EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SRA INTERNATIONAL, INC.
SRA International, Inc. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, does hereby certify as follows:
1. The Corporation filed its original Certificate of Incorporation with the
Secretary of the State of Delaware on November 16, 1984 under the name SRA
International, Inc. The Certificate of Incorporation was amended on January 9,
1987, restated on May 26, 1992, amended on November 9, 1994, amended on
September 19, 1997, amended on March 23, 2000, restated on March 5, 2002 and
amended on May 8, 2002.
2. At a meeting of the Board of Directors of the Corporation, a resolution
was duly adopted, pursuant to Sections 242 and 245 of the General Corporation
Law of the State of Delaware, setting forth an Amended and Restated Certificate
of Incorporation of the Corporation and declaring said Amended and Restated
Certificate of Incorporation advisable. The stockholders of the Corporation duly
approved said proposed Amended and Restated Certificate of Incorporation by
written consent in accordance with Sections 228, 242 and 245 of the General
Corporation Law of the State of Delaware. The resolution setting forth the
Amended and Restated Certificate of Incorporation is as follows:
RESOLVED: That the Certificate of Incorporation of the Corporation, as
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amended to date, be and hereby is amended and restated in its
entirety so that the same shall read as follows:
FIRST: The name of the Corporation is:
SRA International, Inc.
SECOND: The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 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.
THIRD: The nature of the business or purposes to be conducted or promoted
by the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 240,000,000 shares, consisting of
(i) 180,000,000 shares of Class A Common Stock, $.004 par value per share
("Class A Common Stock"), (ii) 55,000,000 shares of Class B Common Stock, $.004
par value per share ("Class B Common Stock" and, together with the Class A
Common Stock, the "Common Stock"), and (iii) 5,000,000 shares of Preferred
Stock, $.20 par value per share ("Preferred Stock").
The following is a statement of the designations and the powers, privileges
and rights, and the qualifications, limitations or restrictions thereof in
respect of each class of capital stock of the Corporation.
A. COMMON STOCK.
1. Identical Rights. Except as otherwise set forth in this Section A,
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the rights and privileges of the Common Stock shall be identical; provided that
the voting, dividend and liquidation rights of the holders of the Common Stock
are subject to and qualified by the rights of the holders of the Preferred Stock
of any series as may be designated by the Board of Directors upon any issuance
of the Preferred Stock of any series.
2. Voting. The holders of the Common Stock shall vote as a single class
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on all matters submitted to a vote of the stockholders to which the holders of
Common Stock are entitled to vote, except as may be required by Delaware law.
Each share of Class A Common Stock shall be entitled to one vote and each share
of Class B Common Stock shall be entitled to ten votes. There shall be no
cumulative voting.
The number of authorized shares of Common Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority of the stock of the Corporation
entitled to vote, irrespective of the provisions of Section 242(b)(2) of the
General Corporation Law of Delaware.
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3. Dividends and Distributions. Dividends and other distributions may be
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declared and paid on the Common Stock from funds lawfully available therefor as
and when determined by the Board of Directors and subject to any preferential
dividend rights of any then outstanding Preferred Stock. The Corporation may not
make any dividend or distribution with respect to any class of Common Stock
unless at the same time the Corporation makes a ratable dividend or distribution
with respect to each outstanding share of Common Stock, regardless of class. In
the case of dividends or distributions payable in shares of a class of Common
Stock, including distributions pursuant to stock splits or divisions of Class A
Common Stock or Class B Common Stock, only shares of Class A Common Stock may be
distributed with respect to Class A Common Stock and only shares of Class B
Common Stock may be distributed with respect to Class B Common Stock, and the
number of shares of Common Stock payable per share will be equal for each class.
Whenever a dividend or distribution, including distributions pursuant to stock
splits or divisions of the Common Stock, is payable in shares of Class A Common
Stock or Class B Common Stock, the number of shares of each class of Common
Stock payable per share of such class of Common Stock shall be equal in number.
