EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SPECTRUM INFORMATION TECHNOLOGIES, INC.
The undersigned, Lawrence M. Powers, Chairman of the Board and Chief
Executive Officer of Siti-Sites.com, Inc., a Delaware corporation (the
"Corporation"), hereby certifies that:
1. The name of the Corporation is Spectrum Information Technologies,
Inc.
2. The original Certificate of Incorporation was filed with the
Secretary of State of Delaware on April 1, 1987, under the name
Spectrum Cellular Corporation.
3. This Amended and Restated Certificate of Incorporation was duly
adopted in accordance with Section 245 of the General Corporation
Law of the State of Delaware (the "GCL") and, upon filing with
the Secretary of State in accordance with Section 103 of the GCL,
shall henceforth supersede the original Certificate of
Incorporation and shall, as it may thereafter be amended in
accordance with its terms and applicable law, be the Certificate
of Incorporation of the Corporation.
4. The text of the Certificate of Incorporation of the Corporation
is hereby amended and restated to read in its entirety as
follows:
ARTICLE I
Name
The name of the corporation (hereinafter referred to as the "Corporation")
is:
Siti-Sites.com, Inc.
ARTICLE II
Registered Agent
The name and address of the Corporation's registered agent in the State of
Delaware is:
Corporation Trust Company
1209 Orange Street
Wilmington, DE
ARTICLE III
Purpose
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 (the "GCL").
ARTICLE IV
Capital Stock
A. Authorized Stock. The total number of shares of all classes of
stock with the Corporation shall have authority to issue is 40,000,000
shares, of which 35,000,000 shares, par value $.001 per share, shall
be of a class designed "Common Stock" and 5,000,000 shares, par value
$.001 per share, shall be of a class designed "Preferred Stock."
B. Preferred Stock. The Board of Directors is authorized, subject
to the limitations prescribed by law and the provisions of this
Article IV, to provide for the issuance from time to time in one or
more series of any number of shares of Preferred Stock and, by filing
a certificate pursuant to the GCL (the "Preferred Stock Designation"),
to establish the number of shares to be included in each series, and
to fix the designation, relative rights, preferences, qualifications
and limitations of the shares of each such series. The authority of
the Board of Directors with respect to each series shall include, but
not be limited to, determination of the following:
(1) The designation of the series, which may be by
distinguishing number, letter or title.
(2) The number of shares of the series. Unless otherwise
provided by the Preferred Stock Designation, the Board of
Directors may thereafter increase or decrease the number of
shares, but not below the number of shares then outstanding.
(3) The voting rights, if any, of the holders of shares of the
series.
(4) Whether dividends, if any, shall be cumulative or
noncumulative and the dividend rate of the series and the
preferences, if any, over any other series (or of any other
series over said series) with respect to dividends.
(5) Dates at which the dividends, if any, shall be payable.
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(6) Whether dividends shall be payable in cash, securities of
the Corporation or another entity, or other property.
(7) The redemption rights and price or prices, if any, for
shares of the series.
(8) The amounts payable on, and the preferences, if any, of
shares of the series in the event of any voluntary or
involuntary liquidation, dissolution, distribution of assets
or winding up of the Corporation's affairs.
(9) The terms and amount of any purchase, retirement or sinking
fund provided for the purchase or redemption of the series.
(10) Whether the shares of the series shall be convertible into
or exchangeable for any shares of any other class or series,
or any other security of the Corporation or any other entity
and, if so, the specification of such other class or series
of such other security, the conversion or exchange price or
prices or rate or rates, any adjustments thereof, the date
or dates at which such shares shall be convertible or
exchangeable and all other terms and conditions upon which
such conversion or exchange may be made.
(11) Whether the issuance of additional shares of Preferred Stock
shall be subject to restrictions as to issuance, or as to
the powers, preferences, or other rights of any other
series.
(12) The right of the shares of such series to the benefit of
conditions and restrictions upon the creation of
indebtedness of the Corporation or any subsidiary of the
Corporation, upon the issue of any additional stock
(including any additional shares of such series or any other
series) and upon the payment of dividends or the making of
other distributions on, and the purchase, retention,
redemption or other acquisition by the Corporation or any
subsidiary of, any outstanding stock of the Corporation.
(13) Such other powers, preferences and relative, participating,
optional and other special rights, and the qualifications,
limitations and restrictions thereof as the Board of
Directors shall, determine.
