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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
of
SUPERUS HOLDINGS, INC.
(a Delaware corporation)
* * * * * *
Superus Holdings, Inc. (the "Corporation"), a corporation organized and
existing under the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That the Board of Directors of the Corporation, by unanimous
written consent, adopted resolutions proposing and declaring advisable the
filing of an Amended and Restated Certificate of Incorporation of the
Corporation, setting forth various amendments and provisions to the terms of the
capital stock of the Corporation and to the rights of stockholders, said Amended
and Restated Certificate of Incorporation replacing in its entirety the existing
Certificate of Incorporation which was filed on March 8, 2000, and said Amended
and Restated Certificate of Incorporation to be and read as follows:
ARTICLE FIRST: The name of the corporation is:
SUPERUS HOLDINGS, INC.
ARTICLE SECOND: The location of the registered office of the
Corporation in the State of Delaware is at 2711 Centerville Road, Suite 400,
City of Wilmington, County of New Castle, Delaware 19808. The name of the
registered agent of the Corporation in the State of Delaware at such address
upon whom process against the Corporation may be served is Corporation Service
Company.
ARTICLE THIRD: The purpose of the 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.
ARTICLE FOURTH:
Section 1. Authorization. The total number of shares of all classes of
stock which the Corporation shall have authority to issue is ONE HUNDRED FIFTY
MILLION (150,000,000) shares of common stock of the par value of $.001 per
share, said shares consisting of FIFTEEN MILLION (15,000,000) shares of Class A
Common Stock, par value $.001 per share (the "Class A Common Stock"), ONE
HUNDRED TWENTY FIVE MILLION (125,000,000) shares of Class B Common Stock, par
value $.001 per share (the "Class B Common Stock"), and TEN MILLION (10,000,000)
shares of preferred stock, par value $.001 per share (the "Preferred Stock").
The Class A Common Stock and the Class B Common Stock are sometimes collectively
called the "Common Stock" and either shall sometimes be referred to as a class
of Common Stock.
The Class A Common Stock, when issued, shall be considered issued in
respect of Surge Components, Inc., and its affiliate organizations,
(collectively "New Surge") and the Class B Common Stock, when issued, shall be
considered issued in respect of the Internet operations (the "Internet
Operations") of Global DataTel, Inc, and MailEncrypt Inc., and of any other
subsidiary of the Corporation whose assets and operating are categorized by the
Board of Directors as "Internet Operations." The number of authorized shares of
any class or classes of capital stock of the Corporation may be increased or
decreased (but not below the number of shares then outstanding or underlying
certain convertible securities or otherwise reserved for issuance) by the
affirmative vote of the holders of a majority of the voting power of the class
of Common Stock so affected.
Section 2. Common Stock. The rights, privileges, preferences and
limitations of the shares of Common Stock are as follows:
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Section 2.1 Dividends. Subject to any preferences and relative,
participating, optional or other special rights of any outstanding class or
series of preferred stock of the Corporation and any qualifications or
restrictions on either class of Common Stock created thereby, dividends may be
declared in accordance with Delaware law, and paid upon either class of Common
Stock, upon the terms with respect to each such class, and subject to the
limitations provided for below in this Subsection 2.1, as the Board of Directors
may determine.
(a) Dividends on Class A Common Stock. Dividends on Class A
Common Stock may be declared and paid only out of the lesser of (i) the funds of
the Corporation legally available therefor and (ii) the Surge Components Group
Available Dividend Amount (as defined below).
(b) Dividends on Class B Common Stock. Dividends on Class B
Common Stock may be declared and paid only out of the lesser of (i) the funds of
the Corporation legally available therefor and (ii) the Internet Operations
Group Available Dividend Amount (as defined below).
(c) Discrimination in Dividends. The Board of Directors,
subject to the provisions of Subsections 2.1(a) and 2.1(b) above, may at any
time declare and pay dividends exclusively on Class A Common Stock, exclusively
on Class B Common Stock, or on both such classes, in equal or unequal amounts,
notwithstanding the relative amounts of the Available Dividend Amount with
respect to either Group, the amount of dividends previously declared on either
class, the respective voting or liquidation rights of either class or any other
factor.
(d) Stock Distributions. Except as permitted by Subsections
2.1(a) and 2.1(b) above, the Board of Directors may declare and pay dividends or
distributions of shares of Class A Common Stock or Class B Common Stock (or
Convertible Securities convertible into or exchangeable or exercisable for
shares of Class A Common Stock or Class B Common Stock) on shares of a class of
Common Stock or shares of a class or series of preferred stock of the
Corporation only as follows:
(i) dividends or distributions of shares of Class A
Common Stock (or Convertible Securities convertible
into or exchangeable or exercisable for shares of
Class A Common Stock) may be made only on shares of
Class A Common Stock or shares of preferred stock
attributed to the Class A Common Stock;
(ii) dividends or distributions of shares of Class B
Common Stock (or Convertible Securities convertible
into or exchangeable or exercisable for shares of
Class B Common Stock) may be made only on shares of
Class B Common Stock or shares of preferred stock
attributed to the Class B Common Stock;
(iii) dividends or distributions of shares of either class
of Common Stock (or Convertible Securities
convertible into or exchangeable or exercisable for
shares of a class of Common Stock) on shares of any
other class of Common Stock may be made at the
discretion of the Board of Directors, but only if
sufficient number of shares remain authorized for
issuance upon conversion, exercise or exchange, as
the case may be, thereunder.
