AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
THE ALLIANCE GROUP, INC.
The Alliance Group, Inc., an Oklahoma corporation (the "Corporation"),
hereby amends and restates its Certificate of Incorporation. The original
Certificate of Incorporation was filed with the Secretary of State on
September 4, 1998 and was amended on March 17, 1999. This Amended and
Restated Certificate of Incorporation was adopted in accordance with the
provisions of Sections 1077 and 1080 of the Oklahoma General Corporation Act
(the "Act").
FIRST. The name of the Corporation is: LORECOM Technologies, Inc.
SECOND. The address of the initial registered office of the Corporation
in the State of Oklahoma is 12101 North Meridian, Oklahoma City, Oklahoma
County, Oklahoma 73120. The name of the registered agent at such address is
Joe Evans.
THIRD. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Oklahoma General
Corporation Act (the "Act").
FOURTH. The total number of shares of capital stock which the
Corporation shall have authority to issue is 5,000,000 shares, divided into
4,500,000 shares designated as Common Stock, par value $.01 per share, and
500,000 shares designated as Preferred Stock, par value $.01 per share.
The preferences, qualifications, limitations, restrictions and the
special or relative rights in respect of the shares of each class are as
follows:
PREFERRED.
The board of directors is authorized, subject to limitations prescribed
by law and the provisions hereof, to provide for the issuance of the shares
of Preferred Stock in series, and by filing a certificate pursuant to the
applicable law of the State of Oklahoma, 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 each such series
and the qualifications, limitations or restrictions thereof.
The authority of the board with respect to each series shall include,
but not be limited to, determination of the following:
(a) The number of shares constituting that series and the distinctive
designation of that series;
(b) The dividend rate on the shares of that 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 that series;
(c) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and if so, the terms of such voting rights;
(d) Whether that series shall have conversion privileges, and if so,
the terms and conditions of such conversion, including provisions for
adjustment of the conversion rate in such events as the board shall determine;
(e) Whether or not shares of that series shall be redeemable, and if
so, the terms and conditions of such redemption, including the date or dates
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;
(f) Whether that series shall have a sinking fund for the redemption or
purchase of shares of that series, and if so, the terms and amount of such
sinking fund;
(g) The rights of the shares of that series in the event of voluntary
or involuntary liquidation, dissolution and winding up of the Corporation,
and the relative rights of priority, if any, of payment of shares of that
series; and
(h) Any other relative rights, preferences or limitations of that
series.
Dividends on outstanding shares of Preferred Stock shall be paid or set
apart for payment before any dividends shall be paid or declared or set apart
for payment on the common shares with respect to the same dividend period.
COMMON.
Each of the shares of Common Stock of the Corporation shall be equal in
all respects to each other share. The holders of shares of Common Stock
shall be entitled to one vote for each share of Common Stock held with
respect to all matters as to which the Common Stock is entitled to be voted.
Subject to the preferential and other dividend rights applicable to
Preferred Stock, the holders of shares of Common Stock shall be entitled to
receive such dividends (payable in cash, stock or otherwise) as may be
declared on the Common Stock by the board of directors at any time or from
time to time out of any funds legally available therefor.
In the event of any voluntary or involuntary liquidation, distribution
or winding up of the Corporation, after distribution in full of the
preferential and/or other amounts to be distributed to the
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holders of shares of Preferred Stock, the holders of shares of Common Stock
shall be entitled to receive all of the remaining assets of the Corporation
available for distribution to its shareholders, ratably in proportion to the
number of shares of Common Stock held by them.
FIFTH. The name and mailing address of the sole incorporator is as
follows: David W. Aduddell, 12101 North Meridian, Oklahoma City, Oklahoma
73120.
SIXTH. Provisions for governing the internal affairs of the Corporation
are set forth in the Corporation's Bylaws, as the same may be amended from
time to time, which shall be adopted, amended or repealed by the incorporator
prior to receipt of any payment for any of the Corporation's stock, and
thereafter, the power to adopt, amend or repeal the bylaws is conferred on
the board of directors. Elections of directors need not be by written ballot.
SEVENTH. To the fullest extent permitted by the Act as the same exists
or may hereafter be amended, a director of this Corporation shall not be
liable to the Corporation or its shareholders for monetary damages for breach
of fiduciary duty as a director.
EIGHTH. The business and affairs of the Corporation shall be under the
direction of the board of directors.
