(a)(1)
CERTIFICATE OF INCORPORATION
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OF
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POMEROY COMPUTER RESOURCES. INC.
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FIRST: The name of the Corporation is Pomeroy Computer Resources, Inc.
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SECOND: The address of its registered office in the
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State of Delaware is No. 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted is:
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To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH:
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A. General Authorization. The aggregate number of shares of
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capital stock which the Corporation is authorized to issue is Twelve
Million (12,000,000) shares, consisting of:
1. Ten Million (10,000,000) shares of common stock having a par
value of one cent ($.01) per share; and
2. Two Million (2,000,000) shares of preferred stock having a par
value of one cent ($.01) per share.
B. Preferred Stock.
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1. The preferred stock shall rank senior to the common stock
as to dividends and upon liquidation. The Board of Directors of the
Corporation (hereinafter in Article FOURTH referred to as the
"Board"), is authorized, subject to limitations prescribed by law and
the provisions of this subsection B, to provide by resolution or
resolutions for the issuance of the preferred shares in series, to
establish the number of shares to be included in each such series, and
to fix the designations, preferences and relative, participating,
optional or other special rights, or qualifications, limitations or
restrictions thereof, applicable to the shares of each series. The
authority of the Board with respect to each series shall include, but
not be limited to, determination of the following:
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(a) The number of shares constituting that series and the
distinctive designation of that series;
(b) The dividend rate on the shares of that series, whether
dividends shall be cumulative and the date or dates, if any, from
which dividends thereon shall be cumulative;
(c) The voting powers, if any, of the shares of that series;
(d) Whether that series shall have conversion or exchange
privileges, and, if so, the terms and conditions of such conversion or
exchange, including provision for adjustments in such events as the
Board shall determine;
(e) Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such redemption,
including the date or dates upon or after which they shall be
redeemable, and the amount per share payable in case of redemption,
which amount may vary under different conditions and at different
redemption dates;
(f) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation;
(g) Whether shares of that series shall be entitled to the
benefit of sinking fund provisions and, if so, upon what terms and
conditions; and
(h) Generally to fix the other rights and privileges and any
qualifications, limitations or restrictions of such rights and
privileges of that series, provided, however, that no such rights,
privileges, qualifications, limitations or restrictions shall be in
conflict with the Certificate of Incorporation of the Corporation
or with the resolution or resolutions adopted by the Board, as
hereinabove provided, providing for the issue of any series for which
there are shares then outstanding.
2. Dividends on outstanding preferred shares shall be declared and
paid, or set apart for payment, before any dividends shall be declared and
paid, or set apart for payment, on the outstanding shares of common stock
with respect to the same dividend period. The Board may, in establishing any
series of preferred stock, provide further limitations on the payment of
dividends on the common stock while any dividends on shares of preferred stock
are accrued and unpaid.
<PAGE>
3. No holder of preferred shares of any series, irrespective of any
voting or other rights of such shares of such series, shall have, as such
holder, any preemptive right to purchase any other shares of the Corporation or
any securities convertible into or entitling the holder to purchase such
other shares.
C. Common Stock. Each share of common stock shall be equal to
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every other share of common stock in every respect. Subject to the additional
voting rights, if any, which may vest in holders of the preferred stock under
the provisions of any resolution or resolutions adopted by the Board providing
for the issue of any series of preferred stock, the shares of common stock
shall entitle the holders thereof to one vote for each share upon all matters
upon which the stockholders have the right to vote.
D. Provisions Relating to All Classes of Stock. The Corporation
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may issue shares of its preferred stock or common stock from time to time
for such consideration (not less than the par value thereof) as may be fixed
from time to time by the Board. Any and all shares so issued, for which such
consideration has been paid or delivered to the Corporation, shall be deemed
fully paid shares and shall not be liable to any further call or assessments
thereon, and the holders of such shares shall not be liable for any further
payments in respect of such shares.
FIFTH: The name and mailing address of the Incorporator is as follows:
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NAME MAILING ADDRESS
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ACFB Incorporated 1100 Citizens Building
850 Euclid Avenue
Cleveland, Ohio 44114
SIXTH: The Corporation is to have perpetual existence.