In the case of dividends or other distributions consisting of other voting
securities of the Corporation or of voting securities of any corporation that is
a wholly owned subsidiary of the Corporation, the Corporation shall declare and
pay such dividends in two separate classes of such voting securities, identical
in all respects, except that (i) the voting rights of each such security paid to
the holders of Class A Common Stock shall be one-tenth of the voting rights of
each such security paid to the holders of Class B Common Stock, and (ii) such
security paid to the holders of Class B Common stock shall convert into the
security paid to the holders of Class A Common Stock upon the same terms and
conditions applicable to the conversion of Class B Common Stock into Class A
Common Stock. In the case of dividends or other distributions consisting of
securities convertible into, or exchangeable for, voting securities of the
Corporation or voting securities of another corporation that is a wholly owned
subsidiary of the Corporation, the Corporation shall provide that such
convertible or exchangeable securities and the underlying securities be
identical in all respects (including, without limitation, the conversion or
exchange rate), except that (i) the voting rights of each security underlying
the convertible or exchangeable security paid to the holders of Class A Common
Stock shall be one-tenth of the voting rights of each security underlying the
convertible or exchangeable security paid to the holders of the Class B Common
Stock, and (ii) such underlying securities paid to the holders of Class B Common
Stock shall convert into the underlying securities paid to the holders of Class
A Common Stock upon the same terms and conditions applicable to the conversion
of Class B Common Stock into Class A Common Stock and shall have the same
restrictions on transfer and ownership applicable to the transfer and ownership
of the Class B Common Stock.
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4. Reclassifications. Neither the shares of Class A Common Stock nor the
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shares of Class B Common Stock may be subdivided, consolidated, reclassified or
otherwise changed unless concurrently the shares of the other class of Common
Stock are subdivided, consolidated, reclassified or otherwise changed in the
same proportion and the same manner.
5. Liquidation. Upon the dissolution or liquidation of the Corporation,
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whether voluntary or involuntary, holders of Common Stock will be entitled to
receive all assets of the Corporation available for distribution to its
stockholders, subject to any preferential rights of any then outstanding
Preferred Stock.
6. Conversion Rights.
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(a) Voluntary Conversion. Each share of Class B Common Stock is
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convertible into one share of Class A Common Stock at any time at the option of
the holder. Such right shall be exercised by the surrender of the certificate or
certificates representing the shares of Class B Common Stock to be converted to
the Corporation at any time during normal business hours at the principal
executive offices of the Corporation or at the offices of the Corporation's
transfer agent (the "Transfer Agent"), accompanied by a written notice from the
holder of such shares stating that such holder desires to convert such shares,
or a stated number of the shares represented by such certificate of
certificates, into an equal number of shares of Class A Common Stock, and, if so
required by the Corporation or the Transfer Agent, by instruments of transfer in
form satisfactory to the Corporation and the Transfer Agent, duly executed by
such holder or such holder's duly authorized attorney, and transfer tax stamps
or funds therefor, if required.
(b) Automatic Conversion.
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(i) As used in this section A.6(b), the following terms have the
following meanings:
(1) "Conversion Event" shall mean, with respect to either
Original Stockholder:
(A) the death of such Original Stockholder; or
(B) such Original Stockholder is judicially declared
legally incompetent or a conservator, receiver,
custodian or
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guardian is appointed to supervise, oversee or otherwise
control the financial affairs of such Original Stockholder;
or
(C) the later to occur of (I) such Original Stockholder having
reached the age of 80 and (II) the retirement of such
Original Stockholder from all positions he may hold as an
employee, director or consultant to the Corporation and any
of its subsidiaries; or
(D) the later to occur of (I) such Original Stockholder having
reached the age of 80 and (II) such Original Stockholder
ceasing to be affiliated with the Corporation or any of its
subsidiaries as an employee, director or consultant, as a
result of a permanent physical disability.
(2) "Original Stockholder" shall mean each of William K. Brehm and
Ernst Volgenau, individually.
(3) "Person" shall mean an individual, a partnership, a limited
liability company, a corporation, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization
or a governmental entity or any department, agency or political
subdivision thereof.
(4) "Permitted Transferee" shall mean, with respect to any Original
Stockholder, a trust of which such Original Stockholder is the
sole trustee or otherwise controls all decisions regarding the
voting of any shares of Class B Common Stock held by such trust,
provided that such trust is established solely for the benefit of
(A) such Original Stockholder, (B) such Original Stockholder's
spouse, children, parents, uncles, aunts, siblings and
descendents of such siblings or grandchildren and descendents of
such grandchildren, (C) siblings of such Original Stockholder's
spouse and descendents of such siblings, (D) the estates of any
of the foregoing individuals and/or (E) charitable, educational,
scientific, religious or literary purposes.
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(5) "Transfer" shall mean the sale, assignment, transfer, gift,
pledge or hypothecation or other disposition, whether voluntary
or involuntary, of Class B Common Stock to any Person.
