RESTATED
CERTIFICATE OF INCORPORATION
OF
ORBITAL SCIENCES CORPORATION*
(formerly Orbital Sciences Corporation II)
This
Restated Certificate of Incorporation of Orbital Sciences Corporation
(formerly Orbital Sciences Corporation II) (the "Corporation")
restates in its entirety the Corporation's original Certificate of Incorporation
which was filed with the Office of the Delaware Secretary of State on
June 30, 1987. This Restated Certificate of Incorporation was duly adopted
in accordance with the provisions of Section 245 of the Delaware General
Corporation Law, and only restates and integrates and does not further
amend the provisions of the Corporation's Certificate of Incorporation
as heretofore amended or supplemented. There is no discrepancy between
those provisions and the provisions of this Restated Certificate.
1. The
name of this Corporation is Orbital Sciences Corporation.
2. The
registered office of this Corporation in the State of Delaware is located
at 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.
3. The
purpose of this Corporation is to engage in any lawful act or activity
for which corporations may be organized under the Delaware General
Corporation Law.
4. The
name and mailing address of the incorporator is Debra L. Fitzgerald,
Ropes & Gray, 225 Franklin Street, Boston, Massachusetts 02110.
5. The
total number of shares of stock that this Corporation shall have authority
to issue is 210,000,000 shares consisting of 200,000,000 shares of
Common Stock, $.01 par value per share (the "Common Stock") and 10,000,000
shares of Preferred Stock, $.01 par value per share (the "Preferred
Stock") which may be issued as follows:
A. The Board of Directors is authorized,
subject to limitations prescribed by law and the provisions of this Certificate
of Incorporation, to provide for the issuance of the shares of Preferred
Stock in series, and by filing a certificate pursuant to the applicable
law of the State of Delaware, to establish from time to time the number
of shares to be included in each such series, and to fix the designations,
powers, preferences and rights of the shares of each such series and
the qualifications, limitations or restrictions thereof. Except as may
be required by law, the shares in any series of Preferred Stock or any
shares of stock of any other class need not be identical. Such authority
of the Board of Directors with respect to each series shall include,
but not be limited to, determination of the following:
1. The
number of shares constituting that series and the distinctive
designation of that series and the stated value thereof if different
from the
par value thereof;
2. The
dividend rate on the shares of that series, whether dividends shall
be cumulative, and, if so, from which date or dates, and the relative
rights
of priority, if any, of payment of dividends on shares of that series;
3. Whether
that series shall have voting rights in addition to the voting rights
provided by law, and, if so, the terms of such voting rights;
4. Whether
that series shall have conversion or exchange privileges, and,
if so, the terms and conditions of such conversion or exchange, including
provision
for adjustment of the conversion or exchange rate in such events
as the Board of Directors shall determine;
5. Whether
or not the shares of that series shall be redeemable, and, if so,
the terms and conditions of such redemption including the manner of
selecting
shares for redemption if less than all shares are to be redeemed,
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;
6. Whether
the series shall have a sinking fund for the redemption or purchase
of shares of that series, and, if so, the terms and amount of such
sinking
fund;
7. The
right of the shares of that series to the benefit of conditions and
restrictions upon the creation of indebtedness of the Corporation or
any subsidiary,
upon the issuance of any additional stock (including additional shares
of such series or any other series) and upon the payment of dividends
or the making of other distributions on, and the purchase, redemption
or other acquisition by the Corporation, or any subsidiary, of any
outstanding stock of the Corporation;
8. The
rights of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation,
and the relative
rights of priority, if any, of payment of shares of that series; and
9. Any
other relative, participating, optional or other special rights,
qualifications, limitations or restrictions of that series.
B. Any
preferential dividends on outstanding shares of Preferred Stock shall
be paid, or declared and set apart for payment, before any dividends
shall be paid or declared and set apart for payment on outstanding
shares of Common Stock or Preferred Stock not entitled to preferential
dividends. If
upon any voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, the assets available for distribution to holders
of shares of Preferred Stock of all series shall be insufficient
to pay such holders the full preferential amount to which they are
entitled,
then such assets shall be distributed ratably among the shares of
all series of Preferred Stock in accordance with the respective preferential
amounts (including unpaid cumulative dividends, if any) payable with
respect thereto.