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SEVENTH: In furtherance and not in limitation of the powers conferred
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by statute, the board of directors is expressly authorized:
To make, alter or repeal the bylaws of the Corporation.
To authorize and cause to be executed mortgages and liens upon the
real property of the Corporation.
To set apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any
such reserve in the manner in which it was created.
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<PAGE>
By a majority of the whole board, to designate one or more committees,
each committee to consist of one or more of the directors of the
Corporation.
When and as authorized by the stockholders in accordance with statute,
to sell, lease or exchange all or substantially all of the property and
assets of the Corporation, including its good will and its corporate
franchises, upon such terms and conditions and for such consideration,
which may consist, in whole or in part, of money or property, including
shares of stock in, and/or other securities of, any other corporation or
corporations, as its board of directors shall deem expedient and for the
best interests of the Corporation.
EIGHTH: Meetings of stockholders may be held within or without the
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State of Delaware, as the bylaws 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 bylaws of the Corporation. Elections of
directors need not be by written ballot unless the bylaws of the Corporation
shall so provide.
NINTH: Subject to the rights of certain holders of preferred stock to
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elect Directors under circumstances specified in this Certificate of
Incorporation, any Director may be removed from office only for cause by the
affirmative vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of all of the outstanding shares of all classes of capital stock of
the Corporation entitled to cast votes at the time of the election of Directors
of the Corporation, considered for the purposes of this Article NINTH as one (1)
class.
TENTH: The Corporation reserves the right to amend, alter, change or
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repeal any provision contained in this 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.
In addition to any other requirements for amendments to the Certificate of
Incorporation, no amendment shall alter, change or repeal any of the provisions
of Article NINTH or this sentence of this Article TENTH unless the amendment
effecting such alteration, change or repeal shall have received the affirmative
approval of holders of at least sixty-six and two-thirds percent (66-2/3%) of
all of the outstanding shares of all classes of capital stock of the
Corporation, entitled to cast votes at the time in the election of Directors of
the Corporation, considered for the purposes of this Article TENTH as one (1)
class.
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<PAGE>
ELEVENTH: No Director shall be personally liable to the Corporation or
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any of its stockholders for monetary damages for breach of fiduciary duty as a
Director, except for liability (1) for any breach of the Director's duty of
loyalty to the Corporation or its stockholders, (2) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (3) under Section 174 of the Delaware General Corporation Law, or (4) for
any transaction from which the Director derived an improper personal benefit. If
the Delaware General Corporation Law hereafter is amended to authorize the
further elimination or limitation of the liability of Directors, then the
liability of a Director of the Corporation, in addition to the limitations on
personal liability provided herein, shall be limited to the fullest extent
permitted by the amended Delaware General Corporation Law. Any repeal or
modification of this Article shall be prospective only, and shall not adversely
affect any limitation on the personal liability of a Director of the Corporation
existing at the time of such repeal or modification.
TWELFTH: A. Each person who was or is made a party to or is
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threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a Director or officer
of the Corporation or is or was serving at the request of the Corporation as a
Director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a Director, officer, employee or agent or in any
other capacity while serving as a Director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a Director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that, except
as provided in subsection B of this Article, the Corporation shall indemnify any
such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Article shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a Director or officer in his or her capacity as a
Director or officer (and not in any other capacity in which service was or is
rendered by such person while a Director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such Director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such Director or
officer is not entitled to be indemnified under this Article or otherwise. The
Corporation may, by action of its Board of Directors, provide indemnification
to employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of Directors and officers.
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<PAGE>
B. If a claim under subsection A of this Article is not paid in full by
the Corporation within thirty (30) days after a written claim has been received
by the Corporation, the claimant may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board or
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
C. The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Article shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of this Certificate of
Incorporation, bylaw, agreement, vote of stockholders or disinterested Directors
or otherwise.
D. The Corporation may maintain insurance, at its expense, to protect
itself and any Director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
E. As used in this Article, references to "the Corporation" shall
include, in addition to the resulting or surviving corporation, any constituent
corporation absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
Directors, officers, employees and agents, so that any person who is or was a
Director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a Director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, or other enterprise, shall stand in the same position under the
provisions of this Article with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if
its separate existence had continued.
