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EXHIBIT 3.1
FORM OF
AMENDED AND
RESTATED
CERTIFICATE OF INCORPORATION
OF
KPMG CONSULTING, INC.
ARTICLE ONE
The name of the corporation (which is hereinafter referred to
as the "Corporation") is KPMG Consulting, Inc.
ARTICLE TWO
The address of the registered office of the Corporation in the
State of Delaware is 30 Old Rudnick Lane, Suite 100, City of Dover, County of
Kent, Zip Code 19901. The name of the registered agent of the Corporation at
such address is Lexis Document Services Inc.
ARTICLE THREE
The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of the State of Delaware
("DGCL").
ARTICLE FOUR
4.1 Capital Stock. The total number of shares of capital stock
which the Corporation has authority to issue is 1,010,000,000, consisting of
10,000,000 shares of Preferred Stock, par value $.01 per share ("Preferred
Stock"), and 1,000,000,000 shares of Common Stock, par value $.01 per share
("Common Stock").
4.2 Preferred Stock. The Preferred Stock may be issued from
time to time in one or more series. The Board of Directors is hereby authorized
to create and provide for the issuance of shares of Preferred Stock in series
and, by filing a certificate pursuant to the applicable law of the State of
Delaware (hereinafter referred to as a "Preferred Stock Designation"), 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.
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The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The number of shares of the series, which number the Board
of Directors may thereafter (except where otherwise provided in the
Preferred Stock Designation) increase or decrease (but not below the
number of shares such series then outstanding);
(c) Whether dividends, if any, shall be cumulative or
noncumulative and the dividend rate of the series;
(d) The dates at which dividends, if any, shall be payable;
(e) The redemption rights and price or prices, if any, for
shares of the series;
(f) The terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series;
(g) The amounts payable on, and the preferences, if any, of
shares of the series in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation;
(h) Whether the shares of the series shall be convertible or
exchangeable into shares of any other class or series, or any other
security, of the Corporation or any other corporation, and, if so, the
specification of such other class or series or of such other security,
the conversion price or prices or exchange rate or rates, any
adjustments thereof, the date or dates at which such shares shall be
convertible or exchangeable and all other terms and conditions upon
which such conversion or exchange may be made;
(i) Restrictions on the issuance of shares of the same series
or of any other class or series;
(j) The voting rights, if any, of the holders of shares of the
series; and
(k) Such other powers, preferences and relative,
participating, optional and other special rights, and the
qualifications, limitations and restrictions thereof as the Board of
Directors shall determine.
4.3 Common Stock. Except as otherwise provided by law, by this
Certificate of Incorporation or any amendments hereto or in a Preferred Stock
Designation, all of the voting power of the stockholders of the Corporation
shall be vested in the holders of the Common Stock, and holders of shares of
Preferred Stock shall not be entitled to receive notice of any meeting of
stockholders at which they are not entitled to vote. Each holder of Common Stock
shall have one vote for each share of Common Stock held by such holder on all
matters voted upon by the stockholders. The following is a statement of the
powers, preferences and
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participating, optional or other special rights, and the qualifications,
limitations and restrictions of the Common Stock:
(1) Dividends. Subject to the rights of the holders of
Preferred Stock, and subject to any other provisions of this Certificate of
Incorporation, holders of Common Stock shall be entitled to receive such
dividends and other distributions in cash, stock of any corporation or 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
therefor and shall share equally on a per share basis in all such dividends and
other distributions.
(2) Voting Rights. (a) At every meeting of the stockholders of
the Corporation every holder of Common Stock shall be entitled to one vote in
person or by proxy for each share of Common Stock standing in his or her name in
the transfer books of the Corporation in connection with the election of
directors and all other matters submitted to a vote of stockholders.
(b) At any meeting of stockholders, the presence in person or
by proxy of the holders of shares entitled to cast a majority of all the votes
which could be cast at such meeting by the holders of all of the outstanding
shares of stock of the Corporation entitled to vote at such meeting shall
constitute a quorum.
(3) Liquidation or Dissolution. In the event of any
dissolution, liquidation or winding up of the affairs of the Corporation,
whether voluntary or involuntary, after payment, or setting apart for payment,
in full of the amounts required to be paid to the holders of Preferred Stock, if
any, the remaining assets and funds of the Corporation shall be distributed pro
rata to the holders of Common Stock. For purposes of this paragraph (3), unless
otherwise provided with respect to any series of Preferred Stock, the voluntary
sale, conveyance, lease, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the assets of
the Corporation or a consolidation or merger of the Corporation with one or more
other corporations (whether or not the Corporation is the corporation surviving
such consolidation or merger) shall not be deemed to be a liquidation,
dissolution or winding up, either voluntary or involuntary.
