EXHIBIT 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
NETGEAR, INC.
NETGEAR, Inc., a corporation organized and existing under the laws of the
State of Delaware (the "Corporation"), certifies that:
A. The Corporation's original Certificate of Incorporation was filed with
the Secretary of State of the State of Delaware on January 8, 1996.
B. Pursuant to Sections 242 and 228 of the General Corporation Law of the
State of Delaware (the "Delaware General Corporation Law"), the amendments and
restatement herein set forth have been duly approved by the Board of Directors
and stockholders of NETGEAR, Inc.
C. Pursuant to Section 245 of the Delaware General Corporation Law, this
Amended and Restated Certificate of Incorporation restates and integrates and
further amends the provisions of the Amended and Restated Certificate of
Incorporation of this Corporation.
D. The text of the Certificate of Incorporation is amended and restated to
read as set forth in EXHIBIT A attached hereto.
IN WITNESS WHEREOF, NETGEAR, Inc. has caused this Amended and Restated
Certificate of Incorporation to be signed by Patrick Lo, a duly authorized
officer of the Corporation, on _______ __, 2003
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Patrick Lo
Chief Executive Officer
EXHIBIT A
ARTICLE I
The name of the Corporation is NETGEAR, Inc.
ARTICLE II
The purpose of this Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the Delaware General Corporation
Law as the same exists or may hereafter be amended.
ARTICLE III
The address of the Corporation's registered office in the State of
Delaware is 15 East North Street, in the City of Dover, County of Kent. The name
of the registered agent at such address is Incorporating Services, Ltd.
ARTICLE IV
1. The Corporation is authorized to issue two classes of stock, to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares of stock that the Corporation shall have authority to issue is one
hundred ninety-five million, five hundred and eight thousand, thirty-eight
(195,508,038) shares, consisting of one hundred fifty million (150,000,000)
shares of Common Stock, $0.001 par value per share, and forty-five million, five
hundred and eight thousand, thirty-eight (45,508,038) shares of Preferred Stock,
$0.001 par value per share, of which twenty-six million, two hundred and fifty
thousand (26,250,000) shares of Preferred Stock shall be designated "Series A
Preferred Stock," three million, three hundred and twenty thousand, five hundred
and thirty-eight (3,320,538) shares of Preferred Stock shall be designated
"Series B Preferred Stock," ten million, nine hundred and thirty-seven thousand,
five hundred (10,937,500) shares of Preferred Stock shall be designated "Series
C Preferred Stock" and five million (5,000,000) shares of Preferred Stock shall
be undesignated.
2. Immediately upon filing of this Amended and Restated Certificate of
Incorporation (this "Certificate"), each outstanding share of the Corporation's
Common Stock and each outstanding share of the Corporation's Preferred Stock
will be split, automatically and without further action, into one and
three-fourths (1.75) shares of Common Stock and into one and three-fourths
(1.75) shares of the same series of Preferred Stock, respectively. Such split
shall be effected on a holder-by-holder basis and any fractional shares
resulting from such split shall be rounded down to the nearest whole share. Any
numerical values or calculations set forth in this Certificate reflect such
conversions of the Company's capital stock and accordingly no further adjustment
shall be made to such numbers as a result of such stock split.
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3. Upon the automatic conversion of all outstanding shares of Preferred
Stock in accordance with the provisions of Article V, Section 4(b) of this
Certificate:
(a) The Corporation shall immediately thereafter be authorized to
issue two classes of stock, to be designated, respectively, "Common Stock" and
"Preferred Stock". The total number of shares which the Corporation shall have
authority to issue is two hundred and five million (205,000,000) shares,
consisting of two hundred million (200,000,000) shares of Common Stock, par
value $0.001 per share, and five million (5,000,000) shares of Preferred Stock,
par value $0.001 per share. The Board of Directors of the Corporation (the
"Board") is authorized, subject to any limitations prescribed by law, to provide
for the issuance of shares of Preferred Stock in series, and to establish from
time to time the number of shares to be included in each such series, and to fix
the designation, powers, preferences, and rights of the shares of each such
series and any qualifications, limitations or restrictions thereof.
(b) Each outstanding share of Common Stock shall entitle the holder
thereof to one vote on each matter properly submitted to the stockholders of the
Corporation for their vote; provided, however, that, except as otherwise
required by law, holders of Common Stock shall not be entitled to vote on any
amendment to this Certificate (including any certificate of designation of
Preferred Stock relating to any series of Preferred Stock) that relates solely
to the terms of one or more outstanding series of Preferred Stock if the holders
of such affected series are entitled, either separately or together as a class
with the holders of one or more other such series, to vote thereon by law or
pursuant to this Certificate (including any certificate of designation of
Preferred Stock relating to any series of Preferred Stock).
ARTICLE V
The terms and provisions of the Common Stock and Preferred Stock are as
follows:
1. Definitions. For purposes of this Article V, the following definitions
shall apply:
(a) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the U.S. Securities Exchange Act of 1934, as amended.
