RESTATED CERTIFICATE OF INCORPORATION
OF
UNITY FIRST ACQUISITION CORP.
Under Section 245 of the
Delaware General Corporation Law
We, the undersigned, President and Secretary, respectively, of UNITY FIRST
ACQUISITION CORP., a corporation existing under the laws of the State of
Delaware, DO HEREBY CERTIFY as follows:
FIRST: That the name of the corporation is UNITY FIRST ACQUISITION CORP.
SECOND: That the Certificate of Incorporation of the corporation was
filed with the Secretary of State of Delaware on May 30, 1996.
THIRD: That this Restated Certificate of Incorporation amends the
provisions of the Corporation's Certificate of Incorporation by insertion of a
new Article SEVENTH thereof and the corresponding renumbering of the Articles
following Article SEVENTH, which Article SEVENTH was duly adopted by the Board
of Directors of the Corporation, was declared advisable by Board of Directors
and was approved by written consents executed by the holders of a majority of
the outstanding stock of the Corporation entitled to vote thereon in the manner
prescribed by Sections 228 and 242 of the Delaware General Corporation Law
("DGCL"). This
Restated Certificate of Incorporation was duly adopted in the manner prescribed
by Section 245 of the DGCL.
FOURTH: That the text of the Certificate of Incorporation of UNITY FIRST
ACQUISITION CORP. is hereby restated to read in full as follows:
FIRST: The name of the corporation is
UNITY FIRST ACQUISITION CORP.
SECOND: The address of the initial registered and principal office of
this corporation is this state is c/o United Corporate Services, Inc., 15
East North Street, in the City of Dover, County of Kent, State of Delaware
19901 and the name of the registered agent at said address is United
Corporate Services, Inc.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the corporation laws
of the State of Delaware.
FOURTH: a) The corporation shall be authorized to issue the following
shares:
Class Number of Shares Par Value
----- ---------------- ---------
Common 20,000,000 .0001
Preferred 5,000 . 01
b) The designations and the powers, preferences and rights, and
the qualifications or restrictions thereof are as follows:
The Preferred shares shall be issued from time to time in one or more
series, with such distinctive serial designations as shall be stated and
expressed in the resolution or resolutions providing for the issue of such
shares from time to time adopted by the Board of Directors; and in such
resolution or resolutions providing for the issue of shares of each
particular series, the Board of Directors is expressly authorized to fix
the annual rate or rates of dividends for the particular series; the
dividend payment dates for the
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particular series and the date from which dividends on all shares of such
series issued prior to the record date for the first dividend payment date
shall be cumulative; the redemption price or prices for the particular
series; the voting powers for the particular series; the rights, if any, of
holders of the shares of the particular series to convert the same into
shares of any other series or class or other securities of the corporation,
with any provisions for the subsequent adjustment of such conversion
rights; and to classify or reclassify any unissued preferred shares by
fixing or altering from time to time any of the foregoing rights,
privileges and qualifications.
All the Preferred shares of any one series shall be identical with
each other in all respects, except that shares of any one series issued at
different times may differ as to the dates from which dividends thereon
shall be cumulative; and all Preferred shares shall be of equal rank,
regardless of series, and shall be identical in all respects except as to
the particulars fixed by the Board as hereinabove provided or as fixed
herein.
FIFTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the corporation, and for
further definition, limitation and regulation of the powers of the
corporation and of its directors and stockholders:
(1) The number of directors of the corporation shall be such as from
time to time shall be fixed by, or in the manner provided in the by-laws.
Election of directors need not be by ballot unless the by-laws so provide.
(2) The Board of Directors shall have power without the assent or
vote of the stockholders:
(a) To make, alter, amend, change, add to or repeal the by-laws
of the corporation; to fix and vary the amount to be reserved for any
proper purpose; to authorize and cause to be executed mortgages and
liens upon all or any part of the property of the corporation; to
determine the use and disposition of any surplus or net profits; and
to fix the times for the declaration and payment of dividends.
(b) To determine from time to time whether, and to what times
and places and under what conditions the accounts and books of the
corporation (other than the stock ledger) or any of them, shall be
open to the inspection of the stockholders.
(3) The directors in their discretion may submit any contract or act
for approval or ratification at any annual
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meeting of the stockholders or at any meeting of the stockholders called
for the purpose of considering any such act or contract, and any contract
or act that shall be approved or be ratified by the vote of the holders of
a majority of the stock of the corporation which is represented in person
or by proxy at such meeting and entitled to vote thereat (provided that a
lawful quorum of stockholders be there represented in person or by proxy)
shall be as valid and as binding upon the corporation and upon all the
stockholders as though it had been approved or ratified by every
stockholder of the corporation, whether or not the contract or act would
otherwise be open to legal attack because of directors' interest, or for
any other reason.
