AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
BEA SYSTEMS, INC.
Pursuant to Sections 242 and 245
of the General Corporation Law of the State of
Delaware
BEA SYSTEMS, INC. (the "Corporation"), a Corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"General Corporation Law") having filed its original Certificate of
Incorporation under the name BEA Enterprises, Inc. on January 20, 1995, does
hereby certify as follows:
That the following resolutions amending and restating the Corporation's
Certificate of Incorporation were duly adopted by the Corporation's Board of
Directors and by the holders of a majority of the Corporation's outstanding
stock entitled to vote thereon and if required, a majority of each class
entitled to vote thereon as a class, in accordance with the provisions of
Sections 242 and 245 of the General Corporation Law by written consent of the
Board of Directors and the stockholders given in accordance with Sections 141
and 228, respectively of the General Corporation Law:
NOW, THEREFORE, BE IT RESOLVED, that the Certificate of
Incorporation of the Corporation be amended and restated in its
entirety as follows:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is BEA Systems, Inc.
SECOND: The address, including street, number, city and county, of the
registered office of the Corporation in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle, Delaware, 19801. The name of the registered agent of
the Corporation in the State of Delaware at such address is the Corporation
Trust Company.
THIRD: The nature of the business and the purposes to be
conducted and promoted by the Corporation shall be to conduct any
lawful business, to promote any lawful purpose, and 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: This Corporation is authorized to issue two classes of
shares, designated "Preferred Stock" and "Common Stock." The total
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number of shares which the Corporation is authorized to issue is one
hundred twenty million (120,000,000) shares. One hundred fifteen million
(115,000,000) shares shall be Common Stock, $0.001 par value, (the
"Common Stock"), of which thirty-five million (35,000,000) are hereby
designated Class B Common Stock. Five million (5,000,000) shares shall
be Preferred Stock, $0.001 par value (the "Preferred Stock"). The
undesignated shares of Preferred Stock shall be issued from time to
time in one or more series. The Board of Directors is hereby
authorized, within the limitations and restrictions stated in this
Certificate of Incorporation, to fix or alter the individual rights,
dividend rate, conversion rights, voting rights, rights and terms of
redemption (including sinking fund provisions), the redemption price or
prices, the liquidation preference of any wholly unissued shares of
Preferred Stock, and the number of shares constituting any such series
and the designation thereof, or any of them, and to increase or
decrease the number of shares of any series subsequent to the issue of
shares of that series, but not below the number of shares of such
series then outstanding. In case the number of shares of any series
shall be so decreased, the shares constituting such decrease shall
resume the status which they had prior to the adoption of the
resolution originally fixing the number of shares of such series.
FIFTH: CLASS B COMMON STOCK. Subject to the conversion and
voting rights of the Class B Common Stock described below, the rights
(including, but not limited to, rights to dividends), preferences,
privileges and restrictions of the Common Stock and the Class B Common
Stock shall be identical in all respects, except as follows:
(a) VOTING RIGHTS. Holders of Class B Common Stock shall
not be entitled to vote such shares for the election of directors or on any
other matter except changes or amendment to this Article FIFTH; PROVIDED,
HOWEVER, that no such change or amendment shall increase the rights of or,
under any circumstances, provide additional voting rights to the holders of
Class B Common Stock.
(b) CONVERSION.
(i) RIGHT TO CONVERT. The holder of any shares of
Class B Common Stock shall have the right at such holder's option, at
any time or from time to time, to convert any shares of Class B Common
stock held by such holder, so long as, after giving effect to such
conversion, the total number of Voting Shares (as defined in Section
1(b)(vii)(D) hereof) held by such holder or any Affiliate (as defined in
Section 1(b)(vii)(A) hereof) of such holder shall be less than or equal
to forty-nine percent (49%) (by voting power) of the total number of
Voting Shares then issued and outstanding, into such whole number of
shares of Common Stock as shall be obtained by multiplying the number of
shares
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of Class B Common Stock being converted by the Class B Common Stock
Conversion Rate (as hereinafter defined), by surrender of the
certificates representing the shares of Class B Common Stock so to be
converted in the manner provided in Section 1(b)(iii) hereof The Class B
Common Stock Conversion Rate shall be one (1) divided by the Class B
Common Stock Conversion Price (as hereinafter defined). The Class B
Common Stock Conversion Price shall initially be one (1); PROVIDED,
HOWEVER, that such Class B Common Stock Conversion Price shall be
subject to adjustment as set forth in Section 1(b)(v) hereof. No
conversion of shares of Class B Common Stock that would have the effect
of giving the holder or any Affiliate of such holder a number of Voting
Shares greater than forty-nine percent (49%) (by voting power) of the
total number of Voting Shares then issued and outstanding shall be
effected pursuant to this Section 1(b)(i). The holder of any shares of
Class B Common Stock exercising the aforesaid right to convert such
shares into shares of Common Stock shall be entitled to payment of all
declared but unpaid dividends, if any, payable on or with respect to
such shares of Class B Common Stock up to and including the Conversion
Date (as hereinafter defined).
