Exhibit 3(a)(i)
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF ST ACQUISITION CORP.
ARTICLE ONE
Pursuant to the provisions of Article 4.07 of the Texas Business
Corporation Act (the "TBCA"), ST Acquisition Corp. (the "Corporation") adopts
the following Amended and Restated Articles of Incorporation which accurately
copy the Articles of Incorporation and all amendments thereto that are in effect
to date and as further amended by such Restated Articles of Incorporation as
hereinafter set forth and which contain no other change in any provision hereof.
ARTICLE TWO
The Articles of Incorporation of the Corporation are hereby amended by
these Amended and Restated Articles of Incorporation as follows: (a) current
ARTICLES I, II, V, VI, VII, VIII, IX, XI and XII remain unchanged and are
redesignated as ARTICLES I, II, V, VI, VII, VIII, IX, XI and XII respectively of
ARTICLE FIVE below, (b) current ARTICLES III, IV and X are amended and
redesignated ARTICLES III, IV and X respectively of ARTICLE FIVE below, (c)
current ARTICLES XIII is deleted and replaced with ARTICLE XIII of ARTICLE FIVE
below.
ARTICLE THREE
Each amendment made by the Amended and Restated Articles of Incorporation
has been effected in conformity with the provisions of the TBCA and each such
amendment made was duly adopted on April 5, 2000, by the shareholders of the
Corporation.
ARTICLE FOUR
The number of shares of the Corporation outstanding was 100 shares of
common stock, and the number of shares entitled to vote on the restated articles
of incorporation as so amended was 100 shares of common stock. All of the
shareholders of the Corporation have signed a written consent to the adoption of
such restated articles of incorporation as so amended pursuant to Article 9.10
of the TBCA.
ARTICLE FIVE
The articles of incorporation and all amendments and supplements thereto
are hereby superseded by the following restated articles of incorporation which
accurately copy the entire text thereof and as amended as above set forth:
ARTICLE I
NAME
The name of the Corporation is ST Acquisition Corp.
ARTICLE II
DURATION
The period of the Corporation's duration is perpetual.
ARTICLE III
PURPOSE
Section 1. The purpose or purposes for which the Corporation is organized
are to transact any and all lawful business for which corporations may be
incorporated under the Texas Business Corporation Act; provided that, to ensure
the separateness of the Corporation, the Corporation will
(a) maintain accurate and appropriate detailed books, financial records
and accounts, including checking and other bank accounts and custodian
and other securities safekeeping accounts, that are separate and
distinct from those of any other Person;
(b) maintain its books, financial records and accounts (including
inter-entity transaction accounts) in a manner so that it will not be
difficult or costly to segregate, ascertain or otherwise identify its
assets and liabilities;
(c) not commingle any of its assets, funds, liabilities or business
functions with the assets, funds, liabilities or business functions of
any other Person;
(d) observe all appropriate corporate procedures and formalities;
(e) not merge or consolidate with any other Person (other than for
financial reporting purposes);
(f) cause all material transactions and agreements between it and any one
or more of its Affiliates (including transactions and agreements
pursuant to which the assets or property of one is used or to be used
by the other) to be entered into in the names of the Persons
2
that are parties to the transaction or agreement and to be formally
documented in writing;
(g) conduct transactions with third parties in its name and as a Person
that is separate and distinct from its Affiliates;
(h) pay its own liabilities, expenses and losses only from its own assets;
(i) compensate all consultants, independent contractors and agents from
its own funds for services provided to it by such consultants,
independent contractors and agents;
(j) to the extent that it and its Affiliates jointly contract or do
business with vendors or service providers or share overhead expenses,
allocate fairly, appropriately non-arbitrarily the costs and expenses
incurred in so doing between or among such Persons, with the result
that each such Person bears its fair share of all such costs and
expenses;
(k) to the extent that it contracts or does business with vendors or
service providers where the goods or services are wholly or partially
for the benefit of its Affiliates, allocate fairly, appropriately and
