Exhibit 1
RESTATED CERTIFICATE OF INCORPORATION
OF
TERACOM, INC.
(Changed herein to "Dix Hills Equities Group, Inc.")
(Under Section 242 of the Delaware General Corporation Law)
This Restated Certificate of Incorporation was proposed to the
stockholders of TeraCom, Inc., a corporation organized under the laws of the
State of Delaware (the "Corporation") by the Board of Directors on December
14, 1988, and duly adopted by the requisite number of stockholders entitled to
vote, in accordance with the provisions of the Delaware General Corporation
Law, as amended. The Certificate of Incorporation as previously and herewith
amended is hereby restated to read in its entirety as follows:
FIRST: The name of the corporation is Dix Hills Equities Group, Inc. (the
"Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware shall be at Corporation Trust Center, 1209 Orange Street,
City of Wilmington, County of New Castle, Delaware 19801. The name and
address of the Corporation's registered agent in the State of Delaware is the
Corporation Trust Company, 1209 Orange Street, City of Wilmington, County of
New Castle, Delaware 19801.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may now or hereafter be organized under the
General Corporation Law of the State of Delaware.
FOURTH: 1. The total. number of shares of stock which the Corporation
shall have authority to issue is Two Hundred Ten Million (210,000,000) shares,
consisting of Two Hundred Million (200,000,000) shares of Common Stock, par
value $0.001 per share (the "Common Stock"), and Ten Million (10,000,000)
shares of Preferred Stock, par value $0.001 per share (the "Preferred Stock").
2. Shares of Preferred Stock may be issued from time to time in one or
more series as may be established from time to time by resolution of the Board
of Directors of the Corporation (the "Board of Directors"), each of which
series shall consist of such number of shares and have such distinctive
designation or title as shall be fixed by resolution of the Board of Directors
prior to the issuance of any shares of such series. Each such class or series
of Preferred Stock shall have such voting powers, full or limited, or no
voting powers, and such preferences and relative, participating, optional or
other special rights and such qualifications, limitations or restrictions
thereof, as shall be stated in such resolution of the Board of Directors
providing for the issuance of such series of Preferred Stock. The Board of
Directors is further authorized to increase or decrease (but not below the
number of shares of such class or series
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then outstanding) the number of shares of any series subsequent to the
issuance of shares of that series.
FIFTH: In furtherance and not in limitation of the powers conferred by
statute and subject to Article Sixth hereof, the Board of Directors is
expressly authorized to adopt, repeal, rescind, alter or amend in any respect
the Bylaws of the Corporation (the "Bylaws").
SIXTH: Notwithstanding Article Fifth hereof, the Bylaws may be adopted,
rescinded, altered or amended in any respect by the stockholders of the
Corporation, but only by the affirmative vote of the holders of not less than
eighty percent (80%) of the voting power of all outstanding shares of Voting
Stock (as defined in paragraph (f) of Section 3 of Article Fourteenth hereof),
regardless of class and voting together as a single voting class; provided,
however, that where such action is approved by a majority of the Continuing
Directors (as defined in paragraph (a) of Section 3 of Article Fourteenth
hereof), the affirmative vote of a majority of the voting power of all
outstanding shares of voting Stock, regardless of class and voting together as
a single voting class, shall be required for approval of such action.
SEVENTH: The business and affairs of the Corporation shall be managed by
and under the direction of the Board of Directors. Except as may otherwise be
provided pursuant to Section 2 of Article Fourth hereof in connection with
rights to elect additional directors under specified circumstances which may
be granted to the holders of any series of Preferred Stock, the exact number
of directors of the Corporation shall be determined from time to time by a
Bylaw or Amendment thereto provided that the number of directors shall not be
reduced to less than three (3), except that there need be only as many
directors as there are stockholders in the event that the outstanding shares
are held of record by fewer than three (3) stockholders.
Elections of directors need not be by written ballot unless the Bylaws of
the Corporation shall so provide.