(ii) CONVERSION UPON TRANSFER. Upon any Transfer (as
defined in Section 1(b)(vii)(C) hereof) of any shares of Class B Common
Stock by the original holder thereof, other than a Transfer to an Affiliate
of such original holder, such shares of Class B Common stock so Transferred
shall, by virtue of, and simultaneously with, the occurrence of the
Transfer, without any action on the part of the transferee, be
automatically converted into such whole number of fully paid and
nonassessable shares of Common Stock as shall be obtained by multiplying
the number of shares of Class B Common Stock so Transferred by the Class B
Common Stock Conversion Rate. The holder of any shares of Class B Common
Stock converted into Common Stock pursuant to this Section 1(b)(ii) shall
be entitled to payment on or with respect to such shares of Class B Common
Stock up to and including the Conversion Date.
(iii) MECHANICS OF CONVERSION. The holder of any shares
of Class B Common Stock may exercise the conversion rights pursuant to
Section l(b)(i) hereof as to any part thereof by delivering to the
Corporation during regular business hours, at the office of the Corporation
or at such other place as may be designated by the Corporation, the
certificate or certificates for the shares to be converted, duly endorsed
or assigned in blank, accompanied by a written notice stating that the
holder elects to convert such shares and stating the name or names (with
address) in which the certificate or certificates for the shares of Common
Stock are to be issued. Conversion shall be deemed to have been effected
(A) with respect to conversion under Section 1(b)(i) hereof, on the date
when the aforesaid delivery is made and (B) with respect to conversion
under Section l(b)(ii) hereof, on the date of occurrence of the Transfer,
and such date, in either case, is referred to herein as the "CONVERSION
DATE". As promptly as practicable after the Conversion Date, and in the
case of Section 1(b)(ii) hereof,
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upon the delivery to the Corporation during regular business hours, at
the office of the Corporation or at such other place as may be
designated by the Corporation or at such other place as may be
designated by the Corporation, of the certificate or certificates for
the shares to be converted, duly endorsed or assigned in blank, the
Corporation shall issue and deliver to or upon the written order of such
holder, to the place designated by such holder, a certificate or
certificates for the number of full shares of Common Stock as provided
in Section I (b)(i) and (ii) hereof, and a check or cash in payment of
all declared but unpaid dividends (to the extent permissible under law),
if any, payable with respect to the shares of Class B Common Stock so
converted up to and including the Conversion Date. The person in whose
name the certificate or certificates for Common Stock are to be issued
shall be deemed to have become a stockholder of record on the applicable
Conversion Date unless the transfer books of the Corporation are closed
on that date, in which event he shall be deemed to have become a
stockholder of record on the next succeeding date on which the transfer
books are open, but the Class B Common Stock Conversion Rate shall be
that in effect on the Conversion Date. Upon conversion of only a portion
of the number of shares covered by a certificate representing shares of
Class B Common Stock surrendered for conversion, the Corporation shall
issue and deliver to or upon the written order of the holder of the
certificate as surrendered for conversion, at the expense of the
Corporation, a new certificate covering the number of shares of Class B
Common Stock representing the unconverted portion of the certificate so
surrendered, which new certificate shall entitle the holder thereof to
dividends on the shares of Class B Common Stock represented thereby to
the same extent as if the certificate theretofore covering such
unconverted shares had not been surrendered for conversion.
(iv) NO FRACTIONAL SHARES. No fractional shares of Common
Stock or scrip shall be issued upon conversion of shares of Class B Common
stock. The number of full shares of Common Stock issuable upon conversion
of Class B Common Stock surrendered by a holder thereof of Class B Common
Stock surrendered by a holder thereof for conversion shall be computed on
the basis of the aggregate number of shares of Class B Common Stock so
surrendered, rounded to the next higher whole number.