4.4 Record Holders. The Corporation shall be entitled to treat
the person in whose name any share of its capital stock is registered on the
stock transfer books of the Corporation as the owner thereof for all purposes
and shall not be bound to recognize any equitable or other claim to, or interest
in, such share on the part of any other person, whether or not the Corporation
shall have notice thereof, except as expressly provided by applicable law.
4.5 Reverse Split. Effective immediately prior to the closing
of the initial public offering of the Common Stock of the Corporation (the
"Effective Time"), each 5.045011933 shares of Common Stock held of record as of
the Effective Time or held in the Corporation's treasury as of the Effective
Time shall be automatically reclassified and converted, without further action
on the part of the holder thereof, into one share of Common Stock. No fractional
share of Common Stock shall be issued to any Fractional Holder (as defined
below) upon such reclassification and conversion. From and after the Effective
Time, each Fractional Holder shall have no further interest as a stockholder in
respect of any such fractional share and,
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in lieu of receiving such fractional share, shall be entitled to receive an
amount in cash equal to the value of such fractional share based on the initial
public offering price of each share of Common Stock, without interest. Such
payment of cash in lieu of the fractional share shall be made promptly after the
closing of the initial public offering. As used herein, the term "Fractional
Holder" shall mean a holder of record of less than 5.045011933 shares of Common
Stock as of the Effective Time who would be entitled to less than one whole
share of Common Stock in respect of such shares as a result of the
reclassification and conversion provided for in this Section 4.5.
Nothing contained in this Section 4.5 is intended to amend or
modify Sections 4.1 or 4.2.
ARTICLE FIVE
5.1 By-Laws; Accounts and Books. In furtherance and not in
limitation of the powers conferred by law, the Board of Directors is expressly
authorized:
(a) to adopt, amend or repeal the By-Laws of the Corporation;
provided, however, that the By-Laws may also be adopted, amended or
repealed by the affirmative vote of the holders of at least sixty six
and two-thirds percent (66 2/3 %) of the voting power of the then
outstanding Voting Stock (as defined below), voting together as a
single class; and
(b) from time to time to determine whether and to what extent,
and at what times and places, and under what conditions and
regulations, the accounts, books and documents of the Corporation, or
any of them, shall be open to inspection of stockholders; and, except
as so determined, or as expressly provided in this Certificate of
Incorporation or in any Preferred Stock Designation, no stockholder
shall have any right to inspect any account, book or document of the
Corporation other than such rights as may be conferred by applicable
law.
For purposes of this Certificate of Incorporation, "Voting
Stock" shall mean the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors.
5.2 Other Constituencies. The Board of Directors of the
Corporation, when evaluating any offer of another party to (a) make a tender or
exchange offer for any equity security of the Corporation; (b) merge or
consolidate the Corporation with another corporation or entity; or (c) purchase
or otherwise acquire all or substantially all of the properties and assets of
the Corporation, may, in connection with the exercise of its judgment in
determining what is in the best interests of the Corporation and its
stockholders, give due consideration to any and all factors the directors deem
relevant, including, without limitation: (i) the effects upon the employees,
suppliers, customers, strategic partners, creditors and others having similar
relations with the Corporation, upon the communities in which the Corporation
conducts its business or on such other constituencies of the Corporation as the
Board of Directors considers relevant under the circumstances; (ii) not only the
consideration being offered (after taking into account taxes) in relation to the
then current market price for the Corporation's outstanding shares of capital
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stock, but also the Board of Directors' estimate of the (A) future value of the
Corporation (including the unrealized value of its properties and assets) as an
independent going concern and (B) the current value of the Corporation in a
freely negotiated transaction; (iii) the purpose of the Corporation, and any of
its subsidiaries, to provide quality products and services, employment
opportunities and employment benefits and otherwise contribute to the
communities in which it conducts its business on a long-term basis; (iv) whether
the proposed transaction might violate federal or state laws; or (v) the
long-term as well as short-term interests of the Corporation and its
stockholders, including the possibility that such interests may be best served
by the continued independence of the Corporation. If, on the basis of such
factors, the Board of Directors determines that a proposal or offer to acquire
the Corporation's equity securities, to merge or consolidate the Corporation, or
to sell its assets is not in the best interests of the Corporation, it may
reject the proposal or offer. If the Board of Directors determines to reject any
such proposal or offer, the Board of Directors shall have no obligation to
facilitate, to remove any barriers to, or to refrain from impeding the proposal
or offer, except in each case to the extent required by applicable law. Except
to the extent required by applicable law, the consideration of any or all of
such factors shall not be a violation of the business judgment rule or of any
duty of the directors to the stockholders or a group of stockholders, even if
the directors reasonably determine that any such factor or factors outweigh the
financial or other benefits to the Corporation or a stockholder or group of
stockholders. Nothing in this Section 5.2 shall create any duty owed by any
director of the Corporation to any person or entity to consider, or afford any
particular weight to, any of the foregoing matters or to limit his or her
consideration to the foregoing matters. No such employee, former employee,
supplier, customer, strategic partner, creditor or community or member thereof
shall have any rights against any director of the Corporation or the Corporation
under this Section 5.2
ARTICLE SIX
6.1 Meetings of Stockholders. Meetings of stockholders may be
held within or without the State of Delaware, as the By-Laws of the Corporation
may provide. The books of the Corporation may be kept outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation.