non-arbitrarily the costs incurred in so doing to the Person for whose
benefit the goods or services are provided, with the result that each
such Person bears its fair share of all such costs;
(l) not enter into any guaranty, or otherwise become liable for, or pledge
its assets to secure, the liabilities, debts or obligations of any
other Person;
(m) hold itself out as separate and distinct from any other Person and
shall not identify itself as a division or department of any other
Person;
(n) ensure that decisions with respect to its business and daily
operations shall be independently made (although the individual making
any particular decision may also be an employee, officer or director
of any one or more of its Affiliates) and shall not be dictated by its
Affiliates;
(o) to the extent that it occupies any premises in the same location or
shares the use of equipment with its Affiliates, allocate fairly,
3
appropriately and non-arbitrarily any rent and overhead expenses among
and between such Persons with the result that each bears its fair
share of all such rent and expenses;
(p) cause its representatives and agents to hold themselves out to third
parties as being its representatives or agents, as the case may be,
and conduct its business using separate business cards, letterhead,
purchase orders, invoices, checks and the like bearing its own name,
it being understood that it need not have its own dedicated employees;
(q) to the extent that it share the same officers or other employees with
its Affiliates, allocate fairly, appropriately and non-arbitrarily the
salaries of and expenses related to providing other benefits to such
officers and other employees between or among such Persons, with the
result that each such Person will bear its fair share of the salary
and benefit costs associated with all such common or shared officers
or other employees;
(r) maintain separate annual financial statements prepared in accordance
with generally accepted accounting principles, consistently applied,
showing its assets and liabilities separate and distinct from those of
any other Person;
(s) pay or bear the cost of the preparation of its financial statements,
and have such financial statements audited by an independent certified
public accounting firm;
(t) to the extent its financial statements are to be consolidated with the
financial statements of any other Person, cause to be included in such
consolidated financial statements a narrative description of its
separate assets, liabilities, business functions, operations and
existence to ensure that such separate assets, liabilities, business
functions, operations and existence are readily distinguishable by any
Person receiving or relying upon a copy of such consolidated financial
statements;
(u) not hold out its credit as being available to satisfy the debts or
obligations of any other Person;
(v) correct any known misunderstanding regarding its separate identity;
(w) not make any loans to any Person or buy or hold any indebtedness
4
or other obligations issued by any other Person (except for cash and
cash equivalents);
(x) hold all of its assets in its own name;
(y) maintain an arm's-length relationship with its Affiliates and enter
into transactions with Affiliates only on a commercially reasonably
basis.
Section 2. For the purpose of this Article III,
(a) "Affiliate" shall mean any other person directly or indirectly
controlling, controlled by, or under common control with, that person;
for purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and
"under common control with"), as applied to any person, means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of that person, whether
through the ownership of voting securities, by contract or otherwise.
(b) "Person" shall include individuals, corporations, partnerships,
trusts, other entities and groups (which term shall include a "group"
as such term is defined in Section 13(d)(3) of the Exchange Act).
ARTICLE IV
SHARES
Section 1. The aggregate number of shares which the Corporation has
authority to issue is three million (3,000,000); one million (1,000,000) shares
shall be common stock (the "Common Stock"), no par value per share, and two
million (2,000,000) shares shall be preferred stock (the "Preferred Stock"), no
par value per share.
Section 2. Shares of Preferred Stock may be issued from time to time in one
or more series, each of which is to have a distinctive serial designation as
determined in the resolution or resolutions of the Board of Directors providing
for the issuance of such Preferred Stock from time to time.