The holders of Preferred Stock shall not have any preemptive rights except
to the extent such rights shall be specifically provided for in the resolution
or resolutions providing for the issuance thereof adopted by the Board of
Directors.
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C. Common Stock. Common Stock shall be subject to the express terms of
the Preferred Stock, and any series thereof. Each share of Common Stock shall
have the right to cast one vote for the election of Directors and on all other
matters upon which stockholders are entitled to vote. Cumulative voting shall
not be permitted.
D. Record Holders. The Corporation shall be entitled to treat the person
in whose name any share of its stock is registered as the owner thereof for all
purposes and shall not be bound to recognize any equitable or other claim to, or
interest in, such share on the part of any other person, whether or not the
Corporation shall have notice thereof, except as expressly provided by
applicable law.
E. Quorum. The holders of a majority of all issued and outstanding
shares entitled to vote generally in the election of directors, present in
person or represented by proxy, will constitute a quorum for the transaction of
any business at any duly called meeting of stockholders.
F. Conversion of Class A Stock.
(i) On March 31, 1999, each outstanding share of the Corporation's
Class A Stock, par value $.001 per share (the "Class A Stock"),
automatically converted into one share of Common Stock. The Board of
Directors shall have the authority to make any determination of beneficial
ownership and changes thereof required to effectuate this Section F of
Article IV.
(ii) The Corporation shall not be obligated to issue to any holder of
Class A Stock certificates evidencing shares of Common Stock issuable upon
the conversion of Class A Stock into Common Stock until certificates
evidencing the shares of Class A Stock are delivered to either the
Corporation or any transfer agent of the Corporation. As promptly as
practicable thereafter (and after surrender of the certificate or
certificates representing shares of Class A Stock to the Corporation or any
transfer agent of the Corporation), the Corporation shall issue and deliver
to or upon the written order of such holder a certificate or certificates
for the number of full shares of Common Stock to which such holder is
entitled. The person in whose name the certificate or certificates for
Common Stock are to be issued shall be deemed to have become a holder of
record of such Common Stock effective on March 31, 1999.
(iii) The Corporation shall pay all documentary, stamp, transfer or
other transactional taxes attributable to the issuance or delivery of
shares of Common Stock upon conversion of any shares of Class A Stock;
provided, that the Corporation shall not be required to pay any taxes which
may be payable in respect of any transfer involved in the issuance or
delivery of any certificate for such shares in a name other than that of
the registered holder of the Class A Stock in respect of which such shares
are being issued.
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(iv) So long as there are any shares of Class A Stock outstanding, the
Corporation shall reserve at all times, free from preemptive rights,
out of its treasury stock or its authorized but unissued shares of
Common Stock, or both, solely for the purpose of effecting the
conversion of the shares of Class A Stock, sufficient shares of Common
Stock to provide for the conversion of all outstanding shares of Class
A Stock.
G. Voting by Class Action Trustee.
(i) Certain shares of Class A Stock, which were automatically
converted to Common Stock on March 31, 1999(such stock being hereafter
referred to as "Class Action Stock") were issued to the trustee (the
"Class Action Trustee") for the class action plaintiffs (the "Class
Action Plaintiffs") in securities class action litigation (the "Class
Action Suits") against the Corporation and certain of its former
officers and directors which pending before Judge Frederic Block in
the Eastern District of New York under the consolidated caption In Re
Spectrum Information Technologies Litigation, No. 93 Civ. 2295 (FB).
The Class Action Trustee shall be entitled to vote Class Action Stock
that has not yet been distributed to a Class Action Plaintiff pursuant
to the settlement of the Class Action Suits and the Corporation's Plan
of Reorganization, filed with the Bankruptcy Court on February 9,
1996, as amended, and is held by the Class Action Trustee; however,
the Class Action Trustee shall be required to vote the Class Action
Stock in the same proportions and the same manner as the holders of
shares of Common Stock have voted.