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<PAGE>
F. If this Article or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each Director, officer, employee and agent of the
Corporation as to expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, including a grand jury
proceeding and an action by the Corporation, to the fullest extent permitted by
any applicable portion of this Article that shall not have been invalidated or
by any other applicable law.
THIRTEENTH: The Board of Directors may from time to time make, amend,
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supplement or repeal the Bylaws of the Corporation; provided, however, that the
stockholders may change or repeal any Bylaw adopted by the Board of Directors
and provided further that no amendment or supplement to the Bylaws adopted by
the Board of Directors shall vary or conflict with any amendment or supplement
adopted by the stockholders. Notwithstanding the foregoing and anything
contained in this Certificate of Incorporation to the contrary, Section 3
(Special Meetings) of Article I of the Bylaws, Sections 3 (Method of Election)
and 7 (Removal of Directors) of Article II (Directors) of the Bylaws, or the
final sentence of Article X (Amendments) of the Bylaws shall not be amended or
repealed, and no provision inconsistent with any thereof shall be adopted,
without the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of all of the outstanding shares of all classes of
capital stock of the Corporation, entitled to cast votes at the time in the
election of Directors of the Corporation, considered for the purposes of this
Article THIRTEENTH as one (1) class. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66-2/3%) of all of the
outstanding shares of all classes of capital stock of the Corporation, entitled
to cast votes at the time in the election of Directors of the Corporation,
considered for the purposes of this Article THIRTEENTH as one (1) class, shall
be required to amend or repeal, or adopt any provision inconsistent with, any
provision of this Article THIRTEENTH.
Except as otherwise required by law and subject to the rights of the
holders of preferred stock pursuant to the provisions of this Certificate of
Incorporation, special meetings of stockholders may be called only by the
Chairman or by the Board of Directors pursuant to a resolution approved by a
majority of the then authorized number of Directors of the Corporation (as
determined in accordance with the Bylaws).
THE UNDERSIGNED, being the Incorporator hereinabove named, for the purpose
of forming a corporation pursuant to the General Corporation Law of the State of
Delaware, do make this certificate, hereby declaring and certifying that this is
its act and deed and the facts herein stated are true, and accordingly have
hereunto set its hand this _____ day of February, 1992.
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<PAGE>
ACFB INCORPORATED
ATTEST: Incorporator
By:_________________________ By:
__________________________________
Donna Fuller, Assistant Ira C. Kaplan,
Secretary Vice President
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<PAGE>
(a)(2)
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
Pomeroy Computer Resources, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
does hereby certify:
First: That the Board of Directors of said Corporation, at a meeting duly
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convened and held, adopted a resolution proposing and declaring advisable the
following amendment to the Certificate of Incorporation of said Corporation:
RESOLVED, that the Certificate of Incorporation of Pomeroy Computer
Resources, Inc., be amended by changing Paragraph A of Article Fourth so
that, as amended, said Paragraph A of Article Fourth shall be and read as
follows:
A. General Authorization. The aggregate number of shares of
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capital stock which the Corporation is authorized to issue is
Seventeen Million (17,000,000) shares, consisting of:
1. Fifteen Million (15,000,000) shares of common stock having
a par value of one cent ($.01) per share; and
2. Two Million (2,000,000) shares of preferred stock having a
par value of one cent ($.01) per share.?
Second: That at the next annual meeting of stockholders held on June 25,
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1997, in accordance with Section 22 of the General Corporation Law of the State
of Delaware, at which a quorum was present, either in person or by proxy, a
majority of the outstanding stock entitled to vote thereon was voted in favor of
the aforesaid amendment.
Third: That the aforesaid amendment was duly adopted in accordance with
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the applicable provisions of Section 242 of the General Corporation Law of the
State of Delaware.
<PAGE>
IN WITNESS WHEREOF, Pomeroy Computer Resources, Inc, has caused this
Certificate to be signed by David B. Pomeroy II, its President, and Edwin S.
Weinstein, its Secretary, this _____ day of July, 1997.
POMEROY COMPUTER RESOURCES, INC.
