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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
DIGITALNET HOLDINGS, INC.
DigitalNet Holdings, Inc., a Delaware corporation, the original
certificate of incorporation of which was filed with the Secretary of State of
the State of Delaware on August 31, 2001, HEREBY CERTIFIES that this Amended and
Restated Certificate of Incorporation, restating, integrating and amending its
Restated Certificate of Incorporation, was duly adopted by its Board of
Directors and its stockholders in accordance with Sections 228, 242 and 245 of
the Delaware General Corporation Law (the "DGCL"). The Restated Certificate of
Incorporation of DigitalNet Holdings, Inc., is hereby amended and restated in
its entirety to read as follows:
ARTICLE I
NAME
The name of the Corporation is DigitalNet Holdings, Inc. (the
"Corporation").
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the State of
Delaware is 9 East Loockerman Street, Suite 1B, Dover, Kent County, Delaware
19901. The name of its registered agent at such address is National Registered
Agents, Inc.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the DGCL.
ARTICLE IV
CAPITAL STOCK
The total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is One Hundred Five Million
(105,000,000) shares, of which:
One Hundred Million (100,000,000) shares, par value $0.001 per
share, shall be shares of common stock (the "Common Stock"); and
Five Million (5,000,000) shares, par value $0.001 per share,
shall be shares of preferred stock (the "Preferred Stock").
(A) COMMON STOCK. Except as (1) otherwise required by law or (2)
expressly provided in this Amended and Restated Certificate of Incorporation (as
amended from time to
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time), each share of Common Stock shall have the same powers, rights and
privileges and shall rank equally, share ratably and be identical in all
respects as to all matters.
(1) DIVIDENDS. Subject to the rights of the holders of
Preferred Stock, and to the other provisions of this Amended and Restated
Certificate of Incorporation (as amended from time to time), holders of Common
Stock shall be entitled to receive equally, on a per share basis, such dividends
and other distributions in cash, securities or other property of the Corporation
as may be declared thereon by the Board of Directors from time to time out of
assets or funds of the Corporation legally available therefore.
(2) VOTING RIGHTS. At every annual or special meeting of
stockholders of the Corporation, each holder of Common Stock shall be entitled
to cast one (1) vote for each share of Common Stock standing in such holder's
name on the stock transfer records of the Corporation.
(3) LIQUIDATION RIGHTS. In the event of any liquidation,
dissolution or winding up of the affairs of the Corporation, whether voluntary
or involuntary, after payment or provision for payment of the Corporation's
debts and amounts payable upon shares of Preferred Stock entitled to a
preference, if any, over holders of Common Stock upon such dissolution,
liquidation or winding up, the remaining net assets of the Corporation shall be
distributed among holders of shares of Common Stock equally on a per share
basis. A merger or consolidation of the Corporation with or into any other
corporation or other entity, or a sale or conveyance of all or any part of the
assets of the Corporation (which shall not in fact result in the liquidation of
the Corporation and the distribution of assets to its stockholders) shall not be
deemed to be a voluntary or involuntary liquidation or dissolution or winding up
of the Corporation within the meaning of this Paragraph (A)(3).
(B) PREFERRED STOCK. The Board of Directors is authorized, subject to
limitations prescribed by law, to provide by resolution or resolutions for the
issuance of shares of Preferred Stock in one or more series, to establish the
number of shares to be included in each such series, and to fix the voting
powers (if any), designations, powers, preferences, and relative, participating,
optional or other rights, if any, of the shares of each such series, and any
qualifications, limitations or restrictions thereof. Irrespective of the
provisions of Section 242(b)(2) of the DGCL, the number of authorized shares of
Preferred 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 in voting power of the stock of the Corporation entitled to vote,
without the separate vote of the holders of the Preferred Stock as a class.
ARTICLE V
BOARD OF DIRECTORS
(A) MANAGEMENT. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors. The Board of
Directors may exercise all such authority and powers of the Corporation and do
all such lawful acts and things as are not by statute or this Amended and
Restated Certificate of Incorporation directed or required to be exercised or
done by the stockholders.
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(B) NUMBER OF DIRECTORS. The number of directors of the Corporation
shall be fixed from time to time by, or in the manner provided in, the Amended
and Restated Bylaws; provided, however, that the number of directors shall not
be less than three (3) nor more than eleven (11).
(C) NEWLY-CREATED DIRECTORSHIPS AND VACANCIES. Subject to the rights
of the holders of any class of Common Stock or series of Preferred Stock then
outstanding, newly created directorships resulting from any increase in the
number of directors or any vacancies in the Board of Directors resulting from
death, resignation, retirement, disqualification, removal from office or any
other cause may be filled by the Board of Directors, provided that a quorum is
then in office and present, or by a majority of the directors then in office, if
less than a quorum is then in office, or by the sole remaining director.