ARTICLE V
Rights Agreements
The Board of Directors is hereby authorized to create and issue, whether or
not in connection with the issuance and sale of its stock or other securities or
property, rights entitling the holders thereof to purchase from the Corporation
shares of stock or other securities of the Corporation or any other entity,
recognizing that, under certain circumstances, the creation and issuance of such
rights could have the effect of discouraging third parties from seeking, or
impairing their ability to seek, to acquire a significant portion of the
outstanding securities of the Corporation, to engage in any transaction which
might result in a change of control of the Corporation or to enter into any
agreement, arrangement or understanding with another party to accomplish the
foregoing or for the purpose of acquiring, holding, voting or disposing of any
securities of the Corporation. The times at which and the specific terms upon
which such rights are to be issued will be determined by the Board of Directors
and set forth in the contracts or instruments that evidence such rights. The
authority of the Board of Directors with respect to such rights shall include,
but not be limited to, determination of the following:
A. The initial purchase price per share or other unit of stock or other
securities or property to be purchased upon the exercise of such rights.
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B. Provisions relating to the times at which and the circumstances under
which such rights may be exercised or sold or otherwise transferred, either
together with or separately from, any other stock or other securities of the
Corporation.
C. Provisions which set forth the type and amount of stock for which such
rights are exercisable and provisions which adjust the number or exercise price
of such rights in the event of a combination, split or recapitalization of any
stock of the Corporation, a change in ownership of the Corporation's stock or
other securities or a reorganization, merger, consolidation, sale of assets or
other occurrence relating to the Corporation or any stock of the Corporation,
and provisions restricting the ability of the Corporation to enter into any
stock transaction absent an assumption by the other party or parties thereto of
the obligations of the Corporation under such rights.
D. Provisions which deny the holder of a specified percentage of
outstanding stock or other securities of the Corporation the right to exercise
such rights and/or cause the rights held by such holder to become void.
E. Provisions which permit the Corporation to redeem or exchange such
rights, which redemption or exchange may be within the sole discretion of the
Board of Directors, if the Board of Directors reserves such right to itself.
F. The appointment of a rights agent with respect to such rights.
ARTICLE VI
Board of Directors
A. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. Subject to the rights of the
holders of any series of Preferred Stock to elect additional directors under
specific circumstances, the Board of Directors shall consist of no more than 7
directors, the exact number of directors to be determined from time to time by
resolution adopted by the affirmative vote of a majority of the entire Board of
Directors. The directors, other than those who may be elected by the holders of
any series of Preferred Stock, 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. Initially, Class I directors shall be elected for a one-
year term, Class II directors for a two-year term, and Class III directors for a
three-year term. At each succeeding annual meeting of the stockholders,
successors to the class of directors whose terms expire at the annual meeting
shall be elected for a three-year term.
B. Subject to the rights of any series of Preferred Stock to elect
additional directors under specific circumstances, if the number of directors is
changed, any increase or decrease shall be apportioned among the classes so as
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to maintain the number of directors in each class as nearly equal as possible,
and any additional director of any class elected to fill a vacancy resulting
from an increase in such class shall hold office for a term that shall coincide
with the remaining term of that class, but in no case will a decrease in the
number of directors shorten the term of any incumbent director. A director shall
hold office until the annual meeting for the year in which his term expires and
until his successor shall be elected, subject, however, to prior death,
resignation, retirement or removal from office. Any vacancy on the Board of
Directors that results from an increase in the number of directors may be filled
by a majority of the directors then in office, provided that a quorum is
present, and any other vacancy occurring in the Board of Directors may be filled
by a majority of the directors then in office, even if less than a quorum, or by
a sole remaining director. Any director elected to fill a vacancy not resulting
from an increase in the number of directors shall have the same remaining term
as that of his predecessor or, if such director has no predecessor, as that of
the class of directors to which such director has been elected.
ARTICLE VII
Transactions with Related Persons
A. In addition to any affirmative vote required by law or this
Certificate of Incorporation or the Bylaws of the Corporation, and except as
otherwise expressly provided in Section C of this Article VII, a Business
Combination (as hereinafter defined) with, or proposed by or on behalf of, any
Interested Stockholder (as hereinafter defined) or any Affiliate (as hereinafter
defined) or Associate (as hereinafter defined) of, any Interested Stockholder or
any person who thereafter would be an Affiliate or Associate of such Interested
Stockholder shall require the affirmative vote of at least 66 2/3 percent of the
votes entitled to be cast by the holders of all the then outstanding shares
entitled to vote generally in the election of directors ("Voting Stock"), voting
together as a single class, excluding Voting Stock Beneficially Owned (as
hereinafter defined) by such Interested Stockholder. Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that a
lesser percentage or separate class vote may be specified, by law or in any
agreement with any national securities exchange or otherwise.