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Section 2.2 (a) Voting Rights. Except as otherwise specifically
provided by law, by the terms of any outstanding class or series of preferred
stock of the Corporation as may be designated from time to time or by any
provision of this Amended and Restated Certificate of Incorporation restricting
the power to vote on a specified matter to other stockholders, the entire voting
power of the stockholders of the Corporation shall be vested in the holders of
the Common Stock, who shall be entitled to vote on any matter on which the
holders of stock of the Corporation shall by law or by the provisions of the
Certificate of Incorporation or Bylaws of the Corporation be entitled to vote,
and both classes of Common Stock shall vote thereon together as a single class
on all matters brought to the stockholders. The voting rights of the Common
Stock shall be as follows:
(i) each outstanding share of Class A Common Stock shall
have one vote; and
(ii) each outstanding share of Class B Common Stock shall
have one vote.
If any matter shall be presented to the holders of Common Stock which
adversely affects one particular Group, then such class shall be entitled to
vote separately as a class with respect to such matter. If either class of
Common Stock is entitled to vote as a separate class with respect to any matter,
each share of that class shall, for purposes of such vote, be entitled to one
vote on such matter. In addition to any provision of law or any provision of the
Certificate of Incorporation entitling the holders of the outstanding shares of
Class A Common Stock or Class B Common Stock to vote as a separate class, the
Board of Directors may condition the approval of any matter submitted to
stockholders on receipt of a separate vote of the holders of outstanding shares
of Class A Common Stock or Class B Common Stock, or on any other class or series
of stock.
Section 2.3 Liquidation Rights. In the event of any voluntary or
involuntary dissolution, liquidation or winding up of the Corporation, after
payment or provision for payment of the debts and of other liabilities of the
Corporation and the full preferential amounts (including any accumulated and
unpaid dividends) to which the holders of any outstanding shares of preferred
stock of the Corporation are entitled (regardless of the Group to which such
shares of preferred stock were attributed), the holders of the Class A Common
Stock and Class B Common Stock shall be entitled to receive the assets, if any,
of the Corporation remaining for distribution to holders of Common Stock on a
per share pro rata basis. Neither the merger nor consolidation of the
Corporation into or with any other corporation, nor a sale, transfer or lease of
all or any part of the assets of the Corporation, shall, alone, be deemed a
liquidation or winding up of the Corporation or cause the dissolution of the
Corporation for purposes of this subsection.
If the Corporation shall in any manner subdivide (by stock split,
reclassification or otherwise) or combine (by reverse stock split,
reclassification or otherwise) the outstanding shares of Class A Common Stock or
Class B Common Stock, or declare a dividend in shares of either class to holders
of such class, the per share liquidation rights of either class of Common Stock
specified in the preceding paragraph, as adjusted from time to time, shall be
appropriately adjusted as determined by the Board of Directors in good faith, so
as to avoid dilution in the aggregate, relative liquidation rights of the shares
of any class of Common Stock.
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Section 2.4 Conversion of the Class A Common Stock. For a period of six
(6) months following the effective date of the acquisition of Global DataTel,
Inc. and issuance of the Class B Common Stock in connection therewith, the Class
A Common Stock is subject to voluntary conversion, at the discretion of the
holder thereof, into Class B Common Stock at a conversion rate such that two (2)
shares of Class A Common Stock shall be convertible into one share of Class B
Common Stock.
Section 2.5 Mandatory Conversion and/or Mandatory Dividend.
(a) Mandatory Conversion in Event of Dispostion of New Surge's Assets. In
the event of the Disposition, in one transaction or a series of related
transactions, by the Corporation and/or its subsidiaries of all or
substantially all of the securities of New Surge, or of the properties and
assets attributed to New Surge to one or more persons or entities (other than
a Disposition by the Corporation of all or substantially all of its
properties and assets in one transaction or a series of related transactions
in connection with the dissolution, liquidation or winding up of the
Corporation and the distribution of assets to stockholders as referred to in
Subsection 2.3), the outstanding shares of Class A Common Stock will be
converted into shares of Class B Common Stock at a conversion rate such that
two (2) shares of Class A Common Stock shall be converted into one share of
Class B Common Stock.
(b) Mandatory Dividend in the Event of Disposition of Internet
Operations' Assets. In the event of the Disposition, in one transaction or
a series of related transactions, by the Corporation and/or its
subsidiaries of all or substantially all of the securities of the Internet
Operations, or of the properties and assets attributed to the Internet
Operations (the "Affected Group") to one or more persons or entities (other
than a Disposition (w) by the Corporation of all or substantially all of
its properties and assets in one transaction or a series of related
transactions in connection with the dissolution, liquidation or winding up
of the Corporation and the distribution of assets to stockholders as
referred to in Subsection 2.3, (x) of the properties, assets and operations
attributed to the Affected Group as contemplated by Subsections 2.5(d) and
2.5(e) or otherwise to all holders of shares of affected class of Common
Stock attributable to the Affected Group (the "Affected Common Stock")
divided among the holders of Class A Common Stock and Class B Common Stock,
(y) to any person or entity controlled (as determined by the Board of
Directors) by the Corporation or (z) in connection with a Related Business
Transaction in respect of the Affected Group), the Corporation shall, on or
prior to the 95th Trading Day after the date of consummation of such
Disposition (the "Disposition Date"), pay a dividend, all as provided in the
following subsection:
provided that there are funds of the Corporation legally available
therefor:
pay to the holders of the shares of Class A Common Stock and Class B
Common Stock a dividend pro rata in accordance with the number of shares
of Common Stock held by each such holder, on an as converted basis such
that two (2) shares of Class A Common Stock shall be deemed converted into
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one share of Class B Common Stock, as the Board of Directors shall have
declared subject to compliance with ARTICLE FOURTH, Section 2.1, in cash
and/or in Common Stock, in other securities (other than a dividend of
shares of a class of Common Stock) or other property having a Fair Value
as of the Disposition Date in the aggregate equal to the Fair Value as of
the Disposition Date of the Net Proceeds of such Disposition
For purposes of this Section 2.5(a): (i) as of any date, "substantially
all of the properties and assets" attributed to the Affected Group shall mean a
portion of such properties and assets (w) that represents at least 80% of the
Fair Value of the properties and assets attributed to the Affected Group as of
such date, or (x) from which were derived at least 80% of the aggregate
revenues for the immediately preceding twelve fiscal quarterly periods of the
Corporation (calculated on a pro forma basis to include revenues derived from
any of such properties and assets acquired during such period) derived from the
properties and assets attributed to the Affected Group as of such date; (ii) in
the case of a Disposition of the properties and assets attributed to the
Affected Group in a series of related transactions, such Disposition shall not
be deemed to have been consummated until the consummation of the last of such
transactions; and (iii) the Board of Directors may pay any dividend referred to
in Section 2.5(a) in cash, securities (other than shares of a class of Common
Stock) or other property, regardless of the form or nature of the proceeds of
the Disposition.