6.2 Special Meetings of Stockholders. Subject to any rights of
the holders of any series of Preferred Stock to elect additional directors under
specified circumstances, special meetings of stockholders of the Corporation may
be called only by the Board of Directors pursuant to a resolution approved by a
majority of the whole Board of Directors or by the Chairman of the Board of
Directors. Business transacted at any special meeting of stockholders shall be
limited to matters relating to the purpose or purposes stated in the
Corporation's notice of meeting. For purposes of this Certificate of
Incorporation, "whole Board of Directors" means the total number of directors
which the Corporation would then have on the Board of Directors if there were no
vacancies.
6.3 No Stockholder Action by Written Consent. Prior to such
time as the Corporation effects an initial public offering of the Common Stock
registered under the Securities Act of 1933, as amended, any action required or
permitted to be taken at any meeting of the stockholders may be taken without a
meeting if stockholders holding the number of shares
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required to approve such action consent in writing (which may be in
counterparts), and the written consent or consents are filed with the
proceedings of the stockholders. At or after such time as the Corporation
effects an initial public offering of the Common Stock, but subject to any
rights of the holders of any series of Preferred Stock to elect additional
directors under specified circumstances or to consent to specific actions taken
by the Corporation, any action required or permitted to be taken by the
stockholders of the Corporation must be effected only at a duly called annual or
special meeting of stockholders of the Corporation and may not be effected by
any consent in writing in lieu of a meeting of such stockholders.
ARTICLE SEVEN
7.1 Number of Directors. Subject to any rights of the holders
of any series of Preferred Stock to elect additional directors under specified
circumstances, the number of directors which shall constitute the whole Board of
Directors of the Corporation shall be such number as shall from time to time be
fixed by resolution adopted by affirmative vote of a majority of the whole Board
of Directors. The Board of Directors, other than as may be expressly provided as
to any directors who may be elected by the holders of any series of Preferred
Stock, shall be divided into three classes, as nearly equal in number as
possible, and designated as Class I, Class II and Class III. The term of office
of the Class I directors shall expire at the 2001 annual meeting of
stockholders, the term of office of the Class II directors shall expire at the
2002 annual meeting of stockholders, and the term of office of the Class III
directors shall expire at the 2003 annual meeting of stockholders. At each
annual meeting of stockholders, beginning with the 2001 annual meeting of
stockholders, directors elected to succeed those directors whose terms then
expire shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election. The foregoing
notwithstanding, each director shall serve until his or her successor shall have
been duly elected and qualified, unless he or she shall die, resign, retire,
become disqualified or be removed. 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, except as may
be expressly provided as to any directors who may be elected by the holders of
any series of Preferred Stock. In no case will a decrease in the number of
directors shorten the term of any incumbent director.
7.2 Powers, Qualifications and Removal. The business of the
Corporation shall be managed by or under the direction of the Board of
Directors. A majority of the whole Board of Directors shall constitute a quorum
for the transaction of business. Any director may tender his resignation at any
time. Subject to any rights of the holders of any series of Preferred Stock, any
director may be removed from office at any time, but only for cause and then
only by the affirmative vote of the holders of the least sixty six and
two-thirds percent (66 2/3 %) of the voting power of the then outstanding Voting
Stock, voting together as a single class.
