AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
of
ANTEON INTERNATIONAL CORPORATION
1. Name. The name of the corporation is "Anteon International Corporation."
2. Address; Registered Office and Agent. The address of the Corporation's
registered office is 2711 Centerville Road, Suite 400, Wilmington, New Castle
County, Delaware, 19808, and the name of its registered agent at such address is
Corporation Service Company.
3. Purposes. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law.
4. Number of Shares. The total number of
shares of stock that the Corporation shall have authority to issue is: One
Hundred and Ninety Million (190,000,000) divided as follows: Fifteen Million
(15,000,000) shares of Preferred Stock, of the par value of $0.01 per share (the
"Preferred Stock"), and One Hundred Seventy Five Million (175,000,000) shares of
Common Stock, of the par value of $0.01 per share (the "Common Stock").
4.1 The designation, relative rights, preferences and limitations of the
shares of each class are as follows:
4.1.1 The shares of Preferred Stock may be issued from time to time in one
or more series of any number of shares, provided that the aggregate number of
shares issued and not retired of any and all such series shall not exceed the
total number of shares of Preferred Stock hereinabove authorized, and with such
powers, including voting powers, if any, and the designations, preferences and
relative, participating, optional or other special rights, if any, and any
qualifications, limitations or restrictions thereof, all as shall hereafter be
stated and expressed in the resolution or resolutions providing for the
designation and issue of such shares of Preferred Stock from time to time
adopted by the Board of Directors of the Corporation (the "Board") pursuant to
authority so to do which is hereby expressly vested in the Board. The powers,
including voting powers, if any, preferences and relative, participating,
optional and other special rights of each series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding. Each series of shares
of Preferred Stock: (a) may have such voting rights or powers, full or limited,
if any; (b) may be subject to redemption at such time or times and at such
prices, if any; (c) may be entitled to receive dividends (which may be
cumulative or non-cumulative) at such rate or rates, on such conditions 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, if any; (d) may have
such rights upon the voluntary or involuntary liquidation, winding up or
dissolution of, upon any distribution of the assets of, or in the event of any
merger, sale or consolidation of, the Corporation, if any; (e) may be made
convertible into or exchangeable for, shares of any other class or classes or of
any other series of the same or any other class or classes of stock of the
Corporation (or any other securities of the Corporation or any other person) at
such price or prices or at such rates of exchange and with such adjustments, if
any; (f) may be entitled to the benefit of a sinking fund to be applied to the
purchase or redemption of shares of such series in such amount or amounts, if
any; (g) may be entitled to the benefit of conditions and restrictions upon the
creation of indebtedness of the Corporation or any subsidiary, upon the issue of
any additional shares (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 or any subsidiary of, any outstanding shares of the Corporation, if
any; (h) may be subject to restrictions on transfer or registration of transfer,
or on the amount of shares that may be owned by any person or group of persons;
and (i) may have such other relative, participating, optional or other special
rights, qualifications, limitations or restrictions thereof, if any; all as
shall be stated in said resolution or resolutions of the Board providing for the
designation and issue of such shares of Preferred Stock.
4.1.2 Except as otherwise provided by law or by this Certificate of
Incorporation and subject to the express terms of any series of shares of
Preferred Stock, the holders of outstanding shares of Common Stock shall
exclusively possess voting power for the election of Directors and for all other
purposes, each holder of record of shares of Common Stock being entitled to one
vote for each share of Common Stock standing in his or her name on the books of
the Corporation. Except as otherwise provided by law or by this Certificate of
Incorporation and subject to the express terms of any series of shares of
Preferred Stock, the holders of shares of Common Stock shall be entitled, to the
exclusion of the holders of shares of Preferred Stock of any and all series, to
receive such dividends as from time to time may be declared by the Board. In the
event of any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, subject to the rights, if any, of the holders of any
outstanding series of Preferred Stock, the holders of shares of Common Stock
shall be entitled to share ratably according to the number of shares of Common
Stock held by them in all remaining assets of the Corporation available for
distribution to its stockholders.
4.1.3 Subject to the rights of the holders of any one or more series of
Preferred Stock then outstanding, the number of authorized shares of any class
or classes of 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 or any
corresponding provision hereinafter enacted.
5. Board of Directors. The business and affairs of the Corporation shall be
managed by, or under the direction of, the Board. Unless and except to the
extent that the By-laws of the Corporation (the "By-laws") shall so require, the
election of the Directors of the Corporation need not be by written ballot.
