AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CIBER, INC.
ARTICLE 1
The name of the Corporation is CIBER, Inc. (hereinafter referred to as the
"Corporation").
ARTICLE 2
The address of the Corporation's registered office in the State of Delaware
is 1209 Orange Street, Wilmington, County of New Castle, Delaware 19801. The
name of its registered agent at such address is The Corporation Trust Company.
ARTICLE 3
The nature of the business of the Corporation and the purposes for which it
is organized are to engage in any business and in any lawful act or activity for
which corporations may be organized under the GCL and to possess and employ all
powers and privileges now or hereafter granted or available under the laws of
the State of Delaware to such corporations.
ARTICLE 4
Section 4.1 AUTHORIZED SHARES. The total number of shares that the
Corporation shall have authority to issue is twenty-five million (25,000,000),
of which twenty million (20,000,000) shares shall be common stock, each with a
par value of $.01, and five million (5,000,000) shares shall be preferred stock,
each with a par value of $.01.
Section 4.2 COMMON STOCK. Each holder of common stock shall be entitled
to one vote for each share of common stock held on all matters as to which
holders of common stock shall be entitled to vote. Except for and subject to
those preferences, rights, and privileges expressly granted to the holders of
preferred stock, and except as may be provided by the laws of the State of
Delaware, the holders of common stock shall have exclusively all other rights of
stockholders of the Corporation, including, but not by way of limitation,
(i) the right to receive dividends, when, as and if declared by the board of
directors out of assets lawfully available therefor, and (ii), in the event of
any distribution of assets upon the dissolution and liquidation of the
Corporation, the right to receive ratably and equally all of the assets of the
Corporation remaining after the payment to the holders of preferred stock of the
specific amounts, if any, which they are entitled to receive as may be provided
herein or pursuant hereto.
Section 4.3 PREFERRED STOCK. The board of directors of the Corporation is
authorized to provide by resolution or resolutions for the issuance of the
shares of preferred stock as a class or in series and, by filing a certificate
of designation, pursuant to the GCL, setting forth a copy of such
resolution or resolutions, to establish from time to time the number of shares
to be included in each such series, and to fix the designation, powers,
preferences, and rights of the shares of the class or of each such series and
the qualifications, limitations and restrictions thereof. The authority of the
board of directors with respect to the class or each series shall include, but
not be limited to, determination of the following:
(i) The number of shares constituting any series and the
distinctive designation of that series;
(ii) The dividend rate on the shares of the class or of any
series, whether dividends shall be cumulative and, if so, from which date
or dates, and the relative rights of priority, if any, of payment of
dividends on shares of the class or of that series;
(iii) Whether the class or any series shall have voting
rights, in addition to the voting rights provided by law and, if so, the
terms of such voting rights;
(iv) Whether the class or any series shall have conversion
privileges and, if so, the terms and conditions of such conversion,
including provision for adjustment of the conversion rate in such events as
the board of directors shall determine;
(v) Whether or not the shares of the class or of any series
shall be redeemable and, if so, the terms and conditions of such
redemption, including the date or date upon or after which they shall be
redeemable and the amount per share payable in case of redemption, which
amount may vary under different conditions and at different redemption
dates;
(vi) Whether the class or any series shall have a sinking
fund for the redemption or purchase of shares of the class or of that
series and, if so, the terms and amount of such sinking fund;
(vii) The rights of the shares of the class or of any
series in the event of voluntary or involuntary dissolution or winding
up of the corporation and the relative rights of priority, if any, of
payment of shares of the class or of that series; and
(viii) Any other powers, preferences, rights,
qualifications, limitations, and restrictions of the class or of any
series.
ARTICLE 5
Section 5.1 NUMBER OF DIRECTORS. The number of directors of the
Corporation shall be fixed from time to time in the manner provided in the
bylaws and may be increased or decreased from time to time in the manner
provided in the bylaws.
-2-
Section 5.2 ELECTION AND TERM. Election of directors need not be by
written ballot except and to the extent provided in the bylaws of the
Corporation. The directors shall be divided into three classes as determined by
the board of directors, designated as Class I, Class II and Class III. Each
class shall consist, as nearly as may be possible, of one-third of the total
number of directors constituting the entire board of directors. At the next
annual meeting of stockholders, Class I directors shall be elected for a
one-year term, Class II directors shall be elected for a two-year term, and
Class III directors for a three-year term. At each succeeding annual meeting of
stockholders thereafter, successors to the class of directors whose terms
expired at that annual meeting shall be elected for a three-year term. If the
number of directors has changed, any increase or decrease shall be apportioned
among the classes so as to maintain the number of directors in each class as
nearly equal as possible, but in no case will a decrease in the number of
directors shorten the term of any incumbent director. A director shall hold
office until the annual meeting for the year in which his term expires and until
his successor shall be elected and qualified, subject, however, to such
director's prior death, resignation, retirement, disqualification or removal
from office.