(b) "Conversion Price" shall mean $4.5143 per share for the Series A
Preferred Stock, $4.5143 per share for the Series B Preferred Stock and $1.2937
per share for the Series C Preferred Stock (subject to adjustment from time to
time for Recapitalizations and as otherwise set forth elsewhere herein).
(c) "Corporation" shall mean NETGEAR, Inc.
(d) "Convertible Securities" shall mean any evidences of
indebtedness, shares or other securities (other than shares of Series A
Preferred Stock, Series B Preferred Stock or Series C Preferred Stock)
convertible into or exchangeable for Common Stock but excluding Options.
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(e) "Distribution" shall mean the transfer of cash or other property
without consideration whether by way of dividend or otherwise, payable other
than in Common Stock, or the purchase or redemption of shares of the Corporation
for cash or property.
(f) "Liquidation Preference" shall mean $4.5143 per share for the
Series A Preferred Stock, $4.5143 per share for the Series B Preferred Stock and
$1.7909 per share for the Series C Preferred Stock (subject to adjustment from
time to time for Recapitalizations as set forth elsewhere herein).
(g) "Options" shall mean rights, options or warrants to subscribe
for, purchase or otherwise acquire Common Stock or Convertible Securities.
(h) "Original Issue Price" shall mean $4.5143 per share for the
Series A Preferred Stock, $4.5143 per share for the Series B Preferred Stock and
$1.2937 per share for the Series C Preferred Stock (subject to adjustment from
time to time for Recapitalizations as set forth elsewhere herein).
(i) "Person" shall mean any individual, firm, corporation,
partnership, limited liability company or other entity, and shall include any
successor (by merger or otherwise) of such entity.
(j) "Preferred Stock" shall mean the Series A Preferred Stock, the
Series B Preferred Stock and the Series C Preferred Stock.
(k) "Recapitalization" shall mean any stock dividend, stock split,
combination of shares, reorganization, recapitalization, reclassification or
other similar event.
(l) "Related Party" shall mean any officer, director, or owner of
more than five percent (5%) of the equity securities of the Corporation or any
of its subsidiaries, any spouse of any such Person, any parent, child or sibling
of any of the foregoing Persons, and any Affiliate or Associate of any of the
foregoing Persons.
2. Dividends.
(a) Dividend Amount. The Corporation shall not declare or pay any
cash dividends or other distributions on shares of Common Stock until the
holders of the Preferred Stock then outstanding shall have first received, or
simultaneously receive, a cash dividend on each outstanding share of Preferred
Stock in an amount at least equal to the product of (i) the per share amount, if
any, of the dividends or other distributions to be declared, paid or set aside
for the Common Stock, multiplied by (ii) the number of whole shares of Common
Stock into which each such share of Preferred Stock is then convertible (the
"Dividend Amount"). Dividends, if paid, must be paid on, or, if declared and set
apart for payment on, all outstanding series of Preferred Stock simultaneously,
and, if less than the full dividends are paid on or declared and set apart on
all outstanding series of Preferred Stock, the same percentage of the dividend
rate on each outstanding series of Preferred Stock shall be paid or declared and
set apart. The right to receive dividends on
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shares of Preferred Stock shall not be cumulative, and no right to such
dividends shall accrue to holders of Preferred Stock by reason of the fact that
dividends on said shares are not declared or paid in any year.
(b) Common Stock. Dividends may be paid on the Common Stock from
funds legally available therefore as and when declared by the Board of
Directors, subject to any preferential dividend rights of the Preferred Stock
and to Section 7 below.
(c) Non-Cash Distributions. Whenever a Distribution provided for in
this Section 2 shall be payable in property other than cash, the value of such
Distribution shall be deemed to be the fair market value of such property as
determined in good faith by the Board of Directors.
(d) Consent to Certain Distributions. As authorized by Section
402.5(c) of the California Corporations Code, Sections 502 and 503 of the
California Corporations Code shall not apply with respect to payments made by
the Corporation in connection with: (i) repurchases, approved by the Board of
Directors, of Common Stock issued to or held by employees, officers, directors
or consultants of the Corporation or its subsidiaries upon termination of their
employment or services pursuant to agreements providing for the right of said
repurchase; (ii) repurchases, approved by the Board of Directors, of Common
Stock issued to or held by employees, officers, directors or consultants of the
Corporation or its subsidiaries pursuant to rights of first refusal contained in
agreements providing for such right; (iii) repurchases, approved by the Board of
Directors, of capital stock of the Corporation in connection with the settlement
of disputes with any stockholder; or (iv) any other repurchase or redemption of
capital stock of the Corporation approved by the holders of the Common and
Preferred Stock of the Corporation, voting together as a single class.
3. Liquidation Rights.
(a) Liquidation Preference. In the event of any liquidation,
dissolution or winding up of the Corporation, either voluntary or involuntary,
the holders of the Preferred Stock shall be entitled to receive, prior and in
preference to any Distribution of any of the assets or funds of the Corporation
to the holders of the Common Stock by reason of their ownership of such stock,
an amount per share for each share of Preferred Stock held by them equal to the
sum of (i) the Liquidation Preference specified for such share of Preferred
Stock and (ii) all declared but unpaid dividends (if any) on such share of
Preferred Stock. If upon the liquidation, dissolution or winding up of the
Corporation, the assets and funds of the Corporation legally available for
distribution to the holders of the Preferred Stock are insufficient to permit
the payment to such holders of the full amounts specified in this Section 3(a),
then the entire assets and funds of the Corporation legally available for
distribution shall be distributed with equal priority and pro rata among the
holders of the Preferred Stock in proportion to the full amounts they would
otherwise be entitled to receive pursuant to this Section 3(a).
