Exhibit 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MANTECH INTERNATIONAL CORPORATION
ManTech International Corporation, a corporation organized and existing
under and by virtue of the laws of the State of Delaware (the "Corporation"),
does hereby certify as follows:
1. The name of the Corporation is ManTech International Corporation. The
original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on November 14, 2001 and was
Amended and Restated and filed with the Secretary of State of the State of
Delaware on January 17, 2002.
2. Pursuant to sections 242 and 245 of the Delaware General Corporation Law,
this Second Amended and Restated Certificate of Incorporation restates and
integrates and further amends the provisions of the Corporation's Amended
and Restated Certificate of Incorporation.
3. The terms and provisions of this Second Amended and Restated Certificate of
Incorporation have been duly approved by written consent of the required
number of shares of outstanding stock of the Corporation pursuant to
subsection 228(a) of the Delaware General Corporation Law and written
notice pursuant to subsection 228(d) of the Delaware General Corporation
Law has been given to those stockholders whose written consent has not been
obtained.
4. The text of the Second Amended and Restated Certificate of Incorporation
reads in its entirety as follows:
FIRST. Name. The name of the Corporation is ManTech International
Corporation.
SECOND. Address. The registered office of the Corporation in the State
of Delaware is located at 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of the registered agent of the Corporation at such
address is The Corporation Trust Company.
THIRD. Purposes. The purpose for which the Corporation is organized
is to engage in any and all lawful act or activity for which corporations may be
organized under the Delaware General Corporation Law.
FOURTH. Capital Stock.
4.1. Authorized Capital Stock. The total number of shares of stock
that the Corporation has authority to issue is Two hundred twenty million
(220,000,000), consisting of:
(a) One hundred fifty million (150,000,000) shares of
Class A Common Stock, par value $0.01 per share (the "Class A Common Stock");
(b) Fifty million (50,000,000) shares of Class B Common
Stock, par value of $0.01 per share (the "Class B Common Stock"); and
(c) Twenty million (20,000,000) shares of Preferred
Stock, par value of $0.01 per share (the "Preferred Stock").
The Class A Common Stock together with the Class B Common Stock is
referred to collectively as the "Common Stock.
4.2. Terms of Common Stock. All shares of Common Stock will be identical in
all respects and will entitle the holders thereof to the same rights and
privileges, except as otherwise provided herein.
(a) Voting Rights. Except as otherwise provided in these Second
Amended and Restated Articles of Incorporation or by applicable law, the holders
of Class A Common Stock and Class B Common Stock shall vote together as a single
class with respect to all matters submitted to a vote of holders of shares of
Common Stock, subject to any voting rights which may be granted to holders of
any Preferred Stock. The holders of shares of Common Stock shall have the
following voting rights:
(1) Each share of Class A Common Stock shall entitle the holder
thereof to one (1) vote in person or by proxy on all matters submitted to a vote
of the stockholders of the Corporation.
(2) Each share of Class B Common Stock shall entitle the holder
thereof to ten (10) votes in person or by proxy on all matters submitted to a
vote of the stockholders of the Corporation, except with respect to any Going
Private Transaction (as such term is defined below), which shall be governed by
paragraph (k) of this Section 4.2.
(b) Dividends. The holders of the Common Stock shall be entitled to
participate ratably, on a share-for-share basis as if all shares of Common Stock
were of a single class, in such dividends, whether in cash, stock or otherwise,
as may be declared by the Board of Directors from time to time out of funds of
the Corporation legally available therefor; provided, however, that any
dividends payable in shares of Common Stock (or payable in rights to subscribe
for or purchase shares of Common Stock or securities or indebtedness convertible
into or exchangeable for shares of Common Stock) shall be declared and paid at
the same rate on each class of Common Stock and only in shares of Class A Common
Stock (or rights to subscribe for or to purchase shares of Class A Common Stock
or securities or indebtedness convertible into or exchangeable for shares of
Class A Common Stock) to holders of Class A Common Stock and in shares of Class
B Common Stock (or rights to subscribe for or to purchase shares of Class B
Common Stock or securities or indebtedness convertible into or exchangeable for
shares of Class B Common Stock) to holders of Class B Common Stock.