EIGHTH: 1. At the first Annual Meeting of Stockholders of the
Corporation (the "Annual Meeting") after the authorized number of directors is
six (6) or more, the Board of Directors shall be divided into three (3)
classes: Class I, Class II and Class III. The number of directors in each
class shall be the whole number contained in such quotient obtained by
dividing the authorized number of directors by three (3). If a fraction is
also contained in such quotient, then additional directors shall be
apportioned as follows: If such fraction is one-third, the additional director
shall be a member of Class I; and if such fraction is two-thirds, one of the
additional directors shall be a member of Class I and the other shall be a
member of Class II. Each director shall serve for a term ending on the date of
the third Annual Meeting following the Annual Meeting at which such director
was elected; provided, however, that the directors first elected to Class I
shall serve for a term ending on the date of the first Annual Meeting
following their election, the directors first elected to Class II shall serve
for a term ending on the date of the second Annual Meeting following their
election and the directors first elected to Class III shall serve for a term
ending on the date of the third Annual Meeting following their election.
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Whenever the authorized number of directors shall be reduced to less than
six (6) directors, the existing directors shall serve out the remainder of
their terms based upon their respective classes and each subsequently elected
director shall serve for a one (1) year term. At such subsequent time as the
authorized number of directors is six (6) or more directors, the prior
paragraph shall again become operative.
2. Notwithstanding the foregoing provisions of this Article Eighth:
each director shall serve until his successor is elected and qualified or
until his death, resignation or removal; no decrease in the authorized number
of directors shall shorten the term of any incumbent director; and additional
directors, elected pursuant to Section 2 of Article Fourth hereof in
connection with rights to elect such additional directors under specified
circumstances which may be granted to the holders of any series of Preferred
Stock, shall not be included in any class, but shall serve for such term or
terms and pursuant to such other provisions as are specified in the resolution
of the Board of Directors establishing such series.
NINTH: Except as may otherwise be provided pursuant to Section 2 of
Article Fourth hereof in connection with rights to elect additional directors
under specified circumstances which may be granted to the holders of any
series of Preferred Stock, newly created directorships resulting from any
increase in the number of directors, or any vacancies on the Board of
Directors resulting from death, resignation, removal or other causes, 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 of Directors. Any
director elected in accordance with the preceding sentence shall hold office
for the remainder of the full term of the class of directors in which the
new directorship was created or the vacancy occurred and until such director's
successor shall have been elected and qualified or until such director's
death, resignation or removal, whichever
first occurs.
TENTH: Except for such additional directors as may be elected by the
holders of any series of Preferred Stock pursuant to the terms thereof
established by a resolution of the Board of Directors pursuant to Article
Fourth hereof, any director may be removed from office only for cause and only
by the affirmative vote of the holders of not less than eighty percent (80%)
of the voting power of all outstanding shares of Voting Stock entitled to vote
in connection with the election of such director regardless of class and
voting together as a single voting class; provided, however, that where such
removal is approved by a majority of the Continuing Directors, the affirmative
vote of a majority of the voting power of all outstanding shares of Voting
Stock entitled to vote in connection with the election of such director,
regardless of class and voting together as a single voting class, shall be
required for approval of such removal.
ELEVENTH: Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called Annual
Meeting or at a special meeting of stockholders of the corporation, unless
such action requiring or permitting stockholder approval is approved by a
majority of the Continuing Directors, in which case such action may be
authorized or taken by the written consent of the holders of outstanding
shares of Voting Stock having not less than the minimum voting power that
would be necessary to authorize or take such action at a meeting of
stockholders at which all shares entitled to vote thereon were present
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and voted, provided, all other requirements of applicable law and this
Certificate have been satisfied. Except as specifically set forth in this
Article Eleventh, no action may be taken by stockholders by written consent.
TWELFTH: Special meetings of the stockholders of the Corporation for any
purpose or purposes may be called at any time by a majority of the Board of
Directors or by the Chairman of the Board. Special meetings may not be called
by any other person or persons. Each special meeting shall be held at such
date and time as it requested by the person or persons calling the meeting
within the limits fixed by law.
