RESTATED CERTIFICATE OF INCORPORATION
OF
TII INDUSTRIES, INC.
1. The name of the corporation is TII INDUSTRIES, INC.
2. The address of its registered office in the State of Delaware is No.
1209 Orange Street, in the City of Wilmington, County of New Castle. The name of
its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. The aggregate number of shares of stock of all classes which the
corporation shall have authority to issue is 31,000,000, consisting of
30,000,000 shares of Common Stock having a par value of $.01 per share, and
1,000,000 shares of Preferred Stock having a par value of $1.00 per share.
The powers, preferences and the relative, participating, optional and
other rights and the qualifications, limitations and restrictions of each class
of stock, and the express grant of authority to the Board of Directors to fix by
resolution the designations and the powers, preferences and rights of each share
of Preferred Stock and the qualifications, limitations and restrictions thereof,
which are not fixed by this Restated Certificate of Incorporation, are as
follows:
A. COMMON STOCK
I. Dividends, etc.
Subject to the rights of the holders of Preferred Stock, and
subject to any other provisions of this Certificate of Incorporation, as amended
from time to time, holders of Common Stock shall be entitled to receive such
dividends and other distributions in cash, stock or property of the corporation
as may be declared thereon by the Board of Directors from time to time out of
assets or funds of the corporation legally available therefor.
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II. Voting
At every meeting of the stockholders each holder of Common
Stock shall be entitled to one (1) vote in person or by proxy for each share of
Common Stock standing in his name on the transfer books of the corporation.
III. Liquidation Rights
In the event of any dissolution, liquidation or winding up of
the affairs of the corporation, whether voluntary or involuntary, after payment
or provision for payment of the debts and other liabilities of the corporation,
the holders of each series of Preferred Stock shall be entitled to receive out
of the net assets of the corporation, an amount for each share equal to the
amount fixed and determined by the Board of Directors in any resolution or
resolutions providing for the issuance of any particular series of Preferred
Stock, plus an amount equal to all dividends accrued and unpaid on shares of
such series to the date fixed for distribution, and no more, before any of the
assets of the corporation shall be distributed or paid over to the holders of
Common Stock. After payment in full of said amounts to the holders of Preferred
Stock of all series, the remaining assets and funds of the corporation shall be
divided among and paid ratably to the holders of Common Stock. If upon such
dissolution, liquidation or winding up, the assets of the corporation
distributable as aforesaid among the holders of Preferred Stock of all series
shall be insufficient to permit full payment to them of said preferential
amounts, then such assets shall be distributed among such holders, first in the
order of their respective preferences, and second, as to such holders who are
next entitled to such assets and who rank equally with regard to such assets,
ratably in proportion to the respective total amounts which they shall be
entitled to receive as provided in this subparagraph III. A merger or
consolidation of the corporation with or into any other corporation or a sale or
conveyance of all or any part of the assets of the corporation (which shall not
in fact result in the liquidation of the corporation and the distribution of
assets to stockholders) shall not be deemed to be a voluntary or involuntary
liquidation or dissolution or winding up of the corporation within the meaning
of this subparagraph III.
B. Preferred Stock
The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of this subsection B, to provide for the
issuance of the Preferred Stock in series, and by filing a certificate pursuant
to the General Corporation Law, to establish the number of shares to be included
in each such series, and to fix the designation, preferences and relative,
participating, optional or other special rights and qualifications, limitations
or restrictions of the shares of each such series. The authority of the Board
with respect to each series shall include, but not be limited to, determination
of the following:
(1) the number of shares constituting that series and the
distinctive designation of that series;
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(2) whether the holders of shares of that series shall be
entitled to receive dividends and, if so, the rates, conditions and times of
such dividends, any preference of any such dividends to, and the relation to,
the dividends payable on any other class or classes of stock or any other series
of the same class and whether dividends shall be cumulative or noncumulative;
(3) whether the holders of that series shall have voting
rights in addition to the voting rights provided by law and, if so, the terms of
such voting rights;
(4) whether shares of that series shall be convertible into,
or exchangeable for, at the option of either the holder or the corporation or
upon the happening of a specified event, shares of any other class or classes or
of any other series of the same or other class or classes of stock of the
corporation and, if so, the terms and conditions of such conversion or exchange,
including provision for adjustment of the conversion or exchange rate in such
events as the Board of Directors may determine;
(5) whether shares of that series shall be redeemable and, if
so, the terms and conditions of such redemption, including the date or dates
upon or after which they shall be redeemable and the amount per share payable in
case of redemption, which amount may vary under different conditions and at
different redemption dates;
(6) whether shares of that series shall be subject to the
operation of a retirement or sinking fund and, if so subject, the extent to and
the manner in which it shall be applied to the purchase or redemption of the
shares of that series, and the terms and provisions relative to the operation
thereof;
(7) the rights of shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
corporation and any preference of any such rights to, and the relation to, the
rights in respect thereto of any other class or classes of stock or any other
series of the same class; and
(8) whether shares of that series shall be subject or entitled
to any other preferences, and the other relative, participating, optional or
other special rights and qualifications, limitations or restrictions of shares
of that series.