(c) Issuance of Class B Common Stock. After the IPO Date, the
Corporation shall not issue or sell any shares of Class B Common Stock or any
securities (including, without limitation, any rights, options, warrants or
other securities) convertible into or exchangeable or exercisable for shares of
Class B Common Stock to any person other than (1) issuance of a certificate or
certificates in the name of a person who is an owner of record of Class B Common
Stock on the IPO Date (an "Initial Holder") or a Permitted Transferee (as
defined in paragraph (j) of this Section 4.2) representing shares of Class B
Common Stock that are outstanding on the IPO Date (regardless of whether such
shares are held by the Initial Holder or Permitted Transferee on the IPO Date),
or (2) issuances or sales upon a stock split, stock dividend, rights offering or
other transaction or event in connection with which Class B Common Stock is
expressly required or permitted to be issued or sold under this Certificate of
Incorporation. For the purposes of this Article Four, the term "IPO Date" shall
mean the third business day before the closing date of any initial public
offering of the Class A Common Stock in a firm commitment underwritten offering
that is registered with the U.S. Securities and Exchange Commission. Any
issuance or sale of
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shares of Class B Common Stock (or securities convertible into, or exchangeable
or exercisable for, shares of Class B Common Stock) in violation of this Section
4.2(c) shall be null and void ab initio.
(d) Voluntary Conversion of Class B Common Stock.
(1) The holder of each share of Class B Common Stock shall have
the right at any time, or from time to time, at such holder's option, to convert
such share into one fully paid and nonassessable share of Class A Common Stock
on and subject to the terms and conditions hereinafter set forth.
(2) In order to exercise the conversion privilege, the holder of
any shares of Class B Common Stock to be converted shall present and surrender
the certificate or certificates representing such shares during usual business
hours at any office or agency of the Corporation maintained for the transfer of
Class B Common Stock and shall deliver a written notice of the election of the
holder to convert the shares represented by such certificate or any portion
thereof specified in such notice. Such notice shall also state the name or names
(with address) in which the certificate or certificates for shares of Class A
Common Stock issuable on such conversion shall be registered. If required by the
Corporation, any certificate for shares surrendered for conversion shall be
accompanied by instruments of transfer, in form satisfactory to the Corporation,
duly executed by the holder of such shares or his duly authorized
representative. Each conversion of shares of Class B Common Stock shall be
deemed to have been effected on the date (the "Conversion Date") on which the
certificate or certificates representing such shares shall have been surrendered
and such notice and any required instruments of transfer shall have been
received as aforesaid, and the person or persons in whose name or names any
certificate or certificates for shares of Class A Common Stock shall be issuable
on such conversion shall be, for the purpose of receiving dividends and for all
other corporate purposes whatsoever, deemed to have become the holder or holders
of record of the shares of Class A Common Stock represented thereby on the
Conversion Date.
(3) As promptly as practicable after the presentation and
surrender for conversion, as herein provided, of any certificate for shares of
Class B Common Stock, the Corporation shall issue and deliver at such office or
agency, to or upon the written order of the holder thereof, certificates for the
number of shares of Class A Common Stock issuable upon such conversion. Subject
to the provisions of paragraph (e) of this Section 4.2, in case any certificate
for shares of Class B Common Stock shall be surrendered for conversion of only a
part of the shares represented thereby, the Corporation shall deliver at such
office or agency, to or upon the written order of the holder thereof, a
certificate or certificates for the number of shares of Class B Common Stock
represented by such surrendered certificate that are not being converted.
(e) Automatic Conversion of Class B Common Stock upon Certain Events.
(1) No record or beneficial owner of shares of Class B Common
Stock may transfer, and the Corporation shall not register the transfer of, such
shares of Class B Common Stock, whether by sale, assignment, gift, bequest,
appointment, or otherwise, except to a "Permitted Transferee" as provided
herein.
(2) Notwithstanding anything to the contrary set forth herein,
any Class B Holder may pledge such holder's shares of Class B Common Stock to a
financial institution pursuant to a
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bona fide pledge of such shares as collateral security for indebtedness due to
such financial institution, provided that such shares shall not be transferred
to or registered in the name of the financial institution and shall remain
subject to the provisions of this paragraph (e). In the event of foreclosure or
other similar action by the financial institution, such pledged shares of Class
B Common Stock may only be transferred to a Permitted Transferee of the pledgor
or converted into shares of Class A Common Stock, as the pledgor may elect;
provided, however, that if within ten business days after such foreclosure or
similar action any such converted shares are returned to the pledgor or a
permitted transferee, such shares shall convert automatically into shares of
Class B Common Stock.