THIRTEENTH: Meetings of stockholders of the Corporation may be held
within or without the State or Delaware, as the Bylaws may provide. The books
of the Corporation may be kept (subject to any provision of applicable law)
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 Bylaws.
FOURTEENTH: 1. Subject to the provisions of Section 2 of this Article
Fourteenth, in addition to any vote required by law, no Business Combination
(as defined in paragraph (b) of Section 3 of this Article Fourteenth) shall be
consummated unless approved by the affirmative vote of the holders of not less
than: (a) eighty percent (80%) of the voting power of all outstanding shares
of Voting Stock, regardless of class and voting together as a single voting
class; (b) a majority of the voting power of all outstanding shares of voting
Stock, other than shares held by any Interested Stockholder which is (or the
Affiliate or Associate of which is) a party to such Business combination or by
any Affiliate or Associate of such Interested Stockholder regardless of class
and voting together as a single voting class; and (c) the affirmative votes
referred to in paragraphs (a) and (b) of this Section 1 shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage or proportion may be specified, by law, or in any agreement between
the Corporation and any national securities exchange or any other person, or
otherwise.
2. Notwithstanding the provisions of Section 1 of this Article
Fourteenth, a Business Combination may be approved if all of the conditions
specified in either of the following paragraphs (a) or (b) have been
satisfied:
(a) both of the following conditions specified in clauses (i)
and (ii) of this paragraph (a) have been satisfied if:
(i) there are one (1) or more Continuing Directors and a
majority of such continuing Directors shall have approved such Business
Combination; and
(ii) such Business Combination shall have been approved by
the affirmative vote of the Corporation's stockholders required by law, if any
such vote is so required; or
(b) all of the following conditions specified in clauses (i)
through (vii) of this paragraph (b) have been satisfied if:
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(i) such Business Combination shall have been approved by
the affirmative vote of holders of a majority of the voting power of all
outstanding shares of voting Stock, regardless of class and voting together as
a single voting class;
(ii) the aggregate amount of (A) the cash and (B) the Fair
Market Value (as defined in paragraph (i) of Section 3 of this Article
Fourteenth), as of the date of the consummation of the Business Combination
(the "Consummation Date"), of consideration other than cash received or to be
received, per share, by holders of shares of Common Stock in such Business
Combination, shall be at least equal to the higher of the following:
(I) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid or agreed to be paid by the Interested Stockholder which is (or the
Affiliate or Associate of which is) a party to such Business Combination for
any shares of Common Stock (x) within the two (2) year period immediately
prior to and including the date of the final public announcement of the terms
of the proposed Business Combination (the "Announcement Date"), or (y) in the
transaction in which it became an Interested Stockholder, whichever is higher;
or
(II) the Fair Market Value per share of Common Stock (x)
on the Announcement Date, or (y) on the date on which the Interested
Stockholder became an Interested Stockholder (the "Determination Date"),
whichever is higher;
(iii) the aggregate amount of (A) the cash and (B) the Fair
Market Value, as of the Consummation Date, of consideration other than cash
received or to be received, per share, by holders of shares of any class of
outstanding Voting Stock other than Common Stock in such Business Combination,
shall be equal to the highest of the following (it being intended that the
requirements of this clause (iii) shall be required to be met with respect to
every class of outstanding Voting Stock other than Common Stock, whether or
not such Interested Stockholder (or such Affiliate or Associate) has
previously acquired any shares of a
particular class of Voting Stock):
(I) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers' fees) paid
or agreed to be paid by the Interested Stockholder for any shares of such
class of Voting Stock (x) within the two (2) year period immediately prior to
the Announcement Date, or (y) in the transaction in which it became an
Interested Stockholder, whichever is higher;
(II) (if applicable) the highest preferential amount per
share to which the holders of shares of such class of Voting Stock are
entitled in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation; or
(III) the Fair Market Value per share of such class of
Voting Stock (x) on the Announcement Date, or (y) on the Determination Date,
whichever is higher:
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(iv) the consideration to be received by the holders of a