C. Authorized Shares of Capital Stock
Except as may be provided in the terms and conditions fixed by the
Board of Directors for any series of Preferred Stock, and in addition to any
other vote that may be required by statute, stock exchange regulations, this
Certificate of Incorporation or any amendment hereof, the number of authorized
shares of any class or classes of stock of the corporation may be increased or
decreased by the affirmative vote of the holders of a majority of the voting
power of the outstanding shares of capital stock of the corporation entitled to
vote.
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5. The corporation is to have perpetual existence.
6. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the By-laws of the corporation, except that the affirmative vote of the holders
of at least 75% of the outstanding shares of capital stock of the corporation
entitled to vote in the election of directors (considered for this purpose as
one class) shall be required to make, alter or repeal, or to adopt any provision
inconsistent with, Sections 6, 10 or 11 of the Certificate of Incorporation or
Sections 1 or 2 of Article V or Article XII of the By-laws of the corporation.
7. Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board directors or in the by-laws of the corporation. Elections of directors
need not be by written ballot unless the by-laws of the corporation shall so
provide.
8. Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
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 this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this 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 this corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of creditors or class of creditors, and/or of the
stockholders or class of stockholders of this 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 this 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 this corporation, as the case may be, and also on this
corporation.
9. The corporation reserves the right to amend, alter, change or repeal
any provision contained in this certificate of incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
10. The number of directors which shall constitute the Board of
Directors shall be not less than five (5) nor more than nine (9). The exact
number of directors within the maximum and minimum limitation specified herein
shall be fixed from time to time by resolution of the Board of Directors. The
directors shall be classified with respect to the time during which they shall
severally hold office by dividing them into three classes, each class consisting
of one-third of the number of directors constituting the entire Board, as
authorized by resolution of the Board of Directors, and all
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directors of the corporation shall hold office until their successors shall be
elected and shall qualify or until their earlier resignation or removal.
However, in instances where the total number of directors constituting the
entire Board, as authorized by resolution of the Board of Directors, is a number
other than an integral multiple of three, the number of directors to be elected
each year shall reasonably approximate the number which would have been elected
had the total number of directors constituting the whole Board been an integral
multiple of three, as determined by the Board of Directors. At the meeting of
the stockholders of the corporation held for the election of the first such
classified Board, the directors of the first class (designated Class I) shall be
elected for a term of one year, the directors of the second class (designated
Class II) for a term of two years, and the directors of the third class
(designated Class III) for a term of three years, and, in each instance, until
their respective successors are elected and qualified. At each annual meeting of
stockholders held thereafter, the successors to the class of directors whose
term shall expire that year shall be elected to hold office for a term of three
years, so that the term of office of one class of directors shall expire in each
year. Any newly created directorships or any decrease in directorships, as
authorized by resolution of the Board of Directors, shall be so apportioned
among the classes as to make all classes as nearly equal in number as possible.
The directors shall have the power, from time to time, to increase
or decrease their own number, within the maximum and minimum limitations
specified therein, by resolution of the Board of Directors. Directors may not be
removed from office except for cause by the affirmative vote or not less than a
majority of the shares entitled to vote at an election of directors.
Newly created directorships resulting from an increase in the number
of directors and all vacancies occurring in the Board, including vacancies
occurring in the Board by reason of the removal of directors, may be filled by
the affirmative vote of a majority of the remaining directors though less than a
quorum of the Board of Directors, and directors so chosen shall hold office
until the next election of the class for which such directors shall have been
chosen, and until their successors shall be elected and qualified.
