AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
CALLIDUS SOFTWARE INC.
(INCORPORATED SEPTEMBER 6, 1996)
The undersigned, Reed D. Taussig and Ron J. Fior, do hereby verify that:
I. They are the duly elected and acting President and Secretary of
Callidus Software Inc., a Delaware corporation (the "corporation").
II. The Certificate of Incorporation of the corporation,
originally filed with the Delaware Secretary of State on September 6, 1996 under
the name of Tally Up Software, Inc. and amended and restated to date, is hereby
amended and restated to read in its entirety as follows:
ONE. The name of this Corporation is:
Callidus Software Inc.
TWO. The address of the corporation's registered office in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle, Delaware 19801. The name of its registered agent at such address is
The Corporation Trust Company.
THREE. The purpose of 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 ("DELAWARE Law"). The Corporation shall have perpetual existence.
FOUR. The total number of shares of stock which the Corporation
shall have authority to issue is 105,000,000, consisting of 100,000,000 shares
of Common Stock, par value $0.001 per share (the "COMMON STOCK"), and 5,000,000
shares of Preferred Stock, par value $0.001 per share (the "PREFERRED STOCK").
The Board of Directors is hereby empowered to authorize by resolution
or resolutions from time to time the issuance of one or more classes or series
of Preferred Stock and to fix the designations, powers, preferences and
relative, participating, optional or other rights, if any, and the
qualifications, limitations or restrictions thereof, if any, with respect to
each such class or series of Preferred Stock and the number of shares
constituting each such class or series, and to increase or decrease the number
of shares of any such class or series to the extent permitted by Delaware Law.
FIVE. Each holder of Common Stock, as such, shall be entitled to one
vote for each share of Common Stock held of record by such holder on all matters
on which stockholders generally are entitled to vote; provided, however, that,
except as otherwise required by law, holders of Common Stock, as such, shall not
be entitled to vote on any amendment to this Certificate of Incorporation
(including any Certificate of Designations relating to any series of Preferred
Stock) that relates solely to the terms of one or more outstanding series of
Preferred Stock if the holders of such affected series are entitled, either
separately or together with the holders of one or more other such series, to
vote thereon pursuant to this Certificate of Incorporation (including any
Certificate of Designations relating to any series of Preferred Stock) or
pursuant to Delaware Law.
SIX. (1) The business and affairs of the Corporation shall be
managed by or under the direction of a Board of Directors; the exact number of
directors to be determined from time to time solely by resolution adopted by the
affirmative vote of a majority of the entire Board of Directors.
(2) 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 of the total number of directors constituting
the entire Board of Directors. Each director shall serve for a term ending on
the date of the third annual meeting of stockholders next following the annual
meeting at which such director was elected, provided that directors initially
designated as Class I directors shall serve for a term ending on the date of the
2004 annual meeting, directors initially designated as Class II directors shall
serve for a term ending on the 2005 annual meeting, and directors initially
designated as Class III directors shall serve for a term ending on the date of
the 2006 annual meeting. Notwithstanding the foregoing, each director shall hold
office until such director's successor shall have been duly elected and
qualified or until such director's earlier death, resignation or removal. In the
event of any change in the number of directors, the Board of Directors shall
apportion any newly created directorships among, or reduce the number of
directorships in, such class or classes as shall equalize, as nearly as
possible, the number of directors in each class. In no event will a decrease in
the number of directors shorten the term of any incumbent director.
(3) The names of the persons who are to serve initially as
directors of each Class are:
Class I George James and Reed D. Taussig
Class II David Spreng and Terry Opdendyk
Class III Michael Braun
(4) There shall be no cumulative voting in the election of
(5) Vacancies on the Board of Directors resulting from death,
resignation, removal or otherwise and newly created directorships resulting from
any increase in the number of directors may be filled solely by a majority of
the directors then in office (although less than a quorum) or by the sole
remaining director, and each director so elected shall hold office for a term
that shall coincide with the term of the Class to which such director shall have
(6) No director may be removed from office by the stockholders
except for cause with the affirmative vote of the holders of not less than a
majority of the total voting power of all outstanding securities of the
Corporation then entitled to vote generally in the election of directors, voting
together as a single class.