B. The provisions of Section A of this Article VII shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only such affirmative vote, if any, as is required by law or by
any other provision of this Certificate of Incorporation or the Bylaws of the
Corporation, or any agreement with any national securities exchange, if the
Business Combination shall have been approved, either specifically or as a
transaction which is within an approved category of transactions, by a majority
of the Board of Directors prior to the Acquisition Date (as hereinafter
defined).
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C. The following definitions shall apply with respect to this Article
VII:
(i) The terms "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 promulgated under
the Exchange Act of 1934, as amended (the "Exchange Act") as in effect on
the date this Certificate of Incorporation became effective under the GCL
(the term "registrant" in said Rule 12b-2 meaning in this case the
Corporation).
(ii) The term "Acquisition Date" shall mean the date on
which any person becomes the Beneficial Owner of Voting Stock representing
10 percent or more of the votes entitled to be cast by the holders of all
the then outstanding shares of Voting Stock.
(iii) A person shall be deemed the "Beneficial Owner" of, and
shall be deemed to "Beneficially Own", shares of Capital Stock (as
hereinafter defined):
(a) which such person or any of such person's Affiliates or
Associates, directly or indirectly, has the sole or shared right to
vote or dispose of or has "beneficial ownership" of (as determined
pursuant to Rule 13d-3 promulgated under the Exchange Act or pursuant
to any successor provision), pursuant to any agreement, arrangement or
understanding, whether or not in writing; provided, that a person
shall not be deemed the "Beneficial Owner" of, or to "Beneficially
Own", any security under this Subsection (a) as a result of an
agreement, arrangement or understanding to vote such security that
both (y) arises solely from a revocable proxy given in response to a
public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable provisions of the rules and
regulations promulgated under the Exchange Act and (z) is not
reportable by such person on Schedule 13D promulgated under the
Exchange Act (or any comparable or successor report) without giving
effect to any applicable waiting period; or
(b) which are Beneficially Owned, directly or indirectly,
by any other person (or any Affiliate or Associate thereof) with which
such person (or any of such person's Affiliates or Associates) has any
agreement, arrangement or understanding, whether or not in writing,
for the purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in the proviso to Subsection (a) above)
or disposing of any Capital Stock;
provided, that (y) no director or officer of the Corporation (nor any Affiliate
or Associate of any such director or officer) shall, solely by reason of any or
all of such officers acting in their capacities as such, be deemed the
"Beneficial Owner" of or to "Beneficially Own" any shares of Capital Stock that
are Beneficially Owned by any other such director or officer, and (z) no person
shall be deemed the "Beneficial Owner" of or to "Beneficially Own" any shares of
Voting Stock held in any voting trust, any employee stock ownership plan or any
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similar plan or trust if such person does not posses the right to vote, to
direct the voting of or to be consulted with respect to the voting of such
shares.
(iv) The term "Business Combination" shall mean:
(a) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (y) any Interested
Stockholder or (z) any other company (whether or not itself an
Interested Stockholder) which is or after such merger or consolidation
would be an Affiliate or Associate of an Interested Stockholder; or
(b) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition or security arrangement, investment, loan,
advance, guarantee, agreement to purchase, agreement to pay, extension
of credit, joint venture participation or other arrangement (in one
transaction or a series of transactions) with or for the benefit of
any Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder involving the Corporation or any Subsidiary and
any assets, securities or commitments of the Corporation, any
Subsidiary or any Interested Stockholder or any Affiliate or Associate
of any Interested Stockholder which (except for any arrangement,
whether as employee, consultant or otherwise, other than as a
director, pursuant to which any Interested Stockholder or any
Affiliate or Associate thereof shall, directly or indirectly, have any
control over or responsibility for the management of any aspect of the
business or affairs of the Corporation, with respect to which
arrangements the value tests set forth below shall not apply),
together with all other such arrangements (including all contemplated
future events), has an aggregate Fair Market Value (as defined below)
and/or involves aggregate commitments of $5,000,000 or more or
constitutes more than 5 percent of the book value of the total assets
(in the case of transactions involving assets or commitments other
than Capital Stock) or 5 percent of the stockholders' equity (in the
case of transactions in Capital Stock) of the entity in question (a
"Substantial Part"), as reflected in the most recent fiscal year-end
consolidated balance sheet of such entity existing at the time the
stockholders of the Corporation would be required to approve or
authorize the Business Combination involving the assets, securities
and/or commitments constituting any Substantial Part; or
(c) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation; or
(d) any reclassification of securities of the Corporation
(including any reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the Corporation with
any of its Subsidiaries or any other transaction (whether or not with
or otherwise involving an Interested Stockholder) that has the effect,
directly or indirectly, of increasing the proportionate share of any
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directly or indirectly, of increasing the proportionate share of any
class or series of Capital Stock, or any securities convertible into
Capital Stock or into equity securities of any Subsidiary, that is
Beneficially Owned by any Interested Stockholder or any Affiliate or
Associate of any Interested Stockholder; or
(e) any agreement, contract or other arrangement providing
for any one or more of the actions specified in the foregoing clauses
(a) to (d).