(4) In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon them, 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; subject, nevertheless, to the
provisions of the statutes of Delaware, of this certificate, and to any by-
laws from time to time made by the stockholders; provided, however, that no
by-laws so made shall invalidate any prior act of the directors which would
have been valid if such by-law had not been made.
SIXTH: No director shall be liable to the corporation or any of its
stockholders for monetary damages for breach of fiduciary duty as a
director, except with respect to (1) a breach of the director's duty of
loyalty to the corporation or its stockholders, (2) acts or omissions not
in good faith or which involve intentional misconduct or a knowing
violation of law, (3) liability under Section 174 of the DGCL or (4) a
transaction from which the director derived an improper personal benefit,
it being the intention of the foregoing provision to eliminate the
liability of the corporation's directors to the corporation or its
stockholders to the fullest extent permitted by Section 102(b)(7) of the
DGCL, as amended from time to time. The corporation shall indemnify to the
fullest extent permitted by Sections 102(b)(7) and 145 of the DGCL, as
amended from time to time, each person that such Sections grant the
corporation the power to indemnify.
SEVENTH: The following paragraphs (A) through (D) shall apply during the
period commencing upon the consummation of the Corporation's initial public
offering of securities ("IPO") and terminating upon the consummation of any
"Business Combination," and may not be amended during such period. A
"Business Combination" shall mean the acquisition by the Corporation,
whether by merger, exchange of capital stock, asset or stock acquisition or
other similar type of transaction, of any business ("Target Business").
A. Prior to the consummation of any Business
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Combination, the corporation shall submit such Business Combination to its
stockholders for approval regardless of whether the Business Combination is
of a type which normally would require such stockholder approval under the
DGCL. In the event that the holders of a majority of the outstanding
Voting Stock vote for the approval of the Business Combination, the
Corporation shall be authorized to consummate the Business Combination;
provided that the Corporation shall not consummate any Business Combination
if 20% or more in interest of the holders of the Public Shares (as
hereafter defined) exercise their conversion rights described in paragraph
B below.
B. In the event that a Business Combination is approved in
accordance with the above paragraph A and is consummated by the
Corporation, any holder of shares of Common Stock issued in the IPO
("Public Shares") who voted against the Business Combination may demand
that the Corporation convert his Public Shares into cash. If so demanded,
the Corporation shall convert such Public Shares at a per-share conversion
price equal to the quotient determined by dividing (i) the amount in the
Trust Fund (as defined below), inclusive of any interest thereon, as of the
record date for determination of stockholders entitled to vote on the
Business Combination, by (ii) the number of Public Shares. "Trust Fund"
shall mean that trust account established by the Corporation at the
consummation of its IPO and into which certain net proceeds of the IPO are
deposited.
C. In the event that the Corporation does not consummate a Business
Combination by the later of (i) 18 months after the consummation of the IPO
or (ii) 24 months after the consummation of the IPO in the event that an
agreement for a Business Combination was executed but was not consummated
within such 18 month period (the later of such dates being referred to as
the "Termination Date"), the officers of the Corporation shall take all
such actions as may be necessary to dissolve and liquidate the Corporation
within sixty days of the Termination Date. In the event that the
Corporation is so dissolved and liquidated, liquidating distributions shall
be made only with respect to the Public Shares and the Corporation shall
pay no liquidating distributions with respect to any shares of Common Stock
outstanding prior to the consummation of the IPO.
D. A holder of Public Shares shall be entitled to receive
distributions from the Trust Fund only in the event of a liquidation of the
Corporation or in the event he demands conversion of his shares in
accordance with paragraph B above. In no other circumstances shall a
holder of Public Shares have any right or interest of any kind in or to the
Trust Fund.
EIGHTH: Whenever a compromise or arrangement is proposed
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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 the 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 (3/4) 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 a 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.
NINTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation (other
than the provisions of Article SEVENTH, which may not be amended prior to
consummation of a Business Combination) in the manner now or hereafter
prescribed by law, and all rights and powers conferred herein on
stockholders, directors and officers are subject to this reserved power.
IN WITNESS WHEREOF, we have signed this Certificate and caused the
corporate seal of the Corporation to be hereunto affixed this
day of September, 1996.
-----------------------------------
Lawrence Burstein, President
ATTEST:
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Norman Leben, Secretary
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