particular class of outstanding Voting Stock (including Common Stock) shall be
in cash or in the same form as the Interested Stockholder has previously paid
(or agreed to pay) for shares of such class of Voting Stock; if the Interested
Stockholder has paid for shares of any class of Voting Stock with varying
forms of consideration, the form of consideration to be received by holders of
shares of such class of Voting Stock shall be either cash or the form used to
acquire the largest number of shares of such class of Voting Stock previously
acquired by such Interested Stockholder; and the price determined in
accordance with clauses (ii) and (iii) of this paragraph (b) shall be subject
to appropriate adjustment in the event of any stock dividend, stock split,
combination of shares or similar event;
(v) after such Interested Stockholder has become an Interested
Stockholder, and prior to the consummation of such Business Combination,
neither such Interested Stockholder nor any of its Affiliates or Associates
shall have become the beneficial owner of any additional shares of Voting
Stock, except (A) as part of the transaction which resulted in such Interested
Stockholder becoming an interested Stockholder, or (B) upon conversion of
convertible securities acquired by it prior to such Interested Stockholder
becoming an Interested Stockholder, upon exercise of warrants acquired by it
prior to such interested Stockholder becoming an Interested Stockholder, or as
a result of a stock split or a pro rata stock dividend;
(vi) after such interested Stockholder has become an Interested
Stockholder, neither such Interested stockholder nor any of its Affiliates or
Associates shall have received the benefit, directly or indirectly (except
proportionately as a stockholder), of any loans, advances, guarantees, pledges
or other financial assistance or any tax credits or other tax advantages
provided by the Corporation, whether in anticipation of or in connection with
such Business Combination or otherwise: and
(vii) a proxy or information statement describing the proposed
Business Combination and complying with the requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder (or
any subsequent provisions replacing such Act, rules and/or regulations) shall
be mailed to stockholders of the Corporation at least thirty (30) days prior
to the consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act, rules
and/or regulations or such subsequent provisions).
3. For the purposes of this Restated Certificate of Incorporation,
the following definitions shall apply:
(a) "Continuing Director" means: (i) any member of the Board of
Directors who (A) is not an Interested Stockholder or an Affiliate or
Associate of an Interested Stockholder and (B) was a member of the Board of
Directors prior to the time that an Interested Stockholder became an
Interested Stockholder; and (ii) any person who is elected or nominated to
succeed a Continuing Director, or to join the Board of Directors, by a
majority of the Continuing Directors.
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(b) "Business Combination" means any one or more of the
following transactions referred to in clauses (i) through (vi) of this
paragraph (b):
(i) any merger or consolidation of the corporation or any
Subsidiary (as defined in paragraph (h) of this Section 3 with or into (A) any
Interested Stock holder or (B) any other corporation (whether or not itself an
Interested Stockholder) which immediately before is, or after such merger or
consolidation would be, an Affiliate or Associate of an Interested Stock
holder;
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related transactions) to
or with any Interested Stockholder, Affiliate and/or any Associate of any
Interested Stockholder of any assets of the Corporation and/or any subsidiary
where such assets have an aggregate Fair Market Value of One Million Dollars
($1,000,000) or more;
(iii) the issuance or transfer by the corporation and/or any
Subsidiary (in one transaction or a series of related transactions) of any
equity securities of the corporation and/or any subsidiary to a person which,
immediately prior to such issuance or transfer, is an Interested Stockholder
or an Affiliate or Associate of an Interested Stockholder, where such equity
securities have an aggregate Fair Market Value of One Million Dollars
($1,000,000) or more other than a pro rata distribution;
(iv) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation;
(v) any reclassification of securities (including any reverse
stock split) or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise involving an Interested
Stockholder), which has the effect, directly or indirectly, of increasing the
percentage of the outstanding shares of any class of equity or convertible
securities of the Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder or by any Affiliate and/or
Associate of any Interested Stockholders or (vi) any agreement, contract or
other arrangement providing for any of the transactions described in clauses
(i) through (v) of this paragraph (b).