5.1 The Board (other than those Directors elected by the holders of any
series of Preferred Stock provided for or fixed pursuant to the provisions of
this Certificate of Incorporation (the "Preferred Stock Directors")) shall be
divided into three classes, as nearly equal in number as possible, designated
Class I, Class II and Class III. Class I Directors shall initially serve until
the first annual meeting of stockholders held following March 15, 2002; Class II
Directors shall initially serve until the second annual meeting of stockholders
held following March 15, 2002; and Class III Directors shall initially serve
until the third annual meeting of stockholders held following March 15, 2002.
Commencing with the first annual meeting of stockholders held following March
15, 2002, Directors of each class the term of which shall then expire shall be
elected to hold office for a term expiring at the third succeeding annual
meeting of stockholders and until the election and qualification of their
respective successors in office. In case of any increase or decrease, from time
to time, in the number of Directors (other than Preferred Stock Directors), the
number of Directors in each class shall be apportioned as nearly equal as
possible.
5.2 Subject to the rights of the holders of any one or more series of
Preferred Stock then outstanding, newly created directorships resulting from any
increase in the authorized number of Directors or any vacancies on the Board
resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall be filled solely by the affirmative vote of a
majority of the remaining Directors then in office, even though less than a
quorum of the Board. Any Director so chosen shall hold office until the next
election of the class for which such Director shall have been chosen and until
his or her successor shall be elected and qualified. No decrease in the number
of Directors shall shorten the term of any incumbent Director.
5.3 The nomination for the election of Directors on behalf of the Board
shall be subject to the following provisions:
5.3.1 At any time that the Caxton-Iseman Stockholders (as defined below)
Beneficially Own (as defined below) at least a majority of the outstanding
Common Stock (as of the record date for determining stockholders who are
entitled to vote for the election of Directors (the "Record Date")), the
Caxton-Iseman Stockholders shall exclusively have and exercise all power and
authority of the Board in respect of nominating, by delivery of written notice
to the Corporation executed on behalf of the Caxton-Iseman Stockholders by the
Caxton-Iseman Stockholders then Beneficially Owning Common Stock constituting at
least a majority of the Common Stock then Beneficially Owned in the aggregate by
all Caxton-Iseman Stockholders setting forth the nominees selected by the
Caxton-Iseman Stockholders (a "Nomination Notice"), a number of nominees for
election as Directors, at any meeting of stockholders of the Corporation at
which one or more Directors are to be elected, which, if elected, when added to
the number of continuing Directors who are not then subject to election and who
are Caxton-Iseman Directors (as defined below), would equal the smallest number
that constitutes a majority of the total number of Directors of the Corporation
immediately following such election.
5.3.2 At any time that the Caxton-Iseman Stockholders Beneficially Own more
than 10% of the outstanding Common Stock and less than a majority of the Common
Stock (as of the relevant Record Date), the Caxton-Iseman Stockholders shall
exclusively have and exercise all power and authority of the Board in respect of
nominating, by delivery of a Nomination Notice, a number of nominees for
election as Directors, at any meeting of stockholders of the Corporation at
which one or more Directors are to be elected, which, if elected, when added to
the number of continuing Directors who are not then subject to election and who
are Caxton-Iseman Directors, would equal the number obtained by dividing (i) the
product of (a) the number of outstanding shares of Common Stock Beneficially
Owned by the Caxton-Iseman Stockholders (as of the relevant Record Date) and (b)
the number of Directors expected to constitute the Board immediately following
such election, by (ii) the number of shares of outstanding Common Stock (as of
the relevant Record Date); provided, however, that if such number is not a whole
number, such number shall be deemed to equal the next highest whole number.
5.3.3 At any time that the Caxton-Iseman Stockholders Beneficially Own more
than 10% of the outstanding Common Stock (as of the relevant Record Date), the
Caxton-Iseman Stockholders shall exclusively have and exercise all power and
authority of the Board in respect of filling, by delivery of a written notice to
the corporation, (i) any vacancy occurring in a directorship which was held by a
Caxton-Iseman Director or (ii) any newly created directorships that result from
increasing the size of the Board (but only to the extent that the number of any
such newly created directorships, when added to the number of continuing
Directors who are Caxton-Iseman Directors, is equal to or less than the number
of Directors that the Caxton-Iseman Stockholders would be entitled to nominate
pursuant to the provisions of Sections 5.3.1 or 5.3.2 above had such newly
created directorships existed at any meeting of stockholders of the Corporation
at which one or more Directors were to be elected).
5.3.4 In the event that the Board solicits proxies from the stockholders of
the Corporation for the election of any Directors at any meeting of stockholders
and fails to solicit proxies for the election at such meeting of the persons
nominated by the Caxton-Iseman Stockholders pursuant to the provisions of
Sections 5.3.1 and 5.3.2 (the "Caxton-Iseman Nominees"), then the Caxton-Iseman
Stockholders may, at the expense of the Company, solicit proxies for the
election as Directors at such meeting of the Caxton-Iseman Nominees.
