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As filed with the Securities and Exchange Commission on
September 13, 1999 (000-12771)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 2 TO
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Science Applications International Corporation
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(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 95-3630868
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
10260 Campus Point Drive, San Diego, California 92121
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(Address of principal executive offices) (Zip Code)
</TABLE>
Securities to be registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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<S> <C>
None
</TABLE>
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. [ ]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. [X]
Securities Act registration statement file number to which this form
relates:
.........................(if applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
Class A Common Stock, $.01 par value
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(Title of class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. DESCRIPTION OF THE REGISTRANT'S SECURITIES TO BE REGISTERED.
GENERAL
Pursuant to the Restated Certificate of Incorporation of Science
Applications International Corporation (the "Company"), as amended August 31,
1999 (the "Certificate of Incorporation"), the Company is authorized to issue
1,000,000,000 shares of Class A Common Stock, par value $.01 per share (the
"Class A Common Stock"), 5,000,000 shares of Class B Common Stock (the "Class B
Common Stock"), par value $.05 per share, and 3,000,000 shares of Preferred
Stock, par value $.05 per share (the "Preferred Stock"). As of September 1,
1999, there were 235,780,420 shares of Class A Common Stock, 301,460 shares of
Class B Common Stock and no shares of Preferred Stock issued and outstanding.
The Class A Common Stock and Class B Common Stock may be collectively or
individually referred to as the "Common Stock."
CLASS A COMMON STOCK
GENERAL
Except as otherwise provided by law, the holders of shares of Class A
Common Stock and Class B Common Stock vote together as a single class on all
matters, with each holder of Class A Common Stock having one vote per share and
each holder of Class B Common Stock having 20 votes per share. The holders of
shares of Class A Common Stock and Class B Common Stock are entitled to cumulate
their votes for the election of directors. Cumulative voting entitles each
stockholder to cast the number of votes that equals the number of shares of
Class A Common Stock or 20 times the number of shares of Class B Common Stock
held by such stockholder multiplied by the number of directors to be elected.
Each stockholder may cast all of such votes for a single nominee or may
distribute them among any two or more nominees as such stockholder sees fit. The
Certificate of Incorporation provides for a classified board of directors (the
"Board of Directors") consisting of three classes of directors, as nearly as
equal in number as practicable. The number of authorized directors is currently
fixed at 22 directors, with seven directors serving in each of Class I and Class
II, and eight directors in Class III. Each year the stockholders elect a
different class of directors to serve a three-year term. As a result of the
classification of the Board of Directors, the votes of a greater number of
shares would be required to ensure the election of a director than would be
required without such classification.
Subject to the prior rights of the holders of any Preferred Stock then
outstanding, the holders of Class A Common Stock and Class B Common Stock are
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entitled to receive dividends, out of funds legally available therefor, when and
as declared by the Board of Directors and to participate equally and ratably in
the net assets of the Company available for distribution in the event of
liquidation, dissolution or winding up, after payment of any amounts due to
creditors; provided, however, that any dividend or distribution with respect to
a share of Class B Common Stock must be 20 times the dividend or distribution,
as the case may be, with respect to a share of Class A Common Stock.
Holders of Class A Common Stock have no conversion, preemptive or
subscription rights. Neither class of Common Stock may be subdivided,
consolidated, reclassified or otherwise changed unless the relative powers,
preferences, rights, qualifications, limitations and restrictions applicable to
the other class of Common Stock are maintained. In any merger, consolidation or
business combination to which the Company is a party (other than a merger,
consolidation or business combination in which the Company is the surviving
corporation and which does not result in any reclassification of or change in
the outstanding shares of Common Stock), the consideration to be received with
respect to each share of Class B Common Stock must be equal to 20 times the
consideration to be received with respect to each share of Class A Common Stock,
except that if capital stock is distributed in any such transaction, such shares
may differ as to the rights of the holders thereof only to the extent that such
rights differ pursuant to Article FOURTH of the Certificate of Incorporation.
All shares of Class A Common Stock presently outstanding are fully paid and
nonassessable.
Article FOURTEENTH of the Certificate of Incorporation generally
requires that mergers and certain other business combinations ("Business
Combinations") between the Company and any holder of 5% or more of the Company's
outstanding voting power (a "Related Person") must be approved by the holders of
securities having 80% of the Company's outstanding voting power, as well as by
the holders of a majority of such securities that are not owned by the Related
Person. Under Delaware law, unless the Certificate of Incorporation provides
otherwise, only a majority of the Company's outstanding voting power is required
to approve certain of these transactions, such as mergers and consolidations,
while certain other of these transactions would not require stockholder
approval.
The 80% and majority of independent voting power requirements of Article
FOURTEENTH (the "Supermajority Vote Requirements") will not apply, however, to a
Business Combination with a Related Person, if (i) the transaction is approved
by the Board of Directors prior to the time the Related Person becomes a Related
Person (i.e., prior to the time the Related Person acquired beneficial ownership
of 5% or more of the Company's outstanding voting power), (ii) the transaction
is approved by at least a majority of the members of the Board of Directors who
are unaffiliated with the Related Person and who were directors before the
Related Person became a Related Person or (iii) the Business Combination
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involves only the Company and one or more of its subsidiaries and certain other
conditions are satisfied.
Article FOURTEENTH also provides that in the event a Business
Combination with a Related Person subject to the Supermajority Vote Requirements
is consummated, stockholders of the Company who voted against the Business
Combination, at their option, will have the right to receive a price which is
equal to (i) the price offered by the Related Person in the Business Combination
or (ii) the greater of (a) the highest price per share paid by the Related
Person in acquiring shares of capital stock of the Company or (b) a price which
bears the same percentage relationship to the market price of the Company's
capital stock immediately preceding the announcement of the Business Combination
as the highest price paid by the Related Person for any of the Company's capital
stock bears to the market price of the Company's capital stock immediately
before the Related Person initially acquired any shares of the Company's capital
stock.
The amendment of certain provisions of the Certificate of Incorporation
and Bylaws require the approval of not less than two-thirds of the total voting
power of all outstanding shares of voting stock of the Company. Such provisions
relate to the number of directors, the election of directors and the vote of
stockholders required to modify the provisions of the Certificate of
Incorporation and Bylaws requiring such approvals.
The Company acts as its own transfer agent for the Common Stock. As of
September 1, 1999, there were 28,188 record holders of Class A Common Stock.