(c) A "person" means an individual, firm, partnership, tenant,
corporation or other entity.
(d) "Interested Stockholder" means any person who or which,
together with its Affiliates and Associates, as of the record date for the
determination of stockholders entitled to notice of, and to vote on, any
Business Combination, the removal of a director or the adoption of any
proposed amendment, alteration, recission or repeal of any provision of this
Restated Certificate of incorporation or any Bylaw, or immediately prior to
the Consummation Date:
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(i) is the beneficial owner (as defined in paragraph (e) of
this Section 3), directly or indirectly, of ten percent (10%) or more of the
voting power of (A) all outstanding shares of Voting stock or (B) all
outstanding shares of the capital stock of a Subsidiary having general voting
power ("Subsidiary Stock"); or
(ii) is an assignee of or has otherwise succeeded to any
share of Voting Stock or Subsidiary Stock which was, at any time within the
two (2) year period prior thereto, beneficially owned by any person who at
such time was an Interested Stockholder, and such assignment or succession
shall have occurred in the course of a transaction or series of transactions
not involving a public offering within the meaning of the Securities Act of
1933, as amended, and the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules and/or regulations); provided, however,
that the term "Interested Stockholder" shall not include (A) the Corporation
or any Subsidiary, (B) any profit sharing, employee stock ownership or other
employee benefit plan of then Corporation or any Subsidiary, or any trustee
of, or fiduciary with respect to, any such plan when acting in such capacity
or (c) any beneficial owner of ten percent (10%) or more of the outstanding
Voting Stock on the effective date of this Restated Certificate of
Incorporation.
(e) A person is the "beneficial owner" of any shares of capital
stock:
(i) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly;
(ii) which such person or any of its Affiliates or
Associates has (A) 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, or (8) the right to vote
pursuant to any agreement, arrangement or understanding: or
(iii) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of capital stock of the
Corporation or a Subsidiary, as the case may be.
(f) "Voting Stock" means the capital stock of the Corporation
having general voting power. For the purpose of determining whether a person
is an Interested Stockholder pursuant to paragraph (d) of this Section 3, the
number of shares of Voting Stock ox Subsidiary Stock, as the case may be,
deemed to be outstanding shall include shares deemed owned by a beneficial
owner through application of paragraph (e) of this Section 3, but shall not
include any other shares of Voting Stock or Subsidiary Stock, as the case may
be, which may be issuable to any other person pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights, warrants
or options, or otherwise.
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(g) "Affiliate" and "Associate" have the respective meanings
given to those terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended, as in effect on January 1,
1988.
(h) "Subsidiary" means any corporation of which a controlling
interest of any class of equity security is owned, directly or indirectly, by
the Corporation, or which is otherwise controlled, directly or indirectly, by
the corporation.
(i) "Fair Market Value" means (i) in the case of stock (A) the
highest closing sale price during the thirty (30) day period including and
immediately preceding the date in question of a share of such stock on the
Composit Tape for New York Stock Exchange-Listed Stocks, or (B) if such stock
is not quoted on the Composite Tape, the highest closing sale price during
such thirty (30) day period on the New York Stock Exchange, or (C) if such
stock is not listed on such Exchange, the highest closing sale price during
such thirty (30) day period on the principal United States securities exchange
registered under the Securities Exchange Act of 1934, as amended, on which
such stock is listed, or (D) if such stock is not listed on any such exchange,
the highest closing bid quotation with respect to a share of such stock on the
National Association of Securities Dealers, Inc. Automated Quotations System
or-any system then in use during any such thirty (30) day period, or (E) if no
such quotations are available, the fair market value on the date in question
of a share of such stock as determined in good faith by a majority of the
Continuing Directors (or if there are no Continuing Directors, then by a
majority of the Board of Directors), and (ii) in the case of property other
than cash or stock, the fair market value of such property on the date in
question as deter-mined in good faith by a majority of the continuing
Directors (or if there are no continuing Directors, then by a majority of the
Board of Directors).