Section 3. Each series of Preferred Stock:
5
(a) may have such number of shares;
(b) may have such voting powers or may be without voting powers;
(c) may be subject to redemption at such time or times and at such price;
(d) may be entitled to receive dividends (which may be cumulative or
noncumulative) at such rate or rates, on such conditions, from such
date or dates, and at such times, and payable in preference to, or in
such relation to, the dividends payable on any other class or classes
or series of stock;
(e) may have such rights upon the dissolution of, or upon any distribution
of the assets of, the Corporation;
(f) may be made convertible into, or exchangeable for, shares of any other
class or classes, or of any other series of the same class or of any
other class or classes, of stock of the Corporation at such price or
prices or at such rates of exchange, and with adjustments;
(g) may be entitled to the benefit of a sinking fund or purchase fund to
be applied to the purchase or redemption of shares of such series in
such amount or amounts;
(h) may be entitled to the benefit of conditions and restrictions upon the
creation of indebtedness of the Corporation or any subsidiary, upon
the issuance of any additional stock (including additional shares of
such series or of any other series) and upon the payment of dividends
or the making of other distributions on, and the purchase, redemption
or other acquisition by the Corporation of stock of any class or
series; and
(i) may have such other relative, participating, optional or other special
rights, and qualifications, limitations or restrictions thereof;
as in each such instance is stated in the resolution or resolutions of the
Board of Directors providing for the issuance of such Preferred Stock.
Except where otherwise set forth in such resolution or resolutions the
number of shares comprising such series may be increased or decreased (but
not below the number of shares then outstanding) from time to time by like
action of the Board of Directors. The foregoing enumeration of the
designations, preferences, limitations and relative rights which may be
fixed with respect to shares of Preferred Stock is merely illustrative of
the power of the Board of Directors. The authority of the Board of
Directors to fix such designations, preferences, limitations and relative
rights
6
shall be with the maximum authority permissible pursuant to Article 2.13 of
the TBCA, as it may be amended from time to time.
Section 4. Shares of any series of Preferred Stock which have been redeemed
(whether through the operation of a sinking fund or otherwise) or purchased by
the Corporation, or which, if convertible or exchangeable, have been converted
into or exchanged for shares of stock of any other series, class or classes will
have the status of authorized but unissued shares of Preferred Stock and may be
reissued as a part of the series of which they were originally a part or may be
reclassified and reissued as part of a new series of Preferred Stock created by
resolution or resolutions of the Board of Directors or as part of any other
series of Preferred Stock, all subject to the conditions or restrictions on
issuance set forth in the resolution or resolutions adopted by the Board of
Directors providing for the issuance of any series of Preferred Stock and to any
filing required by law.
Section 5. (a) Except as otherwise provided by law or by the resolutions
of the Board of Directors providing for the issuance of any
series of Preferred Stock, Common Stock will have the
exclusive right to vote for the election of directors and
for all other purposes. Each holder of Common Stock will be
entitled to one vote for each share held.
(b) Subject to all of the rights of Preferred Stock or any
series thereof, the holders of Common Stock will be
entitled to receive, when, as and if declared by the Board
of Directors, out of funds legally available therefor,
dividends payable in cash, in stock or otherwise.
(c) Upon any liquidation, dissolution or winding-up of the
Corporation, whether voluntary or involuntary, and subject
to the rights of the holders of Preferred Stock, the
remaining net assets of the Corporation will be distributed
pro rata to the holders of Common Stock in accordance with
their respective rights and interests.
Section 6. All shares of Common Stock or Preferred Stock of the
Corporation, including, without limitation, shares issued as a stock dividend,
shall, when the full lawful consideration fixed by the Board of Directors has
been paid, or when so issued as a stock dividend, be deemed fully paid and not
liable to any further call or assessment thereon, and the holders of such shares
shall not be liable for any further payment thereon. Any of the unissued shares
of capital stock of the Corporation may be issued from time to time in such
amount and manner, including, without limitation, in distribution as stock
dividends, and for such lawful consideration as the Board of Directors may
determine.