RESTRICTIONS ON CLASS A COMMON STOCK
All shares of Class A Common Stock are subject to certain restrictions
(including restrictions on their transferability) set forth in Article FOURTH of
the Certificate of Incorporation, which restrictions provide substantially as
follows:
RIGHT OF REPURCHASE UPON TERMINATION OF EMPLOYMENT OR AFFILIATION. All
shares of Class A Common Stock held of record by a person who is an employee or
director of, or a consultant to, the Company or any of its Subsidiaries (as
hereinafter defined) (except for shares of Class A Common Stock that are held by
a stockholder who received such shares (i) in connection with the reorganization
of the Company in 1984 in exchange for shares of the Company which immediately
prior thereto were not subject to a right of repurchase upon termination of
employment or affiliation on the part of the Company, (ii) upon the exercise of
a non-qualified stock option granted prior to October 1, 1981 under the
Company's 1979 Stock Option Plan which were not converted into an "incentive
stock option," (iii) in exchange for shares of Class B Common Stock that were
not subject to a right of repurchase upon termination of employment or
affiliation on the part of the Company or (iv) pursuant to a stock dividend or a
stock split on the outstanding
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shares of Class A Common Stock which were issued under any of the circumstances
described in clauses (i), (ii) or (iii)) will be subject to the Company's right
of repurchase upon the termination of such holder's employment or affiliation
with the Company. Such right of repurchase will also be applicable to all shares
of Class A Common Stock which such person has the right to acquire after his or
her termination of employment or affiliation pursuant to any of the Company's
employee benefit plans (other than shares distributable to such person under the
Employee Stock Retirement Plan or any other retirement or pension plan adopted
by the Company or any of its Subsidiaries which, by its terms, provides that the
Company's right to repurchase shares issued thereunder upon termination of
employment or affiliation shall not apply) or pursuant to any option or other
contractual right to acquire shares of Class A Common Stock which was
outstanding at the date of such termination of employment or affiliation.
The Company's right of repurchase is exercised by mailing a written
notice to such holder's address of record on the Company's stock record books
within 60 days following (i) the date of termination of affiliation with respect
to employees, directors or consultants of the Company or (ii) the date on which
the Corporate Secretary of the Company receives written notice of the
termination of affiliation of an employee, director or consultant of a
Subsidiary. If the Company repurchases the shares, the price will be the Formula
Price (as defined in the Certificate of Incorporation) per share (i) on the date
of such termination of affiliation, in the case of shares held of record by the
holder at that date and shares issuable to the holder after that date pursuant
to any option or other contractual right to acquire shares of Class A Common
Stock which were outstanding at that date or (ii) on the date such shares are
distributed to the holder, in the case of shares distributable to the holder
after his or her termination of affiliation pursuant to any of the Company's
employee benefit plans. If the Company exercises its right of repurchase upon
termination of employment or affiliation, it shall pay for such shares in cash
within 90 days after (i) the date of such termination of affiliation or the date
on which the Corporate Secretary of the Company receives written notice of the
termination of affiliation of an employee, director or consultant of a
Subsidiary, in the case of shares held of record by such holder at that date and
shares issuable to such holder after that date pursuant to any option or other
contractual right to acquire shares of Class A Common Stock which was
outstanding at that date; or (ii) the date such shares are distributed to such
holder, in the case of shares distributable to such holder subsequent to such
holder's termination of affiliation pursuant to any of the Company's employee
benefit plans.
As used in Article FOURTH, "Subsidiary" means an entity designated as
such by the Company's Board of Directors (or a committee of the Board of
Directors empowered to make such determination) based on the Company's equity
interest in, control over or relationship with such entity. If the Company's
Board of Directors (or such committee) determines that the Company's equity
interest in, control over or relationship with such entity changed in a way that
makes the entity's
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status as a Subsidiary no longer appropriate, the Board of Directors (or such
committee) may remove the designation.
Notwithstanding the provisions of the Certificate of Incorporation and
the Company's employee benefit plans, a retiring employee of the Company who
meets certain criteria can elect to defer the repurchase of the employee's
shares of Class A Common Stock for five years under the Company's Alumni
Program. Under the Alumni Program, an employee who is over 59 1/2 and has more
than 10 years of employment with the Company at the date of his or her
retirement can elect to have the Company defer its right of repurchase by
executing and delivering to the Company an agreement within 60 days following
the date of the employee's termination. If the employee makes such an election,
transferees of the employee's shares are also eligible to make the same deferral
election with respect to shares of Class A Common Stock transferred to them by
the employee. During the five-year deferral period, the holder may offer shares
of stock for sale in the limited market maintained by the Company ("Limited
Market") or make transfers to family members. At the end of the five-year
deferral period, all such shares will be subject to repurchase by the Company at
the then current Formula Price. The Alumni Program pertains only to the deferral
of the Company's right of repurchase and does not provide the employee any
rights with respect to the vesting or forfeiture of any shares or options held
by the employee at the date of his or her retirement or guarantee the repurchase
at the end of the deferral period.
RIGHT OF FIRST REFUSAL. In the event that a holder of Class A Common
Stock desires to sell any of his or her shares to a third party other than
through the Limited Market, such person must first give notice to the Corporate
Secretary of the Company consisting of: (i) a statement signed by such holder
setting forth such holder's desire to sell his or her shares of Class A Common
Stock and that he or she has received a bona fide offer to purchase such shares;
(ii) a statement signed by the intended purchaser containing (a) the intended
purchaser's full name, address and taxpayer identification number, (b) the
number of shares to be purchased, (c) the price per share to be paid, (d) the
other terms under which the purchase is intended to be made and (e) a
representation that the offer, under the terms specified, is bona fide and (iii)
if the purchase price is payable in cash, in whole or in part, a copy of a
certified check, cashier's check or money order payable to such holder from the
intended purchaser in the amount of the purchase price to be paid in cash.
Upon receiving such notice, the Company will have the right, exercisable
within 14 days, to purchase all of the shares specified in the notice at the
offer price and upon the same terms as set forth in the notice. If the Company
does not exercise such right, the holder may sell the shares specified in the
notice within 30 days thereafter to the person specified in the notice at the
price and upon the terms and conditions set forth therein. The holder may not
sell such shares to any other person or at any different price or on any
different terms without first re-offering the shares to the Company.