7.3 Newly Created Directorships and Vacancies. Subject to any
rights of the holders of any series of Preferred Stock to fill newly created
directorships or vacancies under specified circumstances, any newly created
directorships resulting from any increase in the authorized number of directors
and any vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other reason shall, unless
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otherwise expressly required by law, be filled only by a resolution adopted by
the affirmative vote of a majority of the directors then in office, even if less
than a quorum, and each director so chosen shall hold office for a term expiring
at the annual meeting of stockholders at which the term of office of the class
to which such director has been elected expires and until his or her successor
shall have been duly elected and qualified, or until his or her earlier death,
resignation, retirement, disqualification, removal from office or other reason.
7.4 Ballots Not Required. Election of directors need not be by
written ballot unless the By-Laws of the Corporation so provide.
ARTICLE EIGHT
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, except for liability (i) for any breach of the
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 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 DGCL, as so amended. No amendment or repeal of this Article Eight, or
adoption of any provision to this Certificate of Incorporation, by the
stockholders of the Corporation shall adversely affect any right or protection
of a director of the Corporation existing hereunder in respect of any act or
omission occurring prior to such amendment, repeal or adoption.
ARTICLE NINE
9.1 Indemnification. The Corporation shall indemnify to the
fullest extent permitted under the DGCL any person who was or is a party to (or
witness in) or is threatened to be made a party to (or witness in) any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he or she is or was or has
agreed to become a director or officer of the Corporation, or is or was serving
(or who has agreed to serve) at the request of the Corporation as a director,
officer, employee or agent of or in any other capacity with respect to another
corporation, partnership, limited liability company, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she 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 or her conduct was unlawful.
9.2 Expenses. Expenses (including attorneys' fees) incurred in
defending a civil, criminal, administrative or investigative action, suit or
proceeding (1) in the case of any action, suit or proceeding against a director
or officer of the Corporation, shall be paid by the Corporation or (2) in the
case of any action, suit or proceeding against an employee or agent of
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the Corporation may, as authorized by the Board of Directors, be paid by the
Corporation, in each case in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of the
indemnified person to repay such amount if it shall ultimately be determined
that he or she is not entitled to be indemnified by the Corporation as
authorized in this Article Nine.
9.3 Indemnification of Employees and Agents. The Corporation
may, to the extent authorized from time to time by the Board of Directors, grant
rights to indemnification and to the advancement of expenses to any employee or
agent of the Corporation to the fullest extent of the provisions of this Article
Nine with respect to the indemnification and advancement of expenses of
directors and officers of the Corporation.
9.4 Not Exclusive. The indemnification and other rights set
forth in this Article Nine shall not be exclusive of any provisions with respect
thereto in the By-Laws of the Corporation or any other contract or agreement
between the Corporation and any officer, director, employee or agent of the
Corporation or any person who is or was serving (or who has agreed to serve) at
the request of the Corporation as a director, officer, employee or agent of or
in any other capacity with respect to another corporation, partnership, limited
liability company, joint venture, trust or other enterprise. The Corporation may
enter into one or more agreements with any person which provide for
indemnification greater or different than that provided by this Article Nine.
9.5 No Reduction. Neither the amendment nor repeal of this
Article Nine nor the adoption of any provision of this Certificate of
Incorporation inconsistent with Article Nine shall eliminate or reduce the
benefits of Article Nine in respect of any act or omission occurring prior to
such amendment, repeal or adoption of an inconsistent provision or in respect of
any cause of action, suit or claim relating to any such act or omission which
would have given rise to a right of indemnification or right to receive expenses
pursuant to this Article Nine if such provision had not been so amended or
repealed or if a provision inconsistent therewith had not been so adopted.