Notwithstanding the foregoing, the following shall not constitute
a "Transfer": (A) a transfer to the acquiror in the case of a
merger or similar transaction by the Corporation in which all the
outstanding shares of Common Stock regardless of class are
purchased by the acquiror, (B) the sale, transfer, pledge or
hypothecation or other disposition in a bona fide financing
transaction of any derivative instrument that derives its value
from underlying shares of Class B Common Stock, (C) a transfer to
any of such Original Stockholders' Permitted Transferees,
provided that such transfer expressly provides that the
transferred shares remain subject to the provisions of this
Section A.6(b) and further provided that any subsequent failure
of the transferee to remain a Permitted Transferee of such
Original Stockholder (for example, because such Original
Stockholder ceases to control all decisions regarding the voting
of the shares of Class B Common Stock held by such transferee)
shall be a "Transfer" and such transferred shares of Class B
Common Stock shall thereupon be converted automatically into
shares of Class A Common Stock as provided in this Section
A.6(b), (D) a transfer to the other Original Stockholder or the
other Original Stockholder's Permitted Transferees, (E) any
transfer to an Original Stockholder from either Original
Stockholder's Permitted Transferees, and (F) any pledge of shares
of Class B Common Stock pursuant to the grant of a bona fide
pledge of or security interest in such shares as collateral
security for indebtedness due to the pledgee, provided that such
pledge expressly provides that the pledged shares remain subject
to the provisions of this Section A.6(b) and further provided
that the subsequent foreclosure by the pledgee with respect to
the pledged shares shall be a "Transfer" and such pledged shares
of Class B Common Stock shall thereupon be converted
automatically into shares of Class A Common Stock as provided in
this Section A.6(b), except that, if within five business days
after such foreclosure or similar event such converted shares are
returned to
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the pledgor, such shares shall be converted
automatically back into shares of Class B Common Stock.
(ii) In addition to and notwithstanding the foregoing, upon
any Transfer of shares of Class B Common Stock, such
shares shall be converted automatically into a like
number of shares of Class A Common Stock. Immediately
upon the occurrence of a Transfer, and without any
action on the part of any stockholder whose shares are
subject to automatic conversion hereunder, the
Corporation or any other person or entity, the relevant
shares of Class B Common Stock shall be deemed
converted into the same number of shares of Class A
Common Stock. From and after the time of the Transfer,
any such certificates for the relevant shares of Class
B Common Stock shall no longer represent shares of
Class B Common Stock but instead shall represent the
sum of the number of shares of Class A Common Stock and
the right to have registered in the name of the
transferee of such stock the shares of Class A Common
Stock issuable to such transferee as a result of such
conversion. The Class A Common Stock issuable upon any
such conversion shall be so registered and the
certificates with respect to such stock shall be issued
by the Corporation upon the surrender of the
certificates that represent the relevant shares of
Class B Common Stock immediately prior to the Transfer,
duly endorsed to the Corporation or in blank or
accompanied by proper instruments of transfer to the
Corporation or in blank (such endorsements or
instruments of transfer to be in form satisfactory to
the Corporation).
(iii) In addition to and notwithstanding the foregoing, upon
the occurrence of any Conversion Event with respect to an Original
Stockholder, all shares of Class B Common Stock held by such Original
Stockholder or such Original Stockholder's Permitted Transferees shall
be converted automatically into a like number of shares of Class A
Common Stock. Immediately upon the occurrence of an event described in
the first sentence of this paragraph, and without any action on the
part of the affected Original Stockholder or his Permitted
Transferees, the Corporation or any other person or entity, all shares
of
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Class B Common Stock held by the affected Original
Stockholder or his Permitted Transferees shall be deemed
converted into the same number of shares of Class A Common
Stock. From and after such time, any certificates for the
relevant shares of Class B Common Stock shall no longer
represent shares of Class B Common Stock but instead shall
represent the sum of the number of shares of Class A Common
Stock and the right to have registered in the name of the
registered holder of such stock the shares of Class A Common
Stock issuable to such holder as a result of such conversion.
The Class A Common Stock issuable upon any such conversion
shall be so registered and the certificates with respect to
such stock shall be issued by the Corporation upon the
surrender of the certificates that represent the relevant
shares of Class B Common Stock immediately prior to the
conversion.