(c) Actions Taken in Case of a Tax Event. In case of a Tax Event, the
Board of Directors, at its discretion, may at any time declare that each
outstanding share of either class of Common Stock shall be converted, as of the
Conversion Date, into such number of fully paid and non-assessable shares of
the other outstanding class of Common Stock, equal to the Market Value of the
class of Common Stock being converted over the 20 day Trading Day period prior
to discovery of the Tax Event, divided into the Market Value of the class being
converted into over the same Trading Day period.
In the event that there are not sufficient number of shares of either
class available for issuance upon conversion in the case of a Tax Event as set
forth in this Subsection 2.5(b), then the Board of Directors may, by resolution
and at its sole discretion and without shareholder approval, amend, revise or
restate ARTICLE FOURTH of this Ammended and Restated Certificate of
Incorporation so as to (i) increase or decrease the number of shares of either
class of Common Stock authorized for issuance, (ii) increase the total number
of authorized shares of all classes of stock, (iii) create or designate such
additional classes of stock and/or (iv) take all such other actions as the
Board of Directors deems necessary, to issue stock under this Subsection 2.5(b)
in case of a Tax Event.
(d) Notice and Related Provisions
(i) Not later than the 30th Trading Day following consummation of a
Disposition referred to in Subsection 2.5(b), the Corporation shall
announce publicly by press release the estimated Net Proceeds of such
Disposition and the number of shares outstanding of all classes of
Common Stock.
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(ii) The Corporation shall not be required to issue or deliver
fractional shares of any capital stock or of any other securities to any
holder of either class of Common Stock upon any conversion, dividend or
other distribution pursuant to the provisions herein. If more than one
share of either class of Common Stock shall be held at the same time by
the same holder, the Corporation may aggregate the number of shares of
any capital stock that shall be issuable or any other securities or
property that shall be distributable to such holder upon any conversion,
dividend or other distribution (including any fractional shares). If
fractional shares of any capital stock or of any other securities would
be required to be issued or distributed to the holders of either class
of Common Stock, the Corporation shall, if such fractional shares are
not issued or distributed to the holder, pay cash in respect of such
fractional shares in an amount equal to the Fair Value thereof (without
interest).
(iii) No adjustments in respect of dividends shall be made upon the
conversion of any shares of either class of Common Stock; provided,
however, that if the Conversion Date, with respect to any shares of
either class of Common Stock shall be subsequent to the record date for
the payment of a dividend or other distribution thereon or with respect
thereto, the holders of such class of Common Stock at the close of
business on such record date shall be entitled to receive the dividend or
other distribution payable on or with respect to such shares on the date
set for payment of such dividend or other distribution, in each case
without interest, notwithstanding the subsequent conversion of such
shares.
(iv) Before any holder of shares of either class of Common Stock
shall be entitled to receive any cash payment and/or certificates or
instruments representing shares of any capital stock and/or other
securities or property to be distributed to such holder with respect to
such class of Common Stock pursuant to Subsection 2.5(a) such holder
shall surrender at such place as the Corporation shall specify
certificates for such shares of Common Stock, properly endorsed or
assigned for transfer (unless the Corporation shall waive such
requirement). The Corporation shall as soon as practicable after receipt
of certificates representing such shares of Common Stock deliver to the
person for whose account such shares of Common Stock were so
surrendered, or to such person's nominee or nominees, the cash and/ or
the certificates or instruments representing the number of whole shares
of the kind of capital stock and/or other securities or property to
which such person shall be entitled as aforesaid, together with any
payment in respect of fractional shares, in each case without interest.
(v) From and after any applicable Conversion Date, all rights of a
holder of shares of Class A Common Stock that were converted shall cease
except for the right, upon surrender of the certificates representing
such shares of Common Stock as required by Subsection 2.5(c)(iv) above,
to receive the cash and/or the certificates or instruments representing
shares of the kind and amount of capital stock and/or other securities or
property for which such shares were converted together with any payment
in respect of fractional shares contemplated by Subsection 2.5(c)(ii)
above (which shall be held by the Corporation for the holder of such
shares of Common Stock that were converted until the receipt of
certificates representing such shares of Common Stock as provided above),
and rights to dividends as provided in Subsection 2.5(c)(iii), in each
case without interest. No holder of a certificate that immediately prior
to the applicable Conversion Date represented shares of a class of Common
Stock shall be entitled to receive any dividend or other distribution or
interest payment with respect to shares of any kind of capital stock or
other security or instrument for which such class of Common Stock was
converted until the surrender as required by this Section of such
certificate in exchange for a
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certificate or certificates or instrument or instruments representing
such capital stock or other security. Subject to applicable escheat and
similar laws, upon such surrender, there shall be paid to the holder the
amount of any dividends or other distributions (without interest) which
theretofore became payable on any class or series of capital stock of the
Corporation as of a record date after the Conversion Date, but that were
not paid by reason of the foregoing, with respect to the number of whole
shares of the kind of capital stock represented by the certificate or
certificates issued upon such surrender. From and after a Conversion Date
the Corporation shall, however, be entitled to treat the certificates for
a class of Common Stock that have not yet been surrendered for conversion
as evidencing the ownership of the number of whole shares of the kind or
kinds of capital stock of the Corporation for which the shares of such
class of Common Stock represented by such certificates shall have been
converted, notwithstanding the failure to surrender such certificates.