By: ________________________________
David B. Pomeroy II, President
By: ________________________________
Edwin S. Weinstein, Secretary
STATE OF OHIO )
) ss:
COUNTY OF HAMILTON )
On this, the ____ day of July, 1997, before me, a Notary Public, personally
appeared David B. Pomeroy II and Edwin S. Weinstein, who acknowledged that they
are the President and Secretary of Pomeroy Computer Resources, Inc., a Delaware
corporation, and that as such officers, being duly authorized to do so, they
executed the foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
___________________________________
Notary Public
My Commission Expires:
<PAGE>
(a)(3)
CERTIFICATE OF DESIGNATIONS
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
POMEROY COMPUTER RESOURCES, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
Pomeroy Computer Resources, Inc. a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter called the
"Corporation?), hereby certifies that the following resolution was adopted by
the Board of Directors of the Corporation as required by Section 151 of the
General Corporation Law at a meeting duly called and held on February 18, 1998:
RESOLVED, that pursuant to the authority granted to and vested in the Board of
Directors of this Corporation (hereinafter called the "Board of Directors" or
the "Board") in accordance with the provisions of the Certificate of
Incorporation of the Corporation, the Board of Directors hereby designates
50,000 shares of the Corporation's Preferred Stock, par value $0.01 per share,
as "Series A Junior Participating Preferred Stock" of the Corporation and hereby
states the designation and number of shares, and fixes the relative rights,
preferences, and limitations thereof as follows:
Series A Junior Participating Preferred Stock:
SECTION 1. DESIGNATION AND AMOUNT. The shares of this series shall be
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designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A Preferred
Stock shall be 50,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
SECTION 2. DIVIDENDS AND DISTRIBUTION.
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Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any other stock) ranking prior and superior to the Series A
Preferred Stock with respect to dividends, the holders of shares of Series A
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the fifth day of April, July, October and January
in each year (each such date being referred to herein as a quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date after
<PAGE>
the first issuance of a share or fraction of a share of Series A Preferred
Stock, in an amount (if any) per share (rounded to the nearest cent), subject to
the provision for adjustment hereinafter set forth, equal to 1000 times the
aggregate per share amount of all cash dividends, and 1000 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock, par
value $0.01 per share (the "Common Stock"), of the Company or a subdivision of
the outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock since the immediately preceding Quarterly Dividend
Payment Date or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of Series A
Preferred Stock. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the amount to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event under the preceding sentence
shall be adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series A
Preferred Stock as provided in paragraph (A) of this Section immediately after
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock)
(C) Dividends due pursuant to paragraph (A) of this Section shall begin to
accrue and be cumulative on outstanding shares of Series A Preferred Stock from
the Quarterly Dividend Payment Date next preceding the date of issue of such
shares, unless the date of issue of such shares is prior to the record date for
the first Quarterly Dividend Payment Date, in which case dividends on such
shares shall begin to accrue from the date of issue of such shares, or unless
the date of issue is a Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of Series A Preferred
Stock entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the shares of Series
A Preferred Stock in an amount less than the total amount of such dividends at
the time accrued and payable bn such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares
of Series A Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more than 60 days
to the date fixed for the payment thereof.
<PAGE>
SECTION 3. VOTING RIGHTS. The holders of shares of Series A Preferred Stock
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shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to 1000 votes
on all matters submitted to a vote of the stockholders of the Corporation. In
the event the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the number of votes per share to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event shall be adjusted
by multiplying such number by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided in the Certificate of Incorporation of
the Company, including any other Certificate of Designations creating a series
of Preferred Stock or any similar stock, or by law, the holders of shares of
Series A Preferred Stock and the holders of shares of Common Stock and any other
capital stock of the Corporation having general voting rights shall vote
together as one class on all matters submitted to a vote of stockholders of the
Corporation.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series A Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for taking any corporate
action.
SECTION 4. CERTAIN RESTRICTIONS.
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(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon liquidation
dissolution or winding up) to the Series A Preferred Stock;
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<PAGE>
(ii) declare or pay dividends, or make any other distributions, on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except dividends paid ratably on the Series A Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then entitled; or
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock of the Corporation ranking
junior (as to dividends and upon dissolution, liquidation or winding up) to the
Series A Preferred Stock.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
SECTION 5. REACQUIRED SHARES. Any shares of Series A Preferred Stock
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purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation of the Company, including any Certificate of
Designations creating a series of Preferred Stock or any similar stock or as
otherwise required by law.