7. Unconverted Shares. If less than all of the shares of Class B
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Common Stock evidenced by a certificate surrendered to the Corporation (in
accordance with such procedures as the Board of Directors may determine) are
converted, the Corporation shall execute and deliver to or upon the written
order of the holder of such certificate a new certificate evidencing the number
of shares of Class B Common Stock which are not converted without charge to the
holder.
8. Reservation. The Corporation hereby reserves, and shall at all
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times reserve and keep available, out of its authorized and unissued shares of
Class A Common Stock, for the purposes of effecting conversions, such number of
duly authorized shares of Class A Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding shares of Class B Common
Stock. The Corporation covenants that all the shares of Class A Common Stock so
issuable shall, when so issued, be duly and validly issued, fully paid and
nonassessable. The Corporation shall take all such action as may be necessary to
ensure that all such shares of Class A Common Stock may be so issued without
violation of any applicable law or regulation. The Corporation shall not take
any action that results in any adjustment of the conversion ratio if the total
number of shares of Class A Common Stock issued and issuable after such action
upon conversion of the shares of Class B Common Stock would exceed the total
number of shares of Class A Common Stock then authorized by the Corporation's
Certificate of Incorporation.
9. Merger. Upon the merger or consolidation of the Corporation
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(whether or not the Corporation is the surviving entity), holders of each class
of Common Stock will be entitled to receive equal per share payments or
distributions, except that in any transaction in which shares
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of capital stock are distributed to holders of Common Stock, the shares of
capital stock distributed to holders of Class A Common Stock and Class B Common
Stock may differ as to voting and conversion rights, but only to the extent that
the voting and conversion rights of the Class A Common Stock and the Class B
Common Stock differ in this Certificate of Incorporation.
10. Issuance of Class A Common Stock. Following May 29, 2002, the
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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, exchangeable or exercisable into shares of Class
B Common Stock to any person. Notwithstanding the foregoing, the Company may
issue and sell shares of Class B Common Stock in respect of stock splits, stock
dividends, subdivisions, reclassifications or similar transactions with respect
the Class B Common Stock.
11. Amendments to Section. Notwithstanding any other provisions of law,
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this Amended and Restated Certificate of Incorporation or the By-Laws of the
Corporation, and notwithstanding the fact that a lesser percentage may be
specified by law, the affirmative vote of the holders of at least 67% of the
outstanding shares of Class A Common Stock, voting separately as a single class,
and the affirmative vote of the holders of 67% of the outstanding shares of
Class B Common Stock, voting separately as a single class, shall be required to
amend or repeal, or to adopt any provision inconsistent with, this Section A of
this Article FOURTH.
B. PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series,
each of such series to have such terms as stated or expressed herein and in the
resolution or resolutions providing for the issue of such series adopted by the
Board of Directors of the Corporation as hereinafter provided. Any shares of
Preferred Stock which may be redeemed, purchased or acquired by the Corporation
may be reissued except as otherwise provided by law. Different series of
Preferred Stock shall not be construed to constitute different classes of shares
for the purposes of voting by classes unless expressly provided.
Authority is hereby expressly granted to the Board of Directors from
time to time to issue the Preferred Stock in one or more series, and in
connection with the creation of any such series, by resolution or resolutions
providing for the issuance of the shares thereof, to determine and fix such
voting powers, full or limited, or no voting powers, and such designations,
preferences and relative participating, optional or other special rights, and
qualifications, limitations or
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restrictions thereof, including without limitation thereof, dividend rights,
conversion rights, redemption privileges and liquidation preferences, as shall
be stated and expressed in such resolutions, all to the full extent now or
hereafter permitted by the General Corporation Law of Delaware. Without limiting
the generality of the foregoing, the resolutions providing for issuance of any
series of Preferred Stock may provide that such series shall be superior or rank
equally or be junior to the Preferred Stock of any other series to the extent
permitted by law. Except as otherwise provided in this Certificate of
Incorporation, no vote of the holders of the Preferred Stock or Common Stock
shall be a prerequisite to the designation or issuance of any shares of any
series of the Preferred Stock authorized by and complying with the conditions of
this Certificate of Incorporation, the right to have such vote being expressly
waived by all present and future holders of the capital stock of the
Corporation.
FIFTH: Except as otherwise provided herein, 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 this Certificate of Incorporation, and all rights conferred upon
stockholders herein are granted subject to this reservation.