(vi) The Board of Directors may establish such rules and requirements
to facilitate the effectuation of the transactions contemplated by this
ARTICLE FOURTH as the Board of Directors shall determine to be
appropriate.
(e) Application of the Provisions of ARTICLE FOURTH - Certain
Determinations by the Board of Directors. The Board of Directors shall make such
determinations with respect to the businesses, assets, properties and
liabilities to be attributed to the Groups, the application of the provisions of
the Certificate of Incorporation to transactions to be engaged in by the
Corporation and the voting powers, preferences and relative, participating,
optional and other special rights of the holders of either class of Common
Stock, and the qualifications and restrictions thereon, provided by the
Certificate of Incorporation as may be or become necessary or appropriate to the
exercise of such powers, preferences and relative, participating, optional and
other special rights, including, without limiting the foregoing, the
determinations referred to in this Section 2. A record of any such determination
shall be filed with the records of the actions of the Board of Directors.
(i) Upon any acquisition by the Corporation or its subsidiaries of
any assets or business, or any assumption of liabilities, outside of the
ordinary course of business of the Surge Components Group or the
Internet Operations Group, as the case may be, the Board of Directors
shall determine whether such assets, business and liabilities (or an
interest therein) shall be for the benefit of the Surge Components Group
or the Internet Operations Group or that an interest therein shall be
partly for the benefit of the Surge Components Group and partly for the
benefit of the Internet Operations Group and, accordingly, shall be
attributed to the appropriate Group, as the case may be.
(ii) Upon any issuance of any shares of any class or series of
preferred stock of the Corporation, the Board of Directors shall
attribute, based on the use of proceeds of such issuance of shares of
preferred stock in the business of the Surge Components Group or the
Internet Operations Group and any other relevant factors, the shares so
issued entirely to the Surge Components Group or entirely to the
Internet Operations Group or partly to the Surge Components Group and
partly to the Internet Operations Group in such proportion as the Board
of Directors shall determine.
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(iii) Upon any redemption or repurchase by the Corporation or any
subsidiary thereof of shares of preferred stock of any class or series
or of other securities or debt obligations of the Corporation, the Board
of Directors may determine, based on the property used to redeem or
purchase such shares, other securities or debt obligations, which, if
any, of such shares, other securities or debt obligations redeemed or
repurchased shall be attributed to the Surge Components Group and which,
if any, of such shares, other securities or debt obligations shall be
attributed to the Internet Operations Group and, accordingly, how many
of the shares of such class or series of preferred stock or of such
other securities, or how much of such debt obligations, that remain
outstanding, if any, are thereafter attributed to the Surge Components
Group or the Internet Operations Group.
(iv) Notwithstanding the foregoing provisions or any other provision
of the Certificate of Incorporation, at any time when there are not
outstanding both (1) one or more shares of Class A Common Stock or
Convertible Securities convertible into or exchangeable or exercisable
for Class A Common Stock and (2) one or more shares of Class B Common
Stock or Convertible Securities convertible into or exchangeable or
exercisable for Class B Common Stock, the Corporation need not (A)
attribute any of the assets or liabilities of the Corporation or any of
its subsidiaries to the Surge Components Group or the Internet
Operations Group or (B) make any determination required in connection
therewith, nor shall the Board of Directors be required to make any of
the determinations otherwise required by this Article, and in such
circumstances the holders of the shares of Class A Common Stock and
Class B Common Stock outstanding, as the case may be, shall (unless
otherwise specifically provided by the Certificate of Incorporation) be
entitled to all the voting powers, preferences and relative,
participating, optional and other special rights of both classes of
Common Stock without differentiation between the Class A Common Stock
and the Class B Common Stock.
(f) Board Determinations Binding. Subject to applicable law, any
determinations made in good faith by the Board of Directors of the Corporation
under any provision of this ARTICLE FOURTH otherwise in furtherance of the
application of this Section 2, shall be final and binding on all stockholders.
In absence of any specific Board determinations made, then the Group whose
assets or securities have been issued in connection with the transaction, shall
be the Group to whom such acquisition is attributed.
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Section 3. Preferred Stock. The Preferred Stock, par value $.001 per
share, may be issued from time to time in one or more series, each with such
distinctive designation as may be stated in the Certificate of Incorporation or
in any amendment hereto, or in a resolution or resolutions providing for the
issue of such stock from time to time adopted by the Board of Directors or a
duly authorized committee thereof. The resolution or resolutions providing for
the issue of shares of a particular series shall fix, subject to applicable laws
and the provisions of the Certificate of Incorporation, for each such series the
number of shares constituting such series and the designation and the voting
powers, preferences and relative, participating, optional or other special
rights and the qualifications, limitations or restrictions thereof, including,
without limiting the generality of the foregoing, such provisions as may be
desired concerning voting, redemption, dividends, dissolution or the
distribution of assets, conversion or exchange, and such other subjects or
matters as may be fixed by the Board of Directors or a duly authorized committee
thereof under the General Corporation Law of the State of Delaware.
ARTICLE FIFTH. As used in the Certificate of Incorporation, the
following terms shall have the following meanings (with terms defined in the
singular having comparable meaning when used in the plural and vice versa),
unless the context otherwise requires. As used in this Article FIFTH, a
"contribution" or "transfer" of assets or properties from one Group to another
shall refer to the reattribution of such assets or properties from the
contributing or transferring Group to the other Group and correlative phrases
shall have correlative meanings.
(a) "Available Dividend Amount" shall mean, as the context
requires, a reference to the Surge Components Group Available Dividend Amount or
the Internet Operations Group Available Dividend Amount.