SECTION 5. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any liquidation,
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dissolution or winding up of the Corporation the holders of shares of Series A
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1000
times the aggregate amount to be distributed per share to holders of shares of
Common Stock plus an amount equal to any accrued and unpaid dividends. In the
event the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the aggregate amount to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event under the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
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<PAGE>
SECTION 7. CONSOLIDATION, MERGER, ETC. In case the Corporation shall enter
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into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
SECTION 8. REDEMPTION. The shares of Series A Preferred Stock shall not be
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redeemable.
SECTION 9. RANKING. Unless otherwise provided in the Certificate of
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Incorporation or a Certificate of Designations relating to a subsequently
designated series of preferred stock of the Corporation, the Series A Preferred
Stock shall rank junior to any other series of the Corporation's preferred stock
subsequently issued, as to the payment of dividends and the distribution of
assets on liquidation, dissolution or winding up and shall rank senior to the
Common Stock.
SECTION 10. AMENDMENT. The Certificate of Incorporation of the Corporation
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shall not be amended in any manner, including in a merger or consolidation,
which would alter, change, or repeal the powers, preferences or special rights
of the Series A Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of a least two-thirds of the outstanding shares
of Series A Preferred Stock, voting together as a single class.
SECTION 11. FRACTIONAL SHARES. Series A Preferred Stock may be issued in
------------------
whole shares or in any fraction of a share that is one one-thousandth of a share
or any integral multiple of such fraction, which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A Preferred Stock. In lieu of fractional
shares, the Corporation may elect to make a cash payment as provided in the
Rights Agreement for fractions of a share other than one one-thousandth of a
share or any integral multiple thereof.
5
<PAGE>
IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf of
the Corporation by its Chief Financial Officer, an Authorized Officer, this
_____ of February, 1998.
POMEROY COMPUTER RESOURCES, INC.
By: ________________________________________
Stephen E. Pomeroy, Chief Financial Officer
6
<PAGE>
(a)(4)
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
Pomeroy Computer Resources, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
does hereby certify:
First: That the Board of Directors of said Corporation, at a meeting duly
-----
convened and held, adopted a resolution proposing and declaring advisable the
following amendment to the Certificate of Incorporation of said Corporation:
"RESOLVED, that the Certificate of Incorporation of Pomeroy Computer
Resources, Inc., be amended by changing Paragraph A of Article Fourth so
that, as amended, said Paragraph A of Article Fourth shall be and read as
follows:
A. General Authorization. The aggregate number of shares of
----------------------
capital stock which the Corporation is authorized to issue is
Twenty-Two Million (22,000,000) shares, consisting of:
1. Twenty Million (20,000,000) shares of common stock having
a par value of one cent ($.01) per share; and
2. Two Million (2,000,000) shares of preferred stock having a
par value of one cent ($.01) per share."
Second: That at the next annual meeting of stockholders held on June 8,
------
2000, in accordance with Section 222 of the General Corporation Law of the State
of Delaware, at which a quorum was present, either in person or by proxy, a
majority of the outstanding stock entitled to vote thereon was voted in favor of
the aforesaid amendment.
Third: That the aforesaid amendment was duly adopted in accordance with
-----
the applicable provisions of Section 242 of the General Corporation Law of the
State of Delaware.
<PAGE>
IN WITNESS WHEREOF, Pomeroy Computer Resources, Inc, has caused this
Certificate to be signed by David B. Pomeroy II, its President, and Dino
Lucarelli, its Secretary, this _____ day of _____________, 2000.
POMEROY COMPUTER RESOURCES, INC.
By: _______________________________
David B. Pomeroy II, President
By: _______________________________
Dino Lucarelli, Secretary
COMMONWEALTH OF KENTUCKY
COUNTY OF BOONE
On this, the ____ day of ______________, 2000, before me, a Notary Public,
personally appeared David B. Pomeroy II and Dino Lucarelli, who acknowledged
that they are the President and Secretary, respectively, of Pomeroy Computer
Resources, Inc., a Delaware corporation, and that as such officers, being duly
authorized to do so, they executed the foregoing instrument for the purposes
therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
___________________________________
Notary Public
My Commission Expires:
____________________
<PAGE>