SIXTH: In furtherance and not in limitation of the powers conferred upon it
by the laws of the State of Delaware, the Board of Directors shall have the
power to adopt, amend, alter or repeal the Corporation's By-laws. The
affirmative vote of a majority of the directors present at any regular or
special meeting of the Board of Directors at which a quorum is present shall be
required to adopt, amend, alter or repeal the Corporation's By-laws. The
Corporation's By-laws also may be adopted, amended, altered or repealed by the
affirmative vote of the holders of at least 67% of the votes which all the
stockholders would be entitled to cast in any annual election of directors.
Notwithstanding any other provisions of law, this Certificate of Incorporation
or the By-Laws of the Corporation, and notwithstanding the fact that a lesser
percentage may be specified by law, the affirmative vote of the holders of at
least 67% of the votes which all the stockholders would be entitled to cast in
any annual election of directors shall be required to amend or repeal, or to
adopt any provision inconsistent with, this Article SIXTH.
SEVENTH: Except to the extent that the General Corporation Law of Delaware
prohibits the elimination or limitation of liability of directors for breaches
of fiduciary duty, no director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for any breach of
fiduciary duty as a director, notwithstanding any provision of law imposing such
liability. No amendment to or repeal of this provision shall apply to or
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have any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
EIGHTH: 1. Actions, Suits and Proceedings Other than by or in the Right of
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the Corporation. The Corporation shall indemnify each person who was or is a
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party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by
reason of the fact that he is or was, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to serve, at the
request of the Corporation, as a director, officer, partner, employee or trustee
of, or in a similar capacity with, another corporation, partnership, joint
venture, trust or other enterprise (including any employee benefit plan) (all
such persons being referred to hereafter as an "Indemnitee"), or by reason of
any action alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or on his behalf in
connection with such action, suit or proceeding and any appeal therefrom, if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
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equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
2. Actions or Suits by or in the Right of the Corporation. The Corporation
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shall indemnify any Indemnitee who was or is a party or is threatened to be made
a party 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 he is or was, or has agreed to become, a director or officer of the
Corporation, or is or was serving, or has agreed to serve, at the request of the
Corporation, as a director, officer, partner, employee or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust or
other enterprise (including any employee benefit plan), or by reason of any
action alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys' fees) and, to the extent permitted by law,
amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and any appeal
therefrom, if he acted in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of the Corporation, except that
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no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of Delaware shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses (including attorneys' fees)
which the Court of Chancery of Delaware shall deem proper.
3. Indemnification for Expenses of Successful Party. Notwithstanding
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the other provisions of this Article, to the extent that an Indemnitee has been
successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Sections 1 and 2 of this Article EIGHTH, or in defense
of any claim, issue or matter therein, or on appeal from any such action, suit
or proceeding, he shall be indemnified against all expenses (including
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection therewith. Without limiting the foregoing, if any action, suit or
proceeding is disposed of, on the merits or otherwise (including a disposition
without prejudice), without (i) the disposition being adverse to the Indemnitee,
(ii) an adjudication that the Indemnitee was liable to the Corporation, (iii) a
plea of guilty or nolo contendere by the Indemnitee, (iv) an adjudication that
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the Indemnitee did not act in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation, and (v) with
respect to any criminal proceeding, an adjudication that the Indemnitee had
reasonable cause to believe his conduct was unlawful, the Indemnitee shall be
considered for the purposes hereof to have been wholly successful with respect
thereto.