(3) Any purported transfer of shares of Class B Common Stock not permitted
hereunder shall result in the conversion of the transferee's shares of Class B
Common Stock into shares of Class A Common Stock, effective on the date on which
certificates representing such shares are presented for transfer on the stock
transfer record books of the Corporation; provided, however, that if the
Corporation should determine that such shares were not so presented for transfer
within 20 days after the date of such sale, transfer, assignment, or other
disposition, the transfer date shall be the actual date of such sale, transfer,
assignment, or other disposition as determined in good faith by the Board of
Directors or its appointed agent. The Corporation may, as a condition to the
transfer or the registration of transfer of shares of Class B Common Stock to a
purported Permitted Transferee, require the furnishing of such affidavits or
other proof as it deems necessary to establish that such transferee is a
Permitted Transferee. If no indication to the contrary is supplied at the time
shares of Class B Common Stock are presented for transfer, the transfer shall be
presumed by the Corporation to be a transfer to a person other than the
Permitted Transferee.
(4) Shares of Class B Common Stock shall not be registered in "street" or
"nominee" names; provided, however, certificates representing shares of Class B
Common Stock may be registered in the name of a nominee which is a "Permitted
Transferee." The Corporation shall note on the certificates representing the
shares of Class B Common Stock that there are restrictions on transfer and
registration of transfer imposed by paragraphs (d) and (e) of this Section 4.2.
(5) Notwithstanding anything to the contrary set forth herein, (i) upon the
death of Mr. George J. Pedersen, all shares of Class B Common Stock shall be
converted automatically into shares of Class A Common Stock on a share-for-share
basis, and stock certificates formerly representing such shares of Class B
Common Stock shall thereupon and thereafter be deemed to represent a like number
of shares of Class A Common Stock; (ii) if George J. Pedersen transfers shares
of Class B common stock that he beneficially owns to a Permitted Transferee, and
at any time after such transfer he does not exercise voting control over the
transferred shares and does not exercise voting control over shares of Class B
common stock representing at least fifty percent of the voting power of all
outstanding shares of common stock entitled to vote on the election of
directors, then all of the shares of Class B common stock which have been so
transferred to Permitted Transferees and over which George J. Pedersen does not
exercise voting control will automatically convert to an equivalent number of
shares of Class A common stock; and (iii) upon a Permitted Transferee ceasing to
qualify as a Permitted Transferee (and subject to the operation of subparagraph
(j)(9) of this Section 4.2) all shares of Class B Common Stock held by it shall
be converted automatically into shares of Class A Common Stock on a
share-for-share basis, and stock certificates formerly representing such shares
of Class B Common Stock shall thereupon and thereafter be deemed to represent a
like number of shares of Class A Common Stock.
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(f) Further Provisions Regarding Conversions.
(1) Any dividends declared and not paid on shares
of Common Stock prior to their conversion as provided above shall be paid, on
the payment date, to the holder or holders entitled thereto on the record date
for such dividend payment, notwithstanding such conversion; provided, however,
that such holder or holders shall not be entitled to receive the corresponding
dividends declared but not paid on the shares of Common Stock issuable upon such
conversion.
(2) In the event of a reclassification or other
similar transaction as a result of which the shares of Class A Common Stock are
converted into another security, then a holder of Class B Common Stock shall be
entitled to receive upon conversion the amount of such security that such holder
would have received if such conversion had occurred immediately prior to the
record date of such reclassification or other similar transaction.
(3) Shares of the Class B Common Stock converted
into Class A Common Stock shall be retired and shall resume the status of
authorized but unissued shares of Class B Common Stock.
(4) The issuance of certificates for shares of
Class A Common Stock issuable upon the conversion of shares of Class B Common
Stock by the registered holder thereof shall be made without charge to the
converting holder for any tax imposed on the Corporation in respect of the issue
thereof. The Corporation shall not, however, be required to pay any tax that may
be payable with respect to any transfer involved in the issue and delivery of
any certificate in a name other than that of the registered holder of the shares
being converted, and the Corporation shall not be required to issue or deliver
any such certificate unless and until the person requesting the issue thereof
shall have paid to the Corporation the amount of such tax or has established to
the satisfaction of the Corporation that such tax has been paid.
