation so provide.
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G. Advance notice of stockholder nomination for the election of directors
and of any other business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
Bylaws of the Corporation.
ARTICLE VIII
A. To the fullest extent permitted by the Delaware General Corporation
Law as the same exists or as may hereafter be amended, 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.
B. The Corporation may indemnify to the fullest extent permitted by law
any person made or threatened to be made a party to an action or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact
that he, his testator or intestate is or was a director, officer or employee of
the Corporation or any predecessor of the Corporation or serves or served at any
other enterprise as a director, officer or employee at the request of the
Corporation or any predecessor to the Corporation.
C. Neither any amendment nor repeal of this Article VIII, nor the
adoption of any provision of this Corporation's Certificate of Incorporation
inconsistent with this Article VIII, shall eliminate or reduce the effect of
this Article VIII, in respect of any matter occurring, or any action or
proceeding accruing or arising or that, but for this Article VIII, would accrue
or arise, prior to such amendment, repeal or adoption of an inconsistent
provision.
ARTICLE IX
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the laws of the State of Delaware)
outside of 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 X
Except as provided in Article VIII above, 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 the
laws of the state of Delaware, and all rights conferred upon stockholders herein
are granted subject to this reservation. Notwithstanding anything contained in
this Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 80% of the voting power of all shares of the Corporation
entitled to vote generally in the election of directors (the "Voting Stock")
then outstanding, voting together as a single class shall be required to alter,
amend, adopt any provision inconsistent with or repeal Article V or VII or this
sentence.
IN WITNESS WHEREOF, Snap Appliances, Inc. has caused this Amended and
Restated Certificate of Incorporation to be executed by Jeanne Seeley, its
Secretary this 20th day of October, 2000.
/s/ Jeanne Seeley
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