EXHIBIT
3.1
CERTIFICATE
OF AMENDMENT
OF
RESTATED
CERTIFICATE OF INCORPORATION
OF
PROGRAMMER'S
PARADISE, INC.
Programmer's
Paradise, Inc., a corporation organized and existing under the laws of the State
of Delaware (the "Corporation"), DOES HEREBY CERTIFY:
FIRST:
The name of the corporation is Programmer's Paradise, Inc.
SECOND:
The Restated Certificate of Incorporation is hereby amended by deleting Article
1 in its entirety and substituting in lieu thereof the following new Article
1:
"1. Name. The Name of the
Corporation is Wayside Technology Group, Inc. (hereinafter referred to as the
"Corporation")."
THIRD:
That the aforesaid amendment was duly adopted by the shareholders of the
Corporation in accordance with the applicable provisions of Section 242 of the
General Corporation Law of the State of Delaware.
IN
WITNESS WHEREOF, the Corporation has caused this certificate to be executed by
the undersigned this 8th day of August, 2006.
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By:
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/s/
Kevin T. Scull
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Name:
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Kevin
T. Scull
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Title:
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Vice
President of Finance
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RESTATED
CERTIFICATE
OF INCORPORATION
OF
PROGRAMMER’S
PARADISE, INC.
Pursuant
to the provisions of Sections 242 and 245 of the General Corporation Law of the
State of Delaware (the “G.C.L.”) the undersigned, Roger Paradis and Lawrence M.
Bell, the President and Assistant Secretary, respectively, of PROGRAMMER’S
PARADISE, INC., a corporation organized and existing in the State of Delaware
(the “Corporation”), do hereby certify as follows:
FIRST:
The name of the Corporation is PROGRAMMER’S PARADISE, INC. The Corporation was
originally incorporated under the name “Scarborough Systems, Inc, and the
original Certificate of Incorporation of the Corporation was filed with the
Secretary of State on September 30, 1982.
SECOND:
This Restated Certificate of Incorporation restates, integrates and amends the
Certificate of Incorporation of the Corporation, as heretofore amended and
supplemented, and has been approved and duly adopted in accordance with the
provisions of Sections 242 and 245 of the G.C.L. This Restated Certificate of
Incorporation was approved by written consent in lieu of a meeting of the
stockholders pursuant to Section 228 of the G.C.L. and written notice of such
approval has been provided as required by such section.
THIRD:
The text of the Certificate of Incorporation, as heretofore amended and
supplemented, is hereby further amended and restated to read as herein set forth
in full:
ARTICLE
I
Name
The name
of the Corporation is Programmer’s Paradise, Inc. (hereinafter referred to as
the “Corporation”).
ARTICLE
II
Address: Registered
Agent
The
address of the Corporation’s registered office in the State of Delaware is 32
Loockerman Square, Suite L-100, in the City of Dover, County of Kent; and the
name of the registered agent of the corporation in the State of Delaware at such
address is The Prentice-Hall Corporation System, Inc.
ARTICLE
III
Purpose
The
purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the G.C.L.
ARTICLE
IV
Capitalization
Section 1. The aggregate number of
shares of all classes of capital stock which the Corporation is authorized to
issue is 10,010,000 shares, of which: (i) 10,000 shares shall be preferred
stock, par value $.01 per share (hereinafter referred to as the “Preferred
Stock”); and (ii) 10,000,000 shares shall be common stock, par value $.01 per
share (hereinafter referred to as the “Common Stock”).