C. Shares
of any series of Preferred Stock which have been redeemed (whether
through the operation of a sinking fund or otherwise) or which, if
convertible
or exchangeable, have been converted into or exchanged for shares
of stock of any other class or classes shall have the status of authorized
and unissued shares of Preferred Stock of the same series and may
be
reissued as part of the series of which they were originally a
part or may be reclassified and reissued as part of a new series of
Preferred
Stock to be created by resolution or resolutions of the Board of
Directors or as part of any other series of Preferred Stock all subject
to the
conditions and restrictions on issuance set forth in the resolution
or resolutions adopted by the Board of Directors providing for the
issue
of any series of Preferred Stock.
D. Subject
to the provisions of any applicable law, this Certification of
Incorporation and the resolution or resolutions providing for the issue
of any series
of Preferred Stock, the holders of outstanding shares of Common
Stock shall exclusively possess voting power for the election of directors
and for all other purposes, each holder of record of shares of
Common
Stock being entitled to one vote for each share of Common Stock
standing in his name on the books of the Corporation.
E. Except
as otherwise provided by the resolution or resolutions providing
for the issue of any series of Preferred Stock, after payment shall
have
been made to the holders of Preferred Stock of the full amount
of dividends to which they shall be entitled pursuant to the resolution
or resolutions
providing for the issue of any series of Preferred Stock, the
holders of Common Stock shall be entitled, to the exclusion of the
holders of
Preferred Stock of any and all series, to receive such dividends
as from time to time may be declared by the Board of Directors.
F. Except
as provided by the resolution or resolutions providing for
the issue of any series of Preferred Stock, in the event of any liquidation,
dissolution
or winding up of the Corporation, whether voluntary or involuntary,
after payment shall have been made to the holders of Preferred Stock
of the
full amount to which they shall be entitled pursuant to the
resolution or resolutions providing for the issue of any series of Preferred
Stock,
the holders of Common Stock shall be entitled, to the exclusion
of holders of Preferred Stock of any and all series, to share ratably
according
to the number of shares of Common Stock held by them, in all
remaining assets of the Corporation available for distribution.
6. Except
as provided to the contrary in the provisions establishing
a class or series of stock, the amount of the authorized stock of this
Corporation
of any class or classes may be increased or decreased by
the affirmative vote of the holders of a majority of the stock of this
Corporation entitled
to vote.
7. The
election of directors need not be by ballot unless the By-laws shall
so require.
8. In
furtherance and not in limitation of the power conferred upon the Board
of Directors by law, the Board of Directors shall have power to make,
adopt, alter, amend and repeal from time to time By-laws of this Corporation,
subject to the right of the stockholders entitled to vote with respect
thereto to alter and repeal By-laws made by the Board of Directors.
9. A
director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as
a director, except to the extent that exculpation from
liability is not permitted under the Delaware General Corporation Law
as in effect at
the time such liability is determined. No amendment or
repeal of this Paragraph 9 shall apply to or have any effect
on the liability or alleged
liability of any director of this Corporation for or with
respect to any acts or omissions of such director occurring
prior to such amendment
or repeal.
10. This
Corporation shall, to the maximum extent permitted under
the law of the State of Delaware as presently in effect, except for
Section 145(f) of
the General Corporation Law, indemnify and upon request
shall advance expenses to any person who is or was a party or is threatened
to be made
a party to any threatened, pending or completed action,
suit, proceeding or claim, whether civil, criminal, administrative
or investigative, by
reason of the fact that such person is or was or has agreed
to be a director or officer of this Corporation or while a director
or officer is or was
serving at the request of this Corporation as a director,
officer, partner, trustee, employee or agent of any corporation, partnership,
joint venture,
trust or other enterprise, including service with respect
to employee benefit plans, against expenses (including attorney's fees
and expenses), judgments, fines, penalties and amount paid in settlement
incurred in
connection with the investigation, preparation to defend
or defense of such action, suit, proceeding or claim, provided, however,
that the foregoing shall not require this Corporation to
indemnify or advance expenses to any person in connection with any
action, suit, proceeding,
claim or counterclaim initiated by or on behalf of such
person. Such
indemnification shall inure to the benefit of the heirs and legal representatives
of such person. Any person seeking indemnification under this Paragraph
10 shall be deemed to have met the standard of conduct required for such
indemnification unless the contrary shall be established. Any
repeal or modification of the foregoing provisions of this
Paragraph 10 shall
not adversely affect any right or protection of a director
or officer of this Corporation with respect to any acts
or omissions of such director
or officer occurring prior to such repeal or modification.