(b) Remaining Assets. After the payment to the holders of Preferred
Stock of the full preferential amounts specified above, the entire remaining
assets of the Corporation legally available for distribution by the Corporation
shall be distributed with equal priority and pro rata
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among the holders of the Preferred Stock and Common Stock in proportion to the
number of shares of Common Stock held by them, with the shares of Preferred
Stock being treated for this purpose as if they had been converted to shares of
Common Stock at the then applicable Conversion Rate.
(c) Treatment of Stock in Distributions. Shares of Preferred Stock
shall not be entitled to be converted into shares of Common Stock in order to
participate in any Distribution, or series of Distributions, as shares of Common
Stock, without first foregoing participation in the Distribution, or series of
Distributions, as shares of Preferred Stock; provided, however, that nothing in
this Section 3(c) shall limit the rights of holders of Preferred Stock to
receive the distributions specified in Sections 3(a) and 3(b) with respect to
the Preferred Stock.
(d) Reorganization. For purposes of this Certificate, a liquidation,
dissolution or winding up of the Corporation shall be deemed to be occasioned
by, or to include: (a) the acquisition of the Corporation by another entity by
means of any transaction or series of related transactions (including, without
limitation, any stock acquisition, reorganization, merger or consolidation)
other than a transaction or series of transactions in which the holders of the
voting securities of the Corporation outstanding immediately prior to such
transaction continue to retain (either by such voting securities remaining
outstanding or by such voting securities being converted into voting securities
of the surviving entity), as a result of shares in the Corporation held by such
holders prior to such transaction, more than fifty percent (50%) of the total
voting power represented by the voting securities of the Corporation or such
surviving entity outstanding immediately after such transaction or series of
transactions; (b) a sale, lease or other conveyance of all or a majority of the
assets of the Corporation; or (c) any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary.
(e) Valuation of Non-Cash Consideration. If any assets of the
Corporation distributed to stockholders in connection with any liquidation,
dissolution or winding up of the Corporation are other than cash, then the value
of such assets shall be their fair market value as determined in good faith by
the Board of Directors, except that any publicly-traded securities to be
distributed to stockholders in a liquidation, dissolution or winding up of the
Corporation shall be valued as follows:
(i) If the securities are then traded on a national securities
exchange or the Nasdaq Stock Market (or a similar national quotation system),
then the value of the securities shall be deemed to be to the average of the
closing prices of the securities on such exchange or system over the twenty (20)
trading day period ending two (2) trading days prior to the Distribution; and
(ii) if the securities are actively traded over-the-counter,
then the value of the securities shall be deemed to be the average of the
closing bid prices of the securities over the twenty (20) trading day period
ending two (2) trading days prior to the Distribution.
In the event of a merger or other acquisition of the Corporation by
another entity, the Distribution date shall be deemed to be the date such
transaction closes.
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For the purposes of this Subsection 3(e), "trading day" shall mean any day
on which the exchange or system on which the securities to be distributed are
traded is open and "closing prices" or "closing bid prices" shall be deemed to
be: (i) for securities traded primarily on the New York Stock Exchange, the
American Stock Exchange or Nasdaq, the last reported trade price or sale price,
as the case may be, at 4:00 p.m., New York time, on that day and (ii) for
securities listed or traded on other exchanges, markets and systems, the market
price as of the end of the "regular hours" trading period that is generally
accepted as such for such exchange, market or system. If, after the date hereof,
the benchmark times generally accepted in the securities industry for
determining the market price of a stock as of a given trading day shall change
from those set forth above, the fair market value shall be determined as of such
other generally accepted benchmark times.
4. Conversion. The holders of the Preferred Stock shall have conversion
rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Preferred Stock shall be
convertible, at the option of the holder thereof, at any time after the date of
issuance of such share and without additional consideration by the holder
thereof at the office of the Corporation or any transfer agent for the Preferred
Stock, into that number of fully-paid, nonassessable shares of Common Stock
determined by dividing the Original Issue Price for the relevant series by the
Conversion Price for such series. (The number of shares of Common Stock into
which each share of Preferred Stock of a series may be converted is hereinafter
referred to as the "Conversion Rate" for each such series.) Upon any decrease or
increase in the Conversion Price for any series of Preferred Stock, as described
in this Section 4, the Conversion Rate for such series shall be appropriately
increased or decreased.
