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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SUREBEAM CORPORATION
Larry A. Oberkfell hereby certifies that:
ONE: The date of filing the original Certificate of Incorporation of
this corporation with the Secretary of State of the State of Delaware was August
4, 2000.
TWO: He is the duly elected and acting President and Chief Executive
Officer of SureBeam Corporation, a Delaware corporation.
THREE: The Certificate of Incorporation of this corporation is hereby
amended and restated to read as follows:
I.
The name of this corporation is SUREBEAM CORPORATION.
II.
The address of the registered office of the corporation in the State of
Delaware is 1013 Centre Road, City of Wilmington, County of Dover and the name
of the registered agent of the corporation in the State of Delaware at such
address is the Corporate Service Company.
III.
The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware.
IV.
A. The total number of shares of stock that the Corporation shall
have authority to issue is Two Hundred Fifty-Five Million (255,000,000) of which
(i) Two Hundred Million (200,000,000) shares shall be shares of Class A Common
Stock, $.001 par value per share (the "CLASS A COMMON STOCK"), and Fifty Million
(50,000,000) shares shall be shares of Class B Common Stock, $.001 par value per
share (the "CLASS B COMMON STOCK") (the Class A Common Stock and the Class B
Common Stock being collectively referred to herein as the "COMMON STOCK"), and
(ii) Five Million (5,000,000) shares shall be shares of Preferred Stock, $.001
par value per share (the "PREFERRED STOCK").
B. 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
votes entitled to be cast by the holders of the Common
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Stock of the Corporation, voting together as a single class, irrespective of the
provisions of Section 242(b)(2) of the GCL or any corresponding provision
hereinafter enacted.
C. The following is a statement of the powers, preferences, and
relative participating, optional or other special rights and qualifications,
limitations and restrictions of the Class A Common Stock and Class B Common
Stock of the Corporation:
1. Except as otherwise set forth below in this Article
IV, the powers, preferences and relative participating, optional or other
special rights and qualifications, limitations or restrictions of the Class A
Common Stock and Class B Common Stock shall be identical in all respects.
2. Subject to the rights of the holders of any Preferred
Stock issued hereafter, and subject to any other provisions of this Certificate
of Incorporation, holders of Class A Common Stock and Class B Common Stock shall
be entitled to receive such dividends and other distributions in cash, stock or
property of the Corporation as may be declared thereon by the Board of Directors
of the Corporation from time to time out of assets or funds of the Corporation
legally available therefor. If any dividend or other distribution in cash or
other property is paid with respect to Class A Common Stock or with respect to
Class B Common Stock (other than dividends or other distributions payable in
shares of Common Stock), a like dividend or other distribution in cash or other
property shall also be paid with respect to shares of the other class of Common
Stock, in an amount equal per share. In the case of dividends or other
distributions payable in Common Stock, including distributions pursuant to stock
splits or divisions of Common Stock of the Corporation, only shares of Class A
Common Stock shall be paid or distributed with respect to Class A Common Stock
and only shares of Class B Common Stock shall be paid or distributed with
respect to Class B Common Stock. The number of shares of Class A Common Stock
and Class B Common Stock so distributed shall be equal in number on a per share
basis. Neither the shares of Class A Common Stock nor the shares of Class B
Common Stock may be reclassified, subdivided or combined unless such
reclassification, subdivision or combination occurs simultaneously and in the
same proportion for each class.
