RESTATED CERTIFICATE OF INCORPORATION

 

                                       OF

 

                                SUPPORTSOFT, INC.

 

     SUPPORTSOFT, INC., a corporation organized and existing under the General

Corporation Law of the State of Delaware (the "Corporation"), DOES HEREBY

CERTIFY:

 

     FIRST: The original Certificate of Incorporation of the Corporation was

filed with the Secretary of State of Delaware on December 3, 1997 under the name

Replicase, Inc.

 

     SECOND: The Restated Certificate of Incorporation of the Corporation in the

form attached hereto as Exhibit A has been duly adopted by the Board of

                        ---------

Directors of the Corporation in accordance with the provisions of Sections 245

of the General Corporation Law of the State of Delaware. This Restated

Certificate of Incorporation of the Corporation only restates and integrates and

does not further amend the provisions of the Corporation's Amended and Restated

Certificate of Incorporation as heretofore amended or supplemented, and there is

no discrepancy between those provisions and provisions of this Restated

Certificate of Incorporation.

 

     THIRD: The Restated Certificate of Incorporation so adopted reads in full

as set forth in Exhibit A attached hereto and is hereby incorporated herein by

                ---------

this reference.

 

     FOURTH: This Restated Certificate of Incorporation shall be effective at

4:30 p.m. on March 28, 2002.

 

     IN WITNESS WHEREOF, the Corporation has caused this Certificate to be

signed by the President of the Corporation this 26th day of March, 2002.

 

                                     SUPPORTSOFT, INC.

 

 

 

                                     By:          /s/ Radha R. Basu

                                         ---------------------------------------

                                                      Radha R. Basu

                                          President and Chief Executive Officer

 

                                      

 

 

                AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

                -------------------------------------------------

 

                                       OF

                                       --

 

                                SUPPORTSOFT, INC.

                                ----------------

 

 

                                   ARTICLE I

 

     The name of this Corporation is SUPPORTSOFT, INC.

 

 

                                   ARTICLE II

 

     The registered office of the Corporation within the State of Delaware is

located at 30 Old Rudnick Lane, in the City of Dover, County of Kent, 19901. The

name of its registered agent at such address is CorpAmerica, Inc.

 

 

                                  ARTICLE III

 

     The purpose of this Corporation is to engage in any lawful act or activity

for which a corporation may be organized under the General Corporation Law of

Delaware.

 

 

                                   ARTICLE IV

 

     A. Authorized Stock. The total number of shares of all classes of capital

        ----------------

stock which the Corporation shall have authority to issue is one hundred

fifty-five million (155,000,000), of which one hundred fifty million

(150,000,000) shares of the par value of one hundredth of one cent ($.0001) each

shall be Common Stock (the "Common Stock") and five million (5,000,000) shares

of the par value of one hundredth of one cent ($.0001) each shall be Preferred

Stock (the "Preferred Stock"). The number of authorized shares of Common Stock

or Preferred Stock may be increased or decreased (but not below the number of

shares thereof then outstanding) by the affirmative vote of the holders of a

majority of the then outstanding shares of Common Stock, without a vote of the

holders of the Preferred Stock, or of any series thereof, unless a vote of any

such Preferred Stock holders is required pursuant to the provisions established

by the Board of Directors of this Corporation (the "Board of Directors") in the

resolution or resolutions providing for the issue of such Preferred Stock, and

if such holders of such Preferred Stock are so entitled to vote thereon, then,

except as may otherwise be set forth in this Amended and Restated Certificate of

Incorporation, the only stockholder approval required shall be the affirmative

vote of a majority of the combined voting power of the Common Stock and the

Preferred Stock so entitled to vote.

 

     B. Preferred Stock. The Preferred Stock may be issued in any number of

        ---------------

series, as determined by the Board of Directors. The Board of Directors may by

resolution fix the designation and number of shares of any such series, and may

determine, alter, or revoke the rights, preferences, privileges and restrictions

granted to or imposed upon any wholly unissued series. The Board of Directors

may thereafter in the same manner, within the limits and restrictions stated in

any resolution or resolutions of the Board of Directors originally fixing the

number of shares constituting any series, increase or decrease the number of

shares of any such series (but not below the number of shares of that series

then outstanding). In case the number of shares of any series shall be

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.

 

 

                                   ARTICLE V

 

     The Corporation is to have perpetual existence.

 

 

                                   ARTICLE VI

 

     A. The business and affairs of the Corporation shall be managed by or under

the direction of the Board of Directors. In addition to the powers and authority

expressly conferred upon them by statute or by this Amended and Restated

Certificate of Incorporation or the Bylaws of the Corporation, the directors are

hereby empowered to exercise all such powers and do all such acts and things as

may be exercised or done by the Corporation.