(v) ADJUSTMENTS TO CONVERSION PRICE. The Class B Common
Stock Conversion Price shall be subject to adjustment from time to time as
follows:
(A) If, at any time after the Filing Date (as defined
in Section 1(b)(vii)(B) hereof), the number of shares of Common Stock
outstanding is increased by a stock dividend payable in shares of Common
Stock or by a subdivision or split-up of shares of Common Stock, then,
following the record date fixed for the determination of holders of Common
Stock entitled to receive such stock dividend, subdivision or split-up, the
Class B Common Stock
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Conversion Price shall be appropriately decreased so that the number of
shares of Common Stock issuable on conversion of each share of Class B
Common Stock shall be increased in proportion to such increase in
outstanding shares.
(B) If, at any time after the Filing Date, the number
of shares of Common Stock outstanding is decreased by a combination of the
outstanding shares of Common Stock, then, following the record date for
such combination, the Class B Common Stock Conversion Price shall be
appropriately increased so that the number of shares of Common stock
issuable on conversion of each share of Class B Common Stock shall be
decreased in proportion to such decrease in outstanding shares.
(C) In case, at any time after the Filing Date, of any
capital reorganization, or any reclassification of the capital stock of the
Corporation (other than a change in par value or from par value to no par
value or from on par value to par value or as a result of a stock dividend
or subdivision, split-up or combination of shares) or the consolidation or
merger of the Corporation with or into another person (other than a
consolidation or merger in which the Corporation is the continuing
corporation and which does not result in any change in the Common Stock) or
of the sale or other disposition of all or substantially all the properties
and assets of the Corporation as an entirety to any other person, such
shares of Class B Common Stock shall after such reorganization,
reclassification, consolidation, merger, sale or other disposition be
convertible into the kind and number of shares of stock or other securities
or property of the Corporation or of the Corporation resulting from such
consolidation or surviving such merger or to which such properties and
assets shall have been sold or otherwise disposed to which the holder of
the number of shares of Common Stock deliverable (immediately prior to the
time of such reorganization reclassification, consolidation, merger, sale
or other disposition) upon conversion of such share would have been
entitled upon such reorganization, reclassification, consolidation, merger,
sale or other disposition. The provisions of this Section 1(b)(v)(C) shall
similarly apply to successive reorganization, reclassifications,
consolidations, mergers, sales or other dispositions.
(D) All calculations under this paragraph (v) shall be
made to the nearest one tenth (1/10) of a share.
(vi) RESERVATION OF SHARES. The Corporation shall at all
times when the Class B Common Stock shall be outstanding, reserve and keep
available out of its authorized but unissued stock, for the purpose of
effecting the conversion of the Class B Common Stock, such number of its
duly authorized shares of Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding Class B Common
Stock; and if at any time the number of authorized but unissued shares' of
Common Stock shall not be sufficient to effect the conversion of all then
outstanding shares of Class B
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Common Stock, the Corporation will take such corporate action as may, in
the opinion of its counsel, be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be
sufficient for the purpose.
(vii) DEFINITIONS.
(A) "AFFILIATE" shall mean, as to any person or entity,
a person or entity that, directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, such person or entity.
(B) "FILING DATE" shall mean the date the Corporation
files with the Delaware Secretary of State this Amended and Restated
Certificate of Incorporation.
(C) "TRANSFER" or "TRANSFERRED" shall mean to dispose,
sell or in any other way directly or indirectly transfer, assign,
distribute, encumber or otherwise dispose of, either voluntarily or
involuntarily.
(D) "VOTING SHARES" shall mean any shares of the
Corporation's capital stock entitled to vote in any election of directors
of the Corporation.
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: Whenever a compromise 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 the provisions of 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 the provisions of 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 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 a consequence of such compromise
or arrangement, the same 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 or
creditors, and/or on all the
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stockholders or class of stockholders, of this Corporation, as the case may
be, and also on this Corporation.
EIGHTH: For the management of the business and for the conduct
of the affairs of the Corporation, and in further definition,
limitation, and regulation of the powers of the Corporation and of its
directors and of its stockholders or any class thereof, as the case
may be, it is further provided:
(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 which shall constitute the whole Board of Directors
shall be fixed by, or in the manner provided in, the Bylaws. The phrase
"whole Board" and the phrase "total number of directors" shall be deemed to
have the same meaning, to wit, the total number of directors which the
Corporation would have if there were no vacancies. No election of
directors need be by written ballot.