11. (a) Except as otherwise expressly provided in subparagraph (c) of
this Section 11, the affirmative vote of the holders of at least 75% of the
outstanding shares of capital stock of the corporation entitled to vote thereon
shall be required to authorize: (i) any merger, combination, amalgamation or
consolidation of the corporation or any of its subsidiaries with or into any
other corporation or entity; or (ii) any sale, lease or exchange by the
corporation of property or assets constituting all or substantially all of the
property and assets of the corporation and its subsidiaries taken as a whole to
or with any other corporation, person or other entity; or (iii) the dissolution
of the corporation if, in the case of (i) or (ii) above, as of the record date
for the determination of stockholders entitled to notice thereof and to vote
thereon, such other corporation, person or entity is the beneficial owner,
directly or indirectly, of 10% or more of the outstanding shares of capital
stock of the corporation entitled to vote in the election of directors
(considered for the purposes of this Section 11 as one class). Such affirmative
vote shall be required notwithstanding the fact that some lesser percentage may
be specified in any agreement or contract to which the corporation is a party
(including, but not limited to, any agreement with any stock exchange on which
any of the
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corporation's capital stock may be listed) and shall be in addition to any class
or series vote to which any class or series of stock of the corporation may be
entitled.
(b) For the purposes of this Section 11, any corporation, person
or other entity shall be deemed to be the beneficial owner of any shares of
capital stock of the corporation (i) which it has the right to acquire, hold or
vote pursuant to any agreement, or otherwise, or (ii) which are beneficially
owned, directly or indirectly (including shares deemed owned through application
of clause (i) above), by any other corporation, person or entity (A) with which
it or its "affiliate" or "associate" (as those terms are defined in Rule 12b-2
of the General Rules and Regulations under the Securities Exchange Act of 1934
as in effect on December 1, 1979) has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing of
capital stock of the corporation, or (B) which is its "affiliate" or
"associate". For the purpose of this Section 11, the outstanding shares of any
class of capital stock of the corporation shall include shares deemed owned
through the application of clauses (i) and (ii) above but shall not include any
other shares which may be issuable pursuant to any agreement, or upon exercise
of conversion rights, warrants, options or otherwise.
(c) The provisions of this Section 11 shall not apply to (i) any
transaction referred to in clauses (i) and (ii) of subparagraph (a) of this
Section 11 with any corporation of which a majority of the outstanding shares of
all capital stock entitled to vote in the election of directors (considered for
this purpose as one class) is owned beneficially by the corporation or its
subsidiaries if such transaction is not being carried out to circumvent the
requirements of this Section 11; or (ii) any transaction referred to in
subparagraph (a) of this Section 11 if the Board of Directors of the corporation
shall by resolution have approved, in the case of clause (iii) of subparagraph
(a) of this Section 11, such dissolution proposed by, or suggested on behalf of,
or approved a memorandum of understanding with such other corporation, person or
other entity with respect to, and substantially consistent with, a transaction
described in clauses (i) or (ii) of subparagraph (a) of this Section 11, with,
any corporation, person or entity prior to the time such other corporation,
person or entity (except any person, corporation or entity who as of December 3,
1979 was the beneficial owner of at least 10% of the outstanding shares of stock
of the Company entitled to vote in the election of directors) became the owner
of 10% or more of the outstanding shares of capital stock of the corporation
entitled to vote in the election of directors (considered for this purpose as
one class).
(d) The Board of Directors of the corporation shall have the power
and duty to determine for the purposes of this Section 11, on the basis of
information then known to it, whether and when (i) any corporation, person or
other entity beneficially owns 10% or more of the outstanding shares of capital
stock of the corporation entitled to vote in the election of directors
(considered for this purpose as one class), and/or is an "affiliate" or
"associate" of another; (ii) any proposed sale, lease, exchange or other
disposition involves all or substantially all of the assets of the corporation
and its subsidiaries taken as a whole; (iii) any transaction referred to in
subparagraph (a) of this Section 11 with any corporation of which a majority of
the outstanding shares of all capital stock entitled to vote in the election of
directors (considered for this purpose as one class) is owned beneficially by
the corporation or its subsidiaries is being carried out to circumvent the
requirement
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of this Section 11; and (iv) any memorandum of understanding referred to in
subparagraph (c) of this Section 11 is substantially consistent with the
transaction to which it relates. Any such determination by the Board shall be
conclusive and binding for all purposes of this Section 11.
12. No director of the corporation shall be personally liable to the
corporation or any of 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 Delaware General
Corporation Law, as the same exists or hereafter may be amended, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
Delaware General Corporation Law hereafter is amended to authorize the further
elimination or limitation of the liability of directors, then the liability of a
director of the corporation, in addition to the limitation of personal liability
provided herein, shall be limited to the fullest extent permitted by the amended
Delaware Corporation Law. Any repeal or modification of this Article by the
stockholders of the corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the
corporation existing at the time of such repeal or modification.
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