3.
a. At every meeting of the stockholders of the
Corporation, every holder of Class A Common Stock shall be entitled to one (1)
vote in person or by proxy for each share of Class A Common Stock standing in
his or her name on the transfer books of the Corporation, and every holder of
Class B Common Stock shall be entitled to ten (10) votes in person or by proxy
for each share of Class B Common Stock standing in his or her name on the
transfer books of the Corporation, in connection with the election of directors
and all other matters submitted to a vote of the stockholders; provided,
however, that with respect to any proposed conversion subsequent to a Tax-Free
Spin-Off (as defined in paragraph (C)(6)(b) below) of the shares of Class B
Common Stock into shares of Class A Common Stock pursuant to paragraph (C)(6)(b)
below, each holder of a share of Common Stock, irrespective of class, shall have
one vote in person or by proxy for each share of Common Stock standing in his or
her name on the transfer books of the Corporation. Except as may be otherwise
required by this ARTICLE IV, the holders of Class A Common Stock and Class B
Common Stock shall vote
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together as a single class, subject to any voting rights which may be granted to
holders of Preferred Stock, on all matters submitted to a vote of the holders of
Common Stock.
b. Subject to any rights of the holders of
Preferred Stock, the provisions of this Certificate of Incorporation shall not
be modified, revised, altered or amended, repealed or rescinded in whole or in
part, without the approval of a majority of the votes entitled to be cast by the
holders of the Class A Common Stock and the Class B Common Stock, voting
together as a single class; provided, however, that with respect to any proposed
amendment of this Certificate of Incorporation which would alter or change the
powers, preferences or special rights of the shares of Class A Common Stock or
Class B Common Stock so as to affect them adversely, the approval of a majority
of the votes entitled to be cast by the holders of the shares affected by the
proposed amendment, voting separately as a class, shall be obtained in addition
to the approval of a majority of the votes entitled to be cast by the holders of
the Class A Common Stock and the Class B Common Stock voting together as a
single class as hereinbefore provided. Any increase in the authorized number of
shares of any class or classes of stock of the Corporation or creation,
authorization or issuance of any securities convertible into, or warrants,
options or similar rights to purchase, acquire or receive, shares of any such
class or classes of stock shall be deemed not to affect adversely the powers,
preferences or special rights of the shares of Class A Common Stock or Class B
Common Stock. Neither the outcome of any vote with respect to any proposed
conversion subsequent to a Tax-Free Spin-Off of the shares of Class B Common
Stock into shares of Class A Common Stock pursuant to paragraph IV(C)(6)(b)
below nor the occurrence of the events described in the last sentence of
paragraph IV(C)(6)(b)(iii) below shall be deemed to be a modification, revision,
alteration, amendment, repeal or rescission of the provisions of this
Certificate of Incorporation.
c. Every reference in this Certificate of
Incorporation to a majority or other proportion of shares of Common Stock, Class
A Common Stock or Class B Common Stock shall refer to such majority or other
proportion of the votes to which such shares of Common Stock, Class A Common
Stock or Class B Common Stock, as applicable, are entitled.
4. In the event of any dissolution, liquidation or
winding up of the affairs of the Corporation, whether voluntary or involuntary,
after payment in full of the amounts required to be paid to the holders of
Preferred Stock, the remaining assets and funds of the Corporation shall be
distributed pro rata to the holders of Class A Common Stock and Class B Common
Stock. For the purposes of this paragraph (C)(4), 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, voluntary or involuntary.
5. In the event of (i) any reorganization or any
consolidation of the Corporation with one or more other corporations or a merger
of the Corporation with another corporation unless (ii) immediately following
such event, and based solely on the securities issued in connection therewith, a
majority of the total voting power of the successor corporation is held by
Persons that were stockholders of the Corporation immediately prior to such
event,
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each holder of a share of Class A Common Stock shall be entitled to receive with
respect to such share the same kind and amount of shares of stock and other
securities and property (including cash) receivable upon such reorganization,
consolidation or merger by a holder of a share of Class B Common Stock, and each
holder of a share of Class B Common Stock shall be entitled to receive with
respect to such share the same kind and amount of shares of stock and other
securities and property (including cash) receivable upon such reorganization,
consolidation or merger by a holder of a share of Class A Common Stock.