(j) In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash received or to
be received" as used in clauses (ii) and (iii) of paragraph (b) of Section 2
of this Article Fourteenth shall include the shares of Common Stock and/or the
shares of any other class of Voting Stock retained by the holder of such
shares.
4. A majority of the Continuing Directors shall have the power and
duty to determine, for purposes of this Article Fourteenth, on the basis of
information known to them:
(a) whether a person is an Interested Stockholder, (b) the number of
shares of Voting Stock or Subsidiary Stock beneficially owned by any person,
(c) whether a person is an Affiliate or Associate of another person, (d)
whether a person has an agreement, arrange-went or understanding with another
person as to the matters referred to in clause (vi) of paragraph (b), or
clause (ii) or (iii) of paragraph (e), of Section 3 of this Article
Fourteenth, (e) whether any particular assets of the Corporation and/or any
Subsidiary have an aggregate Fair Market Value of One Million Dollars
($1,000,000) or more, or (f) whether the consideration received for the
issuance or transfer of securities by the corporation and/or any subsidiary
has an aggregate Fair Market Value of One Million Dollars ($1,000,000) or
more. In furtherance and not in limitation of the preceding powers and duties
set forth in this Section 4, a majority of the Continuing
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Directors shall have the power and duty to interpret all of the terms and
provisions of this Article Fourteenth.
5. Nothing contained in this Article Fourteenth shall be construed to
relieve any Interested Stockholder or any Affiliate or Associate thereof from
any fiduciary obligation imposed by law.
6. The fact that any action or transaction complies with the
provisions of this Article Fourteenth shall not be construed to impose any
fiduciary duty, obligation or responsibility on the Board of Directors or any
member thereof to approve such action or transaction or recommend its adoption
or approval to the stockholders of the Corporation, nor shall such compliance,
limit, prohibit or otherwise restrict in any manner the Board of Directors, or
any member thereof, with respect to evaluations of, or action and responses
taken with respect to, such action or transaction.
7. Pursuant to the provisions of Section 203(b)(i) of the Delaware
General Corporation Law ("DGCL"), the Corporation hereby expressly elects not
to be governed by Section 203 of the DGCL.
FIFTEENTH: To the maximum extent permissible under Section 262 of the
General Corporation Law of the State of Delaware, the stockholders of the
Corporation shall be entitled to the statutory appraisal rights with respect
to any Business Combination involving the Corporation and any Interested
Stockholder (or any Affiliate or Associate of any Interested Stockholder),
which requires the affirmative vote specified in paragraph (a) of Section 1 of
Article Fourteenth hereof.
SIXTEENTH: The provisions set forth in this Article Sixteenth and in
Articles Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh,
Twelfth, Fourteenth and Fifteenth hereof may not be repealed, rescinded,
altered or amended in any respect, and no other provision or provisions may be
adopted which impair(s) in any respect the operation or effect of any such
provision, except by the affirmative vote of the holders of not less than
eighty percent (80%) of the voting power of all outstanding shares of Voting
Stock regardless of class and voting together as a single voting class, and,
where such action is proposed by an Interested Stockholder or by any Associate
or Affiliate of an Interested Stockholder, the affirmative vote of the holders
of a majority of the voting power of all outstanding shares of Voting Stock,
regardless of class and voting together as a single class, other than shares
hold by the interested Stockholder which proposed (or the Affiliate or
Associate of which proposed) such action, or any Affiliate or Associate of
such Interested Stockholder: provided, however, that where such action is
approved by a majority of the Continuing Directors, the affirmative vote of a
majority of the voting power of all outstanding shares of Voting Stock,
regardless of class and voting together as a single voting class, shall be
required for approval of such action.