SEVEN. Any action required or permitted to be taken at any annual or
special meeting of stockholders may be taken only upon the vote of stockholders
at an annual or special meeting duly noticed and called in accordance with the
Delaware Law, as amended from time to time, and may not be taken by written
consent of stockholders without a meeting.
EIGHT. Special meetings of the stockholders may be called by the
Board of Directors, the Chairman of the Board of Directors, the President or the
Secretary of the Corporation and may not be called by any other person.
NINE. Election of directors need not be by written ballot unless the
bylaws of the Corporation so provide.
TEN. (1)A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director to the fullest extent permitted by Delaware Law.
(2)(a) Each person (and the heirs, executors or administrators
of such person) who was or is a party or is threatened to be made a party to, or
is involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person 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 of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified and held harmless by the Corporation to the fullest extent permitted
by Delaware Law. The right to indemnification conferred in this ARTICLE TEN
shall also include the right to be paid by the Corporation the expenses incurred
in connection with any such proceeding in advance of its final disposition to
the fullest extent authorized by Delaware Law. The right to indemnification
conferred in this ARTICLE TEN shall be a contract right.
(b) The Corporation may, by action of its Board of
Directors, provide indemnification to such of the employees and agents of the
Corporation to such extent and to such effect as the Board of Directors shall
determine to be appropriate and authorized by Delaware Law.
(3) The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any expense, liability or loss
incurred by such person in any such capacity or arising out of such person's
status as such, whether or not the Corporation would have the power to indemnify
such person against such liability under Delaware Law.
(4) The rights and authority conferred in this ARTICLE TEN
shall not be exclusive of any other right which any person may otherwise have or
(5) Neither the amendment nor repeal of this ARTICLE TEN, nor
the adoption of any provision of this Certificate of Incorporation or the bylaws
of the Corporation, nor, to the fullest extent permitted by Delaware Law, any
modification of law, shall eliminate or reduce the effect of this ARTICLE TEN in
respect of any acts or omissions occurring prior to such amendment, repeal,
adoption or modification.
ELEVEN. The Board of Directors shall have the power to adopt, amend or
repeal the bylaws of the Corporation.
The stockholders may adopt, amend or repeal the bylaws only with the
affirmative vote of the holders of not less than sixty-six and two-thirds
percent of the total voting power of all outstanding securities of the
Corporation then entitled to vote generally in the election of directors, voting
together as a single class.
TWELVE. The Corporation reserves the right to amend this Certificate
of Incorporation in any manner permitted by the Delaware Law and all rights and
powers conferred upon stockholders, directors and officers herein are granted
subject to this reservation. Notwithstanding the foregoing, the provisions set
forth in ARTICLES SIX, SEVEN, EIGHT, TEN, ELEVEN and this ARTICLE TWELVE may not
be repealed or amended in any respect, and no other provision may be adopted,
amended or repealed which would have the effect of modifying or permitting the
circumvention of the provisions set forth in ARTICLES SIX, SEVEN, EIGHT, TEN,
ELEVEN or this ARTICLE TWELVE unless such action is approved by the affirmative
vote of the holders of not less than sixty-six and two-thirds percent of the
total voting power of all outstanding securities of the Corporation then
entitled to vote generally in the election of directors, voting together as a
III. The foregoing amendment and restatement of the Certificate of
Incorporation has been duly approved by the Board of Directors of the
IV. The foregoing amendment and restatement of the Certificate of
Incorporation has been duly approved by the written consent of the stockholders
in accordance with Delaware Law. The number of shares held by stockholders
who consented to this amendment in writing equaled or exceeded the required
percentage. Pursuant to Section 228 of the Delaware General Corporation Law,
prompt written notice of this amendment and restatement has been or shall be
given to all stockholders who did not consent to this amendment.
We further declare under penalty of perjury under the laws of the State of
Delaware that the matters set forth in this certificate are true, correct and of
our own knowledge.
Executed at San Jose, California, on _______________, 2003.
/s/ Reed D. Taussig
Reed D. Taussig
/s/ Ron J. Fior
Ron J. Fior
[As Filed: 2003-09-23]