(b) "Internet Operations Group" shall mean, as of any date:
(i) the interest of the Corporation on such date in
Global DataTel, Inc., MailEncrypt, Inc. and any other e-commerce or
Internet-related operation, any successor companies, and all of the businesses,
assets and liabilities of the such entities and any subsidiaries thereof;
(ii) all assets and liabilities of the Corporation
and its subsidiaries attributed by the Board of Directors to the Internet
Operations Group, and all other assets of the Corporation not specifically
designated by the Board of Directors as Surge Components Group whether or not
such assets or liabilities are or were also assets and liabilities of the
Internet Operations Group companies;
(iii) all businesses, assets, properties and
liabilities transferred to the Internet Operations Group from the Surge
Components Group pursuant to transactions in the ordinary course of business of
the Internet Operations Group and the Surge Components Group or otherwise as the
Board of Directors may have directed as permitted by the Certificate of
Incorporation;
(iv) all properties and assets transferred to the
Internet Operations Group from the Surge Components Group in connection with an
increase in the Number of Internet Operations Designated Shares; and
(v) the interest of the Corporation or any of its
subsidiaries in any business or asset acquired and any liabilities assumed by
the Corporation or any of its subsidiaries outside of the ordinary course of
business and attributed to the Internet Operations Group, as determined by the
Board of Directors as contemplated by in this Certificate of Incorporation;
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provided that from and after any transfer of any assets or
properties from the Internet Operations Group to the Surge Components Group, the
Internet Operations Group shall no longer include such assets or properties so
transferred.
(c) "Internet Operations Group Available Dividend Amount"
shall mean, on any date, either:
(i)(x) an amount equal to the fair market value of
the total assets attributed to the Internet Operations Group less the total
liabilities attributed to the Internet Operations Group (provided that preferred
stock shall not be treated as a liability), in each case, as of such date and
determined on a basis consistent with that applied in determining Superus
Holdings Earnings (Loss) Attributable to the Internet Operations Group, minus
(y) the aggregate par value of, or any greater amount determined in accordance
with applicable law to be capital in respect of, all outstanding shares of Class
B Common Stock and each class or series of preferred stock attributed in
accordance with the Certificate of Incorporation to the Internet Operations
Group, or
(ii) in case the total amount calculated pursuant to
clause (i)(x) above is not a positive number, an amount equal to Superus
Holdings Earnings (Loss) Attributable to the Internet Operations Group (if
positive) for the fiscal year in which the dividend is declared and/or the
preceding fiscal year.
Notwithstanding the foregoing provisions of this Subsection
(c), and consistent with ARTICLE FOURTH, at any time when there are not
outstanding both (A) one or more shares of Class A Common Stock or Convertible
Securities convertible into or exchangeable or exercisable for Class A Common
Stock and (B) one or more shares of Class B Common Stock or Convertible
Securities convertible into or exchangeable or exercisable for Class B Common
Stock, the Available Dividend Amount, on any calculation date during such time
period, with respect to the Class A Common Stock or the Class B Common Stock, as
the case may be (depending on which of such classes of Common Stock or
Convertible Securities convertible into or exchangeable or exercisable for such
class of Common Stock is outstanding), shall mean the amount available for the
payment of dividends on such Common Stock in accordance with law.
(d) "Convertible Securities" shall mean, as of any date, any
securities of the Corporation or of any subsidiary thereof (other than shares of
a class of Common Stock), including warrants and options, outstanding at such
time that by their terms are convertible into or exchangeable or exercisable for
or evidence the right to acquire any shares of either class of Common Stock,
whether convertible, exchangeable or exercisable at such time or a later time or
only upon the occurrence of certain events; provided that securities shall only
be Convertible Securities in respect of the number of shares of Common Stock
into or for which such securities are then convertible, exchangeable or
exercisable.
(e) "Disposition" shall mean a sale, transfer, assignment or
other disposition (whether by merger, consolidation, sale or contribution of
assets or stock or otherwise) of properties or assets (including stock, other
securities and goodwill).
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(f) "Fair Value" shall mean, (i) in the case of equity
securities or debt securities of a class or series that has previously been
Publicly Traded for a period of at least three months, the Market Value thereof
(if such Market Value, as so defined, can be determined); (ii) in the case of an
equity security or debt security that has not been Publicly Traded for at least
15 months or the Market Value of which cannot be determined, the fair value per
share of stock or per other unit of such security, on a fully distributed basis,
as determined by an independent investment banking firm experienced in the
valuation of securities selected in good faith by the Board of Directors, or, if
no such investment banking firm is, as determined in the good faith judgment of
the Board of Directors, available to make such determination, in good faith by
the Board of Directors; (iii) in the case of cash denominated in U.S. dollars,
the face amount thereof and in the case of cash denominated in other than U.S.
dollars, the face amount thereof converted into U.S. dollars at the rate
published in The Wall Street Journal on the date for the determination of Fair
Value or, if not so published, at such rate as shall be determined in good faith
by the Board of Directors based upon such information as the Board of Directors
shall in good faith determine to be appropriate; and (iv) in the case of
property other than securities or cash, the "Fair Value" thereof shall be
determined in good faith by the Board of Directors based upon such appraisals or
valuation reports of such independent experts as the Board of Directors shall in
good faith determine to be appropriate. Any such determination of Fair Value
shall be described in a statement filed with the records of the actions of the
Board of Directors.
(g) "Group" shall mean, as of any date, the Surge Components
Group or the Internet Operations Group, as the case may be.
(h) "Market Capitalization" of any class or series of capital
stock on any date shall mean the product of (i) the Market Value of one share of
such class or series of capital stock on such date and (ii) the number of shares
of such class or series of capital stock outstanding on such date.