(b) Automatic Conversion. Each share of Preferred Stock shall
automatically be converted into fully-paid, non-assessable shares of Common
Stock at the then effective Conversion Rate for such share (i) immediately prior
to the closing of a firm commitment underwritten initial public offering filed
under the Securities Act of 1933, as amended (the "Securities Act"), covering
the offer and sale of the Corporation's Common Stock, provided that the
aggregate gross proceeds to the Corporation are not less than $35 million and
the valuation of the Corporation is at least $250 million ("Qualified Initial
Public Offering"), or (ii) upon the receipt by the Corporation of a written
request for such conversion from the holders at least sixty percent (60%) of the
Preferred Stock then outstanding, voting together as a single class, or, if
later, the effective date for conversion specified in such requests (each of the
events referred to in (i) and (ii) are referred to herein as an "Automatic
Conversion Event").
(c) Mechanics of Conversion. No fractional shares of Common Stock
shall be issued upon conversion of Preferred Stock. In lieu of any fractional
shares to which the holder would otherwise be entitled, the Corporation shall
pay cash equal to such fraction multiplied by the then fair market value of a
share of Common Stock as determined by the Board of Directors in good faith. For
such purpose, all shares of Preferred Stock held by each holder of Preferred
Stock shall be aggregated, and any resulting fractional share of Common Stock
shall be paid in cash. Before any holder of Preferred Stock shall be entitled to
convert the same into full shares of Common Stock, and
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to receive certificates therefore, such holder shall surrender the certificate
or certificates therefore, duly endorsed, at the office of the Corporation or of
any transfer agent for the Preferred Stock, and shall give written notice to the
Corporation at such office that such holder elects to convert the same;
provided, however, that on the date of an Automatic Conversion Event, the
outstanding shares of Preferred Stock shall be converted automatically without
any further action by the holders of such shares and whether or not the
certificates representing such shares are surrendered to the Corporation or its
transfer agent; provided further, however, that the Corporation shall not be
obligated to issue certificates evidencing the shares of Common Stock issuable
upon such Automatic Conversion Event or any other conversion unless either the
certificates evidencing such shares of Preferred Stock are delivered to the
Corporation or its transfer agent as provided above, or the holder notifies the
Corporation or its transfer agent that such certificates have been mutilated,
lost, stolen or destroyed and executes an agreement satisfactory to the
Corporation to indemnify the Corporation from any loss incurred by it in
connection with such certificates. On the date of the occurrence of an Automatic
Conversion Event, each holder of record of shares of Preferred Stock shall be
deemed to be the holder of record of the Common Stock issuable upon such
conversion, notwithstanding that the certificates representing such shares of
Preferred Stock shall not have been surrendered at the office of the
Corporation, that notice from the Corporation shall not have been received by
any holder of record of shares of Preferred Stock, or that the certificates
evidencing such shares of Common Stock shall not then be actually delivered to
such holder.
The Corporation shall, as soon as practicable after such delivery, or
after such agreement and indemnification, issue and deliver at such office to
such holder of Preferred Stock, a certificate or certificates for the number of
shares of Common Stock to which such holder shall be entitled as aforesaid and a
check payable to the holder in the amount of any cash amounts payable as the
result of a conversion into fractional shares of Common Stock, plus any declared
and unpaid dividends on the converted Preferred Stock. Such conversion shall be
deemed to have been made immediately prior to the close of business on the date
of such surrender of the shares of Preferred Stock to be converted, and the
person or persons entitled to receive the shares of Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock on such date; provided, however, that if
the conversion is in connection with an underwritten offer of securities
registered pursuant to the Securities Act the conversion may, at the option of
any holder tendering Preferred Stock for conversion, be conditioned upon the
closing of the sale of securities pursuant to such offering, in which event the
person(s) entitled to receive the Common Stock issuable upon such conversion of
the Preferred Stock shall not be deemed to have converted such Preferred Stock
until immediately prior to the closing of the sale of such securities.
The Corporation shall pay any and all issue, stamp and other taxes that
may be payable in respect of any issuance or delivery of shares of Common Stock
upon conversion of shares of Preferred Stock pursuant to this Section 4. The
Corporation shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issuance and delivery of shares of
Common Stock in a name other than that in which the shares of Preferred Stock so
converted were registered, and no such issuance or delivery shall be made unless
and until the person or entity requesting such issuance has paid to the
Corporation the amount of any such tax or has established, to the satisfaction
of the Corporation, that such tax has been paid.
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(d) Adjustments to Conversion Price for Diluting Issues.
(i) Special Definition. For purposes of this paragraph 4(d),
"Additional Shares of Common" shall mean all shares of Common Stock issued (or,
pursuant to paragraph 4(d)(iii), deemed to be issued) by the Corporation after
_____, 2003, other than:
(1) shares of Common Stock issued or issuable upon
conversion of shares of Preferred Stock;
(2) shares of Common Stock issued or issuable to
officers, directors and employees of, or consultants to, the Corporation
pursuant to stock grants, option plans, purchase plans or other employee stock
incentive programs or arrangements approved by the Board of Directors, or upon
exercise of options or warrants granted to such parties pursuant to any such
plan or arrangement;
(3) shares of Common Stock issued upon the exercise,
exchange, adjustment or conversion of Options or Convertible Securities
outstanding as of the date of the filing of this Certificate;
(4) shares of Common Stock issued or issuable as a
dividend or distribution on Preferred Stock or pursuant to any event for which
adjustment is made pursuant to paragraph 4(e), 4(f), 4(g) or 4(h) hereof;
(5) shares of Common Stock issued in a Qualified Initial
Public Offering under the Securities Act pursuant to which all outstanding
shares of Preferred Stock are automatically converted into Common Stock pursuant
to an Automatic Conversion Event;
(6) shares of Common Stock issued or issuable pursuant
to the acquisition of another corporation by the Corporation by merger, purchase
of substantially all of the assets or other reorganization, provided, that such
issuances are approved by the Board of Directors; or
(7) shares of Common Stock issued or issuable to banks,
equipment lessors or other financial institutions pursuant to a commercial
leasing or debt financing transaction approved by the Board of Directors.
