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CERTIFICATE OF INCORPORATION
OF
SUREBEAM CORPORATION
The undersigned, a natural person (the "SOLE INCORPORATOR"), for the
purpose of organizing a corporation to conduct the business and promote the
purposes hereinafter stated, under the provisions and subject to the
requirements of the laws of the State of Delaware hereby certifies that:
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 One Hundred Fifty-Five Million (155,000,000) of
which (i) One Hundred Million (100,000,000) 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 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.
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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
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
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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, 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.
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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 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.
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(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
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
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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.
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
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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
(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.
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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 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.
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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 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
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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. Directors shall be assigned to each class in accordance with a
resolution or resolutions adopted by the Board of Directors. At the first annual
meeting of stockholders following the adoption and filing of this Certificate of
Incorporation, 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 adoption and filing of this
Certificate of Incorporation, 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 adoption and filing of
this Certificate of Incorporation, 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.
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.
3.
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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.
4. 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 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.
11.
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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.
VIII.
The name and the mailing address of the Sole Incorporator is as
follows:
NAME MAILING ADDRESS
CHERYL L. BARR The Titan Corporation
3033 Science Park Road
San Diego, CA 92121
12.
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IN WITNESS WHEREOF, this Certificate has been subscribed this
4th day of August, 2000 by the undersigned who affirms that the statements
made herein are true and correct.
/s/ CHERYL L. BARR
--------------------------
CHERYL L. BARR
Sole Incorporator
[CERTIFICATE OF INCORPORATION SIGNATURE PAGE]