5.3.5 At any time that the Caxton-Iseman Stockholders Beneficially Own less
than a majority and more than one-third of the outstanding Common Stock, Section
5.3 of this Certificate of Incorporation may not be amended, altered or repealed
(including by merger, consolidation or otherwise), without the affirmative vote
of the holders of at least two-thirds of the then outstanding Common Stock. At
any time that the Caxton-Iseman Stockholders Beneficially Own less than
one-third of the outstanding Common Stock, this Section 5.3 of this Certificate
of Incorporation may not be amended, altered or repealed (including by means of
a merger, consolidation or otherwise), without the affirmative vote of the
holders of at least three-fourths of the then outstanding Common Stock.
5.3.6 For purposes of this Certificate of Incorporation, (i) "Caxton-Iseman
Stockholders" shall mean Frederick J. Iseman, Azimuth Technologies, L.P.,
Azimuth Tech. II LLC or any of their respective Affiliates (as defined in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended (the "Rules")) and Associates (as defined in the Rules), (ii)
"Caxton-Iseman Directors" shall mean any Director who was nominated by the
Caxton-Iseman Stockholders pursuant to this Section 5.3 and elected by the
stockholders of the Corporation, and, at any time prior to the end of their
respective initial terms following the date hereof, Frederick J. Iseman, Steven
M. Lefkowitz, Robert A. Ferris and Thomas J. Tisch and (iii) "Beneficially Own,"
"Beneficially Owned" or "Beneficial Ownership" shall have the meaning set forth
in Rule 13d-3 of the Rules.
6.
Limitation of Liability. No Director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, provided that this provision shall not eliminate
or limit the liability of a Director (a) for any breach of the Director's duty
of loyalty to the Corporation or its stockholders, (b) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (c) under section 174 of the General Corporation Law or (d) for any
transaction from which the Director derived any improper personal benefits. If
the General Corporation Law is hereafter amended to authorize corporate action
further eliminating or limiting 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 General Corporation Law, as so amended. Any
repeal or modification of the foregoing provision shall not adversely affect any
right or protection of a Director of the Corporation in respect of any act or
omission occurring prior to the time of such repeal or modification. All
references in this Section 6 to a Director or Directors of the Corporation shall
also be deemed to refer to the Caxton-Iseman Stockholders to the extent that
they exercise the power and authority of the Board pursuant to the provisions of
Section 5.3 above.
7. Indemnification.
7.1 To the extent not prohibited by applicable law, the Corporation shall
indemnify any person (a "Covered Person") who is or was made, or threatened to
be made, a party to any threatened, pending or completed action, suit or
proceeding (a "Proceeding"), whether civil, criminal, administrative or
investigative, including, without limitation, an action by or in the right of
the Corporation to procure a judgment in its favor, by reason of the fact that
such person, or a person of whom such person is the legal representative, is or
was a Director or officer of the Corporation, or, while a Director or officer of
the Corporation, is or was serving at the request of the Corporation as a
director or officer of any other corporation or in a capacity with comparable
authority or responsibilities for any partnership, joint venture, trust,
employee benefit plan or other enterprise (an "Other Entity"), against expenses
(including attorneys' fees) in the event of an action by or in the right of the
Corporation and against judgments, fines, and amounts paid in settlement and
expenses (including attorneys' fees), in the event of any other proceeding, if
the person acted in good faith and in a manner the person reasonably believed to
be in or not opposed to the best interest of the Corporation, and, with respect
to any criminal proceeding, had no reason to believe the person's conduct was
unlawful. Persons who are not Directors or officers of the Corporation may be
similarly indemnified in respect of service to the Corporation or to an Other
Entity at the request of the Corporation to the extent the Board at any time
specifies that such persons are entitled to the benefits of this Section 7.
Notwithstanding the foregoing, except as otherwise provided in Section 7.9, the
Corporation shall be required to indemnify a Covered Person in connection with a
Proceeding (or part thereof) commenced by such Covered Person only if the
commencement of such Proceeding (or part thereof) by the Covered Person was
authorized by the Board.
7.2 The Corporation shall, from time to time, reimburse or advance to any
Covered Person the funds necessary for payment of expenses, including attorneys'
fees and disbursements, incurred in defense of any Proceeding, in advance of the
final disposition of such Proceeding; provided, however, that, if required by
the General Corporation Law, such payment of expenses in advance of the final
disposition of a Proceeding shall be made only upon receipt by the Corporation
of an undertaking, by the Covered Person, to repay any such amount so advanced
if it shall ultimately be determined that such Covered Person is not entitled to
be indemnified for such expenses.