The directors shall be divided into three classes, designated 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. The term of the initial Class I directors shall
terminate on the date of the 2000 annual meeting of shareholders; the term of
the initial Class II directors shall terminate on the date of the 2001 annual
meeting of shareholders and the term of the initial Class III directors shall
terminate on the date of the 2002 annual meeting of shareholders. At each
annual meeting of shareholders beginning in 2000, successors to the class of
directors whose term expires at that annual meeting shall be elected for a
three-year term. If the number of directors is 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, and any additional
directors of any class elected to fill a vacancy resulting from an increase
in such class shall hold office for a term that shall coincide with the
remaining term of that class, 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 shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from
office. Any vacancy on the board of directors, however resulting, may be
filled by a majority of the directors then in office, even if less than a
quorum, or by a sole remaining director. Any director elected to fill a
vacancy shall hold office for a term that shall coincide with the term of the
class to which such director shall have been elected.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual
or special meeting of shareholders, the election, term of office, filling
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of vacancies and other features of such directorship shall be governed by the
terms of the Certificate of Designation attributable to such Preferred stock
or the resolution or resolutions adopted by the board of directors applicable
thereto, and such directors so elected shall not be divided into classes
unless expressly provided by such terms.
NINTH. Except as otherwise required by law or as otherwise provided in
this Certificate of Incorporation or in the Bylaws of the Corporation, any
matter properly submitted to a vote of the shareholders entitled to vote at a
meeting of shareholders duly convened at which there is a quorum present
shall be deemed approved upon an affirmative vote of a majority of the
outstanding shares of capital stock entitled to vote and present at the
meeting, in person or by proxy. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66 2/3%) of the issued
and outstanding stock of this Corporation having voting power, voting
together as a single class, shall be required to amend, repeal or adopt any
provisions inconsistent with Sections Seventh, Eighth, Ninth, Tenth and
Eleventh of this Certificate of Incorporation.
TENTH. The Corporation shall indemnify the following persons in the
following manner:
(a) The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding or investigation, whether civil,
criminal or administrative, and whether external or internal to the
Corporation (other than a judicial action or suit brought by or in the right
of the Corporation), by reason of the fact that he is or was a director,
officer, or employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, or employee, trustee or
agent of another corporation, partnership, joint venture, trust or other
enterprise (all such persons being referred to hereafter as an "Agent"),
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding 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 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, that he had reasonable cause to believe that his conduct was
unlawful.
(b) The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed judicial action or suit brought 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 an Agent against expenses (including attorneys' fees), actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit 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 no indemnification shall be made in respect of any claim, issue
or matter as to which such
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person shall have been adjudged to be liable for negligence or misconduct in
the performance of his duty to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the court shall deem proper.
(c) Any indemnification under Subsection (a) or (b) of this
Section (unless ordered by a court) shall be made by the Corporation unless a
determination is reasonably and promptly made (i) by the Board by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by the stockholders, that such
person acted in bad faith and in a manner that such person did not believe to
be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal proceeding, that such person believed or had
reasonable cause to believe that his conduct was unlawful.
(d) Notwithstanding the other provisions of this Section, to the
extent that an Agent has been successful on the merits or otherwise,
including the dismissal of an action without prejudice or the settlement of
an action without admission of liability, in defense of any proceeding or in
defense of any claim, issue or matter therein, such Agent shall be
indemnified against all expenses incurred in connection therewith.
(e) Except as limited by this Subsection (e), expenses incurred in
any action, suit, proceeding or investigation shall be paid by the
Corporation in advance of the final disposition of such matter, if the Agent
shall undertake to repay such amount in the event that it is ultimately
determined, as provided herein, that such person is not entitled to
indemnification. Notwithstanding the foregoing, no advance shall be made by
the Corporation if a determination is reasonably and promptly made by the
Board by a majority vote of a quorum of disinterested directors, or (if such
a quorum is not obtainable or, even if obtainable, a quorum of
disinterested-directors so directs) by independent legal counsel in a written
opinion, that, based upon the facts known to the Board or counsel at the time
such determination is made, such person acted in bad faith and in a manner
that such person did not believe to be in or not opposed to the best interest
of the Corporation, or, with respect to any criminal proceeding, that such
person believed or had reasonable cause to believe his conduct was unlawful.
In no event shall any advance be made in instances where the Board or
independent legal counsel reasonably determines that such person deliberately
breached his duty to the Corporation or its shareholders.