(ii) No Adjustment of Conversion Price. No adjustment in the
Conversion Price of a particular series of Preferred Stock shall be made in
respect of the issuance of Additional Shares of Common unless the consideration
per share (as determined pursuant to paragraph 4(d)(v)) for an Additional Share
of Common issued or deemed to be issued by the Corporation is less than the
Conversion Price in effect on the date of, and immediately prior to, such issue
for such series of Preferred Stock.
(iii) Deemed Issue of Additional Shares of Common. In the
event the Corporation at any time or from time to time after _____, 2003 shall
issue any Options or
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Convertible Securities or shall fix a record date for the determination of
holders of any class of securities entitled to receive any such Options or
Convertible Securities, then the maximum number of shares (as set forth in the
instrument relating thereto without regard to any provisions contained therein
for a subsequent adjustment of such number) of Common Stock issuable upon the
exercise of such Options or, in the case of Convertible Securities, the
conversion or exchange of such Convertible Securities or, in the case of Options
for Convertible Securities, the exercise of such Options and the conversion or
exchange of the underlying securities, shall be deemed to have been issued as of
the time of such issue or, in case such a record date shall have been fixed, as
of the close of business on such record date, provided that in any such case in
which shares are deemed to be issued:
(1) no further adjustment in the Conversion Price of the
Preferred Stock shall be made upon the subsequent issue of Convertible
Securities or shares of Common Stock in connection with the exercise of such
Options or conversion or exchange of such Convertible Securities;
(2) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase in the
consideration payable to the Corporation, or decrease in the number of shares of
Common Stock issuable, upon the exercise, conversion or exchange thereof, the
Conversion Price of the Preferred Stock computed upon the original issue thereof
(or upon the occurrence of a record date with respect thereto), and any
subsequent adjustments based thereon, shall, upon any such increase or decrease
becoming effective, be recomputed to reflect such increase or decrease insofar
as it affects such Options or the rights of conversion or exchange under such
Convertible Securities;
(3) no readjustment pursuant to clause (2) above shall have
the effect of increasing the Conversion Price of the Preferred Stock to an
amount which exceeds the lower of (i) the Conversion Price of the Preferred
Stock on the original adjustment date, or (ii) the Conversion Price of the
Preferred Stock that would have resulted from any issuance of Additional Shares
of Common between the original adjustment date and such readjustment date;
(4) upon the expiration of any such Options or any rights of
conversion or exchange under such Convertible Securities which shall not have
been exercised, the Conversion Price computed upon the original issue thereof
(or upon the occurrence of a record date with respect thereto) and any
subsequent adjustments based thereon shall, upon such expiration, be recomputed
as if:
(a) in the case of Convertible Securities or Options for
Common Stock, the only Additional Shares of Common issued were the shares of
Common Stock, if any, actually issued upon the exercise of such Options or the
conversion or exchange of such Convertible Securities and the consideration
received therefore was the consideration actually received by the Corporation
for the issue of such exercised Options plus the consideration actually received
by the Corporation upon such exercise or for the issue of all such Convertible
Securities which were actually converted or exchanged, plus the additional
consideration, if any, actually received by the Corporation upon such conversion
or exchange, and
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(b) in the case of Options for Convertible Securities,
only the Convertible Securities, if any, actually issued upon the exercise
thereof were issued at the time of issue of such Options, and the consideration
received by the Corporation for the Additional Shares of Common deemed to have
been then issued was the consideration actually received by the Corporation for
the issue of such exercised Options, plus the consideration deemed to have been
received by the Corporation (determined pursuant to Section 4(d)(v)) upon the
issue of the Convertible Securities with respect to which such Options were
actually exercised; and
(5) if such record date shall have been fixed and such Options
or Convertible Securities are not issued on the date fixed therefore, the
adjustment previously made in the Conversion Price which became effective on
such record date shall be canceled as of the close of business on such record
date, and thereafter the Conversion Price shall be adjusted pursuant to this
paragraph 4(d)(iii) as of the actual date of their issuance.