ARTICLE V
DENIAL OF PREEMPTIVE RIGHTS
7
The right of a shareholder referred to in Article 2.22-1 of the Texas
Business Corporation Act, to exercise a preemptive right to acquire additional,
unissued or treasury shares of the Corporation or securities of the Corporation
convertible into or carrying a right to subscribe to or acquire shares of the
Corporation is hereby denied.
ARTICLE VI
ELECTION OF DIRECTORS; NONCUMULATIVE VOTING
Directors shall be elected by majority vote. No shareholder of the
Corporation shall have the right to cumulate his votes in the election of
directors. Subject to any voting rights granted to holders of any class or
series of Preferred Stock, each holder of Stock of the Corporation entitled to
vote in connection with the election of directors shall be entitled to cast that
number of votes as is equal to the number of shares of capital stock of the
Corporation owned by such holder for as many directors as there are to be
elected.
ARTICLE VII
POWER TO AMEND BYLAWS
Without limiting the power of the shareholders of the Corporation to amend
or repeal the Corporation's bylaws or to adopt new bylaws, the Board of
Directors shall have the power to amend or repeal the Corporation's bylaws and
to adopt new bylaws at any regular or special meeting of the directors at which
a quorum is present by the affirmative vote of a majority of those present at
such meeting, provided notice of the proposed alteration, amendment or repeal is
contained in the notice of such meeting.
ARTICLE VIII
COMMENCEMENT OF BUSINESS
The Corporation will not commence business until it has received for the
issuance of its shares consideration of the value of One Thousand Dollars
($1,000.00).
ARTICLE IX
REGISTERED OFFICE AND AGENT
The street address of the initial registered office of the Corporation is
CT Corporation System, 350 N. St. Paul Street, Dallas, Texas 75201, and the name
of its initial registered agent at such address is CT Corporation System.
8
ARTICLE X
BOARD OF DIRECTORS
The number of directors presently constituting the Board of Directors is
one (1) and the name and address of the person who is serving as director is:
William J. Catacosinos
2 Robbins Lane
Suite 201
Jericho, NY 11753
The number of directors may hereafter be increased or decreased as provided
in the bylaws of the Corporation.
ARTICLE XI
LIABILITY OF DIRECTORS
No director of the Corporation shall be liable to the Corporation or its
shareholders for monetary damages for an act or omission in the director's
capacity as a director, except that this article does not eliminate or limit the
liability of a director to the extent the director is found liable for: (a) a
breach of the director's duty of loyalty to the Corporation or its shareholders;
(b) an act or omission not in good faith that constitutes a breach of duty of
the director to the Corporation or an act or omission that involves intentional
misconduct or a knowing violation of the law; (c) a transaction from which the
director received an improper benefit, whether or not the benefit resulted from
an action taken within the scope of the director's office; (d) an act or
omission for which the liability of a director is expressly provided for by an
applicable statute.
ARTICLE XII
ACTIONS BY SHAREHOLDERS WITHOUT A MEETING
Any action required by the Texas Business Corporation Act to be taken at
any annual or special meeting of shareholders, or any action which may be taken
at any annual or special meeting of shareholders, may be taken without a
meeting, without prior notice, and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be signed by the holder or
holders of shares having not less than the minimum number of votes that would be
necessary to take such action at a meeting at which the holders of all shares
entitled to vote on the action were present and voted.
ARTICLE XIII
SPECIAL MEETINGS OF SHAREHOLDERS
9
Special meetings of the shareholders, for any purpose or purposes, unless
otherwise prescribed by statute, may be called by (a) the President or Chairman
of the Board of Directors, (b) a majority of the members of the Board of
Directors or (c) the holders of at least fifty percent (50%) of all the shares
entitled to vote at such meetings.
10
IN WITNESS WHEREOF, the undersigned has executed these Amended and Restated
Articles of Incorporation as of this 6th day of April, 2000.
ST ACQUISITION CORP.
By:
---------------------------------------
Theodore Babcock
Vice President, Treasurer and Secretary
11