ARTICLE TEN
10.1 Restrictions on Business Combinations. In addition to any
affirmative vote that may be required by law, this Certificate of Incorporation
or the By-Laws of the Corporation, and except as otherwise expressly provided in
Section 10.2;
(i) any merger or consolidation of the Corporation or any
subsidiary of the Corporation with or into (each term as defined below) (A) any
Related Person or (B) any Person that is an Affiliate of a Related Person; or
(ii) any sale, lease, exchange, transfer or other disposition
by the Corporation to any Related Person or any Affiliate of any Related Person
of all or substantially all of the assets of the Corporation; or
(iii) any reclassification of securities (including any
reverse stock split) or recapitalization of the Corporation for which the
approval of stockholders of the Corporation is
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otherwise required, or any merger, consolidation or share exchange of the
Corporation with any of its subsidiaries for which the approval of stockholders
of the Corporation is otherwise required, which has the effect, either directly
or indirectly, of increasing by more than 1% the proportionate share of the
outstanding Common Stock or Voting Stock Beneficially Owned (as defined below)
by any Related Person or any Affiliate of any Related Person; or
(iv) any dissolution of the Corporation voluntarily caused or
proposed by or on behalf of a Related Person or any Affiliate of any Related
Person; shall, in each case, require the affirmative vote of shares representing
(x) not less than sixty six and two-thirds percent (66 2/3 %) of the votes
entitled to be cast by the Voting Stock, voting together as a single class, and
(y) a majority of the votes entitled to be cast by the Voting Stock (excluding
all shares Beneficially Owned, directly or indirectly, by any Related Person or
any Affiliate of a Related Person), voting together as a single class, with
respect to such Business Combination. Such affirmative vote shall be required,
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law, elsewhere in this Certificate of
Incorporation, in the By-laws of the Corporation or in any agreement with any
national securities exchange or otherwise.
10.2 Exceptions. The provisions of Section 10.1 shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only such affirmative vote as is required by law, the By-Laws of
the Corporation and any other provision of the Certificate of Incorporation, if
all of the conditions specified in either of the following Section 10.2 (i) or
10.2(ii) are met:
(i) the cash, property, securities or other consideration to
be received per share by holders of the Common Stock in the Business Combination
is either (A) the same in form and amount per share as the highest consideration
paid by the Related Person in a tender or exchange offer in which such Related
Person acquired at least 50% of the outstanding Common Stock and which was
consummated not more than one year prior to the date of such Business
Combination, or if earlier, the entering into of a definitive agreement
providing therefor or (B) not less in amount (as to cash) or Fair Market Value
(as to consideration other than cash) as of the date of the determination of the
Highest Per Share Price (as to property, securities or other consideration) than
the Highest Per Share Price; provided that, in the event of any Business
Combination in which the Corporation survives, any shares retained by the
holders thereof shall constitute consideration other than cash for purposes of
this Section 10.2(i); or
(ii) a majority of the Continuing Directors shall have
expressly approved such Business Combination either in advance of or subsequent
to such Related Person's having become a Related Person.
In the case of any Business Combination with a Related Person
to which Section 10.2 (ii) above does not apply, a majority of the Continuing
Directors, promptly following the request of a Related Person, shall determine
the Highest Per Share Price for each class or series of stock of the
Corporation. Such determination shall be announced not less than five days prior
to the meeting at which holders of shares vote on the Business Combination. Such
determination shall be final, unless the Related Person becomes the Beneficial
Owner of additional shares of Common Stock after the date of the earlier
determination, in which case the Continuing
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Directors shall make a new determination as to the Highest Per Share Price for
each class or series of shares prior to the consummation of the Business
Combination.
A Related Person shall be deemed to have acquired a share at
the time that such Related Person became the Beneficial Owner thereof. With
respect to shares owned by Affiliates, Associates and other Persons whose
ownership is attributable to a Related Person, if the price paid by such Related
Person for such shares is not determinable by a majority of the Continuing
Directors, the price so paid shall be deemed to be the higher of (i) the price
paid upon the acquisition thereof by the Affiliates, Associate or other Person
or (ii) the Fair Market Value of the shares in question at the time when the
Related Person became the Beneficial Owner thereof.
10.3 Definitions. For purposes of this Article Ten and
notwithstanding anything to the contrary set forth in this Certificate of
Incorporation:
(i) The term "Affiliate," used to indicate a relationship to a
specified Person, shall mean a Person that directly, or indirectly through one
or more intermediaries, controls, is controlled by, or is under common control
with, such specified Person.
(ii) The term "Associate," used to indicate a relationship
with a specified Person, shall mean (A) any corporation, partnership, limited
liability company, association, joint venture or other organization (other than
the Corporation or any wholly owned subsidiary of the Corporation) of which such
specified Person is director, officer or partner or is, directly or indirectly,
the Beneficial Owner of 10% or more of any class of equity securities; (B) any
trust or other estate in which such specified Person has a beneficial interest
of 10% or more as to which such specified Person serves as trustee or in a
similar fiduciary capacity; (C) any Person who is a director or officer of such
specified Person or any of its parents or subsidiaries (other than the
Corporation or any wholly owned subsidiary of the Corporation); and (D) any
relative or spouse of such specified Person or of any of its Associates, or any
relative of any such spouse, who has the same home as such specified Person or
such Associate.