(i) "Market Value" of a share of any class or series of
capital stock of the Corporation on any day shall mean the average of the high
and low reported sales prices regular way of a share of such class or series on
such Trading Day or, in case no such reported sale takes place on such Trading
Day, the average of the reported closing bid and asked prices regular way of a
share of such class or series on such Trading Day, in either case as reported on
the New York Stock Exchange Composite Tape or, if the shares of such class or
series are not listed or admitted to trading on such Exchange on such Trading
Day, on the principal national securities exchange in the United States on which
the shares of such class or series are listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange on such
Trading Day, on the Nasdaq National Market or Nasdaq SmallCap Market or, if the
shares of such class or series are not listed or admitted to trading on any
national securities exchange or quoted on the Nasdaq National or SmallCap Market
on such Trading Day, the average of the closing bid and asked prices of a share
of such class or series in the over-the-counter market on such Trading Day
selected from time to time by the Corporation or, if such closing bid and asked
prices are not made available by any such New York Stock Exchange member firm on
such Trading Day, the Fair Value of a share of such class or series as set forth
in clause (ii) of the definition of Fair Value; provided that, for purposes of
determining the "Market Value" of a share of any class or series of capital
stock for any period, (i) the "Market Value" of a share of capital stock on any
day prior to any "ex-dividend" date or any similar date occurring during such
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period for any dividend or distribution (other than any dividend or distribution
contemplated by clause (ii)(B) of this sentence) paid or to be paid with respect
to such capital stock shall be reduced by the Fair Value of the per share amount
of such dividend or distribution and (ii) the "Market Value" of any share of
capital stock on any day prior to (A) the effective date of any subdivision (by
stock split or otherwise) or combination (by reverse stock split or otherwise)
of outstanding shares of such class or series of capital stock occurring during
such period or (B) any "ex-dividend" date or any similar date occurring during
such period for any dividend or distribution with respect to such capital stock
to be made in shares of such class or series of capital stock or Convertible
Securities that are convertible, exchangeable or exercisable for such class or
series of capital stock shall be appropriately adjusted, as determined by the
Board of Directors, to reflect such subdivision, combination, dividend or
distribution.
(j) "Net Proceeds" shall mean, as of any date with respect to
any Disposition of any of the properties and assets attributed to the either
Group, as the case may be, an amount, if any, equal to what remains of the gross
proceeds of such Disposition after payment of, or reasonable provision is made
as determined by the Board of Directors for, (i) any taxes payable by the
Corporation (or which would have been payable but for the utilization of tax
benefits attributable to the other Group) in respect of such Disposition or in
respect of any resulting dividend or redemption (ii) any transaction costs,
including, without limitation, any legal, investment banking and accounting fees
and expenses and (iii) any liabilities (contingent or otherwise) of or
attributed to such Group, including, without limitation, any liabilities for
deferred taxes or any indemnity or guarantee obligations of the Corporation
incurred in connection with the Disposition or otherwise, and any liabilities
for future purchase price adjustments and any preferential amounts plus any
accumulated and unpaid dividends in respect of the preferred stock attributed to
such Group. For purposes of this definition, any properties and assets
attributed to the Group, the properties and assets of which are subject to such
Disposition, remaining after such Disposition shall constitute "reasonable
provision" for such amount of taxes, costs and liabilities (contingent or
otherwise) as the Board of Directors determines can be expected to be supported
by such properties and assets.
(k) "Number of Internet Operations Designated Shares" shall
be, as of the date of effectiveness of the Amended and Restated Certificate of
Incorporation, zero; provided, however, that the "Number of Internet Operations
Designated Shares" shall from time to time thereafter be:
(i) adjusted, if before such adjustment such number
is greater than zero, as determined by the Board of Directors to be appropriate
to reflect equitably any subdivision (by stock split or otherwise) or
combination (by reverse stock split or otherwise) of the Class B Common Stock or
any dividend or other distribution of shares of Class B Common Stock to holders
of shares of Class B Common Stock or any reclassification of Class B Common
Stock;
(ii) decreased (but to not less than zero), if before
such adjustment such number is greater than zero, by action of the Board of
Directors by (1) the number of shares of Class B Common Stock issued or sold by
the Corporation that, immediately prior to such issuance or sale, were included
in the Number of Internet Operations Designated Shares, (2) the number of shares
of Class B Common Stock issued upon conversion, exchange or exercise of
Convertible Securities that, immediately prior to the issuance or sale of such
Convertible Securities, were included in the Number of Internet Operations
Designated Shares, (3) the number of shares of Internet Operations Stock issued
by the Corporation as a dividend or other distribution (including in connection
with any reclassification or exchange of shares) to holders of Class A Common
Stock, (4) the number of shares of Class B Common Stock issued upon the
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conversion, exchange or exercise of any Convertible Securities issued by the
Corporation as a dividend or other distribution (including in connection with
any reclassification or exchange of shares) to holders of Class A Common Stock,
and (5) the number (rounded, if necessary, to the nearest whole number) equal to
the quotient of (A) the aggregate Fair Value as of the date of contribution of
properties or assets (including cash) transferred from the Internet Operations
Group to the Surge Components Group in consideration for a reduction in the
Number of Internet Operations Designated Shares divided by (B) the average
Market Value of one share of Class B Common Stock during the 20- Trading Day
period ending on the date immediately prior to the date of such transfer; and
(iii) increased by the number (rounded, if necessary,
to the nearest whole number) equal to the quotient of (A) the Fair Value of
properties or assets (including cash) theretofore attributed as provided by
ARTICLE FIFTH, Subsection (m) to the Class A Common Group that are contributed
to the Internet Operations Group in consideration of an increase in the Number
of Internet Operations Designated Shares divided by (B) the average Market Value
of one share of Class B Common Stock during the 20-Trading Day period ending on
the date immediately prior to the date of such contribution.