7.3 The rights to indemnification or advancement of expenses provided by,
or granted pursuant to, this Section 7 shall not be deemed exclusive of any
other rights to which a person seeking indemnification or reimbursement or
advancement of expenses may have or hereafter be entitled under applicable law,
this Certificate of Incorporation, the By-laws, any agreement, any vote of
stockholders or disinterested Directors or otherwise.
7.4 The rights to indemnification or advancement of expenses provided by,
or granted pursuant to, this Section 7 shall continue as to a person who has
ceased to be a Director or officer and shall inure to the benefit of the
executors, administrators, legatees and distributees of such person.
7.5 The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a Director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of an Other Entity, against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the Corporation
would have the power to indemnify such person against such liability under the
provisions of this Section 7, the By-laws or under Section 145 of the General
Corporation Law or any other provision of law.
7.6 Any repeal or modification of the provisions of this Section 7 shall
not adversely affect any right or protection hereunder of any Covered Person in
respect of any act or omission occurring prior to the time of such repeal or
modification.
7.7 The rights to indemnification or advancement of expenses provided by,
or granted pursuant to, this Section 7 shall be enforceable by any Covered
Person in the Court of Chancery of the State of Delaware. The burden of proving
that such indemnification or advancement of expenses is not appropriate shall be
on the Corporation. Neither the failure of the Corporation (including its Board,
its independent legal counsel and its stockholders) to have made a determination
prior to the commencement of such action that such indemnification or
reimbursement or advancement of expenses is proper in the circumstances nor an
actual determination by the Corporation (including its Board, its independent
legal counsel and its stockholders) that such person is not entitled to such
indemnification or reimbursement or advancement of expenses shall constitute a
defense to the action or create a presumption that such person is not so
entitled. Such a person shall also be indemnified for any expenses incurred in
connection with successfully establishing his or her right to such
indemnification or advancement of expenses, in whole or in part, in any such
proceeding.
7.8 The Corporation's obligation, if any, to indemnify or to advance
expenses to any Covered Person who was or is serving at the Corporation's
request as a director, officer, employee or agent of any Other Entity shall be
reduced by any amount such Covered Person may collect as indemnification or
advancement of expenses from such Other Entity.
7.9 If a claim for indemnification or advancement or reimbursement of
expenses under this Article 7 is not paid in full within 30 days after a written
claim therefor by the Covered Person has been received by the Corporation, the
Covered Person may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the burden
of proving that the Covered Person is not entitled to the requested
indemnification or advancement or reimbursement of expenses under applicable
law.
7.10 This Section 7 shall not limit the right of the Corporation, to the
extent and in the manner permitted by applicable law, to indemnify and advance
or reimburse expenses to persons other than Covered Persons when and as
authorized by appropriate corporate action.
8. Section 203. The Corporation hereby expressly elects not to be governed by
the provisions of Section 203 of the General Corporation Law (or any successor
provision thereof), and the restrictions and limitations set forth therein.
9. Action by Written Consent. Except as otherwise provided for or fixed pursuant
to the provisions of this Certificate of Incorporation relating to the rights of
holders of any series of Preferred Stock to vote as a class on certain matters,
no action that is required or permitted to be taken by the stockholders of the
Corporation at any annual or special meeting of stockholders may be effected by
written consent of stockholders in lieu of a meeting of stockholders.
10. Qualification of Directors. There shall be no limitation on the
qualification of any person to be a Director or on the ability of any Director
to vote on any matter brought before the Board or any Board committee, except
(i) as required by applicable law, (ii) as set forth in this Certificate of
Incorporation or (iii) as set forth in any By-laws adopted by the Board with
respect to the eligibility of a person for election as a Director upon reaching
a specified age or, in the case of employee Directors, with respect to the
qualification for continuing service of Directors upon ceasing employment from
the Corporation.
11. Adoption, Amendment and/or Repeal of By-Laws. The Board may from time to
time adopt, amend or repeal the By-laws; provided, however, that any By-laws
adopted or amended by the Board may be amended or repealed, and any By-laws may
be adopted, by the stockholders of the Corporation by, (i) at any time that the
Caxton-Iseman Stockholders Beneficially Own a majority of the outstanding Common
Stock, the affirmative vote of the holders of a majority in voting power of the
outstanding stock of the Corporation and (ii) at any time that the Caxton-Iseman
Stockholders Beneficially Own less than a majority of the outstanding Common
Stock, the affirmative vote of the holders of at least three-fourths in voting
power of the outstanding stock of the Corporation.