Directors elected to fill a newly created directorship or other vacancies shall
hold office until such director's successor has been duly elected and qualified
or until his or her earlier death, resignation or removal as hereinafter
provided.
(D) REMOVAL OF DIRECTORS. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, any director may be removed from
office at any time, at a meeting called for that purpose, and only by the
affirmative vote of the holders of at least 66-2/3% of the voting power of all
shares of Common Stock entitled to vote generally in the election of directors,
voting together as a single class.
(E) RIGHTS OF HOLDERS OF PREFERRED STOCK. Notwithstanding the
foregoing provisions of this Article V, whenever the holders of one or more
series of Preferred Stock issued by the Corporation shall have the right, voting
separately or together by 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 directorship shall be governed by the rights of such
Preferred Stock as set forth in the certificate of designations governing such
series.
(F) WRITTEN BALLOT NOT REQUIRED. Elections of directors need not be by
written ballot unless the Amended and Restated Bylaws of the Corporation shall
otherwise provide.
(G) BYLAWS. The Board of Directors is expressly authorized to adopt,
amend or repeal the bylaws of the Corporation. Any bylaws made by the directors
under the powers conferred hereby may be amended or repealed by the directors or
by the stockholders. Notwithstanding the foregoing and anything contained in
this Amended and Restated Certificate of Incorporation to the contrary, the
bylaws of the Corporation shall not be amended or repealed by the stockholders,
and no provision inconsistent therewith shall be adopted by the stockholders,
without the affirmative vote of the holders of 66-2/3% of the voting power of
all shares of the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
ARTICLE VI
LIMITATION OF LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that the foregoing shall not eliminate or
limit the liability of a director (i) for any breach of the
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director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
DGCL is hereafter amended to permit further elimination or limitation of 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 DGCL as so amended. Any repeal or modification of this Article VI by the
stockholders of the Corporation or otherwise shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification.
ARTICLE VII
INDEMNIFICATION
Each person who was or is made a party or is threatened to be made a
party to or is involved (including, without limitation, as a witness) in any
actual or threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or officer of another
corporation or of a partnership, limited liability company, joint venture, trust
or other enterprise, including service with respect to an employee benefit plan
(hereinafter an "Indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director or officer or in any other capacity
while so serving, shall be indemnified and held harmless by the Corporation to
the full extent authorized by the DGCL, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
said law permitted the Corporation to provide prior to such amendment), or by
other applicable law as then in effect, against all expense, liability and loss
(including attorneys' fees and related disbursements, judgments, fines, excise
taxes or penalties under the Employee Retirement Income Security Act of 1974, as
amended from time to time ("ERISA"), penalties and amounts paid or to be paid in
settlement) actually and reasonably incurred or suffered by such Indemnitee in
connection therewith, and such indemnification shall continue as to a person who
has ceased to be a director, officer, partner, member or trustee and shall inure
to the benefit of his or her heirs, executors and administrators. Each person
who is or was serving as a director or officer of a subsidiary of the
Corporation shall be deemed to be serving, or have served, at the request of the
Corporation.
(A) PROCEDURE. Any indemnification (but not advancement of expenses)
under this Article VII (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances
because he has met the applicable standard of conduct set forth in the DGCL, as
the same exists or hereafter may be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said law permitted the Corporation
to provide prior to such amendment). Such determination shall be made with
respect to a person who is a director or officer at the time of such
determination (a) by a majority vote of the directors who were not parties to
such proceeding (the "Disinterested Directors"), even though less than a quorum,
(b) by a committee of Disinterested Directors designated by a majority vote of
Disinterested Directors, even though
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less than a quorum, (c) if there are no such Disinterested Directors, or if such
Disinterested Directors so direct, by independent legal counsel in a written
opinion, or (d) by the stockholders.
(B) ADVANCES FOR EXPENSES. Expenses (including attorneys' fees, costs
and charges) incurred by a director or officer of the Corporation in defending a
proceeding shall be paid by the Corporation in advance of the final disposition
of such proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay all amounts so advanced in the event that it shall
ultimately be determined that such director or officer is not entitled to be
indemnified by the Corporation as authorized in this Article VII. The majority
of the Disinterested Directors may, in the manner set forth above, and upon
approval of such director or officer of the Corporation, authorize the
Corporation's counsel to represent such person, in any proceeding, whether or
not the Corporation is a party to such proceeding.