4. Notification and Defense of Claim. As a condition precedent to his
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right to be indemnified, the Indemnitee must notify the Corporation in writing
as soon as practicable of any action, suit, proceeding or investigation
involving him for which indemnity will or could be sought. With respect to any
action, suit, proceeding or investigation of which the Corporation is so
notified, the Corporation will be entitled to participate therein at its own
expense and/or to assume the defense thereof at its own expense, with legal
counsel reasonably acceptable to the Indemnitee. After notice from the
Corporation to the Indemnitee of its election so to assume such defense, the
Corporation shall not be liable to the Indemnitee for any legal or other
expenses subsequently incurred by the Indemnitee in connection with such action,
suit, proceeding or investigation, other than as provided below in this Section
4. The Indemnitee shall have the right to employ his own counsel in connection
with such action, suit, proceeding or investigation, but the fees and expenses
of such counsel incurred after notice from the Corporation of its assumption of
the defense thereof shall be at the expense of the Indemnitee unless (i) the
employment of counsel by the Indemnitee has been authorized by the Corporation,
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(ii) counsel to the Indemnitee shall have reasonably concluded that there may be
a conflict of interest or position on any significant issue between the
Corporation and the Indemnitee in the conduct of the defense of such action,
suit, proceeding or investigation or (iii) the Corporation shall not in fact
have employed counsel to assume the defense of such action, suit, proceeding or
investigation, in each of which cases the fees and expenses of counsel for the
Indemnitee shall be at the expense of the Corporation, except as otherwise
expressly provided by this Article. The Corporation shall not be entitled,
without the consent of the Indemnitee, to assume the defense of any claim
brought by or in the right of the Corporation or as to which counsel for the
Indemnitee shall have reasonably made the conclusion provided for in clause (ii)
above. The Corporation shall not be required to indemnify the Indemnitee under
this Article for any amounts paid in settlement of any action, suit, proceeding
or investigation effected without its written consent. The Corporation shall not
settle any action, suit, proceeding or investigation in any manner which would
impose any penalty or limitation on the Indemnitee without the Indemnitee's
written consent. Neither the Corporation nor the Indemnitee will unreasonably
withhold or delay its consent to any proposed settlement.
5. Advance of Expenses. Subject to the provisions of Section 6 of this
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Article EIGHTH, in the event that the Corporation does not assume the defense
pursuant to Section 4 of this Article EIGHTH of any action, suit, proceeding or
investigation of which the Corporation receives notice under this Article, any
expenses (including attorneys' fees) incurred by an Indemnitee in defending a
civil or criminal action, suit, proceeding or investigation or any appeal
therefrom shall be paid by the Corporation in advance of the final disposition
of such matter; provided, however, that the payment of such expenses incurred by
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the Indemnitee in advance of the final disposition of such matter shall be made
only upon receipt of an undertaking by or on behalf of the Indemnitee to repay
all amounts so advanced in the event that it shall ultimately be determined that
the Indemnitee is not entitled to be indemnified by the Corporation as
authorized in this Article; and further provided that no such advancement of
expenses shall be made if it is determined (in the manner described in Section
6) that (i) the Indemnitee did not act in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, or (ii) with respect to any criminal action or proceeding, the
Indemnitee had reasonable cause to believe his conduct was unlawful. Such
undertaking shall be accepted without reference to the financial ability of the
Indemnitee to make such repayment.
6. Procedure for Indemnification. In order to obtain indemnification or
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advancement of expenses pursuant to Section 1, 2, 3 or 5 of this Article EIGHTH,
the Indemnitee shall submit to the Corporation a written request, including in
such request such
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documentation and information as is reasonably available to the Indemnitee and
is reasonably necessary to determine whether and to what extent the Indemnitee
is entitled to indemnification or advancement of expenses. Any such
indemnification or advancement of expenses shall be made promptly, and in any
event within 60 days after receipt by the Corporation of the written request of
the Indemnitee, unless with respect to requests under Section 1, 2 or 5 of this
Article EIGHTH the Corporation determines within such 60-day period that the
Indemnitee did not meet the applicable standard of conduct set forth in Section
1, 2 or 5 of this Article EIGHTH, as the case may be. Such determination shall
be made in each instance (a) by a majority vote of the directors of the
Corporation consisting of persons who are not at that time parties to the
action, suit or proceeding in question ("disinterested directors"), whether or
not a quorum, (b) by a majority vote of a committee of disinterested directors
designated by majority vote of disinterested directors, whether or not a quorum,
(c), if there are no disinterested directors, or if disinterested directors so
direct, by independent legal counsel (who may, to the extent permitted by law,
be regular legal counsel to the Corporation) in a written opinion, or (d) by the
stockholders of the Corporation.
7. Remedies. The right to indemnification or advances as granted by this
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Article shall be enforceable by the Indemnitee in any court of competent
jurisdiction. Neither the failure of the Corporation to have made a
determination prior to the commencement of such action that indemnification is
proper in the circumstances because the Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Corporation pursuant to
Section 6 of this Article EIGHTH that the Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the Indemnitee has not met the applicable standard of conduct. The
Indemnitee's expenses (including attorneys' fees) incurred in connection with
successfully establishing his right to indemnification, in whole or in part, in
any such proceeding shall also be indemnified by the Corporation.