6.
a. Prior to the date on which shares of Class B
Common Stock are distributed to stockholders of Titan (as defined in paragraph
(C)(6)(b) below), or to stockholders of the Class B Transferee (as defined in
paragraph (C)(6)(b) below) in a Tax-Free Spin-Off, each record holder of shares
of Class B Common Stock may convert from time to time any or all of such shares
into an equal number of shares of Class A Common Stock by surrendering the
certificates for such shares, accompanied by any required tax transfer stamps
and by a written notice by such record holder to the Corporation stating that
such record holder desires to convert such shares of Class B Common Stock into
the same number of shares of Class A Common Stock and requesting that the
Corporation issue all of such shares of Class A Common Stock to Persons (as
defined in paragraph (C)(6)(b) below) named therein, setting forth the number of
shares of Class A Common Stock to be issued to each such Person and the
denominations in which the certificates therefor are to be issued. To the extent
permitted by law, such voluntary conversion shall be deemed to have been
effected at the close of business on the date of such surrender. Following a
Tax-Free Spin-Off, shares of Class B Common Stock shall no longer be convertible
into shares of Class A Common Stock except as set forth in paragraph IV(C)(6)(b)
below.
b. Prior to a Tax-Free Spin-Off, each share of
Class B Common Stock shall automatically convert into one share of Class A
Common Stock immediately prior to the transfer of such share if, after such
transfer, such share is not Beneficially Owned (as defined below) by Titan (as
defined below) or, as set forth below in this paragraph IV(C)(6)(b), by the
Class B Transferee or any subsidiary of the Class B Transferee. Shares of Class
B Common Stock shall not convert into shares of Class A Common Stock (x) in any
transfer effected in connection with a distribution of Class B Common Stock as a
spin-off, split-up or split-off to stockholders of Titan or stockholders of the
Class B Transferee intended to be on a tax-free basis under the Internal Revenue
Code of 1986, as amended from time to time (the "CODE") (a "TAX-FREE SPIN-OFF")
or (y) except as otherwise set forth below in this paragraph IV(C)(6)(b), in any
transfer after a Tax-Free Spin-Off. For purposes of this paragraph IV(C)(6), a
Tax-Free Spin-Off shall be deemed to have occurred at the time shares are first
transferred to stockholders of Titan or stockholders of the Class B Transferee,
as the case may be, following receipt of an affidavit described in clauses (vi)
or (vii) of the first sentence of paragraph IV(C)(6)(c) below. For purposes of
this paragraph IV(C)(6), Article X and Article XI, "TITAN" shall mean The Titan
Corporation, a Delaware corporation, all successors to The Titan Corporation by
way of merger, consolidation or sale of all or substantially all its assets, and
all corporations, partnerships, joint ventures, associations and other entities
in which The Titan Corporation Beneficially Owns (as defined below), directly or
indirectly, 50% or more of the outstanding voting stock, voting power
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or similar voting interests ("VOTING INTERESTS") (each, a "SUBSIDIARY ENTITY"),
but which shall not include the Corporation or any Subsidiary Entity in which
the Corporation Beneficially Owns, directly or indirectly, 50% or more of the
outstanding Voting Interests. For purposes of this paragraph IV(C)(6), Article X
and Article XI, the terms "BENEFICIALLY OWN," "BENEFICIALLY OWNS" and
"BENEFICIALLY OWNED" shall have the meanings ascribed to such terms in Rule
13d-3 of the General Rules and Regulations of the Securities Exchange Act of
1934, as in effect on the date of filing hereof.
(i) Prior to a Tax-Free Spin-Off,
shares of Class B Common Stock representing more than a 50% equity interest in
the then outstanding shares of Common Stock taken as a whole transferred in a
single transaction to one Person who is not an affiliate of Titan (together with
its successors, the "CLASS B TRANSFEREE") or to the Class B Transferee and any
Subsidiary Entity of the Class B Transferee, and shares of Class B Common Stock
transferred among a Class B Transferee and any Subsidiary Entity thereof, shall
not automatically convert to Class A Common Stock upon the transfer of such
shares. Any shares of Class B Common Stock retained by Titan following any such
transfer of shares of Class B Common Stock to the Class B Transferee shall
automatically convert into shares of Class A Common Stock upon such transfer.