(f) Any indemnification or advance under Subsections (b), (c), (d)
or (e) of this Section shall be made promptly, and in any event within ninety
(90) days, upon the written request of the Agent, unless with respect to
applications under Subsections (b), (c) or (e) of this Section, a
determination is reasonably and promptly made by the Board by a majority vote
of a quorum of disinterested directors that such Agent acted in a manner set
forth in such Subsections as to justify the Corporation in not indemnifying
or making an advance to the Agent. In the event no quorum
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of disinterested directors is obtainable, the Board shall promptly direct
that independent legal counsel shall decide whether the Agent acted in the
manner set forth in such Subsections as to justify the Corporation not
indemnifying or making an advance to the Agent. The right to indemnification
or advances as granted by this Section shall be enforceable by the Agent in
any court of competent jurisdiction, if the Board or independent legal
counsel denies the claim, in whole or in part, or if no disposition of such
claim is made within ninety (90) days. The Agent's expenses 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.
(g) The indemnification provided by this Section shall not be
deemed exclusive of any other rights to which an Agent seeking
indemnification may be entitled under any Bylaws, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in
his official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be an Agent and
shall inure to the benefit of the heirs, executors and administrators of such
a person. All rights to indemnification under this Section shall be deemed
to be provided by a contract between the Corporation and the Agent who serves
in such capacity at any time while this Certificate of Incorporation and
other relevant provisions of the general corporation law and other applicable
law, if any, are in effect. Any repeal or modification thereof shall not
affect any rights or obligations then existing.
(h) Upon resolution passed by the Board, the Corporation may
purchase and maintain insurance on behalf of any person who is or was an
Agent against any liability asserted against him and 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 him against such liability
under the provisions of this Section.
(i) For the purposes of this Section, 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, officer, employee, trustee or agent of such
a constituent corporation or is or was serving at the request of such
constituent corporation as a director, officer, employee, trustee or agent of
another corporation, partnership, joint venture, trust or other enterprise
shall stand in the same position under the provisions of this Section with
respect to the resulting or surviving corporation as he would if he had
served the resulting or surviving corporation in the same capacity.
(j) For purposes of this Section, references to "other
enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to any
employee benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, officer, employee,
trustee or agent of the Corporation which imposes duties on, or involves
services by, such director, officer, employee, trustee or agent with respect
to any employee benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner he reasonable believed to be
in the interest of the participants and
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beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to
in this Section.
(k) If this Section or any portion thereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each Agent as to expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action,
suit, proceeding or investigation, whether civil, criminal or administrative,
and whether internal or external, including a grand jury proceeding and an
action or suit brought by or in the right of the Corporation, to the full
extent permitted by any applicable portion of this Section that shall not
have been invalidated, or by any other applicable agreement or law.
(l) The rights of indemnity created by this Section are and shall
be at all times subordinate to the right of prior payment of all obligations
of the Corporation for borrowed money to the extent they are due and payable
at the time any payment under this Section shall be due and payable.
ELEVENTH. All contracts or transactions between the Corporation
(including any of its subsidiaries) and one or more of its affiliates (as
that term is defined in Rule 12b-2 as promulgated under the Securities
Exchange Act of 1934, as amended) or between the Corporation (including any
of its subsidiaries) and any other corporation, partnership, association, or
other organization in which an affiliate of the Corporation is an affiliate
thereof, shall be void or voidable solely for this reason unless:
(a) the material facts as to the affiliate's relationship or interest
and as to the contract or transaction are disclosed or are known to the Board
of Directors or the committee, and the board or committee in good faith
authorize the contract or transaction by the affirmative votes of a majority
of the disinterested directors, even though the disinterested directors be
less than a quorum; or
(b) the material facts as to the affiliate's relationship or interest
and as to the contract or transaction are disclosed or are known to the
shareholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the disinterested shareholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
TWELFTH. The Corporation reserves the right to amend, alter, change, or
repeal any provisions herein contained, in the manner now or later prescribed
by statute. All rights, powers, privileges, and discretionary authority
granted or conferred upon shareholders or directors are granted subject to
this reservation.
IN WITNESS WHEREOF, the undersigned, being the President of the
Corporation, for the purpose of forming a corporation pursuant to the
Oklahoma General Corporation Act, makes this
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Amended and Restated Certificate of Incorporation and does hereby further
certify that the facts hereinabove stated are true as set forth as of this
10th day of May, 1999.
/s/ William J. Hartwig
---------------------------------------
William J. Hartwig, Vice President
Attest:
/s/ Joe Evans
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Joe Evans, Secretary
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