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TRANSFERS OTHER THAN BY SALE. Except for sales in the Limited Market and
as described above, no holder of Class A Common Stock may sell, assign, pledge,
transfer or otherwise dispose of or encumber any shares of Class A Common Stock
without the prior written approval of the Company and any attempt to do so
without such prior approval will be null and void. The Company may condition its
approval of a transfer of any shares of Class A Common Stock, other than by sale
by an employee, director or a consultant of the Company or by a person who
acquired such shares other than by purchase, directly or indirectly, from an
employee, director or consultant of the Company, upon the transferee's agreement
to hold such shares subject to the Company's right to repurchase such shares
upon the termination of affiliation of the employee, director or consultant.
LAPSE OR WAIVER OF RESTRICTIONS. All restrictions upon the shares of
Class A Common Stock will automatically terminate (i) if the Company makes an
underwritten offering of either class of its Common Stock or securities
convertible into any class of its Common Stock to the general public or (ii) if
the Company applies to have any class of its Common Stock, or securities
convertible into any class if its Common Stock, listed on a national securities
exchange. In addition, the Board of Directors may waive any or all of the
restrictions on Class A Common Stock in such circumstances as the Board of
Directors deems appropriate and such waiver may be effective as to any or all of
the shares of Class A Common Stock or as to any or all of the holders thereof.
ANTI-TAKEOVER EFFECTS
The combined effect of the classification of the Board of Directors into
three different classes, the cumulative voting rights of the stockholders, the
Supermajority Vote Requirements, the provisions of the Certificate of
Incorporation and the Bylaws of the Company requiring the approval of at least
two-thirds of the voting power of all outstanding shares of Common Stock for
certain amendments to the Certificate of Incorporation or Bylaws, the Company's
right of first refusal, and the Company's right of repurchase upon termination
of employment or affiliation, may discourage, delay or prevent attempts to
acquire control of the Company that are not approved by the Company's Board of
Directors. The provisions may, individually or collectively, have the effect of
discouraging takeover attempts that some stockholders might deem to be in their
best interests, including tender offers in which stockholders might receive a
premium for their shares over the Formula Price available in the Limited Market,
as well as making it more difficult for individual stockholders or a group of
stockholders to elect directors. However, the Board of Directors believes that
these provisions are in the best interests of the Company and its stockholders,
because such provisions may encourage potential acquirors to negotiate directly
with the Board of Directors which is in the best position to act on behalf of
all stockholders.
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OTHER CLASSES OF CAPITAL STOCK
CLASS B COMMON STOCK
Pursuant to the terms of the Certificate of Incorporation, the Company
is prohibited from issuing any additional shares of Class B Common Stock. Each
share of Class B Common Stock is convertible at any time, at the option of the
holder thereof, into 20 shares of Class A Common Stock, and all shares of Class
B Common Stock reacquired by the Company will be retired and will not be
available for reissuance. As of September 1, 1999, there were 154 record holders
of Class B Common Stock.
Substantially all of the presently outstanding shares of Class B Common
Stock are subject to a right of first refusal identical to that to which the
Class A Common Stock is subject. As with the Class A Common Stock, the right of
first refusal is held on the part of the Company in the event a stockholder
desires to sell his or her shares of Class B Common Stock other than in the
Limited Market. Such right is exercisable by the Company at the third-party
offer price. In addition, all of the presently outstanding shares of Class B
Common Stock that were issued subsequent to October 1, 1981 (other than shares
issued subsequent to that date which were distributed out of, or are presently
held in, the Company's Profit Sharing Retirement Plan, Employee Stock Retirement
Plan and Cash or Deferred Arrangement or that were issued upon the exercise of
stock options granted prior to that date) are subject to a right of repurchase
on the part of the Company upon termination of the stockholder's employment or
affiliation with the Company. This right is generally exercisable by the Company
at a price equal to 20 times the Formula Price for Class A Common Stock
prevailing at the time of such termination.
PREFERRED STOCK
Pursuant to the Certificate of Incorporation, the Board of Directors
may, from time to time, authorize the issuance of one or more series of
Preferred Stock and fix by resolution or resolutions adopted at the time of
issuance the designations, preferences and relative rights, qualifications and
limitations of each series. Each series of Preferred Stock could, as determined
by the Board of Directors at the time of issuance, rank senior to the Class A
Common Stock and Class B Common Stock with respect to dividend, redemption and
liquidation rights.
Holders of shares of Preferred Stock will have no preferential or
preemptive right to purchase any shares of the Company's capital stock. As of
September 1, 1999, no shares of Preferred Stock had been issued by the Company.
The Company has no present intention or plan to issue any shares of Preferred
Stock.
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Item 2. EXHIBITS.
Listed below are all exhibits filed as part of this Registration
Statement:
3.1 Restated Certificate of Incorporation of Registrant, as amended August
31, 1999.
3.2 Bylaws of Registrant, as amended through April 11, 1997 (incorporated by
reference to Exhibit 3(b) to Registrant's Annual Report on Form 10-K/A
for the fiscal year ended January 31, 1997 (the "1997 10-K")).
4.1 Form of Alumni Agreement (incorporated by reference to Exhibit 4(w) to
the 1997 Form 10-K).
99 Form of Stock Certificate representing shares of Class A Common Stock,
$.01 par value of the Company (incorporated by reference to Exhibit 1.1
to the original filing on Form 8-A).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Post-Effective Amendment to
this Registration Statement to be signed on its behalf by the undersigned,
thereto duly authorized.
Date: September 13, 1999
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
By: /S/ J.D. HEIPT
---------------------------------
J.D. HEIPT
Senior Vice President
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Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
-----------------------------------------
Pursuant to Sections 242 and 245 of the General
Corporation Law of the State of Delaware
-----------------------------------------
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, a Delaware Corporation,
hereby certifies as follows:
1. The name of the Corporation is SCIENCE APPLICATIONS INTERNATIONAL
CORPORATION and it was originally incorporated under the name of Science
Applications, Inc.
2. The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of Delaware on October 21, 1980.
3. This Restated Certificate of Incorporation restates and amends the
provisions of the Corporation's Restated Certificate of Incorporation as
heretofore amended and supplemented.
4. The Corporation's Restated Certificate of Incorporation as heretofore
amended and supplemented is hereby amended and restated to read in its entirety
as follows:
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FIRST: The name of this Corporation is:
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle, and the name of its registered agent at that address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of capital stock of all classes which
the Corporation shall have the authority to issue is one billion eight million
(1,008,000,000) shares. One billion (1,000,000,000) shares shall be Class A
Common Stock, par value $.01 per share, five million (5,000,000) shares shall be
Class B Common Stock, par value $.05 per share, and three million (3,000,000)
shares shall be Preferred Stock, par value $.05 per share.