Section 2. Pursuant to Section 151 of
the G.C.L., a statement of the designations, powers, preferences and rights, and
the qualifications and restrictions thereof, in respect of each class of capital
stock is as follows:
A. PREFERRED
STOCK
The Board
of Directors is hereby expressly authorized at any time, and from time to time,
to provide for the issuance of shares of Preferred Stock in one or more series,
with such voting powers, full or limited, or no voting powers, and with such
designations, preferences and relative, participating, optional or other rights,
and qualifications or restrictions thereof, as shall be stated and expressed in
the resolution or resolutions providing for the issue thereof adopted by a
majority of the Board of Directors then in office and the certificate of
designations filed under the G.C.L. setting forth such resolution or
resolutions, including (without limiting the generality thereof) the following
as to each such series:
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(i)
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the
designation of such series;
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(ii)
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the
dividends, if any, payable with respect to such series, the rates or basis
for determining such dividends, any conditions and dates upon which such
dividends shall be payable, the preferences, if any, of such dividends
over, or the relation of such dividends to, the dividends payable on the
Common Stock or any other series of Preferred Stock, whether such
dividends shall be noncumulative or cumulative, and, if cumulative, the
date or dates from which such dividends shall be
cumulative;
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(iii)
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whether
shares of such series shall be redeemable at the option of the Board of
Directors or the holder, or both, upon the happening of a specified event
and, if redeemable, whether for cash, property or rights, including
securities of the Corporation, the time, prices or rates and any
adjustment and other terms and conditions of such
redemption;
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(iv)
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the
terms and amount of any sinking, retirement or purchase fund provided for
the purchase or redemption of shares of such
series;
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(v)
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whether
or not shares of such series shall be convertible into or exchangeable for
shares of Common Stock or any other series of Preferred Stock, at the
option of the Corporation or of the holder, or both, or upon the happening
of a specified event and, if provision be made for such conversion or
exchange, the terms, prices, rates, adjustments and any other terms and
conditions thereof;
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(vi)
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the
extent, if any, to which the holders of shares of such series shall be
entitled to vote with respect to the election of Directors or otherwise,
including, without limitation, the extent, if any, to which such holders
shall be entitled, voting as a series or as a part of a class, to elect
one or more Directors upon the happening of a specified event or
otherwise;
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(vii)
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the
restrictions, if any, on the issue or reissue of shares of such series or
any other series;
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(viii)
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the
extent, if any, to which the holders of shares of such series shall be
entitled to preemptive rights; and
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(ix)
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the
rights of the holders of shares of such series upon the liquidation of the
Corporation or any distribution of its
assets.
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B. COMMON
STOCK
1. Designation and
Amount. The authorized number of shares of Common Stock shall be
10,000,000.
2. Dividends and
Distributions. No payment of dividends or distributions shall be made to
the holders of shares of Common Stock unless and until the holders of shares of
Preferred Stock receive any preferential amounts to which they are entitled
under this ARTICLE IV or in the resolution or resolutions providing for the
issue of shares of Preferred Stock. Subject to the limitation set forth in the
preceding sentence of this Paragraph 2 and except as otherwise provided by this
Restated Certificate of Incorporation or in the resolution or resolutions
providing for the issue of shares of Preferred Stock, the holders of shares of
Common Stock shall be entitled to receive such dividends and distributions as
may be declared upon such shares of Common Stock from time to time by a
resolution or resolutions adopted by the Board of Directors.
3. Voting
Rights. All holders of Common Stock shall be entitled to
notice of any stockholders’ meeting. Subject to the provisions of any applicable
law and except as otherwise provided in this Restated Certificate of
Incorporation or by the resolution or resolutions providing for the issue of
shares of Preferred Stock, all voting rights shall be vested solely in the
Common Stock. The holders of shares of Common Stock shall be entitled to vote
upon the election of Directors and upon any other matter submitted to the
stockholders for a vote. Each share of Common Stock issued and outstanding shall
be entitled to one noncumulative vote. A fraction of a share of Common Stock
shall not be entitled to any voting rights whatsoever.
4. Liquidation Dissolution or
Winding Up. Except as otherwise provided in this Restated
Certificate of Incorporation and subject to the rights of holders, if any, of
Preferred Stock to receive preferential liquidation distributions to which they
are entitled under this ARTICLE IV or under the resolution or resolutions
providing for the issue of shares of Preferred Stock, in the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, after payment or provision for payment of the debts and liabilities
of the Corporation, all assets of the Corporation shall be shared on pro rata among the
holders of the Common Stock.
