RESTATED
CERTIFICATE OF INCORPORATION OF
VCS TECHNOLOGIES, INC.
The undersigned officer of VCS Technologies, Inc. (the "Company") does
hereby certify that the following Restated Certificate of Incorporation has
been duly adopted by the directors and the shareholders of the Company in
accordance with Section 242 and Section 245 of the General Corporation Law of
the State of Delaware. The undersigned further certifies that the Company's
Certificate of Incorporation was originally filed with the Secretary of State
of the State of Delaware as of July 12, 1995. The name of the Company as
stated on the original Certificate of Incorporation was "VC Solutions, Inc."
and was changed to "VCS Technologies, Inc." by means of an amendment to the
Certificate of Incorporation as of January 27, 1997
First: The name of the Company is VCS Technologies, Inc.
Second: The registered office of the Company in the State of Delaware is
to be located at 15 East North Street, Dover, Delaware 19901, in
the County of Kent. The registered agent in charge thereof is
Vanguard Corporate Services, Ltd.
Third: The purpose of the Company is to engage in any lawful activity
for which corporations may be organized under the General
Corporation Law of the State of Delaware.
Fourth: The total number of shares of capital stock which the Company
shall have authority to issue is 50,000,000 shares, of which
49,000,000 shares shall be Common Stock, $0.001 par value, of
which 990,000 shares are Preferred Stock, $0.001 par value,
which shall be subject to the provisions of Article Fifth, and
of which 10,000 shares are Series A Preferred Stock, $0.001 par
value, which shall be subject to the provisions of Article
Sixth.
Fifth: The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of Article Fourth, to
provide for the issuance of the shares of Preferred Stock in
series, and by filing a certificate pursuant to the applicable
law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix
the designation, powers, preferences and rights of the shares of
each such series and the qualifications, limitations or
restrictions thereof.
Sixth: The powers, preferences and rights of the Series A Preferred
Stock are as set forth in this Article Sixth.
1. Dividends. The holders of Series A Preferred Stock shall be
entitled to receive, when and as declared by the Board of
Directors out of funds legally available for such purpose, cash
dividends at the rate of $8.50 per share per annum (computed on
the basis of a 360- day year consisting of twelve 30-day months)
and no more, payable yearly no later than 90 days following the
end of each fiscal year. Such dividends shall be cumulative and
shall accrue, whether or not declared, from the date of issue of
the Series A Preferred Stock. So long as any accrued dividends on
outstanding Series A Preferred Stock shall remain unpaid, no
dividends whatsoever shall be declared or paid upon, nor shall any
distribution be made upon, any shares of any other class of stock
of the Company (other than a dividend or distribution payable in
Common Stock).
2. Liquidation. Upon any liquidation, dissolution or winding up of
the Company, whether voluntary or involuntary, before any
distribution or payment is made upon Common Stock or Preferred
Stock (other than the Series A Preferred Stock), the holders of
Series A
Preferred Stock shall be entitled to be paid a cash amount of up
to $100 per share, plus all unpaid dividends accrued thereon, and
the holders of Series A Preferred Stock shall not be entitled to
any further payment. Written notice of such liquidation,
dissolution or winding up, stating a payment date, the amount of
the payment and the place where the payment shall be payable,
shall be given by mail, postage prepaid, not less than fifteen
days prior to the payment date stated therein, to the holders of
record of Series A Preferred Stock, such notice to be addressed
to each such holder at the address shown on the records of the
Company. Neither the consolidation or merger of the Company into
or with any other corporation or corporations, nor the sale or
transfer by the Company of all or substantially all its assets,
shall be deemed to be a liquidation, dissolution or winding up
of the Company within the meaning of the provisions of this
Section 2 of Article Sixth.
3. Conversion. The holder of any shares of Series A Preferred
Stock shall have the right, at its option at any time, to
convert such shares into such number of fully paid and
nonassessable whole shares of Common Stock (or successor
security) as is obtained by multiplying the number of shares of
Series A Preferred Stock to be converted by 100 and dividing the
result by the conversion price of $8.50 per share, as such
conversion price may adjusted from time to time for corporate
reorganizations, forward or reverse stock splits or dividends
paid on the outstanding Common Stock paid in Common Stock. The
rights of conversion contained in this Section 3 of Article
Sixth shall be exercised by the holder by giving to the Company
written notice specifying the number of shares of Series A
Preferred Stock to be converted and by surrendering to the
Company such certificate or certificates evidencing the shares
to be converted.
4. Redemption. The Company may elect at any time to purchase and
redeem any number of outstanding shares of Series A Preferred
Stock by paying to the holder thereof, in cash, the sum of $100
per share plus all unpaid dividends accrued thereon. Notice of
each redemption of Series A Preferred Stock, specifying the date
and place of redemption and the number of shares and certificate
numbers thereof which are to be redeemed, shall be given by
mail, postage prepaid, not less than fifteen days prior to the
redemption date stated therein, to the holders of record of
Series A Preferred Stock, such notice to be addressed to each
such holder at the address shown on the records of the Company.
5. Voting Rights. Except as otherwise provided by law, the
holders of Series A Preferred Stock shall not be entitled to
vote in any proceeding or on any matter or question at any
meeting of the Company's shareholders.
Seventh: The directors of the Company shall have the power to adopt,
amend or repeal the By-laws of the Company.
Eighth: The personal liability of the directors of the Company is hereby
eliminated to the fullest extent permitted by Section 102(b)(7)
of the General Corporation Law of the State of Delaware, as the
same may be amended and supplemented.
Ninth: The Company shall, to the fullest extent permitted by 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 director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors, and administrators
of such a person.
IN WITNESS WHEREOF, the undersigned officer of VCS Technologies, Inc. has
executed this certificate on September 22, 1998 and affirms under the
penalties of perjury that the statements contained herein are true and
correct.
/s/ William E. Wheaton III
--------------------------
William E. Wheaton III
President