Section 5.3 VACANCIES. Newly created directorships resulting from any
increase in the number of directors and any vacancies on the board of directors
resulting from death, resignation, disqualification, removal or other cause
shall be filled solely by the affirmative vote of a majority of the remaining
directors then in office or a sole remaining director, even if less than a
quorum of the board of directors. Any director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
new directorship which was created or in which the vacancy occurred and until
such director's successor shall have been elected and qualified.
ARTICLE 6
The board of directors of the Corporation is expressly authorized to make,
alter, or repeal the bylaws of the Corporation, but such authorization shall not
divest the stockholders of the power, nor limit their power, to adopt, amend or
repeal bylaws.
ARTICLE 7
Section 7.1 SPECIAL MEETINGS. Except as otherwise required by law and
subject to the rights of the holders of any class or series of stock having a
preference over the common stock, special meetings of the stockholders may be
called only by the chairman of the board, the chief executive officer, the
president, the executive vice president or the board of directors pursuant to a
resolution approved by a majority of the entire board of directors.
Section 7.2 STOCKHOLDER ACTION. Any action required or permitted to be
taken by the stockholders of the Corporation at a duly called annual or special
meeting of such stockholders may be effected without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by stockholders holding not less than two-thirds of the
voting power of the outstanding stock entitled to vote. Prompt notice of the
taking of the corporate
-3-
action without a meeting by less than unanimous written consent shall be
given to those stockholders who have not consented in writing.
ARTICLE 8
No director of Corporation shall be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except as to liability for (i) any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) violations of Section 174 of the GCL or (iv) any transaction from
which the director derived any improper personal benefit. If the GCL hereafter
is amended to eliminate or limit further the liability of a director, then, in
addition to the elimination and limitation of liability provided by the
preceding sentence, the liability of each director shall be eliminated or
limited to the fullest extent provided or permitted by the amended GCL. Any
repeal or modification of this Article 8 shall not adversely affect any right or
protection of a director under this Article 8, as in effect immediately prior to
such repeal or modification, with respect to any liability that would have
accrued, but for this Article 8, prior to such repeal or modification.
ARTICLE 9
Section 9.1 GENERAL. The Corporation shall indemnify, to the fullest
extent permitted by applicable law as from time to time may be in effect, any
person against all liability and expense (including, but not limited to,
attorneys' fees and settlement costs) incurred by reason of the fact that he is
or was a director or officer of the Corporation, or while serving as director or
officer of the Corporation, he is or was serving at the request of the
Corporation as a director, officer, partner or trustee of, or in any similar
managerial or fiduciary position of, or as an employee or agent of, another
corporation, partnership, joint venture, trust, association, or other entity, or
by reason of any action alleged to have been taken or omitted in such capacity.
Expenses (including attorneys' fees) incurred in defending an action, suit, or
proceeding shall be paid by the Corporation in advance of the final disposition
of such action, suit, or proceeding to the fullest extent and under the
circumstances permitted by the laws of the State of Delaware. The right to
indemnification conferred upon such persons by this Article 9 shall be a
contract right. The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee, fiduciary, or agent
of the Corporation against any liability asserted against and incurred by such
person in any such capacity or arising out of such person's position, whether or
not the Corporation would have the power to indemnify against such liability
under the provisions of this Article 9. The indemnification provided by this
Article 9 shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under this Certificate of Incorporation, and bylaw,
agreement, vote of stockholders or disinterested directors, statute, or
otherwise, and shall inure to the benefit of their heirs, executors, and
administrators. The provisions of this Article 9 shall not be deemed to
preclude the Corporation from indemnifying other persons from similar or other
expenses and liabilities as the board of directors or the stockholders may
determine in a specific instance or by resolution of general application.
-4-
Section 9.2 PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
A. In making a determination with respect to entitlement to
indemnification, the person or persons or entity making such determination shall
presume that such person is entitled to indemnification under this Article 9,
and the Corporation shall have the burden of proof to overcome that presumption
in connection with the making by any person, persons or entity of any
determination contrary to that presumption.