5. No Preemptive
Rights. No holder of shares of Common Stock shall as such
holder have any preemptive right to purchase or subscribe to shares of Common
Stock or shares or other securities convertible into or exchangeable for or
carrying rights or options to purchase or subscribe to shares of Common
Stock.
ARTICLE
V
Board of Directors;
Stockholders’ Meetings
Section 1. The Board
of Directors shall consist of not less than three persons, the exact number to
be fixed from time to time by the Board of Directors pursuant to a resolution
adopted by a majority of Directors then in office.
Section 2. Subject to
the rights of the holders of Preferred Stock, any vacancy in the Board of
Directors caused by death, resignation, removal, retirement, disqualification or
any other cause (including an increase in the number of Directors) may be filled
solely by resolution adopted by a majority of the Board of Directors then in
office, whether or not such majority constitutes less than a quorum, or by a
sole remaining Director; provided
however, that any vacancy created by a removal of a Director pursuant to
Section 3 of this ARTICLE V may be filled by action of the stockholders taken at
the same meeting at which the vacancy was created; such action to be upon the
affirmative vote of the holders of not less than a majority of the voting power
of the outstanding capital stock entitled to vote in the election of Directors,
voting as a single class.
Section 3. Subject to
the rights of holders of Preferred Stock to elect Directors or to remove
Directors so elected, a duly elected Director of the Corporation may not be
removed from such position other than for cause; any such removal may be
effected only by the affirmative vote of the holders of at least a majority of
the voting power of the outstanding capital stock entitled to vote in the
election of Directors, voting as a single class.
Section
4. Except as otherwise provided by applicable law or by this
Restated Certificate of Incorporation, a majority of the Board of Directors then
in office at the time of a duly assembled meeting shall be necessary to
constitute a quorum and be sufficient for the transaction of business, and the
act of a majority of the Directors present at such meeting shall be the act of
the Board of Directors.
Section
5. Except as otherwise provided by law, at any annual or
special meeting of stockholders only such business shall be conducted as shall
have been properly brought before the meeting. Except as otherwise provided in
this ARTICLE V, in order to be properly brought before the meeting, such
business must have either been: (A) specified in the written notice of the
meeting (or any supplement thereto) given to the stockholders of record on the
record date for such meeting by or at the direction of the Board of Directors;
(B) brought before the meeting at the direction of the Chairman, the Chief
Executive Officer, the President or the Board of Directors; or (C) specified in
a written notice given by or on behalf of a stockholder of record on the
record date for such meeting entitled to vote thereat or a duly authorized proxy
for such stockholder, in accordance with all of the following requirements. A
notice referred to in clause (C) of the preceding sentence must be delivered
personally to, or mailed to and received at, the principal executive office of
the Corporation, addressed to the attention of the Secretary, not later than the
earlier to occur of (x) the date which is 60 days prior to the meeting and (y)
the date determined by the Corporation in compliance with the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), as the last date on which
stockholder proposals may be submitted to the Corporation for inclusion in the
Corporation’s proxy materials with respect to the meeting in question; provided, however, that in the
event that less than 60 days’ notice or prior public disclosure of the date of
the meeting is given or made to stockholders, notice by the stockholder to be
timely must be so received not later than the close of business on the tenth day
following the day on which such notice of the date of the annual or special
meeting was mailed or such public disclosure was made, whichever first occurs.