(l) "Surge Components Group" shall mean, as of any date:
(i) the interest of the Corporation or any of its
subsidiaries on such date in all of the businesses, assets, properties and
liabilities of the Corporation or any of its subsidiaries (and any successor
companies), other than any businesses, assets, properties and liabilities
attributed in accordance with this Article to the Internet Operations Group;
(ii) all businesses, assets, properties and
liabilities transferred to the Surge Components Group from the Internet
Operations Group, pursuant to transactions in the ordinary course of business of
the Surge Components Group and the Internet Operations Group or otherwise as the
Board of Directors may have directed as permitted by this Amended and Restated
Certificate of Incorporation;
(iii) all properties and assets transferred to the
Surge Components Group from the Internet Operations Group in connection with a
reduction of the Number of Internet Operations Designated Shares; and
(iv) the interest of the Corporation or any of its
subsidiaries in any business or asset acquired and any liabilities assumed by
the Corporation or any of its subsidiaries outside of the ordinary course of
business and attributed to the Surge Components Group, as determined by the
Board of Directors as contemplated by this Amended and Restated Certificate of
Incorporation provided that from and after any transfer of any assets or
properties from the Surge Components Group to the Internet Operations Group, the
Surge Components Group shall no longer include such assets or properties so
transferred.
(m) "Surge Components Group Available Dividend Amount" shall
mean, on any date, either:
(x)(i) the amount equal to the fair market value of
the total assets attributed to the Surge Components Group less the total
liabilities attributed to the Surge Components Group (provided that preferred
stock shall not be treated as a liability), in each case, as of such date and
determined on a basis consistent with that applied in determining Superus
Holdings Earnings (Loss) Attributable to the Surge Components Group, minus (ii)
the aggregate par value of, or any greater amount determined in accordance with
applicable law to be capital in respect of, all outstanding shares of Class A
Common Stock and each class or series of preferred stock attributed in
accordance with the Certificate of Incorporation to the Surge Components Group,
or
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(y) in case the total amount calculated pursuant to
clause (i) above is not a positive number, an amount equal to Superus Holdings
Earnings (Loss) Attributable to the Surge Components Group (if positive) for the
fiscal year in which the dividend is declared and/or the preceding fiscal year.
Notwithstanding the foregoing provisions of this definition,
and consistent with this Amended and Restated Certificate of Incorporation, at
any time when there are not outstanding both (i) one or more shares of Class A
Common Stock or Convertible Securities convertible into or exchangeable or
exercisable for Class A Common Stock and (ii) one or more shares of Class B
Common Stock or Convertible Securities convertible into or exchangeable or
exercisable for Class B Common Stock, the Available Dividend Amount on any
calculation date during such time period, with respect to the Class A Common
Stock or the Class B Common Stock, as the case may be (depending on which of
such classes of Common Stock or Convertible Securities convertible into or
exchangeable or exercisable for such class of Common Stock is outstanding),
shall mean the amount available for the payment of dividends on such Common
Stock in accordance with law.
(n) "Superus Holdings Earnings (Loss) Attributable to the
Internet Operations Group" shall mean, for any period through any date, (i) the
net income or loss of the Internet Operations Group for such period determined
in accordance with generally accepted accounting principles in effect at such
time, reflecting income and expense of the Corporation attributed to the
Internet Operations Group on a basis substantially consistent with attributions
of income and expense made in the calculation of Superus Holdings Earnings
(Loss) Attributable to the Surge Components Group, including, without
limitation, corporate administrative costs, net interest and other financial
costs and income taxes, reduced (or increased, as the case may be) by (ii) the
aggregate amount of consolidated allowable tax benefits for federal income tax
purposes generated by the Internet Operations Group for such period which can
not be utilized by the Internet Operations Group but can be utilized by the
Corporation on a consolidated basis for such period to the extent such amount
was included in the calculation of net income or loss under clause (i) for such
period ("Excludable Internet Operations Tax Benefits").
(o) "Superus Holdings Earnings (Loss) Attributable to the
Surge Components Group" shall mean, for any period through any date, (i) the net
income or loss of the Surge Components Group for such period determined in
accordance with generally accepted accounting principles in effect at such time,
reflecting income and expense of the Corporation attributed to the Surge
Components Group on a basis substantially consistent with attributions of income
and expense made in the calculation of Superus Holdings Earnings (Loss)
Attributable to the Internet Operations Group, including, without limitation,
corporate administrative costs, net interest and other financial costs and
income taxes, increased by (ii) the amount reducing Superus Holdings Earnings
(Loss) Attributable to the Internet Operations Group for such period pursuant to
clause (ii) of Subparagraph (n) above.
(p) "Publicly Traded" with respect to any security shall mean
that such security is (i) registered under Section 12 of the Securities Exchange
Act of 1934, as amended (or any successor provision of law), and (ii) listed for
trading on the New York Stock Exchange or the American Stock Exchange (or any
national securities exchange registered under Section 7 of the Securities
Exchange Act of 1934, as amended (or any successor provision of law), that is
the successor to either such exchange) or listed on The Nasdaq Stock SmallCap
Market, or Nasdaq National Market System (or any successor market system).
(q) "Redemption Date" shall mean the date fixed by the Board
of Directors as the effective date for a redemption of shares of either class of
Common Stock, as set forth in a notice to holders thereof in accordance with
Delaware law and this Certificate of Incorporation.
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(r) "Related Business Transaction" means any Disposition of
all or substantially all the properties and assets attributed to either of the
Groups, as the case may be, in a transaction or series of related transactions
that result in the Corporation receiving in consideration of such properties and
assets primarily equity securities (including, without limitation, capital
stock, debt securities convertible into or exchangeable for equity securities or
interests in a general or limited partnership or limited liability company,
without regard to the voting power or other management or governance rights
associated therewith) of any entity which (i) acquires such properties or assets
or succeeds (by merger, formation of a joint venture or otherwise) to the
business conducted with such properties or assets or controls such acquiror or
successor and (ii) is engaged primarily or proposes to engage primarily in one
or more businesses similar or complementary to the businesses conducted by such
Group prior to such Disposition, as determined by the Board of Directors.