B. The termination of any proceeding or of any claim, issue or
matter therein, by judgment, order, settlement or conviction, or upon a plea of
NOLO CONTENDERE or its equivalent, shall not (except as otherwise expressly
provided in this Certificate of Incorporation or in the Corporation's bylaws) of
itself adversely affect the right of any person to indemnification or create a
presumption that such person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to be the best interests of the
Corporation or, with respect to any criminal proceeding, that such person had
reasonable cause to believe that his conduct was unlawful.
Neither the amendment nor the repeal of this Article 9, nor the adoption of
any provision of the Certificate of Incorporation or bylaws or of any statute
inconsistent with this Article 9, shall eliminate or reduce the effect of this
Article 9, in respect of any acts or omissions occurring prior to such
amendment, repeal or adoption of an inconsistent provision.
ARTICLE 10
The Corporation shall have authority, to the fullest extent now or
hereafter permitted by the GCL, or by any other applicable law, to enter into
any contract or transaction with one or more of its directors or officers, or
with any corporation, partnership, joint venture, trust, association, or other
entity in which one or more of its directors or officers are directors or
officers, or have a financial interest, notwithstanding such relationships and
notwithstanding the fact that the director or officer is present at or
participates in the meeting of the board of directors or committee thereof which
authorizes the contract or transaction.
ARTICLE 11
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the
-5-
said court directs. If a majority in number representing three-fourths in value
of the creditors or class of creditors, and of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
ARTICLE 12
The names and mailing addresses of the persons who are to serve as
directors of the Corporation until their successors are elected and qualified or
until their earlier resignations or removal are:
Name Mailing Address
---- ---------------
Bobby G. Stevenson 1200 Seventeenth Street, Suite 2700
Denver, Colorado 80202-5827
Mac J. Slingerlend 1200 Seventeenth Street, Suite 2700
Denver, Colorado 80202-5827
Richard A. Shorter 1200 Seventeenth Street, Suite 2700
Denver, Colorado 80202-5827
-6-
CERTIFICATE OF AMENDMENT TO
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CIBER, INC.
ADOPTED IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 242 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
CIBER, Inc., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: The Board of Directors of the Corporation, by written
consent pursuant to a regular meeting of the Board of Directors dated August 6,
1996, has adopted the following resolution proposing and declaring advisable an
amendment to the Certificate of Incorporation of the Corporation:
RESOLVED, that Section 4.1 of Article 4 of the Amended and Restated
Certificate of Incorporation of the Corporation be amended by deleting
said Section 4.1 of Article 4 in its entirety, and substituting the
following therefor:
"Section 4.1 AUTHORIZED SHARES. The total number of shares that the
Corporation shall have the authority to issue is forty-five million
(45,000,000), of which forty million (40,000,000) shall be common
stock, each with a par value of $.01, and five million (5,000,000)
shares shall be preferred stock, each with a par value of $.01."
SECOND: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Mac J. Slingerlend, President and Chief Operating Officer of the
Corporation this 29th day of October, 1996.
CIBER, INC.
a Delaware Corporation
/s/ Mac J. Slingerlend
-----------------------------------------
By: Mac J. Slingerlend
Title: President/Chief Operating Officer
CERTIFICATE OF AMENDMENT TO
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CIBER, INC.
CIBER, Inc., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: The board of directors of the Corporation, by unanimous
written consent in lieu of a special meeting of the board of directors effective
February 5, 1998, has adopted the following resolution proposing and declaring
advisable an amendment to the Certificate of Incorporation of the Corporation:
RESOLVED, that Section 4.1 of Article 4 of the Amended and Restated
Certificate of Incorporation of the Corporation be amended by deleting said
Section 4.1 of Article 4 in its entirety, and substituting the following
therefor:
"Section 4.1 AUTHORIZED SHARES. The total number of shares
that the Corporation shall have the authority to issue is eighty-five million
(85,000,000), of which eighty million (80,000,000) shall be common stock, each
with a par value of $.01, and five million (5,000,000) shares shall be preferred
stock, each with a par value of $.01."
SECOND: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Mac J. Slingerlend, President and Chief Operating Officer of the
Corporation this 4th day of March, 1998.
CIBER, INC.
a Delaware Corporation
/s/ Mac J. Slingerlend
-----------------------------------------
By: Mac J. Slingerlend
Title: President/Chief Operating Officer