Such notice referred to in clause (C) of the first sentence of this Section 5
shall set forth: (i) a full description of each such item of business proposed
to be brought before the meeting and the reasons for conducting such business at
such meeting; (ii) the name and address of the person proposing to bring such
business before the meeting; (iii) the class and number of shares held of
record, held beneficially and represented by proxy by such person as of the
record date for the meeting (if such date has then been made publicly available)
and as of the date of such notice; (iv) if any item of such business involves a
nomination for Director, all information regarding each such nominee that would
be required to be set forth in a definitive proxy statement filed with the
Securities and Exchange Commission (the “Commission”) pursuant to the Exchange
Act, or any successor thereto, and the written consent of each such nominee to
serve if elected; (v) any material interest of the stockholder in such item of
business; and (vi) all other information that would be required to be filed with
the Commission if, with respect to the business proposed to be brought before
the meeting, the person proposing such business was a participant in a
solicitation subject to Section 14 of the Exchange Act or any successor thereto.
No business shall be brought before any meeting of stockholders of the
Corporation otherwise than as provided in this Section 5. The Board of Directors
may require a proposed nominee for Director to furnish such other information as
may be required to be set forth in a stockholder’s notice of nomination which
pertains to the nominee or which may be reasonably required to determine the
eligibility of such proposed nominee to serve as a Director of the Corporation.
The Chairman of the meeting may, if the facts warrant, determine that a
nomination or stockholder proposal was not made in accordance with the foregoing
procedure, and if he or she should so determine, he or she shall so declare to
the meeting and the defective nomination or proposal shall be
disregarded.
Section
6. The annual meeting of stockholders of the Corporation for
the election of Directors and the transaction of such other business as may be
brought before the meeting in accordance with this Restated Certificate of
Incorporation shall be held on the date and the time fixed from time to time by
the Board of Directors by a resolution adopted by the Board of Directors. Except
as provided below in this ARTICLE V, special meetings of stockholders may be
called only at the direction of the Chairman, the Chief Executive Officer, the
President or the record holders of at least 35% of the voting power of the
outstanding capital stock of the Corporation. Annual and special
meetings of stockholders shall not be called or held otherwise than as herein
provided.
Section
7. Except as otherwise provided by law or by ARTICLE VII of
this Restated Certificate of Incorporation, at any meeting of stockholders of
the Corporation the presence in person or by proxy of the holders of a majority
in voting power of the outstanding capital stock of the Corporation entitled to
vote shall constitute a quorum for the transaction of business brought before
the meeting in accordance with this Restated Certificate of Incorporation and, a
quorum being present, the affirmative vote of the holders of a majority in
voting power present in person or represented by proxy and entitled to vote
shall be required to effect action by stockholders; provided, however, that the
affirmative vote of a plurality in voting power present in person or represented
by proxy and entitled to vote shall be required to effect elections of
Directors.
ARTICLE
VI
Director
Liability
A
Director of the Corporation shall not 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 G.C.L.; or (iv) for any
transaction from which the Director derived an improper personal benefit. If the
G.C.L. 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 G.C.L., as so amended. The provisions of this ARTICLE VI are not intended
to, and shall not, limit, supersede or modify any other defense available to a
Director under applicable law. Any repeal or modification of this ARTICLE VI by
the stockholders of the Corporation shall not adversely affect any right or
protection of a Director of the Corporation existing immediately prior to the
time of such repeal or modification.
ARTICLE
VII
Amendments to the Restated
Certificate of Incorporation
The
Corporation reserves the right to amend, alter change or repeal any provision
contained in this Restated Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred on stockholders herein
are granted subject to this reservation. Notwithstanding the preceding sentence,
the affirmative vote of stockholders holding 66-2/3% of the outstanding shares
of capital stock then entitled to vote on such issue shall be required in order
to amend any provision of, or to adopt any provision which is inconsistent with
Article V, Article VI or this Article VII.
IN
WITNESS WHEREOF, the undersigned have executed this Certificate as of the 5th
day of July, 1995.
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PROGRAMMER’S
PARADISE, INC.
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By:
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/s/ Roger
Paradis |
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Name:
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Roger
Paradis |
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Title:
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President |
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By:
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/s/ Lawrence
M. Bell |
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Name:
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Lawrence
M. Bell |
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Title:
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Assistant
Secretary |
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