For purposes of this paragraph IV(C)(6), the term "PERSON" shall mean any
individual, firm, corporation or other entity; each reference to an "individual"
(or to a "record holder" of shares, if an individual) shall be deemed to include
in his or her representative capacity a guardian, committee, executor,
administrator or other legal representative of such individual or record holder.
(ii) In the event of a Tax-Free
Spin-Off, shares of Class B Common Stock shall automatically convert into shares
of Class A Common Stock on the fifth anniversary of the date on which shares of
Class B Common Stock are first transferred to stockholders of Titan or the
stockholders of the Class B Transferee, as the case may be, in a Tax-Free
Spin-Off unless, prior to such Tax-Free Spin-Off, Titan or the Class B
Transferee, as the case may be, delivers to the Corporation the written advice
of counsel, reasonably satisfactory to the Corporation, to the effect that (x)
such conversion could adversely affect the ability of Titan or the Class B
Transferee, as the case may be, to obtain a favorable ruling from the Internal
Revenue Service that the distribution would be a Tax-Free Spin-Off under the
Code or (y) the Internal Revenue Service has adopted a general non-ruling policy
on tax-free spinoffs and that such conversion could adversely affect the status
of the transaction as a Tax-Free Spin-Off. If such written advice of counsel is
received, approval of such conversion shall be submitted to a vote of the
holders of the Common Stock as soon as practicable after the fifth anniversary
of the Tax-Free Spin-Off. At the meeting of stockholders called for such
purpose, every holder of Common Stock shall be entitled to one vote
(irrespective of the voting rights provided for such shares under paragraph
IV(C)(3)(a) above) in person or by proxy for each share of Common Stock standing
in his or her name on the transfer books of the Corporation. Approval of such
conversion shall require the approval of a majority of the votes, on the per
share voting basis provided in the preceding sentence, entitled to be cast by
the holders of the Class A Common Stock and Class B Common Stock present and
voting, voting together as a single class, and the holders of the Class B Common
Stock shall not be entitled to a separate class vote. Such conversion shall be
effective on the date on which such approval is given at a meeting of
stockholders called for such purpose. Notwithstanding the foregoing, if Titan or
the Class B
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Transferee, as the case may be, delivers to the Corporation prior to such
anniversary the written advice of counsel, reasonably satisfactory to the
Corporation, to the effect that such vote could adversely affect the status of
the transaction as a Tax-Free Spin-Off (including without limitation the ability
to obtain a favorable ruling from the Internal Revenue Service), such vote shall
not be held and no such conversion shall take place. Upon delivery of such
written advice of counsel as to such vote, and the further advice that the
continued existence of this paragraph IV(C)(6)(b)(iii) itself could adversely
affect the status of the transaction as a Tax-Free Spin-Off (including without
limitation the ability to obtain a favorable ruling from the Internal Revenue
Service), then this paragraph IV(C)(6)(a)(ii) shall thereafter be null and void
and no longer be deemed to be part of this Certificate of Incorporation.
(iii) If at any time prior to a Tax-Free
Spin-Off Titan or a Class B Transferee shall cease, respectively, to
Beneficially Own a number of outstanding shares of Class B Common Stock at least
equal to 50% of the voting power represented by the aggregate number of shares
of Common Stock then outstanding entitled to vote generally in the election of
directors, then each share of Class B Common Stock Beneficially Owned by such
less than 50% owner shall automatically convert into one share of Class A Common
Stock.