11. The
number of directors of this Corporation shall consist of
not less than three nor more than fifteen persons, the exact number
to be fixed from
time to time by the Board of Directors pursuant to a resolution
adopted by a majority vote of the directors then in office. The Board of Directors
shall be divided into three groups, as nearly equal in number as possible,
with the term of office of the first group to expire at the 1988 annual
meeting of stockholders, the term of office of the second group to expire
at the 1989 annual meeting of stockholders and the term of office of
the third group to expire at the 1990 annual meeting of stockholders. At
each annual meeting of stockholders following such initial grouping and
election, directors shall be elected for a term of office to expire at
the third succeeding annual meeting of stockholders after their election. Subject
to the rights of the holders of any one or more classes of stock (other
than the Corporation's Common Stock) then outstanding which may be entitled
to elect directors voting separately as a class or classes, newly created
directorships resulting from any increase in the number of directors
authorized pursuant to this Paragraph 11 or any vacancies in the Board
of Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause shall be filled by a majority vote
of the directors then in office, and directors so chosen shall hold office
for a term expiring at the annual meeting of stockholders at which the
term of the group to which they have been elected expires. No decrease
in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director. No director need be a stockholder. Each
director shall hold office until the annual meeting of
stockholders at which his term of office expires and until
his successor is elected and
qualified, or until he sooner dies, resigns, is removed or becomes disqualified.
12. The
stockholder vote required to approve Business Combinations shall be as
set forth in this Paragraph 12 (all capitalized terms being used in this
Paragraph 12 as subsequently defined herein in this Paragraph 12).
A. Higher
Vote for Business Combinations. In addition to any
affirmative vote required by law or this Certificate
of Incorporation,
and except as otherwise
expressly provided in Section C of this Paragraph 12:
1. any
merger or consolidation of the Corporation or
a Subsidiary with or into a Related Person or any other corporation
which is,
or after such merger
or consolidation would be, an Affiliate or Associate of a Related
Person;
2. any
sale, lease, exchange, transfer or other disposition (including without
limitation the creation of a mortgage or any other security device),
in one transaction or a series of transactions, or any Substantial
Part of the assets of the Corporation (including without limitation
any voting securities of a Subsidiary) or of a Subsidiary to a Related
Person or to an Affiliate or Associate of a Related Person;
3. any
sale, lease, exchange, transfer or other disposition, in one transaction
or a series of transactions, of the assets of a Related Person, or
an Affiliate or Associate of a Related Person, to the Corporation or
a Subsidiary in an amount which would immediately prior to such transaction
constitute a Substantial Part of the assets of the Corporation;
4. any
issuance by the Corporation or any Subsidiary of any securities of
the Corporation or of a Subsidiary to a Related Person or an Affiliate
or Associate of a Related Person or an Affiliate or Associate of a
Related person, other than pursuant to an employee stock plan approved
by the Continuing Directors and by the stockholders of the Corporation;
5. any
acquisition by the Corporation or a Subsidiary of any securities of
a Related Person or of an Affiliate or Associate of a Related Person;
6. any
adoption of any plan or proposal for the liquidation or dissolution
of the Corporation proposed by or on behalf of a Related Person or
any Affiliate or Associate of a Related Person;
7. any
reclassification of securities (including any reverse stock split)
or recapitalization of the Corporation or any other transaction (whether
or not with or into or otherwise involving a Related Person) which
has the effect, directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or convertible
securities of the Corporation or any Subsidiary which is directly or
indirectly owned by any Related Person or any Affiliate or Associate
of any Related Person;
8. any
transaction (including a merger or consolidation
of the Corporation with or into a Subsidiary) occurring at a time
when a Related Person
exists in which the proportionate interests
of the stockholders of the Corporation in the assets of the Corporation
are unchanged but
as a result of which the provisions of this
Paragraph
12 or substantially equivalent provisions would thereafter cease
to be in effect; and
9. any
agreement, contract or other arrangement
providing for any of the foregoing transactions;
shall
require the affirmative vote of the holders of not less than sixty-six
and two-thirds percent (66 2/3%) of
the outstanding
shares of Voting Stock, voting together as a single
class. Such affirmative
vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage may be
specified,
by law or in any agreement
with any national securities exchange or otherwise.