(iv) Adjustment of Conversion Price Upon Issuance of Additional
Shares of Common. In the event this Corporation shall issue Additional Shares of
Common (including Additional Shares of Common deemed to be issued pursuant to
paragraph 4(d)(iii)) without consideration or for a consideration per share less
than the applicable Conversion Price of a series of Preferred Stock in effect on
the date of and immediately prior to such issue, then, the Conversion Price of
the affected series of Preferred Stock shall be reduced, concurrently with such
issue, to a price (calculated to the nearest cent) determined by multiplying
such Conversion Price by a fraction, (A) the numerator of which shall be (1) the
number of shares of Common Stock outstanding immediately prior to such issue
plus (2) the number of shares which the aggregate consideration received by the
Corporation for the total number of Additional Shares of Common so issued would
purchase at such Conversion Price, and (B) the denominator of which shall be the
number of shares of Common Stock outstanding immediately prior to such issue
plus the number of such Additional Shares of Common so issued. Notwithstanding
the foregoing, the Conversion Price shall not be reduced at such time if the
amount of such reduction would be less than $0.01, but any such amount shall be
carried forward, and a reduction will be made with respect to such amount at the
time of, and together with, any subsequent reduction which, together with such
amount and any other amounts so carried forward, equal $0.01 or more in the
aggregate. For the purposes of this Subsection 4(d)(iv), all shares of Common
Stock issuable upon exercise of outstanding Options or the conversion of
outstanding Convertible Securities and shares of Preferred Stock, and all
Additional Shares of Common deemed issued pursuant to Subsection 4(d)(iii)
hereof, shall be deemed to be outstanding.
(v) Determination of Consideration. For purposes of this Subsection
4(d), the consideration received by the Corporation for the issue (or deemed
issue) of any Additional Shares of Common shall be computed as follows:
(1) Cash and Property. Such consideration shall:
(a) insofar as it consists of cash, be computed at the
aggregate amount of cash received by the Corporation excluding amounts paid or
payable for accrued interest or accrued dividends;
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(b) insofar as it consists of property other than cash,
be computed at the fair market value thereof at the time of such issue, as
determined in good faith by the Board of Directors; and
(c) in the event Additional Shares of Common are issued
together with other shares or securities or other assets of the Corporation for
consideration which covers both, be the proportion of such consideration so
received, computed as provided in clauses (a) and (b) above, as reasonably
determined in good faith by the Board of Directors.
(2) Options and Convertible Securities. The consideration per
share received by the Corporation for Additional Shares of Common deemed to have
been issued pursuant to paragraph 4(d)(iii) shall be determined by dividing
(x) the total amount, if any, received or receivable by
the Corporation as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration (as
set forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such consideration) payable to
the Corporation upon the exercise of such Options or the conversion or exchange
of such Convertible Securities, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertible Securities and the
conversion or exchange of such Convertible Securities by
(y) the maximum number of shares of Common Stock (as set
forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such number) issuable upon the
exercise of such Options or the conversion or exchange of such Convertible
Securities.
(e) Adjustments for Subdivisions or Combinations of Common Stock. In
the event the outstanding shares of Common Stock shall be subdivided (by stock
split, by payment of a stock dividend or otherwise), into a greater number of
shares of Common Stock, the Conversion Price of each series of Preferred Stock
in effect immediately prior to such subdivision shall, concurrently with the
effectiveness of such subdivision, be proportionately decreased; provided,
however, there shall be no adjustment to the Conversion Price from the stock
split effected upon the filing of the Certificate as set forth in Article IV. In
the event the outstanding shares of Common Stock shall be combined (by
reclassification or otherwise) into a lesser number of shares of Common Stock,
the Conversion Prices in effect immediately prior to such combination shall,
concurrently with the effectiveness of such combination, be proportionately
increased.
(f) Adjustments for Subdivisions or Combinations of Preferred Stock.
In the event the outstanding shares of Preferred Stock or a series of Preferred
Stock shall be subdivided (by stock split, by payment of a stock dividend or
otherwise), into a greater number of shares of Preferred Stock, the Dividend
Amount, Original Issue Price and Liquidation Preference of the affected series
of Preferred Stock in effect immediately prior to such subdivision shall,
concurrently with the effectiveness of such subdivision, be proportionately
decreased; provided, however, there shall be no adjustment to the Dividend
Amount, Original Issue Price and Liquidation Preference as
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set forth in this Certificate from the stock split effected upon the filing of
this Certificate as set forth in Article IV. In the event the outstanding shares
of Preferred Stock or a series of Preferred Stock shall be combined (by
reclassification or otherwise) into a lesser number of shares of Preferred
Stock, the Dividend Amount, Original Issue Price and Liquidation Preference of
the affected series of Preferred Stock in effect immediately prior to such
combination shall, concurrently with the effectiveness of such combination, be
proportionately increased.