(iv) The Corporation will provide notice
of any automatic conversion of all outstanding shares of Class B Common Stock to
holders of record as soon as practicable after the conversion; provided,
however, that the Corporation may satisfy such notice requirement by providing
such notice prior to conversion. Such notice shall be provided by mailing notice
of such conversion first class postage prepaid, to each holder of record of the
Common Stock, at such holder's address as it appears on the transfer books of
the Corporation; provided, however, that no failure to give such notice nor any
defect therein shall affect the validity of the automatic conversion of any
shares of Class B Common Stock. Each such notice shall state, as appropriate,
the following:
(w) the automatic conversion date;
(x) that all outstanding shares of Class B Common Stock
are automatically converted;
(y) the place or places where certificates for such
shares are to be surrendered for conversion; and
(z) that no dividends will be declared on the shares of
Class B Common Stock converted after such conversion date.
Immediately upon such conversion, the rights of the holders of shares of Class B
Common Stock as such shall cease and such holders shall be treated for all
purposes as having become the record owners of the shares of Class A Common
Stock issuable upon such conversion; provided, however, that such Persons shall
be entitled to receive when paid any dividends declared on the Class B Common
Stock as of a record date preceding the time of such conversion and unpaid as of
the time of such conversion, subject to paragraph (C)(6)(f) below.
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c. Prior to a Tax-Free Spin-Off, holders of
shares of Class B Common Stock may (i) sell or otherwise dispose of or transfer
any or all of such shares held by them, respectively, only in connection with a
transfer which meets the qualifications of paragraph IV(C)(6)(d) below, and
under no other circumstances, or (ii) convert any or all of such shares into
shares of Class A Common Stock as provided in paragraph IV(C)(6)(a) above. Prior
to a Tax-Free Spin-Off, no one other than those Persons in whose names shares of
Class B Common Stock originally are registered on the stock ledger of the
Corporation, or transferees or successive transferees who receive shares of
Class B Common Stock in connection with a transfer which meets the
qualifications set forth in paragraph (C)(6)(d) below, shall by virtue of the
acquisition of a certificate for shares of Class B Common Stock have the status
of an owner or holder of shares of Class B Common Stock or be recognized as such
by the Corporation or be otherwise entitled to enjoy for his or her own benefit
the special rights and powers of a holder of shares of Class B Common Stock.
Holders of shares of Class B Common Stock may at any and all times
transfer to any Person the shares of Class A Common Stock issuable upon
conversion of such shares of Class B Common Stock.
d. Prior to a Tax-Free Spin-Off, shares of
Class B Common Stock shall be transferred on the books of the Corporation and a
new certificate therefor issued, upon presentation at the office of the
Secretary of the Corporation (or at such additional place or places as may from
time to time be designated by the Secretary of the Corporation) of the
certificate for such shares, in proper form for transfer and accompanied by all
requisite stock transfer tax stamps, only if such certificate when so presented
shall also be accompanied by any one of the following:
(i) an affidavit from Titan stating
that such certificate is being presented to effect a transfer by Titan of such
shares to a Subsidiary Entity of Titan; or
(ii) an affidavit from Titan stating
that such certificate is being presented to effect a transfer by any Subsidiary
Entity of Titan of such shares to Titan or another Subsidiary Entity of Titan;
or
(iii) an affidavit from Titan (or the
Class B Transferee) stating that such certificate is being presented to effect a
transfer by Titan (or the Class B Transferee) or any of its (or the Class B
Transferee's) Subsidiary Entities of such shares to a Class B Transferee or a
Subsidiary Entity of the Class B Transferee as contemplated by paragraph
(C)(6)(b); or
(iv) an affidavit from the Class B
Transferee stating that such certificate is being presented to effect a transfer
by the Class B Transferee of such shares to a Subsidiary Entity of the Class B
Transferee; or
(v) an affidavit from the Class B
Transferee stating that such certificate is being presented to effect a transfer
by any Subsidiary Entity of the Class B Transferee of such shares to the Class B
Transferee or another Subsidiary Entity of the Class B Transferee; or
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(vi) an affidavit from Titan stating
that such certificate is being presented to effect a transfer by Titan of such
shares to the stockholders of Titan in connection with a Tax-Free Spin-Off; or
(vii) an affidavit from the Class B
Transferee stating that such certificate is being presented to effect a transfer
by the Class B Transferee of such shares to the stockholders of the Class B
Transferee in connection with a Tax-Free Spin-Off.