(g) Reservation of Shares. The Corporation shall at all
times reserve and keep available out of its authorized but unissued shares of
Class A Common Stock, solely for the purpose of effecting the conversions
provided for herein, such number of shares of Class A Common Stock as shall from
time to time be sufficient to effect the conversions provided for herein and
shall take all such corporate action as may be necessary to assure that such
shares of Class A Common Stock shall be validly issued, fully paid and
non-assessable upon conversion of all of the outstanding shares of Class B
Common Stock; moreover, if at any time the number of authorized but unissued
shares of Class A Common Stock shall not be sufficient to effect the conversions
provided for herein, the Corporation shall take such corporate action as may be
necessary to increase its authorized but unissued shares of Class A Common Stock
to such number of shares as shall be sufficient for such purpose.
(h) Adjustments for Stock Splits and Stock Dividends. The
Corporation shall treat the shares of Common Stock identically in respect of any
subdivisions or combinations (for example, if the Corporation effects a
two-for-one stock split with respect to the Class A Common Stock, it shall at
the same time effect a two-for-one stock split with respect to the Class B
Common Stock).
(i) Mergers, Consolidation, Etc. In the event that the
Corporation shall enter into any consolidation, merger, combination or other
transaction in which shares of Common Stock are exchanged for or changed into
other stock or securities, cash and/or any other property, then, and in such
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event, the shares of each class of Common Stock shall be exchanged for or
changed into (1) the same amount of stock, securities, cash and/or any other
property, as the case may be, into which or for which each share of any other
class of Common Stock is exchanged or changed; provided, however, that if shares
of Common Stock are exchanged for or changed into shares of capital stock, such
shares so exchanged for or changed into may differ to the extent and only to the
extent that the Class A Common Stock and the Class B Common Stock differ as
provided herein; or (2) if holders of each class of Common Stock are to receive
different distributions of stock, securities, cash and/or any other property,
either (i) holders of Class A Common Stock shall receive an amount of stock,
securities, cash and/or property per share having a value, as determined by an
independent investment banking firm of national reputation selected by the Board
of Directors, greater than or equal to the value per share into which or for
which each share of Class B Common Stock is exchanged or changed, or (ii)
holders of Class A Common Stock and holders of Class B Common Stock shall
receive such stock, securities, cash and/or property per share as shall be
provided for pursuant to a transaction approved by the holders of a majority of
Class A Common Stock and by the holders of a majority Class B Common Stock, each
voting separately as a class.
(j) Permitted Transferee. For purposes of this
Certificate of Incorporation, the term "Permitted Transferee" shall mean:
(1) In the case of a holder of record of the Class
B Common Stock (the "Class B Holder") who is a natural person and the beneficial
owner of the shares of Class B Common Stock to be transferred, Permitted
Transferees shall include only the following:
(A) the spouse of such Class B Holder, any
lineal descendant of a grandparent of such Class B Holder, or any spouse of such
lineal descendent (herein collectively referred to as "such Class B Holder's
Family Members");
(B) the trustee or trustees of a trust
(including a voting trust) for the sole benefit of such Class B
Holder and/or one or more of such Class B Holder's Permitted
Transferees, except that such trust may also grant a general or
special power of appointment to one or more of such Class B
Holder's Family Members and may permit trust assets to be used to
pay taxes, legacies, and other obligations of the Trust or the
estates of one or more of such Class B Holder's Family Members
payable by reason of the death of any of such Family Members;
provided, however, if at any time such trust ceases to meet the
requirements of this subparagraph (B), all shares of Class B Common
Stock then held by such trustee or trustees shall immediately and
automatically, without further act or deed on the part of the
Corporation or any person, be converted into Class A Common Stock
on a share-for-share basis, and stock certificates formerly
representing such shares of Class B Common Stock shall thereupon
and thereafter be deemed to represent a like number of shares of
Class A Common Stock;
(C) a corporation or similar entity wholly
owned by such Class B Holder and/or such Class B Holder's Permitted
Transferees or a partnership or similar entity in which all of the
general partners are, and all of the general partnership interests
are owned by, such Class B Holder and/or such Class B Holder's