(v) The term "Capital Stock" shall mean all capital stock of the
Corporation authorized to be issued from time to time under Article IV
of this Certificate of Incorporation.
(vi) The term "Fair Market Value" shall mean (y) in the case of
stock, the highest closing sale price during the 30-day period
immediately preceding the date in question of a share of such stock on
the Composite Tape for New York Stock Exchange listed stocks, or, if
such stock is not quoted on the Composite Tape, on the New York Stock
Exchange or, if such stock is not listed on such exchange, on the
principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such is listed, or, if such
stock is not listed on any such exchange, the highest closing bid
quotation with respect to a share of such stock during the 60-day
period preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any system
then in use in its stead, or if no such quotations are available, the
fair market value on the date in question of a share of such stock as
determined by the Board of Directors in accordance with Subsection (i)
of Section D of this Article VII, and (z) in the case of property
other than cash or stock, the fair market value of such property on
the date in question as determined by the Board of Directors in
accordance with Subsection (i) of Section D of this Article VII.
(vii) The term "Interested Stockholder" shall mean any person
(other than the Corporation or any Subsidiary and other than any
profit-sharing, employee stock ownership or other employee benefit
plan of the Corporation or any Subsidiary or any trustee of or
fiduciary with respect to any such plan when acting in such capacity),
who (a) is the Beneficial Owner of 10 percent or more of the then
outstanding Voting Stock; or (b) is an Affiliate or Associate of the
Corporation and at any time within the two- year period immediately
prior to the date in question was the Beneficial Owner of 10 percent
or more of the then outstanding Voting Stock.
(viii) The term "person" shall mean any individual, firm,
corporation, partnership or other entity and shall include any group
comprised of any person and any other person with whom such person or
any Affiliate or Associate of such person has any agreement,
arrangement or understanding, directly or indirectly, for the purpose
of acquiring, holding, voting or disposing of Capital Stock.
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(ix) The term "Subsidiary" means any company of which a
majority of any class of equity security is beneficially owned by the
Corporation; provided, however, for the purpose of the definition of
Interested Stockholder set forth in Subsection (vii) of this Section
C, the term "Subsidiary" shall mean only a company of which a majority
of each class of equity securities is Beneficially Owned by the
Corporation.
D. (i) A majority of the Board of Directors shall have the power to
determine for the purpose of this Article VII, all questions arising
under this Article VII, including, without limitation, (a) whether a
person is an Interested Stockholder, (b) the number of shares of
Capital Stock or other securities Beneficially Owned by any person,
(c) whether a person is an Affiliate or Associate of another, (d)
whether a Business Combination is with, or proposed by, or on behalf
of an Interested Stockholder or an Affiliate or Associate of an
Interested Stockholder, (e) whether the assets that are the subject of
any Business Combination have, or the consideration to be received for
the issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair Market
Value of $5,000,000 or more or constitutes more than 5 percent of the
book value of the total assets or 5 percent of the stockholders'
equity of the entity in question, (f) whether the assets or securities
that are the subject of any Business Combination constitute a
Substantial Part, (g) the date on which an Interested Stockholder
became an Interested Stockholder, (h) the date on which an Acquisition
Date occurred, (i) the Fair Market Value of stock or other property in
accordance with Subsection (vi) of Section C of this Article VII, and
(j) any other matter relating to the applicability or effect of this
Article VII. Any such determination shall be binding and conclusive on
all parties.