(b) After the original or other Bylaws of the Corporation
have been adopted, amended, or repealed, as the case may be, in accordance
with the provisions of Section 109 of the General Corporation Law of the
State of Delaware, and, after the Corporation has received any payment for
any of its stock, the power to adopt, amend, or repeal the Bylaws of the
Corporation may be exercised by the Board of Directors of the Corporation;
provided, however, that any provision for the classification of directors
of the Corporation for staggered terms pursuant to the provisions of
subsection (d) of Section 141 of the General Corporation Law of the State
of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by
the stockholders entitled to vote of the Corporation unless provisions for
such classification shall be set forth in this certificate of
incorporation.
(c) Whenever the Corporation shall be authorized to issue
only one class of stock, each outstanding share shall entitle the holder
thereof to notice of, and the right to vote at, any meeting of
stockholders. Whenever the Corporation shall be authorized to issue more
than one class of stock, no outstanding share of any class of stock which
is denied voting power under the provisions of the certificate of
incorporation shall entitle the holder thereof to the right to vote at any
meeting of stockholders except as the provisions of paragraph (2) of
subsection (b) of Section 242 of the General Corporation Law of the State
of Delaware shall otherwise require; provided, that no share of any such
class which is otherwise denied voting power shall entitle the holder
thereof to vote upon the increase or decrease in the number of authorized
shares of said class.
NINTH: The personal liability of the directors of the
Corporation is hereby eliminated to the fullest extent permitted by
the provisions of
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paragraph (7) of subsection (b) of Section 102 of the General Corporation
Law of the State of Delaware, as the same may be amended and supplemented.
TENTH: The Corporation shall, to the fullest extent permitted by
the provisions of Section 145 of the General Corporation Law of the
State of Delaware, as the same may be amended and supplemented,
indemnify any and all persons whom it shall have power to indemnify
under said section from and against any and all of the expenses,
liabilities, or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be
deemed exclusive of any other rights to which those indemnified may be
entitled under any Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding
such office, and shall continue as to a person who has ceased to be a
director, officer, employee, or agent and shall inure to the benefit
of the heirs, executors, and administrators of such person.
ELEVENTH: From time to time any of the provisions of this
certificate of incorporation may be amended, altered, or repealed, and
other provisions authorized by the laws of the State of Delaware at
the time in force may be added or inserted in the manner and at the
time prescribed by said laws, and all rights at any time conferred
upon the stockholders of the Corporation by this certificate of
incorporation are granted subject to the provisions of this Article
ELEVENTH.
TWELFTH: For so long as the board of directors consists of at
least seven directors, the directors shall be divided into three
classes, designated Class I, Class II and Class III. Each class shall
consist, as nearly as may be possible, of one-third (1/3) of the total
number of directors constituting the entire Board of Directors. The
initial classes shall be elected as follows: Class I directors shall
be elected for a one-year term, Class II directors for a two-year term
and Class III directors for a three-year term. At each succeeding
annual meeting of stockholders, successors to the class of directors
whose term expires at the annual meeting of stockholders shall be
elected for three-year terms. If the number of directors is changed,
any increase or decrease shall be elected for three-year terms. If
the number of directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible, and any
additional director of any class elected to fill a vacancy resulting
from an increase in such class shall hold office for a term that shall
coincide with the remaining term of that class, but in no case will a
decrease in the number of directors shorten the term of any incumbent
director. A director shall hold office until the annual meeting for
the year in which his
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or her term expires and until his or her successor shall be elected and
shall qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office. Except as otherwise required by
law, any vacancy on the Board of Directors that results from an increase in
the number of directors and any other vacancy occurring in the Board of
Directors shall be filled by a majority of the directors then in office,
even if less than a quorum, or by a sole remaining director. Any director
elected to fill a vacancy not resulting from an increase in the number of
directors shall have the same remaining term as that of his or her
predecessor.
RESOLVED FURTHER, that the foregoing Restated Certificate of
Incorporation is hereby approved and adopted.
IN WITNESS WHEREOF, BEA SYSTEMS, INC. has caused this Certificate to
be signed by William T. Coleman III, its President and Chief Executive Officer,
and attested to by Steven L. Brown, its Secretary, this ____ day of
______________, 1997.
BEA SYSTEMS, INC.
William T. Coleman III
President and Chief Executive Officer
ATTEST:
By:
Steven L. Brown
Secretary
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