The Board of Directors is expressly authorized to provide for the
issuance of all or any shares of the Preferred Stock, in one or more classes or
series, and to fix for each such class or series such voting powers, full or
limited, or no voting powers, and such distinctive designations, preferences and
relative, participating, optional or other special rights and such
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors
providing for the issuance of such class or series and as may be permitted by
the General Corporation Law of the State of Delaware (the "DGCL"), including,
without limitation, the authority to provide that any such class or series may
be (i) subject to redemption at such time or times and at such price or prices;
(ii) entitled to receive dividends (which may be cumulative or non-cumulative)
at such rates, on such conditions, and at such times, and payable in preference
to, or in such relation to, the dividends payable on any other class or classes
or any other series; (iii) entitled to such rights upon the dissolution of, or
upon any distribution of the assets of, the Corporation; or (iv) convertible
into, or exchangeable for, shares of any other class or classes of stock, or of
any other series of the same or any other class or classes of stock, of the
Corporation at such price or prices or at such rates of exchange and with such
adjustments; all as may be stated in such resolution or resolutions.
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The designation and the powers, preferences, rights, qualifications,
limitations and restrictions applicable to the shares of Class A Common Stock
and Class B Common Stock (collectively, the "Common Stock") which the
Corporation is authorized to issue shall be as follows:
(A) VOTING RIGHTS.
Except as otherwise provided by the DGCL, the holders of Class A Common
Stock and Class B Common Stock shall in all matters vote together as a single
class. In all matters requiring a stockholder vote, each holder of Class A
Common Stock shall have one vote per share, and each holder of Class B Common
Stock shall have 20 votes per share, except as otherwise provided in Article
TENTH.
(B) DIVIDENDS RIGHTS.
Subject to the rights of the holders of outstanding Preferred Stock, if
any, holders of Class A Common Stock and Class B Common Stock shall be entitled
to receive, equally and ratably, such dividends, payable in cash, stock or
otherwise, as may be declared thereon by the Board of Directors from time to
time out of assets or funds of the Corporation legally available therefor;
provided, however, that any dividend declared and paid with respect to each
share of Class B Common Stock, whether payable in cash, stock or other property,
shall be equal to 20 times the per share dividend declared and paid with respect
to each share of Class A Common Stock.
(C) LIQUIDATION RIGHTS.
In the event of any dissolution, liquidation or winding up of the
affairs of the Corporation, whether voluntary or involuntary, after payment or
provision for payment of the debts and other liabilities of the Corporation,
including, without limitation, all amounts payable with respect to outstanding
Preferred Stock, if any, the holders of Class A Common Stock and Class B Common
Stock shall be entitled to receive, equally and ratably, the remaining assets
and funds of the Corporation; provided, however, that the amount of such assets
and funds distributed with respect to each share of Class B Common Stock shall
be equal to 20 times the per share amount distributed with respect to each share
of Class A Common Stock. A merger or consolidation of the Corporation with or
into any other corporation or a sale or conveyance of all or any part of the
assets of the Corporation (which shall not in fact result in the liquidation of
the Corporation and the distribution of assets to stockholders)
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shall not be deemed to be a voluntary or involuntary liquidation or dissolution
or winding up of the Corporation within the meaning of this Section (C).
(D) RECLASSIFICATION, ETC.
No class of Common Stock may be subdivided, consolidated, reclassified
or otherwise changed unless the relative powers, preferences, rights,
qualifications, limitations and restrictions applicable to the other class of
Common Stock are maintained.
(E) MERGERS, CONSOLIDATIONS, ETC.
In any merger, consolidation or business combination to which the
Corporation is a party (other than a merger, consolidation or business
combination in which the Corporation is the surviving corporation and which does
not result in any reclassification of or change in outstanding shares of Common
Stock), the consideration to be received with respect to each share of Class B
Common Stock in such merger, consolidation or business combination must be equal
to 20 times the consideration to be received with respect to each share of Class
A Common Stock; provided, however, that in any such transaction in which shares
of capital stock are distributed, such shares may differ as to the rights of the
holders thereof to the extent and only to the extent that such rights differ as
provided herein.
(F) RESTRICTIONS ON CLASS A COMMON STOCK
(1) Corporation's Right to Repurchase upon Termination of
Affiliation. All shares of Class A Common Stock held of record by a person who
is an employee or director of, or a consultant to, the Corporation or any of its
Subsidiaries shall be subject to the Corporation's right to repurchase all of
such shares in the event that such holder's affiliation with the Corporation as
an employee, director or consultant is terminated. Such right of repurchase upon
termination of affiliation shall also be applicable to all shares of Class A
Common Stock which such person has the right to acquire subsequent to such
person's termination of affiliation pursuant to any of the Corporation's
employee benefit plans (other than shares distributable to such person under the
Employee Stock Retirement Plan, or any other retirement or pension plan adopted
by the Corporation or any of its Subsidiaries which, by its terms, provides that
the Corporation's right to repurchase shares issued thereunder upon termination
of affiliation shall not apply) or pursuant to any option or other contractual
right to acquire shares of Class A Common Stock which was
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outstanding at the date of such termination of affiliation. An authorized leave
of absence approved in accordance with the Corporation's policy shall not
constitute a termination of affiliation for purposes of this subparagraph (1);
provided, however, that the issuance of a formal personnel action notice by the
Corporation's human resources department advising an employee that such
employee's leave of absence is terminated shall constitute a termination of
affiliation for purposes of this subparagraph (1). The Corporation's right of
repurchase shall be exercised by mailing written notice to such holder's address
of record on the Corporation's stock record books within sixty (60) days
following (i) the date of termination of such affiliation with respect to
employees, directors or consultants of the Corporation, or (ii) the date on
which the Corporate Secretary of the Corporation receives written notice of the
termination of affiliation of an employee, director or consultant of a
Subsidiary. If the Corporation repurchases the shares, the price shall be the
Formula Price (as hereinafter defined) per share (i) on the date of such
termination of affiliation, in the case of shares held of record by such holder
at that date and shares issuable to such holder subsequent to that date pursuant
to any option or other contractual right to acquire shares of Class A Common
Stock which was outstanding at that date; or (ii) on the date such shares are
distributed to such holder, in the case of shares distributable to such holder
subsequent to such holder's termination of affiliation pursuant to any of the
Corporation's employee benefit plans. The Corporation shall, in the event it
exercises its right to repurchase such shares of Class A Common Stock as
