Attached files
| file | filename |
|---|---|
| 8-K - PAR TECHNOLOGY CORPORATION 8-K 5-29-2014 - PAR TECHNOLOGY CORP | form8k.htm |
| EX-3.(II) - EXHIBIT 3 (II) - PAR TECHNOLOGY CORP | ex3_ii.htm |
Exhibit 3(i)
CERTIFICATE OF INCORPORATION OF PAR TECHNOLOGY CORPORATION
As Amended May 22, 2014
FIRST
The name of the Corporation is PAR Technology Corporation (the “Corporation”).
SECOND
The address of the registered office of the Corporation in the State of Delaware is The Corporation Trust Company, 1209 Orange Street, in the City of Wilmington, County of New Castle 19801. The name of its registered agent at that address is The Corporation Trust Company.
THIRD
The purpose of the Corporation is to engage in any lawful act or activity for which a Corporation may be organized under the General Corporation Law of the State of Delaware.
FOURTH
1. The total number of shares of capital stock which the Corporation shall have the authority to issue is thirty million (30,000,000) shares of stock, par value $0.02 per share, consisting of twenty-nine million (29,000,000) shares of Common Stock, and one million (1,000,000) shares of Preferred Stock.
2. The Preferred Stock may be issued from time to time in one or more series. The Board of Directors is hereby authorized, prior to issuance of any series of Preferred Stock, to fix by resolution or resolutions providing for the issue of such series the number of shares included in such series and the voting powers, designations, preferences, and relative, participating, optional and other special rights, and the qualifications, limitations of restrictions thereof. Pursuant to the foregoing general authority vested in the Board of Directors, but not in limitation of the powers conferred on the Board of Directors thereby and by Delaware Law, the Board of Directors is expressly authorized to determine with respect to each series of Preferred Stock:
(a) the designation or designations of such series and the number of shares (which number from time to time may be decreased by the Board of Directors, but not below the number of such shares then outstanding, or may be increased by the Board of Directors, but not in excess of the number of such shares then authorized, unless otherwise provided in the resolution creating such series) constituting such series;
(b) the rate or amount and times at which, and the preferences and conditions under which, dividends shall be payable on shares of such series, the status of such dividends as cumulative or noncumulative, the date or dates from which dividends, if cumulative, shall accumulate, and the status of such shares as participating or nonparticipating after the payment of dividends as to which such shares are entitled to any preference;
1
Exhibit 3(i)
(c) the rights and preferences, if any, of the holders of shares of such series upon the liquidation, dissolution or winding up of the affairs of, or upon any distribution of the assets of, the Corporation, which amount may vary depending upon whether such liquidation, dissolution, or winding up is voluntary or involuntary and, if voluntary, may vary at different dates, and the status of the shares of such series as participating or nonparticipating after the satisfaction of any such rights and preferences;
(d) the full or limited voting rights, if any, to be provided for shares of such series, in addition to the voting rights provided by law;
(e) the times, terms and conditions, if any, upon which shares of such series shall be subject to redemption, including the amount the holders of shares of such series shall be entitled to receive upon redemption (which amount may vary under different conditions or at different redemption dates) and the amount, terms, conditions and manner of operation of any purchase, retirement or sinking fund to be provided for the shares of such series;
(f) the rights, if any, of the Corporation or the holders of shares of such series to convert such shares into, or to exchange such shares for, shares of any other class or classes or of any other series of the same class or other securities of the Corporation, the prices or rates of conversion or exchange, and adjustments thereto, and any other terms and conditions applicable to such conversion or exchange;
(g) the limitations, if any, applicable while such series is outstanding on the payment of dividends or making of distributions on, or the acquisition or redemption of, Common Stock or any other class of shares ranking junior, either as to dividends or upon liquidation, to the shares of such series;
(h) the conditions or restrictions, if any, upon the issue of any additional shares (including additional shares of such series or any other series or of any other class) ranking on a parity with or prior to the shares of such series either as to dividends or upon liquidation; and
(i) any other relative powers, preferences and relative, participating , optional or other special rights, and qualification, limitations or restrictions thereof, of shares of such series;
In each case, so far as not inconsistent with the provisions of this Certificate of Incorporation or Delaware Law. All shares of Preferred Stock shall be identical and of equal rank except in respect to the particulars that may be fixed by the Board of Directors as provided above, and all shares of each series of Preferred Stock shall be identical and of equal rank except as to the times from which cumulative dividends, if any, thereon shall be cumulative.
3. Shares of any series of Preferred Stock which have been acquired by the Corporation, whether by purchase or redemption or by their having been converted into or exchanged for other shares of the Corporation, shall upon their acquisition and without any other action by the Corporation resume the status of authorized but unissued shares of Preferred Stock and may be reissued as shares of the series of which they were originally a part or may be issued as shares of a new series or as shares of any other series.
2
Exhibit 3(i)
4. Except as otherwise provided by Delaware Law or by any resolution adopted by the Board of Directors fixing the powers, preferences and rights, the qualifications, limitations or restrictions, of the Preferred Stock, the entire voting power of the shares of the Corporation for the election of Directors and for all other purposes, as well as all other rights pertaining to shares of the Corporation, shall be vested exclusively in the Common Stock. Each share of Common Stock shall have one vote upon all matters to be voted on by the holders of the Common Stock and share ratably, subject to the rights and preferences of the Preferred Stock, in all assets of the Corporation in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, or upon any distribution of the assets of the Corporation.