8. Limitations. Notwithstanding anything to the contrary in this Article,
-----------
except as set forth in Section 7 of the Article EIGHTH, the Corporation shall
not indemnify an Indemnitee in connection with a proceeding (or part thereof)
initiated by the Indemnitee unless the initiation thereof was approved by the
Board of Directors of the Corporation. Notwithstanding anything to the contrary
in this Article, the Corporation shall not indemnify an Indemnitee to the extent
such Indemnitee is reimbursed from the proceeds of insurance, and in the event
the Corporation makes any indemnification payments to an Indemnitee and such
Indemnitee is subsequently reimbursed from the proceeds of insurance, such
Indemnitee shall promptly refund such indemnification payments to the
Corporation to the extent of such insurance reimbursement.
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9. Subsequent Amendment. No amendment, termination or repeal of this
--------------------
Article or of the relevant provisions of the General Corporation Law of Delaware
or any other applicable laws shall affect or diminish in any way the rights of
any Indemnitee to indemnification under the provisions hereof with respect to
any action, suit, proceeding or investigation arising out of or relating to any
actions, transactions or facts occurring prior to the final adoption of such
amendment, termination or repeal.
10. Other Rights. The indemnification and advancement of expenses provided
------------
by this Article shall not be deemed exclusive of any other rights to which an
Indemnitee seeking indemnification or advancement of expenses may be entitled
under any law (common or statutory), agreement or vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in any other capacity while holding office for the Corporation,
and shall continue as to an Indemnitee who has ceased to be a director or
officer, and shall inure to the benefit of the estate, heirs, executors and
administrators of the Indemnitee. Nothing contained in this Article shall be
deemed to prohibit, and the Corporation is specifically authorized to enter
into, agreements with officers and directors providing indemnification rights
and procedures different from those set forth in this Article. In addition, the
Corporation may, to the extent authorized from time to time by its Board of
Directors, grant indemnification rights to other employees or agents of the
Corporation or other persons serving the Corporation and such rights may be
equivalent to, or greater or less than, those set forth in this Article.
11. Partial Indemnification. If an Indemnitee is entitled under any
-----------------------
provision of this Article to indemnification by the Corporation for some or a
portion of the expenses (including attorneys' fees), judgments, fines or amounts
paid in settlement actually and reasonably incurred by him or on his behalf in
connection with any action, suit, proceeding or investigation and any appeal
therefrom but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify the Indemnitee for the portion of such expenses
(including attorneys' fees), judgments, fines or amounts paid in settlement to
which the Indemnitee is entitled.
12. Insurance. The Corporation may purchase and 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 or other
enterprise (including any employee benefit plan) against any expense, liability
or loss incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the General Corporation Law
of Delaware.
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13. Savings Clause. If this Article or any portion hereof shall be
--------------
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Indemnitee as to any expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the
Corporation, to the fullest extent permitted by any applicable portion of this
Article that shall not have been invalidated and to the fullest extent permitted
by applicable law.
14. Definitions. Terms used herein and defined in Section 145(h) and
-----------
Section 145(i) of the General Corporation Law of Delaware shall have the
respective meanings assigned to such terms in such Section 145(h) and Section
145(i).
NINTH: This Article is inserted for the management of the business and for
the conduct of the affairs of the Corporation.
1. Number of Directors; Election of Directors. The number of directors of
------------------------------------------
the Corporation shall not be less than three. The exact number of directors
within the limitations specified in the preceding sentence shall be determined
from time to time by, or in the manner provided in, the By-laws of the
Corporation. Election of directors need not be by written ballot, except as and
to the extent provided in the By-laws of the Corporation.
2. Classes of Directors. The Board of Directors shall be and is divided
--------------------
into three classes: Class I, Class II and Class III. No one class shall have
more than one director more than any other class. If a fraction is contained in
the quotient arrived at by dividing the authorized number of directors by three,
then, if such fraction is one-third, the extra director shall be a member of
Class III, and if such fraction is two-thirds, one of the extra directors shall
be a member of Class II and one of the extra directors shall be a member of
Class III, unless otherwise provided by resolution of the Board of Directors.
3. Terms of Office. Each director shall serve for a term ending on the
---------------
date of the third annual meeting following the annual meeting at which such
director was elected; provided, that each initial director in Class I shall
serve for a term expiring at the Corporation's annual meeting of stockholders
held in its fiscal year ending June 30, 2003; each initial director in Class II
shall serve for a term expiring at the Corporation's annual meeting of
stockholders held in its fiscal year ending June 30, 2004; and each initial
director in Class III shall serve for a term expiring at the Corporation's
annual meeting of stockholders held in its fiscal year ending June
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30, 2005; provided further, that the term of each director shall continue until
the election and qualification of his successor and be subject to his earlier
death, resignation or removal.