SEVENTEENTH: The Corporation reserves the right to adopt, repeal,
rescind, alter or amend in any respect any provision contained in this
Restated Certificate of Incorporation in the
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manner now or hereafter prescribed by applicable law, and all rights conferred
on stockholders herein are granted subject to this reservation.
Notwithstanding the preceding sentence, the provisions set forth in Articles
fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth,
Fourteenth, Fifteenth and Sixteenth may not be repealed, rescinded, altered or
amended in any respect, and no other provision or provisions may be adopted
which impair(s) in any respect the operation or effect of any such provision,
unless such action is approved as specified in Article Sixteenth hereof.
EIGHTEENTH: No director of the corporation shall be 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 directors
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 Delaware General
corporation Law, or (iv) for any transaction from which the director derived
an improper personal benefit.
NINETEENTH: No contract or other transaction of the Corporation with any
other person, firm or corporation, or in which this corporation is interested,
shall be affected or invalidated by: (a) the fact that any one or more of the
directors or officers of the Corporation is interested in or is a director or
officer of such other firm or corporation; or, (b) the fact that any director
or officer of the Corporation, individually or jointly with others, may be a
party to or, may be interested in any such contract or transaction, so long as
the contract or transaction is authorized, approved or ratified at a meeting
of the Board of Directors by sufficient vote thereon by directors not
interested therein, to which such fact of relationship or interest has been
disclosed, or the contract or transaction has been approved or ratified by
vote or written consent of the shareholders entitled to vote, to whom such
fact of relationship or interest has been disclosed, or so long as the
contract or transaction is fair and reasonable to the Corporation. Each
person who may become a director or officer of the Corporation is hereby
relieved from any liability that might otherwise arise by reason of his
contracting with the Corporation for the benefit of himself or any firm or
corporation in which he may in any way be interested.
TWENTIETH: The officers, directors and other members of management of the
Corporation shall be subject to the doctrine of corporate opportunities as to
areas in which the Corporation has expressed an interest as determined from
time to time by resolution of the Board of Directors. When such areas of
interest are delineated, all such business opportunities within such areas of
interest which come to the attention of the officers, directors and other
members of management of the Corporation shall be disclosed promptly to the
Corporation and made available to it. The Board or Directors may reject any
business opportunity presented to it, and thereafter any officer, director or
other member of management may avail himself of such opportunity. Until such
time as the Corporation, through its Board of Directors, has designated an
area of interest, the officers, directors and other members of management of
the Corporation shall be free to engage in such areas of interest on their own
and the provisions hereof shall not limit the rights of any officer, director
or other member of management of the Corporation to continue a business
existing prior to the time that such area of interest is designated by the
Corporation. This provision shall not be construed to release any employee of
the Corporation (other than an officer, director or member of management) from
any duties which such employee may have to the Corporation.
E-11
<PAGE>
By execution of this Restated Certificate of Incorporation, the President
and Secretary of the Corporation do hereby certify that the foregoing Restated
Certificate of Incorporation of the Corporation was authorized and approved at
a special meeting of shareholders duly called and held on December 27, 1988,
at which a quorum was present. As of December 14, 1988, the record date for
such meeting, the number of shares of the corporation issued and outstanding
and entitled to vote on the foregoing Restated Certificate of Incorporation
was 11,480,000, of which a total of 6,155,937 shares, or approximately 53.62%
of the outstanding common stock, voted for adoption of the foregoing Restated
Certificate of Incorporation, and no shares voted against such Restated
Certificate of Incorporation.
IN WITNESS WHEREOF, TERACOM, INC. has caused this Restated Certificate of
Incorporation to be executed by the President, to be attested to by its
Secretary, and its corporate seal to be affixed hereto this 24th of March,
1989.
(the "Corporation)
Attest: TERACOM, INC.