(g) Adjustment for Merger or Reorganization, etc. Subject to the
provisions of Section 3, if there shall occur any reorganization,
recapitalization, consolidation or merger involving the Corporation in which the
Common Stock is converted into or exchanged for securities, cash or other
property (other than transactions covered by paragraphs (e), (f) or (h) of this
Section 4), then, following any such reorganization, recapitalization,
consolidation or merger, each share of Preferred Stock shall be convertible into
the kind and amount of securities, cash or other property which a holder of the
number of shares of Common Stock of the Corporation issuable upon conversion of
one share of the applicable series of Preferred Stock immediately prior to such
reorganization, recapitalization, consolidation or merger would have been
entitled to receive pursuant to such transaction; and, in such case, appropriate
adjustment (as determined in good faith by the Board of Directors) shall be made
in the application of the provisions in this Section 4 set forth with respect to
the rights and interest thereafter of the holders of the Preferred Stock, to the
end that the provisions set forth in this Section 4 (including provisions with
respect to changes in and other adjustments of the Conversion Price) shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
shares of stock or other property thereafter deliverable upon the conversion of
the Preferred Stock.
(h) Adjustments for Reclassification, Exchange and Substitution.
Subject to Section 3 above, if the Common Stock issuable upon conversion of the
Preferred Stock shall be changed into the same or a different number of shares
of any other class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination of shares
or any reorganization, recapitalization, consolidation or merger provided for
above), then, in any such event, in lieu of the number of shares of Common Stock
which the holders would otherwise have been entitled to receive each holder of
such Preferred Stock shall have the right thereafter to convert such shares of
Preferred Stock into a number of shares of such other class or classes of stock
which a holder of the number of shares of Common Stock deliverable upon
conversion of such series of Preferred Stock immediately before that change
would have been entitled to receive in such reorganization or reclassification,
all subject to further adjustment as provided herein with respect to such other
shares.
(i) No Impairment. The Corporation will not by any amendment of its
certificate of incorporation or through any reorganization, transfer of assets,
consolidation merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Corporation but will at
all times in good faith assist in the carrying out of all the provisions of this
Section 4 and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the holders of
Preferred Stock against impairment. Notwithstanding the foregoing, nothing
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in this Section 4(i) shall prohibit the Corporation from amending its
Certificate of Incorporation with the requisite consent of its board of
directors and its stockholders, including the requisite consent of the holders
of Preferred Stock pursuant to Section 5(g), as may be applicable.
(j) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Conversion Price pursuant to this Section 4,
the Corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
Preferred Stock a certificate setting forth such adjustment or readjustment and
showing in detail the facts upon which such adjustment or readjustment is based.
The Corporation shall, upon the written request at any time of any holder of
Preferred Stock, furnish or cause to be furnished to such holder a like
certificate setting forth (i) such adjustments and readjustments, (ii) the
Conversion Price at the time in effect and (iii) the number of shares of Common
Stock and the amount, if any, of other securities, cash or property which at the
time would be received upon the conversion of Preferred Stock.
(k) Waiver of Adjustment of Conversion Price. Notwithstanding
anything herein to the contrary, any downward adjustment of the Conversion Price
of any series of Preferred Stock may be waived, either prospectively or
retroactively and either generally or in a particular instance, by the consent
or vote of the holders of the majority of the outstanding shares of such series.
Any such waiver shall bind all future holders of shares of such series of
Preferred Stock.
(l) Notices of Record Date. In the event that this Corporation shall
propose at any time:
(i) to declare any dividend or Distribution (other than: (i)
repurchases of Common Stock issued to or held by employees, officers, directors
or consultants of the Corporation or its subsidiaries upon termination of their
employment or services pursuant to agreements providing for the right of said
repurchase; (ii) repurchases of Common Stock issued to or held by employees,
officers, directors or consultants of the Corporation or its subsidiaries
pursuant to rights of first refusal contained in agreements providing for such
right; or (iii) repurchases of capital stock of the Corporation in connection
with the settlement of disputes with any stockholder) upon its Common Stock or
to grant to the Common Stock the right to receive any right to subscribe for or
purchase any shares of stock of any class or any other securities or to receive
any other right upon its Common Stock, whether in cash, property, stock or other
securities, whether or not a regular cash dividend and whether or not out of
earnings or earned surplus;
(ii) to effect any Recapitalization; or
(iii) to voluntarily or involuntarily liquidate or dissolve or
to enter into any transaction deemed to be a liquidation, dissolution or winding
up of the corporation pursuant to Section 3(d);
then, in connection with each such event, this Corporation shall send to the
holders of the Preferred Stock at least 10 days' prior written notice of the
date on which a record shall be taken for such dividend, Distribution or
subscription rights (and specifying the date on which the holders of
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Common Stock shall be entitled thereto) or for determining rights to vote in
respect of the matters referred to in (ii) and (iii) above; provided, however,
that no such notice shall be required with respect to the Nortel Repurchase.
Such written notice shall be given by first class mail (or express
courier), postage prepaid, addressed to the holders of Preferred Stock at the
address for each such holder as shown on the books of the Corporation, or, in
the alternative, such written notice may be given via facsimile or electronic
delivery to holders of Preferred Stock if facsimile or electronic delivery
contact information for such holders of Preferred Stock is available and has
been provided by such holders to the Corporation, and shall be deemed given on
the date such notice is mailed or the date such notice is sent via facsimile or
electronic delivery, as applicable.
The notice provisions set forth in this section may be shortened or waived
prospectively or retrospectively by the vote or written consent of the holders
of a majority of the Preferred Stock, voting together as a single class.