provided in this subparagraph (1), pay for such shares in cash within 90 days
after (i) the date of such termination of affiliation (such 90-day period shall
commence on such date of termination of affiliation and shall not be extended by
accrued vacation, sick days or similar accruals) or the date on which the
Corporate Secretary of the Corporation receives written notice of the
termination of affiliation of an employee, director or consultant of a
Subsidiary, in the case of shares held of record by such holder at that date and
shares issuable to such holder subsequent to that date pursuant to any option or
other contractual right to acquire shares of Class A Common Stock which was
outstanding at that date; or (ii) the date such shares are distributed to such
holder, in the case of shares distributable to such holder subsequent to such
holder's termination of affiliation pursuant to any of the Corporation's
employee benefit plans. If the Corporation is unable to make such payment
directly to such holder, then the Corporation may satisfy its obligation to make
such payment by depositing the purchase price within such 90-day period in an
account for the benefit of such holder and such shares of Class A Common Stock
shall thereby be deemed to have been transferred to the Corporation and no
longer outstanding with all rights of such holder with regard to such shares
terminated. Notwithstanding the foregoing, the right of
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repurchase upon termination of affiliation set forth in this subparagraph (1)
shall not be applicable to shares of Class A Common Stock held by a holder who
received such shares (i) in the merger (the "Merger") of Science Applications,
Inc. with and into the Corporation in exchange for shares of Common Stock, par
value $.05 per share, of the Corporation ("Old Common Stock") which immediately
prior to the effective time of the Merger (the "Effective Time") were not
subject to a right of repurchase upon termination of affiliation on the part of
the Corporation; (ii) upon exercise of a "non-qualified" stock option granted
prior to October 1, 1981 under the Corporation's 1979 Stock Option Plan which
was not converted into an "incentive stock option;" (iii) in exchange for shares
of Class B Common Stock pursuant to Section (I) of this Article FOURTH which
were not subject to a right of repurchase upon termination of affiliation on the
part of the Corporation; or (iv) by way of a stock dividend or a stock split on
the outstanding shares of Class A Common Stock which have been theretofore
issued under the circumstances described in clauses (i), (ii) or (iii) or this
clause (iv) of this sentence.
(2) Corporation's Right of First Refusal. If at any time a
holder of Class A Common Stock desires to sell any of such shares (other than
through the limited market maintained by the Corporation), such holder shall
first give notice to the Secretary of the Corporation containing:
(a) A statement signed by such holder notifying the
orporation that such holder desires to sell shares of Class A Common Stock and
has received a bona fide offer to purchase such shares.
(b) A statement signed by the intended purchaser
containing:
(i) the intended purchaser's full name,
address and taxpayer identification
number;
(ii) the number of shares to be purchased;
(iii) the price per share to be paid;
(iv) other terms under which the purchase is
intended to be made; and
(v) a representation that the offer, under
the terms specified, is bona fide.
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<PAGE> 7
(c) If the purchase price is payable in cash, in whole
or in part, a copy of a certified check, cashier's check or money order payable
to such holder from the purchaser in the aggregate amount of the purchase price
which is to be paid in cash.
The Corporation shall thereupon have an option exercisable within
fourteen (14) days of receipt of such notice by the Secretary to purchase all,
but not less than all, of the shares specified in the notice at the offer price
and upon the same terms as set forth in the notice, accompanied by payment of
the purchase price; provided, however, that if the offer price is payable, in
whole or in part, other than in cash, the Corporation shall pay the equivalent
value of any noncash consideration as mutually agreed upon between the holder
and the Corporation. Such option shall be exercised by the Corporation by
mailing written notice to such holder at such holder's address of record on the
Corporation's stock record books. In the event the Corporation does not exercise
such option, such holder may sell the shares specified in the notice within 30
days thereafter to the person, at the price and upon the terms and conditions
set forth therein. The holder may not sell such shares to any other person, or
at any different price, or on any different terms without first re-offering such
shares to the Corporation.
(3) Election of Rights by Corporation. In the event
circumstances shall occur which would ordinarily permit the Corporation to
exercise its rights under either subparagraphs (1) or (2) of this paragraph (F)
at a time when the Corporation's rights under the other subparagraph have become
and remain exercisable, the Corporation in its sole discretion may elect which
of such rights it shall exercise. The Corporation may designate one or more
nominees to purchase any shares of Class A Common Stock which it has the right
to purchase pursuant to subparagraphs (1) or (2) of this paragraph (F), in lieu
of purchasing such shares itself.
(4) Other Transfers. Except for sales in the limited market
maintained by the Corporation and as provided in subparagraphs (1) or (2) of
this paragraph (F), no holder of shares of Class A Common Stock may sell,
assign, pledge, transfer or otherwise dispose of or encumber any shares of Class
A Common Stock without the prior written approval of the Corporation, and any
attempt to so sell, assign, pledge, transfer or otherwise dispose of or encumber
such shares without such prior approval shall be null and void. The Corporation
is expressly authorized to condition its approval of a transfer other than by
sale of any shares of Class A Common Stock by an employee or
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<PAGE> 8
director of, or a consultant to, the Corporation or by a person who acquired
such shares other than by purchase, directly or indirectly, from an employee or
director of, or a consultant to, the Corporation upon the transferee's agreement
to hold such shares subject to the Corporation's right to repurchase such shares
pursuant to subparagraph (1) of this paragraph (F) upon the termination of
affiliation of the employee, director or consultant.
(5) Definitions. As used in this Article FOURTH, the following
terms shall have the indicated meanings:
(a) "Formula Price" shall mean the price determined
pursuant to the formula adopted by the Board of Directors of the Corporation for
the purpose of determining the fair market value of the Corporation's Class A
Common Stock, as such formula may be modified from time to time by the Board of
Directors.
(b) "Subsidiary" shall mean an entity designated as such
by the Board of Directors (or a committee of the Board of Directors empowered to
make such determination) based on the Corporation's equity interest in, control
over or relationship with such entity. If the Board of Directors (or such
committee) determines that the Corporation's equity interest in, control over or
relationship with such entity has changed in a way that makes the entity's
status as a Subsidiary no longer appropriate, the Board of Directors (or such a
committee) may remove the designation.
(G) RESTRICTIONS ON CLASS B COMMON STOCK.
(1) All shares of Class B Common Stock issued in the Merger in
exchange for shares of Old Common Stock shall be subject to the same contractual
or other restrictions, if any, that were applicable immediately prior to the
Effective Time to the shares of Old Common Stock which were so converted into
such shares of Class B Common Stock.