9 Each affidavit of a record holder furnished pursuant to this paragraph
(C)(6)(d) shall be verified as of a date not earlier than five days prior to the
date of delivery thereof, and, where such record holder is a corporation or
partnership, shall be verified by an officer of the corporation or by a general
partner of the partnership, as the case may be.
e. Prior to the occurrence of a Tax-Free
Spin-Off, each certificate for shares of Class B Common Stock shall bear a
legend on the face thereof reading as follows:
"The shares of Class B Common Stock represented by this
certificate may not be transferred to any person or entity in
connection with a transfer that does not meet the qualifications set
forth in paragraph (C)(6)(d) of ARTICLE IV of the Amended and Restated
Certificate of Incorporation of this Corporation and no person who
receives such shares in connection with a transfer which does not meet
the qualifications prescribed by paragraph (C)(6)(d) of said ARTICLE IV
is entitled to own or to be registered as the record holder of such
shares of Class B Common Stock and such shares will have been
automatically converted into Class A Common Stock upon any such
purported transfer. The record holder of this certificate may at any
time convert such shares of Class B Common Stock into the same number
of shares of Class A Common Stock. Each holder of this certificate, by
accepting the same, accepts and agrees to all of the foregoing."
Upon and after the transfer of shares in a Tax-Free Spin-Off, shares of
Class B Common Stock shall no longer bear the legend set forth above in this
paragraph (C)(6)(e).
f. Upon any conversion of shares of Class B
Common Stock into shares of Class A Common Stock pursuant to the provisions of
this paragraph (C)(6), any dividend, for which the payment date shall be
subsequent to such conversion, which may have been declared on the shares of
Class B Common Stock so converted shall be deemed to have been declared, and
shall be payable, with respect to the shares of Class A Common Stock into or for
which such shares of Class B Common Stock shall have been so converted, and any
such dividend payable in Common Stock shall be deemed to have been declared, and
shall be payable, in shares of Class A Common Stock.
g. The Corporation shall not reissue or resell
any shares of Class B Common Stock which shall have been converted into shares
of Class A Common Stock pursuant to or as permitted by the provisions of this
paragraph (C)(6), or any shares of Class B Common Stock which shall have been
acquired by the Corporation in any other manner. The Corporation
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shall, from time to time, take such appropriate action as may be necessary to
retire such shares and to reduce the authorized amount of Class B Common Stock
accordingly.
The Corporation shall at all times reserve and keep available, out of its
authorized but unissued Common Stock, such number of shares of Class A Common
Stock as would become issuable upon the conversion of all shares of Class B
Common Stock then outstanding.
h. In connection with any transfer or
conversion of any stock of the Corporation pursuant to or as permitted by the
provisions of this paragraph (C)(6) or in connection with the making of any
determination referred to in this paragraph (C)(6):
(i) the Corporation shall be under no
obligation to make any investigation of facts unless an officer, employee or
agent of the Corporation responsible for making such transfer or determination
or issuing Class A Common Stock pursuant to such conversion has substantial
reason to believe, or unless the Board of Directors (or a committee of the Board
of Directors designated for such purpose) determines that there is substantial
reason to believe, that any affidavit or other document is incomplete or
incorrect in a material respect or that an investigation would disclose facts
upon which any determination referred to in paragraph (C)(6)(f) above should be
made, in either of which events the Corporation shall make or cause to be made
such investigation as it may deem necessary or desirable in the circumstances
and have a reasonable time to complete such investigation; and
(ii) neither the Corporation nor any
director, officer, employee or agent of the Corporation shall be liable in any
manner for any action taken or omitted in good faith.
i. The Corporation will not be required to pay
any documentary, stamp or similar issue or transfer taxes payable in respect of
the issue or delivery of shares of Class A Common Stock on the conversion of
shares of Class B Common Stock pursuant to this paragraph (C)(6), and no such
issue or delivery shall be made unless and until the Person requesting such
issue has paid to the Corporation the amount of any such tax or has established,
to the satisfaction of the Corporation, that such tax has been paid.