(iii) A Person shall be a "Beneficial Owner" of any stock (A)
which such Person or any of its Affiliates or Associates beneficially owns,
directly or indirectly; or (B) which such Person or any of its Affiliates or
Associates has, directly or indirectly, (1) the right to acquire (whether such
right is exercisable immediately or only after the passage of time), pursuant to
any agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, provided, that a
Person shall not be deemed the Beneficial Owner of stock tendered pursuant to a
tender or exchange offer made by such Person or any of such Person's Affiliates
or Associates until such tendered stock is accepted for purchase or exchange, or
(2) the right to vote pursuant to any agreement, arrangement or understanding,
provided, that a Person shall not be deemed the owner of any stock because of
such Person's right to vote such stock if the agreement, arrangement or
understanding to vote such stock arises solely from a revocable proxy or consent
given in response to a proxy or consent solicitation made to 10 or more Persons;
or (C) which is beneficially owned, directly or indirectly, by any other Person,
with which such Person or any of its Affiliates or Associates has any agreement,
arrangements or understanding for the purpose of acquiring, holding, voting
(except voting pursuant to a revocable proxy or consent as described in clause
(B)(2) of this
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paragraph) or disposing of such stock; or (D) of which such Person would be the
Beneficial Owner pursuant to the terms of Rule 13d-3 of the Exchange Act, as
amended. Stock shall be deemed "Beneficially Owned" by the Beneficial Owner or
Owners thereof.
(iv) The term "Business Combination" shall mean any
transaction which is referred to in any one or more of clauses (i) through (iv)
of Section 10.1.
(v) The term "Continuing Director" shall mean, with respect to
a Business Combination with a Related Person, any director of the Corporation
who is unaffiliated with the Related Person and was a director prior to the time
that the Related Person became a Related Person, and any successor of a
Continuing Director who is unaffiliated with the Related Person and is
recommended or nominated to succeed a Continuing Director by a majority of the
Continuing Directors. Without limiting the generality of the foregoing, a
director shall be deemed to be affiliated with a Related Person if such director
(A) is a partner, officer, director or employee of such Related Person; (B) is
an Affiliate or Associate of such Related Person; (C) is a relative or spouse of
such Related Person or of any such partner, officer, director, Affiliate or
Associate; (D) performs services, or is a partner, member, officer, director,
employee, greater than 5% stockholder or other equity owner of any organization
(other than the Corporation and its subsidiaries) which performs services for
such Related Person or any Affiliate of such Related Person, or is a relative or
spouse of any such Person; or (E) was nominated for election as a director by
such Related Person.
(vi) The term "Fair Market Value" shall mean, in the case of
securities, the average of the closing sales prices during the 30-day period
immediately preceding the date in question of such security on the principal
United States securities exchange registered under the Securities Exchange Act
of 1934, as amended, on which such security is listed (or the composite tape
therefor) or, if such securities are not listed on any such exchange, the
average of the last reported sales price (if so reported) or the closing bid
quotations with respect to such security during the 30-day period preceding the
date in question on the New York Stock Exchange or, if no such quotations are
available, the fair market value on the date in question of such security as
determined in good faith by a majority of the Continuing Directors; and in the
case of property other than cash or securities, the fair market value of such
property on the date in question as determined in good faith by a majority of
the Continuing Directors.
(vii) The term "Highest Per Share Price" shall mean, with
respect to a Related Person, the highest price that can be determined to have
been paid or agreed to be paid for any share or shares of the Common Stock or
Voting Stock by such Related Person in a transaction that either (1) resulted in
such Related Person's Beneficially Owning 15% or more of the Common Stock or
Voting Stock outstanding or (2) was effected at a time when such Related Person
Beneficially Owned 15% or more of the Common Stock or Voting Stock outstanding,
in either case occurring not more than one year prior to the date of the
Business Combination. In determining the Highest Per Share Price, appropriate
adjustment will be made to take into account (w) distributions paid or payable
in stock, (x) subdivisions of outstanding stock, (y) combinations of shares of
stock into a smaller number of shares and (z) similar events.