5. Shares of capital stock of the Corporation may be issued for such consideration, not less than the par value thereof, as shall be fixed from time to time by the Board of Directors, and shares issued for such consideration shall be fully paid and non-assessable.
FIFTH
The duration of the Corporation is to be perpetual.
SIXTH
Except as required by law, and subject to the rights of holders of any series of Preferred Stock, established pursuant to Article Fourth of this Certificate of Incorporation, a special meeting of shareholders may be called at any time by the Board of Directors, the Chairman or the President, and shall be called only by the Board of Directors or the Chairman or the President pursuant to a resolution approved by a majority of the then authorized number of Directors of the Corporation. Any such call must specify the matter or matters to be acted upon at such meeting and only such matter or matters shall be acted upon thereat. Any such meeting shall be at such time and at such place, within or without the State of Delaware, as shall be set forth in the Board of Directors’ resolution calling for such meeting.
SEVENTH
Any action required or permitted to be taken by the shareholders of the Corporation must be effected at an annual or special meeting of shareholders of the Corporation, and no action required to be taken or that may be taken at any annual or special meeting of shareholders of the Corporation may be taken without a meeting except by the unanimous written consent of all shareholders entitled to vote on such action.
EIGHTH
1. The number of directors of the Corporation shall be fixed in accordance with the By-Laws of the Corporation, and may be increased or decreased from time to time in such a manner as may be prescribed in the By-Laws of the Corporation.
2. 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.
3
Exhibit 3(i)
3. The directors (other than those who may be elected by the holders of any series of preferred stock, voting as a separate class) shall serve for a one-year term. Following the 2014 annual meeting of shareholders the Board of Directors will no longer be classified under Section 141(d) of the General Corporation Law of the State of Delaware and directors shall no longer be divided into three classes. The term of all directors currently serving or appointed to serve shall expire at the 2015 annual meeting of shareholders. Effective as of the 2015 annual meeting of shareholders and each annual meeting of shareholders thereafter, all directors (other than those who may be elected by the holders of any series of preferred stock, voting as a separate class) shall be elected for a one-year term expiring at the next annual meeting of shareholders. Each director shall serve until his or her successor is duly elected and qualified or until his or her death, resignation or removal.
NINTH
No contract or other transaction of the Corporation shall be void, voidable, fraudulent or otherwise invalidated, impaired or affected, in any respect, by reason of the fact that any one or more of the officers, directors or shareholders of the Corporation shall individually be a party or parties thereto or otherwise interested therein or shall be officers, directors or shareholders or any other Corporation or corporations which shall be a party or parties thereto or otherwise interested therein; provided that such contract or other transaction shall be duly authorized or ratified by the Board of Directors, with the assenting vote of a majority of the disinterested directors then present, or, if only one such is present, with his assenting vote.
TENTH
The By-Laws of the Corporation or any them may be amended or repealed, in any respect, and new By-Laws may be adopted, at any time, either (i) by an affirmative vote of 66 2/3% of the shareholders entitled to vote generally for the election of directors or (ii) by an affirmative vote of a majority of the directors present at a meeting of the Board of Directors, in each case, in accordance with the terms of the By-Laws. Notwithstanding the foregoing and anything contained in this Certificate of Incorporation to the contrary, Section 3 (“Special Meetings”) or Section 7 (“Order of Business”) of Article II (“Meeting of Stockholders”) of the By-Laws Section 2, (“Number, Election and Terms”) or Section 3 (“Nominations of Directors, Elections”) or Section 6 (“Special Meetings”) or Article III (“Directors”) of the By-Laws, or the final sentence of Article XIII (“Amendments”) of the By-Laws shall not be amended or repealed and no provision inconsistent with any thereof shall be adopted without the affirmative vote of the 66 2/3% of the shareholders entitled to vote generally for the election of directors, voting together as a single class. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of the 66 2/3% of the shareholders entitled to vote generally for the election of directors, voting together as a single class, shall be required to amend or repeal, or adopt any provision inconsistent with, any provision of this Article TENTH.
ELEVENTH
1. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, Articles Sixth, Seventh, Eighth and Twelfth hereof shall not be altered, amended or repealed and no provision inconsistent therewith shall be adopted without the affirmative vote of the holders of at least 66 2/3% of all of the shares of the corporation entitled to vote generally in the election of directors, voting together as a single class. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least 66 2/3% of all of the shares of the corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to alter, amend or repeal or adopt any provision inconsistent with this paragraph (1) of Article Eleventh.
4
Exhibit 3(i)
2. The Corporation reserves the right to amend, alter, change or repeal any provision contained in its Certificate of Incorporation, or any amendment thereof, in the manner now or thereafter prescribed by the laws of the State of Delaware of this Certificate of Incorporation, and all rights conferred upon the shareholders of the corporation are granted subject to this reservation.
TWELFTH
1. A Director of the Corporation shall not be personally liable to the Corporation or its shareholders 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 shareholders, (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 Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit.
2. If, after approval of this Article by the shareholders of the Corporation, the Delaware General Corporation Law is amended to authorize the further elimination or limitation of the liability of directors, 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.
3. Any repeal or modification of this Article by the shareholders of the Corporation shall not adversely affect any right or protection of a Director of the Corporation existing at the time of such repeal or modification.
THIRTEENTH
The name and mailing address of the incorporator is as follows:
Gregory T. Cortese
Vice President, General Counsel & Secretary
PAR Technology Corporation
220 Seneca Turnpike
New Hartford, NY 13413
5