 

     B. Changes. The Board of Directors of this Corporation, by amendment to the

        -------

Corporation's bylaws, is expressly authorized to change the number of directors

of the Corporation without the consent of the stockholders.

 

     C. Elections. Elections of directors need not be by written ballot unless

        ---------

the Bylaws of the Corporation shall so provide.

 

 

                                  ARTICLE VII

 

     A. Power of Stockholder to Act by Written Consent. No action required or

        ----------------------------------------------

permitted to be taken at any annual or special meeting of the stockholders may

be taken without a meeting and the power of stockholders to consent in writing,

without a meeting, to the taking of any action is specifically denied.

 

     B. Special Meetings of Stockholders. Special meetings of the stockholders

        --------------------------------

of the Corporation may be called for any purpose or purposes, unless otherwise

prescribed by statute or by this Amended and Restated Certificate of

Incorporation, only at the request of the Chief Executive Officer of the

Corporation or by a resolution duly adopted by the affirmative vote of a

majority of the Board of Directors.

 

     C. Cumulative Voting. The stockholders of Corporation shall not have

        -----------------

cumulative voting.

 

 

                                  ARTICLE VIII

 

     The Board of Directors is expressly empowered to adopt, amend or repeal the

Bylaws of the Corporation; provided, however, that any adoption, amendment or

repeal of the Bylaws of the Corporation by the Board of Directors shall require

the approval of at least sixty-six and two-thirds percent (66 2/3%) of the total

number of authorized directors (whether or not there exist any vacancies in

previously authorized directorships at the time any resolution providing for

adoption, amendment or repeal is presented to the Board of Directors). The

stockholders shall also have the power to adopt, amend or repeal the Bylaws of

the Corporation, provided, however, that in addition to any vote of the holders

of any class or series of stock of the Corporation required by law or by this

Amended and Restated Certificate of Incorporation, the affirmative vote of the

holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting

power of all of the then outstanding shares of the stock of the Corporation

entitled to vote generally in the election of directors, voting together as a

single class, shall be required for such adoption, amendment or repeal by the

stockholders of any provisions of the Bylaws of the Corporation.

 

 

                                   ARTICLE IX

 

     The books of the Corporation may be kept at such place within or without

the State of Delaware as the bylaws of the Corporation may provide or as may be

designated from time to time by the board of directors of the Corporation.

 

 

                                   ARTICLE X

 

     Whenever a compromise or arrangement is proposed between the Corporation

and its creditors or any class of them and/or between the 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 the

Corporation or of any creditor or stockholder thereof or on the application of

any receivers appointed for the 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 the 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 the stockholders or class of

stockholders of the 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 the Corporation, as the case may be,

agree to any compromise or arrangement and to any reorganization of this

Corporation as consequence of such compromise or arrangement, the said

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 of creditors, and/or on all the stockholders or class of

stockholders, of the Corporation, as the case may be, and also on the

Corporation.

 

                                   ARTICLE XI

 

     A. Limitation on 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 (1) for any

breach of the director's duty of loyalty to the Corporation or its stockholders;

(2) for acts or omissions not in good faith or which involve intentional

misconduct or a knowing violation of law; (3) under Section 174 of the Delaware

General Corporation Law; or (4) for any transaction from which the director

derived an improper personal benefit.

 

     If the Delaware General Corporation Law hereafter is amended to further

eliminate or limit the liability of directors, then the liability of a director

of the Corporation, in addition to the limitation on personal liability provided

herein, shall be limited to the fullest extent permitted by the amended Delaware

General Corporation Law.

 