(viii) The term "Person" shall mean any individual,
corporation, limited liability company, association, partnership, joint venture,
trust, estate or other entity or organization.
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(ix) The term "Related Person" shall mean any Person (other
than the Corporation or any subsidiary of the Corporation and other than any
profit sharing, employee ownership or other employee benefit plan of the
Corporation or any subsidiary of the corporation or any trustee of or fiduciary
with respect to any such plan when acting in such capacity) who or which (A) is
the Beneficial Owner of 15% or more of the Common Stock or Voting Stock
outstanding; or (B) is an Affiliate of the Corporation and at any time within
the two-year period immediately prior to the date in question was the Beneficial
Owner of 15% or more of the Common Stock or Voting Stock outstanding. For the
purposes of determining whether a Person is a Related Person, the number of
shares of any class or series deemed to be outstanding shall include shares of
such class or series of which the Person is deemed the Beneficial Owner, but
shall not include any other shares which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion rights,
warrants or options, otherwise. Notwithstanding anything to the contrary herein,
KPMG LLP, its successors or assignees, its Affiliates or Associates and any
Person who receives Beneficial Ownership of 15% or more of the outstanding
Common Stock directly from any of the foregoing Persons shall not be deemed to
be Related Persons.
10.4 Fiduciary Obligations. Nothing contained in this Article
Ten shall be construed to relieve any Related Person from any fiduciary
obligation imposed by law.
10.5 Amendment. Notwithstanding any other provision of this
Certificate of Incorporation (and notwithstanding that a lesser percentage may
be specified by law), the affirmative vote of shares representing (x) not less
than sixty six and two-thirds percent (66 2/3 %) of the Voting Stock, voting
together as a single class and (y) not less than a majority of the Voting Stock
voting together as a single class, not Beneficially Owned, directly or
indirectly, by any Related Person or any Affiliate of a Related Person shall be
required to amend or repeal, or adopt any provisions inconsistent with, this
Article Ten.
ARTICLE ELEVEN
Any merger, consolidation, sale, lease, exchange, transfer or
reclassification (whether or not such transaction involves a Related Person)
which, pursuant to the DGCL, requires the approval of the stockholders of the
Corporation, shall not be effected without the affirmative vote of shares
representing not less than sixty six and two-thirds percent (66 2/3 %) of the
Voting Stock, voting together as a single class.
ARTICLE TWELVE
The Corporation is to have perpetual existence.
ARTICLE THIRTEEN
The Corporation reserves the right at any time and from time
to time to amend or repeal any provision contained in this Certificate of
Incorporation or any Preferred Stock Designation, and any other provisions
authorized by the laws of the State of Delaware at the time
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in force may be adopted by the Corporation, in the manner now or hereafter
prescribed herein or by law; and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Certificate of Incorporation in its present
form or as hereafter amended are granted subject to the right reserved in this
Article Thirteen; provided, however, that any amendment or repeal of, or
adoption of any provision inconsistent with, Article Eight or Article Nine of
this Certificate of Incorporation shall not adversely affect any right or
protection existing hereunder in respect of any act or omission occurring prior
to such amendment or repeal or adoption of any provision inconsistent therewith;
and provided further that no Preferred Stock Designation shall be amended after
the issuance of any shares of the series of Preferred Stock created thereby,
except in accordance with the terms of the Certificate of Designation or such
Preferred Stock Designation and the requirements of applicable law.
ARTICLE FOURTEEN
Notwithstanding any provisions of this Certificate of
Incorporation to the contrary, Article Five, Section 6.2, Section 6.3, Section
7.1, Section 7.2, Section 7.3, Article Eleven, Article Thirteen and this Article
Fourteen shall not be amended or repealed and no provision inconsistent
therewith or herewith shall be adopted without the affirmative vote of the
holders of at least sixty six and two thirds percent (66 2/3 %) of the voting
power of the then outstanding Voting Stock, voting together as a single class.
Article Ten of this Certificate of Incorporation may be amended or repealed, or
a provision inconsistent therewith may be adopted, only in accordance with
Section 10.5 of this Certificate of Incorporation.
ARTICLE FIFTEEN
The name and address of the incorporator is Duane W. Bell,
KPMG Consulting, Inc., Three Chestnut Ridge Road, Montvale, NJ 07645.
ARTICLE SIXTEEN
The Corporation expressly elects not to be governed by Section
203 of the DGCL.
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