(2) All shares of Class B Common Stock issued subsequent to the
Effective Time upon exercise of options granted prior to the Effective Time
under any of the Corporation's stock option plans ("Options"), which were not
converted in the Merger into Options to purchase shares of Class A Common Stock
shall be subject to the same contractual or other restrictions, if any, that
would have been applicable to the shares of Old Common Stock issuable upon
exercise of such Options if such Options had been exercised immediately prior to
the Effective Time.
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<PAGE> 9
(H) LAPSE OR WAIVER OF RESTRICTIONS ON CLASS A COMMON STOCK.
(1) Lapse. All restrictions upon the shares of Class A Common
Stock set forth in paragraph (F) above shall automatically lapse and be of no
further force or effect if:
(a) the Corporation makes an underwritten offering of
any class of its Common Stock (or any class of securities convertible into any
class of its Common Stock) to the general public; or
(b) the Corporation applies to have any class of its
Common Stock (or any class of securities convertible into any class of its
Common Stock) listed on a national securities exchange.
(2) Waiver. The Corporation may, by resolution of its Board of
Directors, acting in its sole discretion, waive any or all of the restrictions
upon the shares of Class A Common Stock set forth in paragraph (F) above in such
circumstances as the Board of Directors deems appropriate, and such waiver may
be effective as to any or all of the shares of Class A Common Stock, or as to
any or all of the holders thereof.
(I) CONVERSION OF CLASS B COMMON STOCK INTO CLASS A COMMON STOCK.
Each share of Class B Common Stock shall be convertible at any time, at
the option of the holder thereof, in accordance with such procedures and subject
to such terms and conditions as the Board of Directors may establish, into 20
fully paid and nonassessable shares of Class A Common Stock.
(J) LIMITATIONS ON FUTURE ISSUANCE OF CLASS B COMMON STOCK.
The Corporation shall not issue any additional shares of Class B Common
Stock after the Effective Time, except for shares issuable upon the exercise of
Options to purchase shares of Old Common Stock which were outstanding
immediately prior to the Effective Time and which were not converted in the
Merger into Options to purchase shares of Class A Common Stock. Additionally,
any shares of Class B Common Stock purchased or otherwise reacquired by the
Corporation shall be retired and shall no longer be authorized or otherwise
available for reissuance by the Corporation.
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<PAGE> 10
(K) NO CHANGE IN FORFEITURE PROVISIONS.
All shares of Class A Common Stock and Class B Common Stock issued in
the Merger in exchange for shares of Old Common Stock, which immediately prior
to the Effective Time were subject to forfeiture, in whole or in part, in the
event of the termination of the holder's employment or affiliation with the
Corporation prior to the expiration of certain vesting periods, shall be subject
to forfeiture in the same manner and to the same extent as were the shares of
Old Common Stock which were so converted into such shares of Class A Common
Stock or Class B Common Stock.
All shares of Class A Common Stock issued by way of a stock dividend or
stock split on shares of Common Stock which are subject to forfeiture, in whole
or in part, in the event of the termination of the holder's employment or
affiliation with the Corporation prior to the expiration of certain vesting
periods, shall be subject to forfeiture in the same manner and to the same
extent as are the shares of Common Stock with respect to which they are issued.
(L) FORMULA PRICE FOR CLASS B COMMON STOCK.
The formula price for shares of Class B Common Stock at all times shall
be equal to 20 times the Formula Price.
FIFTH: Elections of directors need not be by written ballot unless the
Bylaws of the Corporation shall otherwise provide.
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend and rescind the Bylaws of this Corporation.
SEVENTH: Sections 3.02, 3.03 and 7.05 of the Bylaws shall not be
repealed, altered, amended or rescinded by the stockholders of the Corporation
except by the vote of the holders of not less than two-thirds of the total
voting power of all outstanding shares of voting stock of the Corporation. Other
sections of the Bylaws may be made, repealed, altered, amended or rescinded by
the vote of not less than a majority of the total voting power of all the
outstanding shares of voting stock of the Corporation.
EIGHTH: The number of directors which shall constitute the whole Board
of Directors of the Corporation shall be not less than twelve (12) and not more
than twenty-two (22), and the exact number shall be fixed by the Board
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of Directors as provided in the Bylaws of the Corporation. The Board is divided
into three classes, Class I, Class II and Class III. Such classes shall be as
nearly equal in number of directors as possible. Each director shall serve for a
term ending on 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 annual meeting next following
the end of the calendar year 1981, the directors first elected to Class II shall
serve for a term ending on the second annual meeting next following the end of
the calendar year 1981, and the directors first elected to Class III shall serve
for a term ending on the third annual meeting next following the end of calendar
year 1981. The foregoing notwithstanding, each director shall serve until his
successor shall have been duly elected and qualified, unless he shall resign,
become disqualified, disabled or shall otherwise be removed.
At each annual election, the directors chosen to succeed those whose
terms then expire shall be of the same class as the directors they succeed,
unless, by reason of any intervening changes in the authorized number of
directors, the Board shall designate one or more directorships whose term then
expires as directorships of another class in order more nearly to achieve
equality of number of directors among the classes.
Notwithstanding the rule that the three classes shall be as nearly equal
in number of directors as possible, in the event of any change in the authorized
number of directors each director then continuing to serve as such shall
nevertheless continue as a director of the class of which he is a member until
the expiration of his current term, or his prior death, resignation or removal.
If any newly created directorship may, consistently with the rule that the three
classes shall be as nearly equal in number of directors as possible, be
allocated to one of two or more classes, the Board shall allocate it to that of
the available classes whose term of office is due to expire at the earliest date
following such allocation.
NINTH: Directors of the Corporation may be removed by the stockholders
of the Corporation only for cause.
TENTH: At any election of directors of this Corporation, a holder of any
class or series of stock then entitled to vote in such election shall be
entitled to as many votes as shall equal the number of votes which (except for
this Article as to cumulative voting) he would be entitled to cast for the
election of directors with respect to his shares of stock multiplied by the
number of directors to be elected in the election in which his class or series
of shares is
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entitled to vote, and each stockholder may cast all of such votes for a single
director or may distribute them among the number to be voted for, or for any two
or more of them as he may see fit.
ELEVENTH: No action shall be taken by the stockholders except at an
annual or special meeting of stockholders.