Permitted Transferees provided that if by reason of any change in
the ownership of such stock or general partners or general
partnership interests, such corporation or partnership would no
longer qualify as a Permitted Transferee of such Class B Holder,
all shares of Class B Common Stock then held by such corporation or
partnership shall
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immediately and automatically, without further act or deed on the
part of the corporation or any other person, be converted into
shares of Class A Common Stock on a share-for-share basis, and
stock certificates formerly representing such shares of Class B
Common Stock shall thereupon and thereafter be deemed to represent
a like number of shares of Class A Common Stock;
(D) an organization established by the Class B
Holder and/or such Class B Holder's Permitted Transferees,
contributions to which are deductible for federal income, estate,
or gift tax purposes (a "Charitable Organization") and a majority
of whose governing board at all times consists of the Class B
Holder and/or one or more of the Permitted Transferees of such
Class B Holder, or any successor to such Charitable Organization
meeting such definition; provided that if by reason of any change
in the composition of the governing board of such Charitable
Organization, such Charitable Organization shall no longer qualify
as a Permitted Transferee of such Class B Holder, all shares of
Class B Common Stock then held by such Charitable Organization
shall immediately and automatically, without further act or deed on
the part of the Corporation or any other person, be converted into
shares of Class A Common Stock on a share-for-share basis, and
stock certificates formerly representing such shares of Class B
Common Stock shall thereupon and thereafter be deemed to represent
the like number of shares of Class A Common Stock; and
(E) the executor, administrator, or personal
representative of the estate of a deceased Class B Holder or
guardian or conservator of a Class B Holder adjudged disabled or
incompetent by a court of competent jurisdiction, acting in his
capacity as such.
(2) In the case of a Class B Holder who is the executor
or administrator of the estate of a deceased Class B Holder or guardian or
conservator of the estate of a disabled or incompetent Class B Holder, Permitted
Transferees shall include only a Permitted Transferee of such deceased,
disabled, or incompetent Class B Holder.
(3) In the case of a Class B Holder holding the shares of
Class B Common Stock as trustee pursuant to a trust, Permitted Transferees shall
include only the following:
(A) the person who contributed such shares to such
trust and any Permitted Transferee of such person, determined in
accordance with paragraph (j)(1) of this Section 4.2 above; and
(B) any successor trustee of such trust who is
described in the immediately preceding subparagraph (j)(3)(A).
(4) In the case of a Class B Holder that is a partnership
or similar entity, Permitted Transferees shall include only:
(A) any partner of such partnership who was also a
partner of such partnership on the IPO Date;
(B) any person transferring shares of Class B
Common Stock to such partnership after the IPO Date (to the extent
of the number of shares of Class B Common Stock transferred by the
transferor to such partnership); and
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(C) any Permitted Transferee of such person
referred to in subparagraph (j)(4)(A) or (j)(4)(B) above (not in
excess of the number of shares that such person is entitled to
receive pursuant to this subparagraph (j)(4)).
(5) In the case of a Class B Holder that is a corporation
or similar entity, Permitted Transferees shall include only:
(A) any stockholder of such corporation on the IPO
Date who receives shares of Class B Common Stock pro rata to his
stock ownership in such corporation through a dividend or a
distribution on or upon redemption of the shares of such
corporation;
(B) any person transferring shares of Class B
Common Stock to such corporation after the IPO Date (to the extent
of the number of shares of Class B Common Stock transferred by the
transferor to such corporation); and
(C) any Permitted Transferee of such stockholder or
person referred to in subparagraph (j)(5)(A) or (j)(5)(B) above
(not in excess of the number of shares that such stockholder or
person is entitled to receive pursuant to this subparagraph
(j)(5)).
(6) An employee benefit plan sponsored by the
Corporation or any of its affiliates.
(7) Any Initial Holder.
(8) For purposes of this Section 4.2(j):
(A) The relationship of any person that is
derived by or through legal adoption shall be
considered a natural one;
(B) Each joint owner of shares of Class B Common
Stock shall be considered a Class B Holder of
such shares;
(C) A minor for whom shares of Class B stock are
held pursuant to a Uniform Gifts to Minors Act
or similar law shall be considered a Class B
Holder of such shares; and
(D) Unless otherwise specified, the term "person"
means both natural person and legal entities.