D. Subject to the limitations and in the manner provided by law,
shares of the Preferred Stock may be issued from time to time in one or more
series, and the Board of Directors of the Corporation or a duly-authorized
committee of the Board of Directors of the Corporation, in accordance with the
laws of the State of Delaware, is hereby authorized to determine or alter the
relative rights, powers (including voting powers), preferences and privileges
granted to Preferred Stock or any wholly unissued series of shares of Preferred
Stock, and the qualifications, limitations or restrictions thereof, including
without limitation the dividend rights, dividend rate, conversion rights, voting
rights, rights and terms of redemption (including sinking fund provisions),
redemption price or prices, and the liquidation preferences of any wholly
unissued series of shares of Preferred Stock, and to establish from time to time
the number of shares constituting any such series and the designation thereof,
or any of them (a "PREFERRED STOCK DESIGNATION"); and to increase or decrease
(but not below the number of shares of any series of Preferred Stock then
outstanding) the number of shares of any such series
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subsequent to the issue of shares of that series. In case the number of shares
of any series shall be so decreased, the shares constituting such decrease shall
upon the taking of any action required by applicable law resume the status which
they had prior to the adoption of the resolution originally fixing the number of
shares of such series.
E. No stockholder of the Corporation shall have any preemptive or
preferential right, nor be entitled as such as a matter of right, to subscribe
for or purchase any part of any new or additional issue of stock of the
Corporation of any class or series, whether now or hereafter authorized, and
whether issued for money or for consideration other than money, or of any issue
of securities convertible into stock of the Corporation.
F. No stockholder shall be entitled to exercise any right of
cumulative voting.
V.
For the management of the business and for the conduct of the affairs
of the corporation, and in further definition, limitation and regulation of the
powers of the corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
A.
1. The management of the business and the conduct of the
affairs of the corporation shall be vested in its Board of Directors. The number
of directors which shall constitute the whole Board of Directors shall be fixed
exclusively by one or more resolutions adopted by the Board of Directors.
2. Subject to the rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances,
directors shall be elected at each annual meeting of stockholders for a term of
one year. Each director shall serve until his successor is duly elected and
qualified or until his death, resignation or removal. No decrease in the number
of directors constituting the Board of Directors shall shorten the term of any
incumbent director.
Subject to the rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances, the
directors shall be divided into three classes designated as Class I, Class II
and Class III, respectively. At the first annual meeting of stockholders
following the closing of the Initial Public Offering, the term of office of the
Class I directors shall expire and Class I directors shall be elected for a full
term of three years. At the second annual meeting of stockholders following the
closing of the Initial Public Offering, the term of office of the Class II
directors shall expire and Class II directors shall be elected for a full term
of three years. At the third annual meeting of stockholders following the
closing of the Initial Public Offering, the term of office of the Class III
directors shall expire and Class III directors shall be elected for a full term
of three years. At each succeeding annual meeting of stockholders, directors
shall be elected for a full term of three years to succeed the directors of the
class whose terms expire at such annual meeting.
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Notwithstanding the foregoing provisions of this section, each director
shall serve until his successor is duly elected and qualified or until his
death, resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
a. Prior to the Qualifying Record Date and
Subject to the rights of the holders of any series of Preferred Stock, the Board
of Directors or any individual director may be removed from office at any time
(i) with cause by the affirmative vote of the holders of a majority of the
voting power of all the then-outstanding shares of voting stock of the
corporation, entitled to vote at an election of directors (the "VOTING STOCK")
or (ii) without cause by the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the voting power of all the
then-outstanding shares of the Voting Stock.
b. After the Qualifying Record Date and subject
to any limitations imposed by law, Section A(3)(a) above shall no longer apply
and subject to the rights of the holders of any series of Preferred Stock, no
director shall be removed without cause. Subject to any limitations imposed by
law, the Board of Directors or any individual director may be removed from
office at any time with cause by the affirmative vote of the holders of a
majority of the Voting Stock.