4. Allocation of Directors Among Classes in the Event of Increases or
------------------------------------------------------------------
Decreases in the Authorized Number of Directors. In the event of any increase or
- -----------------------------------------------
decrease in the authorized number of directors, (i) each director then serving
as such shall nevertheless continue as a director of the class of which he is a
member until the expiration of his current term, subject to his earlier death,
resignation or removal and (ii) the newly created or eliminated directorships
resulting from such increase or decrease shall be apportioned by the Board of
Directors among the three classes of directors in accordance with the provisions
of Section 2 of this Article NINTH. To the extent possible, consistent with the
provisions of Section 2 of this Article NINTH, any newly created directorships
shall be added to those classes whose terms of office are to expire at the
latest dates following such allocation, and any newly eliminated directorships
shall be subtracted from those classes whose terms of offices are to expire at
the earliest dates following such allocation, unless otherwise provided from
time to time by resolution of the Board of Directors.
5. Quorum. A majority of the directors at any time in office shall
------
constitute a quorum for the transaction of business. In the event one or more of
the directors shall be disqualified to vote at any meeting, then the required
quorum shall be reduced by one for each director so disqualified, provided that
in no case shall less than one-third of the number of directors fixed pursuant
to Section 1 of this Article NINTH constitute a quorum. If at any meeting of the
Board of Directors there shall be less than such a quorum, a majority of the
directors present may adjourn the meeting from time to time without further
notice other than announcement at the meeting, until a quorum shall be present.
6. Action at Meeting. Every act or decision done or made by a majority of
-----------------
the directors present at a meeting duly held at which a quorum is present shall
be regarded as the act of the Board of Directors unless a greater number is
required by law, by this Certificate of Incorporation, or by the By-laws of the
Corporation.
7. Removal. Directors of the Corporation may be removed only for cause by
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the affirmative vote of the holders of at least 67% of the votes which all the
stockholders would be entitled to cast in any annual election of directors.
8. Vacancies. Any vacancy in the Board of Directors, however occurring,
---------
including a vacancy resulting from an enlargement of the Board, shall be filled
only by vote of a majority
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of the directors then in office, although less than a quorum, or by a sole
remaining director. A director elected to fill a vacancy shall be elected to
hold office until the next election of the class for which such director shall
have been chosen, subject to the election and qualification of his successor and
to his earlier death, resignation or removal.
9. Stockholder Nominations and Introduction of Business, Etc.
---------------------------------------------------------
Advance notice of stockholder nominations for election of directors and other
business to be brought by stockholders before a meeting of stockholders shall be
given in the manner provided by the By-laws of the Corporation.
10. Amendments to Article. Notwithstanding any other provisions of law,
---------------------
this Certificate of Incorporation or the By-laws of the Corporation, and
notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least 67% of the votes which all the
stockholders would be entitled to cast in any annual election of directors shall
be required to amend or repeal, or to adopt any provision inconsistent with,
this Article NINTH.
TENTH: The holders of Class A Common Stock may not take any action by
written consent in lieu of a meeting. Notwithstanding any other provisions of
law, this Certificate of Incorporation or the By-laws of the Corporation, and
notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least 67% of the votes which all the
stockholders would be entitled to cast in any annual election of directors shall
be required to amend or repeal, or to adopt any provision inconsistent with,
this Article TENTH.
ELEVENTH: Special meetings of stockholders for any purpose or purposes may
be called at any time by the Board of Directors, the Chairman of the Board or
the President, but such special meetings may not be called by any other person
or persons. Business transacted at any special meeting of stockholders shall be
limited to matters relating to the purpose or purposes stated in the notice of
meeting. Notwithstanding any other provision of law, this Certificate of
Incorporation or the By-laws of the Corporation, and notwithstanding the fact
that a lesser percentage may be specified by law, the affirmative vote of the
holders of at least 67% of the votes which all the stockholders would be
entitled to cast in any annual election of directors shall be required to amend
or repeal, or to adopt any provision inconsistent with, this Article ELEVENTH.
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IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed by its duly authorized
officer this 29th day of May, 2002.
SRA INTERNATIONAL, INC.
By: /s/ Stephen C. Hughes
-----------------------------
Name: Stephen C. Hughes
Title: Sr. VP, CFO, Secretary
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