(9) Notwithstanding the foregoing, in the event that any
transferee of Class B Common Stock is not at the time of transfer or thereafter
ceases to qualify as a Permitted Transferee, and within ten business days after
the Corporation notifies such person that it has concluded that such person is
not or has ceased to qualify as a Permitted Transferee and the bases for such
conclusion, such person transfers the shares of Class B Common Stock to a
Permitted Transferee, demonstrates that it is a Permitted Transferee or takes
appropriate action so that it qualifies as a Permitted Transferee, then
notwithstanding anything else in this Section 4.2, the shares of Class B Common
Stock held by such person that converted automatically into shares of Class A
Common Stock as a result of such person not being or ceasing to qualify as a
Permitted Transferee shall convert back to Class B Common Stock.
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(k) Going Private Transaction. With respect to any Going Private
Transaction, the holders of shares of Class A Common Stock and Class B Common
Stock shall vote together as a single class, with each share of Class A Common
Stock and each share of Class B Common Stock entitling the holder thereof to one
(1) vote. For purposes of this Section 4.2, the term "Going Private Transaction"
shall mean any transaction between the Corporation and (i) an Initial Holder,
(ii) any Affiliate of an Initial Holder, or (iii) any group including an Initial
Holder or Affiliates of an Initial Holder where the participation of such person
or persons in such group would cause the transaction to be deemed a "Rule 13e-3
Transaction," as such term is defined in Rule 13e-3(a)(3), 17 C.F.R. (S)
240.13e-3(a)(3), as amended from time to time, promulgated under the Securities
Exchange Act of 1934, as amended, provided however, that the term "affiliate" as
used in Rule 13e-3(a)(3)(i) shall be deemed to include an Affiliate, as defined
herein. For purposes hereof, an "Affiliate" of a person shall mean (i) any
individual or entity who or that, directly or indirectly, controls, is
controlled by, or is under common control with such person, and (ii) the spouse,
a child or grandchild (by blood, adoption or marriage) of such person, or any
trust for the benefit of one or more of the foregoing.
4.3. Provisions Relating to Preferred Stock.
(a) Any Preferred Stock not previously designated as to series may be
issued from time to time in one or more series pursuant to a resolution or
resolutions providing for such issue duly adopted by the Board of Directors
(authority to do so being hereby expressly vested in the Board), and such
resolution or resolutions shall also set forth the voting powers, full or
limited or none, of each such series of Preferred Stock and shall fix the
designations, preferences and relative, participating, optional or other special
rights and qualifications, limitations or restrictions of each such series of
Preferred Stock. The Board of Directors is authorized to alter the designation,
rights, preferences, privileges and restrictions granted to or imposed upon any
wholly unissued series of Preferred Stock and, 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 of Preferred
Stock, to increase or decrease (but not below the number of shares of any such
series then outstanding) the number of shares of any such series subsequent to
the issue of shares of that series.
(b) Each share of Preferred Stock issued by the Corporation, if
reacquired by the Corporation (whether by redemption, repurchase, conversion to
Common Stock or other means), shall upon such reacquisition resume the status of
authorized and unissued shares of Preferred Stock, undesignated as to series and
available for designation and issuance by the Corporation in accordance with the
immediately preceding paragraph.
4.4. General. Subject to the foregoing provisions of this Certificate of
Incorporation, the Corporation may issue shares of its capital stock from time
to time for such consideration (not less than the par value thereof) as may be
fixed by the Board of Directors, which is expressly authorized to fix the same
in its absolute and uncontrolled discretion subject to the foregoing conditions,
or as otherwise provided by law. Shares so issued for which the consideration
shall have been paid or delivered to the Corporation shall be deemed fully paid
capital stock and shall not be liable to any further call or assessment thereon,
and the holders of such shares shall not be liable for any further payments in
respect of such shares.
FIFTH. Board of Directors.
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5.1. Number of Directors. The number, and terms of the Board of Directors
of the Corporation and the procedures to elect directors, to remove directors,
and to fill vacancies in the Board of Directors shall be as stated in the Bylaws
of the Corporation (the "Bylaws").