     B. Indemnification. Each person who is or is made a party or is threatened

        ---------------

to be made a party to or is involved in any action, suit or proceeding, whether

civil, criminal, administrative or investigative (hereinafter a "proceeding"),

by reason of the fact that he or she, or a person of whom he or she is the legal

representative, is or was a director or officer of the Corporation or is or was

serving at the request of the Corporation as a director, officer, employee or

agent of another corporation or of a partnership, joint venture, trust or other

enterprise, including service with respect to employee benefit plans, whether

the basis of such proceeding is alleged action in an official capacity as a

director, officer, employee or agent or in any other capacity while serving as a

director, officer, employee or agent, shall be indemnified and held harmless by

the Corporation to the fullest extent authorized by the Delaware General

Corporation Law, as the same exists or may hereafter be amended (but, in the

case of any such amendment, only to the extent that such amendment permits the

Corporation to provide broader indemnification rights than said law permitted

the Corporation to provide prior to such amendment), against all expense,

liability and loss (including attorneys' fees, judgments, fines, ERISA excise

taxes or penalties and amounts paid or to be paid in settlement) reasonably

incurred or suffered by such person in connection therewith and such

indemnification shall continue as to a person who has ceased to be a director,

officer, employee or agent and shall inure to the benefit of his or her heirs,

executors and administrators; provided, however, that, except as provided in the

second paragraph hereof, the Corporation shall indemnify any such person seeking

indemnification in connection with a proceeding (or part thereof) initiated by

such person only if such proceeding (or part thereof) was authorized by the

Board of Directors of the Corporation. The right to indemnification conferred in

this section shall be a contract right and shall include the right to be paid by

the Corporation for any expenses incurred in defending any such proceeding in

advance of its final disposition; provided, however, that, if the Delaware

General Corporation Law requires, the payment of such expenses incurred by a

director or officer in his or her capacity as a director or officer (and not in

any other capacity in which service was or is rendered by such person while a

director or officer, including, without limitation, service to an employee

benefit plan) in advance of the final disposition of a proceeding, shall be made

only upon delivery to the Corporation of an undertaking, by or on behalf of such

director or officer, to repay all amounts so advanced if it shall ultimately be

determined that such director or officer is not entitled to be indemnified under

this section or otherwise. The Corporation may, by action of its Board of

Directors, provide indemnification to

employees and agents of the Corporation with the same scope and effect as the

foregoing indemnification of directors and officers.

 

     If a claim under the first paragraph of this section is not paid in full by

the Corporation within thirty (30) days after a written claim has been received

by the Corporation, the claimant may at any time thereafter bring suit against

the Corporation to recover the unpaid amount of the claim and, if successful in

whole or in part, the claimant shall be entitled to be paid also the expense of

prosecuting such claim. It shall be a defense to any such action (other than an

action brought to enforce a claim for expenses incurred in defending any

proceeding in advance of its final disposition where the required undertaking,

if any is required, has been tendered to the Corporation) that the claimant has

not met the standards of conduct which make it permissible under the Delaware

General Corporation Law for the Corporation to indemnify the claimant for the

amount claimed, but the burden of proving such defense shall be on the

Corporation. Neither the failure of the Corporation (including its Board of

Directors, independent legal counsel, or its stockholders) to have made a

determination prior to the commencement of such action that indemnification of

the claimant is proper in the circumstances because he or she has met the

applicable standard of conduct set forth in the Delaware General Corporation

Law, nor an actual determination by the Corporation (including its Board of

Directors, independent legal counsel, or its stockholders) that the claimant has

not met such applicable standard of conduct, shall be a defense to the action or

create a presumption that the claimant has not met the applicable standard of

conduct.

 

     The right to indemnification and the payment of expenses incurred in

defending a proceeding in advance of its final disposition conferred in this

section shall not be exclusive of any other right which any person may have or

hereafter acquire under any statute, provision of the Amended and Restated

Certificate of Incorporation, by-law, agreement, vote of stockholders or

disinterested directors or otherwise.

 

     C. Insurance. The Corporation may maintain insurance, at its expense, to

        ---------

protect itself and any director, officer, employee or agent of the Corporation

or another corporation, partnership, joint venture, trust or other enterprise

against any such expense, liability or loss, whether or not the Corporation

would have the power to indemnify such person against such expense, liability or

loss under the Delaware General Corporation Law.

 

     D. Repeal and Modification. Any repeal or modification of the foregoing

        -----------------------

provisions of this Article XI shall not adversely affect any right or protection

of any director, officer, employee or agent of the Corporation existing at the

time of such repeal or modification.

 

 

                                   ARTICLE XII

 

     The Corporation reserves the right to amend or repeal any provision

contained in this Amended and Restated Certificate of Incorporation, in the

manner now or hereafter prescribed by statute, and all rights conferred upon a

stockholder herein are granted subject to this reservation.

 

                                   ARTICLE XIII

 

     Notwithstanding any other provision of this Amended and Restated

Certificate of Incorporation, the affirmative vote of the holders of at least

sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the

then outstanding shares of the stock of the Corporation entitled to vote

generally in the election of directors, voting together as a single class, shall

be required to amend in any respect or repeal this Article XIII, or Articles VI,

VII, VIII and XI.

[End]

 

 

 

 

 

CERTIFICATE OF AMENDMENT

OF

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

SUPPORTSOFT, INC.

SupportSoft, Inc., a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify that:

1. The Amended and Restated Certificate of Incorporation of the Corporation is hereby amended by deleting Article I in its entirety and replacing it with the following:

“ARTICLE I

The name of this Corporation is support.com, Inc.”

2. The foregoing amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be executed by its duly authorized officer on this 22nd day of June, 2009.

 

SUPPORTSOFT, INC.

By:

 

/s/    Anne-Marie Eileraas

Name:

 

Anne-Marie Eileraas

Office:

 

Senior Vice President, Secretary and

General Counsel