(ii) The Board of Directors shall have the right to demand
that any person who it believes is or may be an Interested Stockholder
(or who holds of record shares of Capital Stock that are Beneficially
Owned by any person that the Board of Directors believes is or may be
an Interested Stockholder) supply the Corporation with complete
information as to: (a) the record holders of all shares of Capital
Stock that are Beneficially Owned by such person; (b) the number of
shares of each class or series of Capital Stock that are Beneficially
Owned by such person and held of record by each such record holder and
the numbers of the stock certificates evidencing such shares; and (c)
any other matter relating to the applicability or effect of this
Article VII as the Board of Directors may reasonably request. Each
such person shall furnish such information within 10 days after the
receipt of such demand.
E. Nothing contained in this Article VII shall be construed to relieve
any Interested Stockholder from any fiduciary obligation imposed by law or to be
in derogation of any action, past or future, which has been or may be taken by
the Board of Directors or the stockholders with respect to the subject matter
contained herein.
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F. For the purposes of this Article VII, a Business Combination is
presumed to have been proposed by, or on behalf of, an Interested Stockholder or
an Affiliate or Associate of an Interested Stockholder or a person who
thereafter would become such if such Interested Stockholder, Affiliate,
Associate or person votes for or consents to the adoption of any such Business
Combination, unless as to such Interested Stockholder, Affiliate, Associate or
person a majority of the Board of Directors makes a determination that such
Business Combination is not proposed by or on behalf of such Interested
Stockholder, Affiliate, Associate or person.
ARTICLE VIII
Personal Liability of Directors
A. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty as a director, except that this Section A of Article VIII shall not
eliminate or limit a director's 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) pursuant to Section 174 of the GCL, or (iv) for any
transaction from which such director derived an improper personal benefit. If
the GCL is amended after the date this Amended and Restated Certificate of
Incorporation became effective under the GCL 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 GCL, as so amended from time to time.
Without limiting the generality or the effect of the foregoing, the
Corporation may enter into one or more agreements with any person, which may
provide for indemnification greater or different than that provided in this
Article VIII.
Any repeal or modification of this Section A of Article VIII shall not
increase the personal liability of any director of this Corporation for any act
or occurrence taking place prior to such repeal or modification, or otherwise
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
The provisions of this Section A of Article VIII shall not be deemed to
limit or preclude indemnification of a director by the Corporation for any
liability of a director which has not been eliminated by the provisions of this
Section A of Article VIII.
B. The Corporation shall indemnify to the full extent authorized or
permitted by law (as now or hereafter in effect) any person made, or threatened
to be made a party or witness to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, a administrative or investigative
(other than an action by or in the right of the Corporation), by reason of the
fact that such person is or was a director, officer, employee or agent of the
Corporation or by reason of the fact that such person is or was serving at the
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request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise. Nothing contained herein shall affect any rights to indemnification
to which employees other than directors and officers may be entitled by law. No
amendment or repeal of this Section B of Article VIII shall apply to or have any
effect on any right to indemnification provided hereunder with respect to any
acts or omissions occurring prior to such amendment or repeal.
C. The Corporation shall indemnify to the full extent authorized or
permitted by law (as now or hereafter in effect) any person made, or threatened
to be made a party or witness to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that such person is or was a director, officer, employee or
agent of the Corporation or by reason of the fact that such person is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise. Nothing contained herein shall affect any
rights to indemnification to which employees other than directors and officers
may be entitled by law. No amendment or repeal of this Section C of Article VIII
shall apply to or have any effect on any right to indemnification provided
hereunder with respect to any acts or omissions occurring prior to such
amendment or repeal.
D. 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, employee benefit plan or
other enterprise against any such expense, liability or loss, or against any
other expense, liability or loss, to the extent permitted under the GCL. The
Corporation may also create a trust fund, grant a security interest and/or use
other means (including but not limited to, letters of credit, surety bonds
and/or use other similar arrangements), as well as enter into contracts
providing indemnification to the full extent authorized or permitted by law and
including as part thereof provisions with respect to any or all of the
foregoing, to ensure the payment of such amounts as may become necessary to
effect indemnification as provided therein or elsewhere.