5.2. Powers of the Board of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors. In furtherance, and not in limitation, of the powers conferred by the
laws of the State of Delaware, the Board of Directors is expressly authorized
to:
(a) adopt, amend, alter, change or repeal Bylaws of the Corporation;
provided, however, that no Bylaw hereafter adopted shall invalidate any prior
act of the Corporation that would have been valid if such new Bylaws had not
been adopted;
(b) subject to the Bylaws as from time to time in effect, determine
the rules and procedures for the conduct of the business of the Board of
Directors and the management and direction by the Board of Directors of the
business and affairs of the Corporation, including the power to designate and
empower committees of the Board of Directors, to elect, or authorize the
appointment of, and empower officers and other agents of the Corporation, and to
determine the time and place of, the notice requirements for, and the manner of
conducting, Board meetings, as well as other notice requirements for, and the
manner of taking, Board action; and
(c) exercise all such powers and do all such acts as may be exercised
or done by the Corporation, subject to the provisions of the Delaware General
Corporation Law and this Certificate of Incorporation and Bylaws of the
Corporation.
5.3. Preferred Stock. Notwithstanding the foregoing, whenever the holders
of any one or more classes or series of Preferred Stock issued by the
Corporation shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the election, term of
office, filling of vacancies and other features of such directorships shall be
governed by the terms of this Certificate of Incorporation applicable thereto.
SIXTH. Liability of Directors.
6.1. Limitation of Liability. No director of the Corporation shall be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, provided that this provision shall
not eliminate or limit the liability of a director (a) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (b) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under section 174 of the Delaware General
Corporation Law or (d) for any transaction from which the director derived any
improper personal benefits. If the Delaware General Corporation Law is amended
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 Delaware
General Corporation Law, as so amended.
6.2. Amendments. Any repeal or modification of Section 6.1 hereof by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
SEVENTH. Indemnification.
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7.1. Indemnity Undertaking. The Corporation shall indemnify any person who
is or was made, or is threatened to be made, a party to any Proceeding,
including, without limitation, an action 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 or officer of the Corporation, or, at the request of the
Corporation, is or was serving as a director, officer, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another foreign
or domestic corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan, or other enterprise (an "Other Entity"), to the fullest
extent permitted under the Delaware General Corporation Law, as the same exists
or may hereafter be amended, against judgments, fines, penalties, excise taxes,
amounts paid in settlement and costs, charges and expenses (including attorneys'
fees, disbursements and other charges), except as provided in Section 7.3.
Without limiting the generality of the foregoing, to the extent permitted by
then applicable law, the grant of mandatory indemnification pursuant to this
Article VII shall extend to Proceedings involving the negligence of such Person.
7.2. Advancement of Expenses. Except as provided in Section 7.3, the
Corporation shall reimburse or advance to any director or officer entitled to
indemnification hereunder the funds necessary for payment of expenses, including
attorneys' fees and disbursements, incurred in connection with any Proceeding,
in advance of the final disposition of such Proceeding; provided, however, that,
if required by the Delaware General Corporation Law, such expenses incurred by
or on behalf of any director or officer may be paid in advance of the final
disposition of a Proceeding only upon receipt by the Corporation of an
undertaking, by or on behalf of such director or officer, to repay any such
amount so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right of appeal that such director or
officer is not entitled to be indemnified for such expenses.
7.3. Actions against the Corporation. Notwithstanding anything to the
contrary in this Article VII, the Corporation shall not be obligated to
indemnify a director or officer or to advance expenses with respect to any claim
asserted by such person initially or by cross-claim, counter-claim, or
third-party claim, in any Proceeding against the Corporation, except for
Proceedings to enforce rights to indemnification (including rights to
advancement of expenses), unless, prior to such claim being asserted, the
assertion of such claim is approved by the directors of the Corporation by a
majority vote of a quorum of the Board of Directors or a committee thereof
established for such purpose.
7.4. Rights Not Exclusive. The rights to indemnification and reimbursement
or advancement of expenses provided by, or granted pursuant to, this Article VII
shall not be deemed exclusive of any other rights to which a person seeking
indemnification or reimbursement or advancement of expenses may have or
hereafter be entitled under any statute, this Certificate of Incorporation, the
Bylaws, any agreement, any vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office.
7.5. Continuation of Benefits. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Article VII shall continue as to a person who has ceased to be a director
or officer (or other person indemnified hereunder) and shall inure to the
benefit of the heirs, executors, administrators, and personal representatives of
such person.