B. Definitions
of "Business Combinations." The term "Business Combination" as
used in this Paragraph 12 shall mean any transaction
which is referred to
an any one or more of paragraphs 1 through 9 of
Section A of this Paragraph 12.
C. When
Higher Vote Is Not Required. The provisions of Section
A of this Paragraph 12 shall not be applicable to any
particular Business Combination, and
such Business Combination shall require only such affirmative
vote as is required by law and any other provision
of this Certificate of Incorporation,
if all of the conditions specified in any one of the
following paragraphs 1, 2 and 3 are met:
1. Approval
in Advance by the Board of Directors. The Board
of Directors by a vote of not less than two-thirds
of the Continuing Directors then holding
office (a) have expressly approved in advance
either the acquisition of outstanding shares
of Voting
Stock, or the issue or sale by the Corporation
of shares of Voting Stock, that caused the Related
Person to become a Related Person and (b) in
advance of such acquisition or issue or sale
have expressly determined that the sixty-six
and two-thirds percent (66 2/3%) voting requirement
of Section A of Paragraph 12 shall not be applicable
to Business Combinations with such Related Person.
2. Approval
by Continuing Directors. Two-thirds
of the Continuing Directors have
approved the Business Combination.
3. Price
and Procedure Requirements. All of the following conditions
are met:
(a) The
Business Combination is a merger
or consolidation and cash or Fair Market Value of each of the
property, securities
or other consideration
to be received per share by the holders
of Common Stock in the Business Combination is not
less than the
highest per
share price (with appropriate
adjustments for recapitalizations
and for stock splits, stock dividends and like distributions,
such
distributions
to be valued as of the distribution
date) paid by the Related Person
in acquiring any of its holdings of Common Stock within the two-year
period
preceding the earlier of the
Business Combination or the first
public announcement of the proposal of the Business Combination
(the "Announcement Date").
(b) The
Business Combination is a merger or consolidation
and the cash or Fair Market Value of each of the property, securities
or other consideration
to be received per share by the holders
of shares of any class of outstanding Voting Stock, other than Common
Stock, in the Business Combination
is not less than the highest per share
price (with appropriate adjustments for recapitalizations and for
stock splits, stock dividends and like
distributions, such distributions to
be valued as of the distribution date) paid by the Related Person
in acquiring any of its holdings of
such class of Voting Stock within the
two-year period preceding the earlier of the Business Combination
of the Announcement Date.
(c) After
the Related Person has become a Related
Person and prior to the consummation of such Business Combination: (i)
except as approved by two-thirds of the Continuing Directors,
there shall have been no failure to declare
and pay at the regular date therefor
any full dividends (whether or not cumulative) on any outstanding
Preferred
Stock; and (ii) there
shall have been (a) no reduction in
the annual rate of frequency of dividends paid on the Common
Stock
(except as necessary to reflect
any subdivision of the Common Stock),
except as approved by two-thirds of the Continuing Directors,
and (b)
an increase in such annual rate
of dividends as necessary to reflect
any reclassification of securities (including any reverse stock
split),
recapitalization, reorganization
or any similar transaction which has
the effect of reducing the number of outstanding shares of
the Common
Stock, unless the failure so to
increase such annual rate is approved
by two-thirds of the Continuing Directors.