ARTICLE IX
Amendment to Bylaws
A. In furtherance and not in limitation of the powers conferred by
applicable law, the Board of Directors is expressly authorized and empowered to:
(1) adopt, alter, amend, change or repeal the Bylaws of the
Corporation; provided, however, that the Bylaws adopted by the Board of
Directors under the powers hereby conferred may be adopted, altered, amended,
changed or repealed by the Board of Directors subject to the provisions of this
Amended and Restated Certificate of Incorporation, or the stockholders having
voting power with respect thereto; provided, further, that, subject to the
provisions of Article VI of this Amended and Restated Certificate of
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Incorporation, in the case of amendments by stockholders, the affirmative vote
of the holders of at least 80 percent of the voting power of the then
outstanding Voting Stock, voting together as a single class, shall be required
to alter, amend or repeal the Bylaws; and
(2) from time to time determine whether and to what extent, and at
what times and places, and under what conditions and regulations, the accounts
and books of the Corporation, or any of them, shall be open to inspection of
stockholders; and, except as so determined, or as expressly provided in this
Amended and Restated Certificate of Incorporation or in any Preferred Stock
Designation, no stockholder shall have any right to inspect any account, book or
document of the Corporation other than such rights as may be conferred by law.
B. The Corporation may in its Bylaws confer powers upon the Board of
Directors in addition to the foregoing and in addition to the powers and
authorities expressly conferred upon the Board of Directors in this Amended and
Restated Certificate of Incorporation or by law; provided, however, that no
Bylaws hereafter adopted by the stockholders or otherwise shall invalidate any
prior act of the directors which would have been valid if such Bylaws had not
been adopted.
ARTICLE X
Shareholder Consent
Notwithstanding any other provision of this Certificate of Incorporation or
the Bylaws of the Corporation to the contrary, no action required to be taken or
which may be taken at any annual or special meeting of stockholders of the
Corporation may be taken by written consent without such a meeting except any
action taken upon the signing of a consent in writing by all stockholders of the
Corporation having voting power of the then outstanding Voting Stock setting
forth the action to be taken. Subject to the rights of the holders of any class
or series of Preferred Stock, special meetings of stockholders of the
Corporation may be called only by the Board of Directors, the Chairman of the
Board, the President of the Corporation.
ARTICLE XI
Other Constituencies
The Board of Directors, when evaluating any (a) tender offer or invitation
for tenders or proposal to make a tender offer or request or invitation for
tenders, by another party, for any equity security of the Corporation or (b)
proposal or offer by another party to (i) merge or consolidate the Corporation
or any subsidiary with another corporation, (ii) purchase or otherwise acquire
all or a substantial portion of the properties or assets of the Corporation or
any subsidiary, or sell or otherwise dispose of to the Corporation or any
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subsidiary all or a substantial portion of the properties or assets of such
other party or (iii) liquidate, dissolve, reclassify the securities of, declare
an extraordinary dividend or recapitalize or reorganize the Corporation, shall
be permitted (but not required) to take into account all factors which the Board
of Directors deems relevant, including, without limitation, to the extent so
deemed relevant the potential impact on employees, customers, suppliers,
partners, joint venturer and other constituents of the Corporation and the
communities in which the Corporation operates.
ARTICLE XII
Amendments to Certificate of Incorporation
Except as may be expressly provided in this Certificate of Incorporation,
the Corporation reserves the right at any time from time to time to amend,
alter, change or repeal any provision contained in this Certificate of
Incorporation, or a Preferred Stock Designation, and any other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted, in the manner now or hereafter prescribed herein or by law;
and all rights, preferences and privileges of whatsoever nature conferred upon
stockholders, directors or any other persons whomsoever by and pursuant to this
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the right reserved in this Article XIV; provided, however,
that any amendment or repeal of Article IX of this Certificate of Incorporation
shall not adversely affect any right or protection existing hereunder in respect
of any act or omission occurring prior to such amendment or repeal; provided
further, that no Preferred Stock Designation shall be amended after the issuance
of any shares of the series of Preferred Stock created thereby, except in
accordance with the terms of such Preferred Stock Designation and the
requirements of applicable law.
IN WITNESS HEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be signed by its Chief Executive Officer and
Chairman of the Board and attested by its Secretary this _______ day of
_________, 1999.
SPECTRUM INFORMATION TECHNOLOGIES, INC.
By:____________________________________
Lawrence M. Powers,
Chief Executive Officer and
Chairman of the Board
Attest: ___________________
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