(C) PROCEDURE FOR INDEMNIFICATION. Any indemnification or advance of
expenses (including attorney's fees, costs and charges) under this Article VII
shall be made promptly, and in any event within 60 days upon the written request
of the director or officer (and, in the case of advance of expenses, receipt of
a written undertaking by or on behalf of Indemnitee to repay such amount if it
shall ultimately be determined that Indemnitee is not entitled to be indemnified
therefor pursuant to the terms of this Article VII). The right to
indemnification or advances as granted by this Article VII shall be enforceable
by the director or officer in any court of competent jurisdiction, if the
Corporation denies such request, in whole or in part, or if no disposition
thereof is made within 60 days. Such person's costs and expenses incurred in
connection with successfully establishing his/her right to indemnification, in
whole or in part, in any such action shall also be indemnified by the
Corporation. It shall be a defense to any such action (other than an action
brought to enforce a claim for the advance of expenses (including attorney's
fees, costs and charges) under this Article VII where the required undertaking,
if any, has been received by the Corporation) that the claimant has not met the
standard of conduct set forth in the DGCL, as the same exists or hereafter may
be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
said law permitted the Corporation to provide prior to such amendment), but the
burden of proving such defense 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 indemnification of the claimant is proper in
the circumstances because he/she has met the applicable standard of conduct set
forth in the DGCL, as the same exists or hereafter may be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), nor the fact that there has
been an actual determination by the Corporation (including its Board of
Directors, its independent legal counsel and its stockholders) that the claimant
has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met the applicable
standard of conduct.
(D) OTHER RIGHTS; CONTINUATION OF RIGHT TO INDEMNIFICATION. The
indemnification and advancement of expenses provided by this Article VII shall
not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled
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under any law (common or statutory), bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his/her official
capacity and as to action in another capacity while holding office or while
employed by or acting as agent for the Corporation, and shall continue as to a
person who has ceased to be a director or officer, and shall inure to the
benefit of the estate, heirs, executors and administers of such person. All
rights to indemnification under this Article VII shall be deemed to be a
contract between the Corporation and each director or officer of the Corporation
who serves or served in such capacity at any time while this Article VII is in
effect. Any repeal or modification of this Article VII or any repeal or
modification of relevant provisions of the DGCL or any other applicable laws
shall not in any way diminish any rights to indemnification of such director or
officer or the obligations of the Corporation arising hereunder with respect to
any proceeding arising out of, or relating to, any actions, transactions or
facts occurring prior to the final adoption of such modification or repeal. For
the purposes of this Article VII, references to "the Corporation" include all
constituent corporations absorbed in a consolidation or merger as well as the
resulting or surviving corporation, so that any person who is or was a director
or officer of such a constituent corporation or is or was serving at the request
of such constituent corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise shall stand in the same
position under the provisions of this Article VII, with respect to the resulting
or surviving corporation, as he would if he/she had served the resulting or
surviving corporation in the same capacity.
(E) INSURANCE. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was or has agreed to become
a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, against any liability asserted against
him and incurred by him or on his behalf in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article VII;
provided, however, that such insurance is available on acceptable terms, which
determination shall be made by a vote of a majority of the Board of Directors.
(F) SAVINGS CLAUSE. If this Article VII or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each person entitled to indemnification
under the first paragraph of this Article VII as to all expense, liability and
loss (including attorneys' fees and related disbursements, judgments, fines,
ERISA excise taxes and penalties, penalties and amounts paid or to be paid in
settlement) actually and reasonably incurred or suffered by such person and for
which indemnification is available to such person pursuant to this Article VII
to the full extent permitted by any applicable portion of this Article VII that
shall not have been invalidated and to the full extent permitted by applicable
law.
ARTICLE VIII
AMENDMENT
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation,
in the manner now or
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hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation. Notwithstanding any other
provision of this Amended and Restated Certificate of Incorporation or the
Amended and Restated Bylaws of the Corporation, and notwithstanding the fact
that a lesser percentage or separate class vote may be specified by law, this
Amended and Restated Certificate of Incorporation, the Amended and Restated
Bylaws of the Corporation or otherwise, but in addition to any affirmative vote
of the holders of any particular class or series of the capital stock required
by law, this Amended and Restated Certificate of Incorporation, the Amended and
Restated Bylaws of the Corporation or otherwise, the affirmative vote of the
holders of at least 66-2/3% of the voting power of all shares of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to adopt any provision inconsistent with, to
amend or repeal any provision of, or to adopt a bylaw inconsistent with,
Articles V, VI, VII or VIII of this Amended and Restated Certificate of
Incorporation.
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IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation which restates, integrates and amends the provisions of the
Certificate of Incorporation of the Corporation, and which has been duly adopted
in accordance with the provisions of Sections 228, 242 and 245 of the DGCL, has
been executed by the undersigned on this ____ day of __________, 2003.
DIGITALNET HOLDINGS, INC.
By:
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Name: Ken S. Bajaj
Title: President