TWELFTH: Special meetings of the stockholders of the Corporation for any
purpose or purposes may be called at any time by the Board of Directors, or by a
majority of the members of the Board of Directors, or by a committee of the
Board of Directors which has been duly designated by the Board of Directors and
whose powers and authority, as provided in a resolution of the Board of
Directors or in the Bylaws of the Corporation, include the power to call such
meetings, but such special meetings may not be called by any other person or
persons; provided, however, that, if and to the extent that any special meeting
of stockholders may be called by any other person or persons specified in any
provisions of this Certificate of Incorporation or any amendment thereto or any
certificate filed under Section 151(g) of the Delaware General Corporation Law
(or its successor statute as in effect from time to time hereafter), then such
special meeting may also be called by the person or persons, in the manner, at
the times and for the purposes so specified.
THIRTEENTH: 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, and all rights conferred on
stockholders herein are granted subject to this reservation. Notwithstanding the
foregoing, the provisions set forth in Articles SIXTH, SEVENTH, EIGHTH and this
Article THIRTEENTH may not be repealed or amended in any respect unless such
repeal or amendment is approved by the affirmative vote of the holders of not
less than two-thirds of the total voting power of all outstanding shares of
voting stock of this Corporation.
FOURTEENTH:
(A) For the purposes of this Article FOURTEENTH:
(1) The term "person" shall mean any individual, firm,
partnership, limited partnership, corporation or other entity.
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(2) The term "Subsidiary" shall mean any corporation more than
fifty percent (50%) of any class of equity security of which is owned, directly
or indirectly, by the Corporation.
(3) The term "Substantial Part of the Assets" shall mean assets
having a fair market value or book value, whichever is greater, equal to more
than ten percent of the fair market value or book value, whichever is greater,
of the total assets of a person as of the end of its most recent fiscal year
ending prior to the time the determination is made.
(4) A person shall be a "Beneficial Owner" of any shares of
voting stock of the Corporation (a) which such person or any of its "affiliates"
or "associates" (as defined on the date of the adoption hereof in Rule 12b-2
under the Securities Exchange Act of 1934, as amended) beneficially owns,
directly or indirectly, (b) which such person or any of its "affiliates" or
"associates" has, directly or indirectly, (i) 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 (ii) the right to
vote or direct the voting of pursuant to any agreement, arrangement or
understanding, or (c) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its "affiliates" or
"associates" has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of such voting stock.
(5) The term "Related Person" shall mean any person (except any
profit-sharing, employee stock ownership or other employee benefit plan of the
Corporation or any Subsidiary or any trustee of or fiduciary with respect to any
such plan when acting in such capacity) which is the Beneficial Owner (as herein
defined) of five percent (5%) or more of the total voting power of all of the
outstanding shares of voting stock of the Corporation.
(6) For the purposes of determining whether a person is a
Related Person, the number of shares of voting stock of the Corporation deemed
to be outstanding shall include all shares deemed owned by such person through
application of subparagraph (4) of this paragraph (A), but shall not include any
other shares of voting stock which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
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(7) The term "Business Combination" shall mean (a) any merger or
consolidation of the Corporation or a Subsidiary with or into a Related Person,
(b) any sale, lease, exchange, transfer, mortgage, pledge or other disposition
(whether in one transaction or in a series of transactions) of all or any
Substantial Part of the Assets (as herein defined) of a Related Person to the
Corporation or to a Subsidiary, (c) any sale, lease, exchange, transfer,
mortgage, pledge or other disposition (whether in one transaction or in a series
of transactions) of all or any Substantial Part of the Assets of the Corporation
(including without limitation any securities of a Subsidiary) to a Related
Person, (d) the issuance of any securities of the Corporation or a Subsidiary to
a Related Person, (e) the acquisition by the Corporation or a Subsidiary of any
securities of a Related Person, (f) any reclassification of the securities
(including any reverse stock split) or recapitalization of the Corporation, or
any merger or consolidation of the Corporation with any Subsidiary or any other
transaction (whether or not with or into or otherwise involving a Related
Person) which has the effect, directly or indirectly, of increasing the
proportionate amount of the outstanding shares of any class of equity securities
or securities convertible into equity securities of the Corporation or any
Subsidiary which is directly or indirectly owned by a Related Person, (g) any
loan or other extension of credit by the Corporation or a Subsidiary to a
Related Person or any guarantee by the Corporation or a Subsidiary of any loan
or other extension of credit by any person to a Related Person, (h) the adoption
of any plan or proposal for the dissolution, liquidation or termination of the
Corporation or any Subsidiary proposed by or on behalf of a Related Person and
(i) any agreement, contract or other arrangement providing for any of the
foregoing Business Combination transactions.
(8) The term "Continuing Director" shall mean any member of the
Board of Directors of the Corporation who is unaffiliated with the Related
Person and was a member of the Board prior to the time that the Related Person
became a Related Person, and any successor of a Continuing Director who is
unaffiliated with the Related Person and is recommended or elected to succeed a
Continuing Director by a majority of Continuing Directors, provided that such
recommendation or election shall only be effective if made at a meeting at which
a Continuing Director Quorum is present.
(9) The term "Continuing Director Quorum" shall mean a majority
of the Continuing Directors capable of exercising the powers conferred upon them
under the provisions of this Restated Certificate of Incorporation or the Bylaws
of the Corporation or by law.
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(B) The approval or authorization of any Business Combination (as herein
defined) of the Corporation with any Related Person (as herein defined) shall
require the affirmative vote of the holders of (i) at least 80% of the total
voting power of all of the outstanding shares of voting stock of the Corporation
and (ii) a majority of the total voting power of all of the outstanding shares
of voting stock of the Corporation other than shares of voting stock which such
Related Person is the Beneficial Owner (as herein defined). Such affirmative
vote shall be required notwithstanding the fact that no vote may be required, or
that the affirmative vote of a lesser percentage of stockholders may be
specified, by law or otherwise.
(C) The provisions of this Article FOURTEENTH shall not be applicable to
any particular Business Combination, and such Business Combination shall require
only such affirmative vote as may be required by law or otherwise, if:
(1) The Board of Directors of the Corporation shall by
resolution have approved or ratified a memorandum of understanding approving
such Business Combination with such Related Person prior to the time such
Related Person became the Beneficial Owner, directly or indirectly, of five
percent (5%) or more of the voting shares of the Corporation; or
(2) The Business Combination shall have been approved by a
majority of the Continuing Directors (as herein defined) at a meeting at which a
Continuing Director Quorum (as herein defined) is present; or
(3) The Business Combination involves solely the Corporation and
a Subsidiary (as herein defined) in which a Related Person has no direct or
indirect interest (other than an interest arising solely because of control of
the Corporation); provided, that if the Corporation is not the surviving
corporation, (a) each stockholder of the Corporation receives the same type of
consideration in such transaction in proportion to such stockholder's
stockholdings, (b) the provisions of Articles FIFTH, SIXTH, SEVENTH, EIGHTH,
NINTH, TENTH, ELEVENTH, TWELFTH and FOURTEENTH of this Restated Certificate of
Incorporation are continued in effect or adopted by such surviving corporation
as part of its articles of incorporation or certificate of incorporation, as the
case may be, and such articles or certificate have no provisions inconsistent
with such provisions, and (c) the provisions of the Corporation's Bylaws are
continued in effect or adopted by such surviving corporation.