(d) After
such Related Person has become a Related Person, such Related Person
shall not have received the benefit, directly or indirectly (except
proportionately as a stockholder), of any loans, advances, guarantees,
pledges or other financial assistance or any tax credits or other tax
advantages provided by the Corporation or a Subsidiary.
(e) A
proxy or information statement describing the proposed Business Combination
and complying with the requirements of the Securities Exchange Act
of 1934 and the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations) shall be mailed
to stockholders of the Corporation at least forty-five days prior to
the consummation of such Business Combination (whether or not such
proxy or information statement is required to be mailed pursuant to
such Act or subsequent provisions).
D. Certain
Definitions. For the purpose of this Paragraph 13:
1. A "Person" means
any individual, firm, partnership, corporation or other person or entity.
2. "Related
Person" means any Person that together with its Affiliates and Associates
owns in the aggregate five percent (5%) or more of the outstanding shares
of the Voting Stock, and any Affiliate or Associate of any such Person,
provided that "Related Person" shall not
include the Corporation or any Subsidiary.
3. "Substantial
Part" means assets having an aggregate value in excess of five percent
(5%) of the total consolidated assets of the Corporation and its Subsidiaries
as of the end of the Corporation's most recent
fiscal year prior to the time the determination
is made.
4. A
Person shall be deemed to "own" any Voting Stock:
(a) of
which such Person or any of its Affiliates
or Associates would be the beneficial owner, as such term is defined
in Rule 13d-3 promulgated by
the Securities and Exchange Commission
(the "Commission")
under the Securities Exchange Act of 1934,
as in effect on January 1, 1988; or
(b) of
which such Person or any of its Affiliates or Associates would be the
beneficial owner, as such term is defined under Section 16 of the Securities
Exchange Act of 1934 and the rules of the Commission promulgated thereunder,
as in effect on January 1, 1988; or
(c) which
such Person or any of its Affiliates or Associates has the right to acquire
(whether such right is exercisable immediately, only after the passage
of time or upon the occurrence of a special event), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights,
exchange rights, warrants of options, or otherwise; or
(d) which
are owned by any other person with which such Person or any of its Affiliates
or Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of Voting
Stock.
5. For
the purposes of paragraphs 3(a) and 3(b)
of Section C of this Paragraph 12, the term "other consideration to be received" includes,
without limitation, Voting Stock retained by its existing stockholders
in the event of a
Business Combination in which the Corporation is the surviving corporation.
6. "Continuing
Director" means (a) any director who was
a member of the Board of Directors of the
Corporation on January 1, 1988, and (b)
any director who was a
member of the Board of Directors of the
Corporation immediately prior to the time
that any Related Person involved in the
proposed Business
Combination became a Related Person (or,
if the transaction involves more than one
Related Person, immediately prior to the
time the first
of such Persons to become a Related Person
becomes a Related Person), and (c) any
director who is not an Affiliate or Associate
of a Related
Person and is designated for his or her
initial term of office by a two-thirds
vote of the Continuing Directors.
7. "Affiliate" or "Associates" shall
have the respective meanings ascribed to
such terms in Rule 12b-2 promulgated by the Commission under the Securities
Exchange Act of 1934, as such
Rule was in effect on January 1, 1988.
8. "Voting
Stock" means all outstanding shares of
capital stock of the Corporation entitled
to vote in the election of directors and
each reference to a
proportion of shares of Voting Stock shall
refer to such proportion of the votes entitled
to be cast by such shares.
9. "Subsidiary" means
any corporation of which a majority of any class of equity security is
owned, directly or indirectly, by the Corporation; provided, however,
that for the purposes of the definition of Related Person set forth in
paragraph 2 of this Section D, the term "Subsidiary" shall
mean only a corporation of which a majority
of each class of equity security is
owned, directly or indirectly, by the Corporation.