7.6. Insurance. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of an Other Entity, against any
liability asserted against such person and incurred by such person in any such
capacity, or
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arising out of such person's status as such, whether or not the Corporation
would have the power to indemnify such person against such liability under the
provisions of this Article VII, this Certificate of Incorporation or under
section 145 of the Delaware General Corporation Law or any other provision of
law.
7.7. Binding Effect. The provisions of this Article VII shall be a
contract between the Corporation, on the one hand, and each director and officer
who serves in such capacity at any time while this Article VII is in effect, on
the other hand, pursuant to which the Corporation and each such director or
officer intend to be, and shall be, legally bound. No repeal or modification of
this Article VII shall affect any rights or obligations with respect to any
state of facts then or theretofore existing or thereafter arising or any
Proceeding theretofore or thereafter brought or threatened based in whole or in
part upon any such state of facts.
7.8. Procedural Rights. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article VII
shall be enforceable by any person entitled to such indemnification or
reimbursement or advancement of expenses in any court of competent jurisdiction.
If a claim for indemnification or advancement of expenses hereunder is not paid
in full by the Corporation within sixty (60) 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 also be entitled to be paid
the expenses of prosecuting such claim. The burden of proving that such
indemnification or reimbursement or advancement of expenses is not appropriate
shall be on the Corporation. Neither the failure of the Corporation (including
its Board of Directors, its independent legal counsel and its stockholders) to
have made a determination prior to the commencement of such action that such
indemnification or reimbursement or, except as otherwise provided in Section
7.3, advancement of expenses is proper in the circumstances nor an actual
determination by the Corporation (including its Board of Directors, its
independent legal counsel and its stockholders) that such person is not entitled
to such indemnification or reimbursement or advancement of expenses shall
constitute a defense to the action or create a presumption that such person is
not so entitled, except as otherwise provided in Section 7.3. Such a person
shall also be indemnified for any expenses incurred in connection with
successfully establishing his or her right to such indemnification or
reimbursement or advancement of expenses, in whole or in part, in any such
Proceeding.
7.9. Indemnification of Others. The Corporation may additionally indemnify
any employee or agent of the Corporation to the fullest extent permitted by law.
7.10. Definition of "Proceeding." As used herein, the term "Proceeding"
means any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative, arbitrative, or investigative, any appeal in
such an action, suit, or proceeding, and any inquiry or investigation that could
lead to such an action, suit, or proceeding.
EIGHTH. Meetings of Stockholders.
8.1. No Action by Written Consent. The stockholders of the Corporation
entitled to take action on any matter may act solely at a meeting of
stockholders duly called and held in accordance with law and this Certificate of
Incorporation and the Bylaws and may not act by a consent or consents in
writing.
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8.2. Meetings of Stockholders. The annual meeting of stockholders for the
election of directors and the transaction of such other business as may be
brought before such meeting in accordance with this Certificate of Incorporation
and the Bylaws shall be held at such hour and on such business day in each year
as may be determined by resolution adopted by the affirmative vote of a majority
of the Board. Except as otherwise required by law, special meetings of
stockholders may be called by the Secretary at the direction of: (a) the
affirmative vote of a majority of the Board, (b) the Chairman of the Board of
Directors, (c) the Chief Executive Officer, or (d) the holders of shares
representing a majority of the voting power of the outstanding Common Stock
entitled to vote at such meeting of stockholders. Annual and special meetings of
stockholders shall not be called or held otherwise than as herein provided.
8.3. Written Ballot. Elections of directors need not be written ballot
unless the bylaws of the Corporation shall so provide.
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IN WITNESS WHEREOF, the corporation has caused this Second Amended and
Restated Certificate of Incorporation to be signed by its Chairman, Chief
Executive Officer and President and attested to by its Executive Vice President,
Chief Financial Officer and Treasurer on this 30th day of January, 2002.
By: /s/ George J. Pedersen
------------------------------------------------
Name: George J. Pedersen
Title: Chairman, Chief Executive Officer and President
Attested:
By: /s/ John A. Moore, Jr.
- ------------------------------------
Name: John A. Moore, Jr.
Title: Executive Vice President, Chief Financial Officer
and Treasurer
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