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(D) Nothing contained in this Article FOURTEENTH shall be construed to
relieve any Related Person of any fiduciary obligation imposed upon it by law.
(E) A majority of the Continuing Directors shall have the power and duty
to determine, on the basis of information then known to them, whether (a) any
person is a Related Person, (b) any Business Combination relates to a
Substantial Part of the Assets of any person and (c) any director is a
Continuing Director acting at a meeting at which a Continuing Director Quorum is
or was present. Any such determination by a majority of the Continuing Directors
shall be conclusive and binding for all purposes of this Article FOURTEENTH.
(F) The stockholders of the Corporation shall be entitled to statutory
appraisal rights to the maximum extent permissible under Section 262 of the
General Corporation Law of the State of Delaware, notwithstanding any exception
otherwise provided therein, with respect to any Business Combination with a
Related Person requiring the affirmative vote of the holders of outstanding
stock of the Corporation having at least 80% of the voting power of the
Corporation.
(G) No Business Combination subject to the provisions of Paragraph B of
this Article FOURTEENTH shall, unless such Business Combination shall be the
subject of one of the exceptions provided for in paragraphs C(i), (ii) or (iii),
be consummated, and the Corporation shall not enter into any such Business
Combination, unless the agreement relating to such Business Combination shall
provide that each stockholder of the Corporation who has voted against the
Business Combination shall receive, at the time of the consummation of such
Business Combination and in exchange for such stockholder's shares of the
capital stock of the Corporation, at the option of such stockholder, either (i)
the consideration offered by the Related Persons as part of the Business
Combination, or (ii) consideration per share of capital stock of the Corporation
held by such stockholder (either in cash or in the same form and of the same
kind as the consideration paid by the Related Person in acquiring shares of
capital stock of the Corporation, at the option of such stockholder) in an
amount not less than the greater of the following:
(1) The highest per share price (including brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by such Related
Person in acquiring any of the capital stock of the Corporation, or
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(2) A price bearing the same percentage relationship to the
market price of the capital stock of the Corporation immediately prior to the
announcement of the Business Combination as the highest price per share
(including brokerage commissions, transfer taxes and soliciting dealers' fees)
of the capital stock of the Corporation previously paid by such Related Person
for shares of capital stock of the Corporation bears to the market price of the
capital stock of the Corporation immediately prior to the time such Related
Person initially acquired any shares of capital stock of the Corporation
notwithstanding that such person was not a Related Person at the time of such
initial acquisition.
(H) Notice of any proposed alteration, amendment, rescission or repeal
of this Article FOURTEENTH shall be included in the notice of any annual or
special meeting of stockholders at which such proposal is to be considered.
(I) The provisions set forth in this Article FOURTEENTH may not be
amended, altered, changed or repealed nor may any provision inconsistent with
such provisions be added to the Restated Certificate of Incorporation of the
Corporation except upon the affirmative vote of the holders of (i) at least
eighty percent (80%) of the total voting power of all outstanding shares of
voting stock of the Corporation and (ii) a majority of the total voting power of
all of the outstanding shares of voting stock of the Corporation other than
shares of voting stock which are Beneficially Owned by a Related Person which
has directly or indirectly proposed such amendment, alteration, change or
repeal; provided, however, that any or all of such provisions may be amended,
altered, changed or repealed, and any such new provisions may be added, upon the
affirmative vote of the holders of not less than a majority of the total voting
power of all outstanding voting securities of the Corporation, if such
amendment, change, alteration or repeal or additional provision shall first have
been approved and recommended by a resolution adopted by a majority vote of the
Continuing Directors at a meeting at which a Continuing Director Quorum was
present.
FIFTEENTH:
(A) The Corporation shall indemnify its directors and elected
and appointed officers to the fullest extent authorized or permitted by the
DGCL, as the same exists or may hereafter be amended, and such right to
indemnification shall continue as to a person who has ceased to be a director or
officer of the Corporation and shall inure to the benefit of his or her heirs,
executors and
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administrators; provided, however, that, except for proceedings to enforce
rights to indemnification, the Corporation shall not be obligated to indemnify
any director or officer (or his or her heirs, executors or administrators) in
connection with a proceeding (or part thereof) initiated by such person unless
such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation. The right to indemnification conferred in this
paragraph (A) shall include the right to be paid by the Corporation the expenses
incurred in defending or otherwise participating in any proceeding in advance of
its final disposition.
The Corporation may, to the extent authorized from time to time by the
Board of Directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation who are not directors or
officers similar to those conferred in this paragraph (A) to directors and
officers of the Corporation.
The rights to indemnification and to the advancement of expenses
conferred in this paragraph (A) shall not be exclusive of any other right which
any person may have or hereafter acquire under this Restated Certificate of
Incorporation, the By-laws, any statute, agreement, vote of stockholders or
disinterested directors, or otherwise.
Any repeal or modification of this paragraph (A) by the stockholders of
the Corporation shall not adversely affect any rights to indemnification and
advancement of expenses of a director or officer of the Corporation existing
pursuant to this paragraph (A) with respect to any acts or omissions occurring
prior to such repeal or modification.
(B) No director shall be personally liable to the Corporation or any of
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the DGCL or (iv) for any transaction from
which the director derived an improper personal benefit.
Any repeal or modification of this paragraph (B) by the stockholders of
the Corporation shall not have any effect on the liability or alleged liability
of any director of the Corporation for or with respect to any acts or omissions
of such director occurring prior to such repeal or modification.
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5. This Restated Certificate of Incorporation was duly adopted in
accordance with Sections 242 and 245 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, SCIENCE APPLICATIONS INTERNATIONAL CORPORATION has
caused this Restated Certificate of Incorporation to be executed in its
corporate name by its Senior Vice President as of this 24th day of August, 1999.
SCIENCE APPLICATIONS
INTERNATIONAL
CORPORATION
By /s/ J. DENNIS HEIPT
---------------------------------
J. Dennis Heipt
Senior Vice President
19