10. "Fair
Market Value" means: (1) in the case of
stock, the highest sale price during the
thirty-day period immediately preceding
the date in question
of a share of such stock on the Composite
Tape for New York Stock Exchange-Listed
Stocks, or, if such stock is not listed
on such Exchange, on the principal United
States securities exchange registered under
the Securities Exchange
Act of 1934 on which such stock is listed,
or, if such stock is not listed on any
such exchange, the highest bid quotation
with respect to a share
of such stock during the thirty-day period
preceding the date in question on the National
Association of Securities Dealers, Inc.,
Automated Quotations
System or any system then in use, or if
no such quotations are available, the fair
market value on the date in question of
a share of such stock
as determined by two-thirds of the Continuing
Directors in good faith; and (ii) in the
case of property other than cash or stock,
the fair market
value of such property on the date in question
as determined by two-thirds of the Continuing
Directors in good faith.
11. "Corporation" means
Orbital Sciences Corporation.
12. "Common
Stock" means any class of common stock of the Corporation.
13. "Preferred
Stock" means any class of preferred stock of the Corporation.
E. Powers
of Continuing Directors. Two-thirds
of the Continuing Directors of the Corporation
shall have the power and duty to determine,
on the basis
of information known to them after reasonable
inquiry, all facts necessary to determine
compliance with this Paragraph 12, including
without limitation
(1) whether a Person is a Related Person,
(2) the number of shares of Voting Stock
owned by any Person, (3) whether a Person
is an Affiliate
or Associate of another, (4) whether
the requirements of paragraph 3 of Section
C have been met with respect to any Business
Combination,
and (5) whether the assets which are
the subject of any Business Combination
have an aggregate Fair Market Value in
excess of the amount set forth in paragraphs
2 and 3 of Section A of this Paragraph
12 and (6) any other
facts which two-thirds of the Continuing
Directors determine to be relevant; and
the good faith determination of two-thirds
of the Continuing Directors
on such matters shall be conclusive and
binding for all the purposes of this
Paragraph 12.
F. Amendment,
Repeal, etc. Notwithstanding the fact
that a lesser percentage may be specified
by law, this Certificate of Incorporation
or the By-laws of
this Corporation, the affirmative vote
of the holders of not less than sixty-six
and two-thirds percent (66 2/3%) of the
Voting Stock, voting
together as a single class, shall be
required to amend or repeal, or adopt
any provisions inconsistent with, this
Paragraph 12 of this Certificate
of Incorporation; provided that this
Section F shall not be applicable to
any amendment to this Paragraph 12 of
this Certificate of Incorporation,
and such amendment shall require only
such affirmative vote as is required
by law and any other provisions of this
Certificate of Incorporation,
if such amendment shall have been approved
by two-thirds of the Continuing Directors.
13. Notwithstanding
anything contained in this Certificate of Incorporation to the contrary,
the affirmative vote of the holders of not less than sixty-six and two-thirds
percent (66 2/3%) of the shares of the capital stock entitled to vote
for the election of directors, voting together as a single class, shall
be required to amend or to adopt any provision inconsistent with Paragraph
9, Paragraph 10, Paragraph 11, or this Paragraph 13 of this Certificate
of Incorporation.
14. Any
action required or permitted to be taken by the stockholders of this
Corporation must be effected at a duly called annual or special meeting
of stockholders of this Corporation and may not be effected by any consent
in writing by such stockholders.
15. The
holders of not less than ten percent (10%) of the capital stock of this
Corporation entitled to vote for the election of directors, voting together
as a class, may request the secretary of the corporation to call a special
meeting of the Stockholders of the Corporation for such reasonable purpose
and at such reasonable time and place as they may set forth in their
request to the secretary.
16. The
books of this Corporation may (subject to any statutory requirements)
be kept outside the State of Delaware as may be designated by the Board
of Directors or in the By-laws of this Corporation.
IN WITNESS WHEREOF, I have hereunto set my
hand and the seal of the Corporation this 7th day of February
1990.
/s/
David W. Thompson
David W. Thompson
President
Attest:
/s/
Leslie Seeman
Leslie Seeman
Secretary
* As amended on April 30, 2003
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