/s/ Lawrence LoScalzo, Jr. By /s/ Lawrence LoScalzo, Sr.
-------------------------------- ----------------------------------
Lawrence LoScalzo, Jr., Secretary Lawrence LoScalzo, Sr., President
[SEAL]
E-12
CERTIFICATE OF AMENDMENT TO THE
RESTATED CERTIFICATE OF INCORPORATION OF
DIX HILLS EQUITIES GROUP, INC.
(Changed herein to "MILLENNIUM QUEST, INC.")
The following Certificate of Amendment to the Restated Certificate of
Incorporation of the above-named corporation is adopted pursuant to the
provisions of Section 242 of the General Corporation Law of the State of
Delaware. We the undersigned as president and secretary of Dix Hills Equities
Group, Inc., do hereby certify:
That the board of directors of said corporation duly adopted on March 7,
2000, in accordance with Section 222 of the General Corporation Law of the
State of Delaware, resolutions to amend the Restated Certificate of
Incorporation as follows:
1. The FIRST ARTICLE of the Restated Certificate of Incorporation
shall be amended to read as follows:
FIRST: The name of the Corporation is: Millennium Quest, Inc. (the
"Corporation").
2. The first paragraph of the FOURTH ARTICLE of the Restated
Certificate of Incorporation, shall be amended to read as follows:
FOURTH: 1. The total number of shares of stock which the Corporation
shall have authority to issue is Twenty-Five Million (25,000,000) shares,
consisting of Twenty Million (20,000,000) shares of Common Stock, par value
$0.001 per share (the "Common Stock"), and Five Million (5,000,000) shares of
Preferred Stock, par value $0.001 per share (the "Preferred Stock").
3. The remainder of the FOURTH ARTICLE shall remain unchanged and
unmodified.
4. By execution of this Certificate of Amendment to the Restated
Certificate of Incorporation, the president and secretary of the Corporation
do hereby certify that the foregoing Certificate of Amendment to the Restated
Certificate of Incorporation was duly adopted by holders of a majority of the
issued and outstanding common stock of the Corporation on March 7, 2000. As
of such date, the number of shares of the Corporation issued and outstanding
and entitled to vote on the foregoing amendment to the restated certificate of
incorporation is 1,961,643, of which a total of 1,168,850 shares, or in excess
of a majority of the outstanding common stock, voted for adoption of the
foregoing amendment, and no shares voted against such amendment.
E-13
<PAGE>
DATED this 31st day of March, 2000.
DIX HILLS EQUITIES GROUP, INC.
By /s/ Dimitri Cocorinis
------------------------------
Dimitri Cocorinis, President
By /s/ Terry Cononelos
------------------------------------
Terry Cononelos, Secretary/Treasurer
STATE OF UTAH )
:ss.
COUNTY OF SALT LAKE )
On this 31st day of March, 2000, before me, a notary public, personally
appeared Dimitri Cocorinis, being by me first duly sworn, who acknowledged to
me that he is the person who executed the foregoing Certificate of Amendment
to the Restated Certificate of Incorporation of Dix Hills Equities Group,
Inc.; and to the best of his knowledge, information and belief, the statements
made in the Certificate of Amendment are true.
/s/ Carolyn S. Christensen
------------------------------
My Commission Expires: NOTARY PUBLIC
August 25, 2001 Residing in Salt Lake County
STATE OF UTAH )
:ss.
COUNTY OF SALT LAKE )
On this 31st day of March, 2000, before me, a notary public, personally
appeared Terry Cononelos, being by me first duly sworn, who acknowledged to me
that he is the person who executed the foregoing Certificate of Amendment to
the Restated Certificate of Incorporation of Dix Hills Equities Group, Inc.;
and to the best of his knowledge, information and belief, the statements made
in the Certificate of Amendment are true.
/s/ Carolyn S. Christensen
--------------------------------
My Commission Expires: NOTARY PUBLIC
August 25, 2001 Residing in Salt Lake County
<PAGE>