(s) "Tax Event" shall mean the receipt by the Corporation of
an opinion of tax counsel to the Corporation experienced in such matters, who
shall not be an officer or employee of the Corporation or any of its affiliates,
that, as a result of any amendment to, or change in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein (including any announced proposed change by
an applicable legislative committee or the chair thereof in such laws or by an
administrative agency in such regulations), or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, it is more likely than not that for United
States federal income tax purposes (i) the Corporation or its stockholders is
or, at any time in the future, will be subject to tax upon the issuance of
shares of either Class A Common Stock or Class B Common Stock or (ii) either
Class A Common Stock or Class B Common Stock is not or, at any time in the
future, will not be treated solely as stock of the Corporation. For purposes of
rendering such opinion, tax counsel shall assume that any legislative or
administrative proposals will be adopted or enacted as proposed.
(t) "Trading Day" shall mean each weekday other than any day
on which the relevant class of common stock of the Corporation is not traded on
any national securities exchange or on The Nasdaq Stock Market or in the
over-the-counter market.
ARTICLE SIXTH: The Board of Directors of the Corporation shall
expressly have the initial power and authorization to make, alter and repeal the
By-Laws of the Corporation, subject to the reserved power of the stockholders to
make, alter and repeal any By-Laws adopted by the Board of Directors. Unless and
except to the extent required by the By-Laws of the Corporation, elections of
directors need not be by written ballot. The provisions of the By-Laws of the
Corporation may not be altered, amended or repealed in any respect unless such
alteration, amendment or repeal is approved by the affirmative vote of 66 2/3%
of the total voting power of all outstanding shares of capital stock of the
Corporation.
ARTICLE SEVENTH: Meetings of stockholders may be held within
or without the State of Delaware as the By-laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the statutes)
outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the By-laws of the Corporation.
Election of directors need not be by written ballot unless the By-laws of the
Corporation shall so provide.
ARTICLE EIGHTH: The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Amended and Restated
Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject
to this reservation. The provisions of this Amended and Restated Certificate of
Incorporation may not be altered, amended or repealed in any respect unless such
alteration, amendment or repeal is approved by the affirmative vote of 66 2/3%
of the total voting power of and outstanding shares of capital stock of the
Corporation.
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ARTICLE NINTH: Any action required to be taken or which may be
taken at any annual or special meeting of stockholders of the Corporation may be
taken without a meeting, without prior notice and without a vote, if a consent
or consents in writing, setting forth the action so taken, shall be signed by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted.
ARTICLE TENTH: Any and all directors of the Corporation shall
not be liable to the Corporation or any stockholder thereof for monetary damages
for breach of fiduciary duty as director except as otherwise required by law. No
amendment to or repeal of this ARTICLE TENTH shall apply to or have any effect
on the liability or alleged liability of any director of the Corporation for or
with respect to any act or omission of such director occurring prior to such
amendment or repeal.
ARTICLE ELEVENTH: Any and all right, title, interest and claim
in or to any dividends declared by the Corporation, whether in cash, stock, or
otherwise, which are unclaimed by or such lesser period as permitted by the
appropriate escheat laws the stockholder entitled thereto for a period of six
years after the close of business on the payment date shall be and be deemed to
be extinguished and abandoned; such unclaimed dividends in the possession of the
Corporation, its transfer agents, or other agents or depositories shall at such
time become the absolute property of the Corporation, free and clear of any and
all claims for any person whatsoever.
ARTICLE TWELFTH: Each person who at any time is or shall have
been a director or officer of the Corporation or any employee who acted on
behalf of such person or the Corporation, and is threatened to be or is made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that the person is, or the person or the person's testator or intestate was, a
director, officer, employee or agent of the Corporation, or served at the
request of the Corporation as a director, officer, employee, trustee or agent of
another corporation, partnership, joint, venture, trust or other enterprise,
shall be indemnified against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with any such threatened, pending or completed action, suit
or proceeding to the full extent authorized under Section 145 of the General
Corporation Law of the State of Delaware. Any such payment of expenses to any
director or officer for indemnification under this ARTICLE in advance of a final
disposition, shall be made only upon a receipt of an undertaking (if reasonably
required by the Board of Directors) by the director or officer to repay all
amounts advances if it should be ultimately determined that the director or
officer is not entitled to be so indemnified. The foregoing right of
indemnification shall in no way be exclusive of any other rights of
indemnification to which such director or officer may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors, or
otherwise.
ARTICLE THIRTEENTH: In the event that it is proposed that the
Corporation enter into a merger or consolidation with any other corporation, or
that the Corporation sell, lease or exchange all or substantially all of its
assets or business to such other corporation, the affirmative vote of the
holders of not less than 66 2/3% of the total voting power of all outstanding
shares of capital stock of the Corporation shall be required for the approval of
any such proposal.
SECOND: That thereafter, pursuant to Resolution of its Board
of Directors, the Stockholders of the Corporation, by unanimous written consent
in lieu of a special meeting pursuant to Sections 228, 242 and 245, of the
General Corporation Law of the State of Delaware, the necessary number of shares
as required by said Statute were voted in favor of the above amendments as set
forth in the foregoing Amended and Restated Certificate of Incorporation.
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THIRD: That said amendments were adopted in accordance with
the provisions of Sections 242 and 245 of the General Corporation Law of the
State of Delaware, as of June 30, 2000.
SUPERUS HOLDINGS, INC.
By: /s/ Adam J. Epstein
---------------------------------------
Adam J. Epstein, Chairman of the Board,
Acting Chief Executive Officer
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