3. Subject to the rights of the holders of any series
of Preferred Stock, any vacancies on the Board of Directors resulting from
death, resignation, disqualification, removal or other causes and any newly
created directorships resulting from any increase in the number of directors,
shall, unless the Board of Directors determines by resolution that any such
vacancies or newly created directorships shall be filled by the stockholders,
except as otherwise provided by law, be filled only by the affirmative vote
of a majority of the directors then in office, even though less than a quorum
of the Board of Directors, and not by the stockholders. Any director elected
in accordance with the preceding sentence shall hold office for the remainder
of the full term of the director for which the vacancy was created or
occurred and until such director's successor shall have been elected and
qualified.
B. 1. Subject to paragraph (h) of Section 43 of the Bylaws,
the Bylaws may be altered or amended or new Bylaws adopted by the affirmative
vote of at least sixty-six and two-thirds percent (66-2/3%) of the voting power
of all of the then-outstanding shares of the Voting Stock. The Board of
Directors shall also have the power to adopt, amend, or repeal Bylaws.
2. The directors of the corporation need not be elected
by written ballot unless the Bylaws so provide.
3. No action shall be taken by the stockholders of the
corporation except at an annual or special meeting of stockholders called in
accordance with the Bylaws.
4. Special meetings of the stockholders of the
corporation may be called, for any purpose or purposes, by (i) the Chairman of
the Board of Directors, (ii) the Chief Executive Officer, or (iii) the Board of
Directors pursuant to a resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies in previously
authorized
11.
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directorships at the time any such resolution is presented to the Board of
Directors for adoption), and shall be held at such place, on such date, and at
such time as the Board of Directors shall fix.
5. Advance notice of stockholder nominations for the
election of directors and of business to be brought by stockholders before any
meeting of the stockholders of the corporation shall be given in the manner
provided in the Bylaws of the corporation.
VI.
A. A director of the corporation shall not be personally liable
to the corporation or its stockholders for monetary damages for any 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 Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law is amended
after approval by the stockholders of this Article to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director shall be eliminated or limited to the fullest extent
permitted by the Delaware General corporation Law, as so amended.
B. Any repeal or modification of this Article VI shall be
prospective and shall not affect the rights under this Article VI in effect at
the time of the alleged occurrence of any act or omission to act giving rise to
liability or indemnification.
VII.
A. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, except as provided in paragraph
B. of this Article VII, and all rights conferred upon the stockholders herein
are granted subject to this reservation.
B. Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the Voting Stock required by law, this Certificate
of Incorporation or any Preferred Stock Designation, the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting
power of all of the then-outstanding shares of the Voting Stock, voting together
as a single class, shall be required to alter, amend or repeal Articles V, VI,
and VII.
* * * *
FOUR: This Amended and Restated Certificate of Incorporation has been
duly approved by the Board of Directors of this Corporation.
FIVE: This Amended and Restated Certificate of Incorporation has been
duly adopted in accordance with the provisions of Sections 228, 242 and 245 of
the General Corporation Law of the State of Delaware by the Board of Directors
and the stockholders of the
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Corporation. A majority of the outstanding shares of Common Stock voting
together approved this Amended Restated Certificate of Incorporation by written
consent in accordance with Section 228 of the General Corporation Law of the
State of Delaware and written notice of such was given by the Corporation in
accordance with said Section 228.
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IN WITNESS WHEREOF, SUREBEAM CORPORATION has caused this Amended and
Restated Certificate of Incorporation to be signed by its President and Chief
Executive Officer this 15th day of November, 2000.
SUREBEAM CORPORATION
By: /s/ LARRY A. OBERKFELL
-------------------------------------
Larry A. Oberkfell,
President and Chief Executive Officer