(m) Reservation of Stock Issuable Upon Conversion. The Corporation
shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock solely for the purpose of effecting the conversion of the
shares of the Preferred Stock, such number of its shares of Common Stock as
shall from time to time be sufficient to effect the conversion of all then
outstanding shares of the Preferred Stock; and if at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to effect
the conversion of all then outstanding shares of the Preferred Stock, the
Corporation will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such purpose.
5. Voting.
(a) Restricted Class Voting. Except as otherwise expressly provided
herein or as required by law, the holders of Preferred Stock and the holders of
Common Stock shall vote together and not as separate classes.
(b) No Series Voting. Other than as provided herein or required by
law, there shall be no series voting.
(c) Preferred Stock. Each holder of Preferred Stock shall be
entitled to the number of votes equal to the number of shares of Common Stock
into which the shares of Preferred Stock held by such holder could be converted
as of the record date. Except as otherwise expressly provided herein or as
required by law, the holders of shares of the Preferred Stock shall be entitled
to vote on all matters on which the Common Stock shall be entitled to vote.
Holders of Preferred Stock shall be entitled to notice of any stockholders'
meeting in accordance with the Bylaws of the Corporation. Fractional votes shall
not, however, be permitted and any fractional voting rights resulting from the
above formula (after aggregating all shares into which shares of Preferred Stock
held by each holder could be converted), shall be disregarded.
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(d) Cumulative Voting.
(i) If and only for so long as Section 2115 of the California
General Corporation Law purports to make Section 708 subdivisions (a), (b) and
(c) of the California General Corporation Law applicable to the Corporation, the
Corporation's stockholders shall have the right to cumulate their votes in
connection with the election of directors as provided by Section 708
subdivisions (a), (b) and (c) of the California General Corporation Law.
(ii) Effective upon the closing of a firm commitment
underwritten public offering of Common Stock of the Corporation, no stockholder
will be permitted to cumulate votes at any election of directors.
(e) Adjustment in Authorized Common Stock. The number of authorized
shares of Common Stock may be increased or decreased (but not below the number
of shares of Common Stock then outstanding) by an affirmative vote of both (i)
the holders of a majority of the outstanding stock of the Corporation and (ii)
the holders of sixty percent (60%) of the outstanding shares of the Preferred
Stock.
(f) Common Stock. Each holder of shares of Common Stock shall be
entitled to one vote for each share thereof held.
(g) The Corporation shall not, without first obtaining the approval
(by vote or written consent as provided by law) of the holders of at least sixty
percent (60%) of the outstanding shares of the Preferred Stock, voting together
as a single class, (i) amend, alter or repeal any provision of the Certificate
of Incorporation or bylaws of the Corporation if such action would materially
and adversely alter the rights, preferences, privileges or powers of, or
restrictions provided for the benefit of, the Preferred Stock or any series
thereof, (ii) authorize any shares of capital stock with preference or priority
over the Preferred Stock as to the right to receive either dividends or amounts
distributable upon liquidation, dissolution or winding up of the Corporation, or
(iii) authorize any shares of capital stock on a parity with Preferred Stock,
including additional shares of Preferred Stock, as to the right to receive
either dividends or amounts distributable upon a liquidation, dissolution or
winding up of the Corporation.
6. Amendments and Changes. Until less than five million, fifty-eight
thousand, five hundred twenty (5,058,520) shares of Preferred Stock shall be
issued and outstanding (subject to adjustment from time to time for
Recapitalizations and as otherwise set forth elsewhere herein), the Corporation
shall not, without first obtaining the approval (by vote or written consent as
provided by law) of the holders of at least sixty percent (60%) of the
outstanding shares of the Preferred Stock, voting together as a single class:
(a) declare or pay any Distribution (as defined in Section 1(e))
with respect to the Common Stock other than: (i) repurchases of Common Stock
issued to or held by employees, officers, directors or consultants of the
Corporation or its subsidiaries upon termination of their employment or services
pursuant to agreements providing for the right of said repurchase; (ii)
repurchases of Common Stock issued to or held by employees, officers, directors
or consultants of
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the Corporation or its subsidiaries pursuant to rights of first refusal
contained in agreements providing for such right; or (iii) repurchase of capital
stock of the Corporation in connection with the settlement of disputes with any
stockholder;
(b) enter into any transaction or series of related transactions
deemed to be a liquidation, dissolution or winding up of the Corporation
pursuant to Section 3(d) above, provided, however, that this voting provision
shall not apply to any transaction deemed to be a liquidation, dissolution or
winding up of the Corporation pursuant to clause (a) or clause (b) of Section
3(d) based on a valuation of the Corporation of at least $300 million;
(c) other than any borrowings permitted by clause (e) of this
Section, acquire or purchase assets or capital stock or other equity or debt
securities (including, without limitation, promissory notes or notes payable,
regardless of whether such instrument is convertible into equity interests) in
another entity for more than $5 million aggregate consideration, provided,
however, that (i) the purchase in the ordinary course of business of a
certificate of deposit which is insured by the federal government of the United
States, and (ii) the purchase in the ordinary course of business of commercial
paper, of an investment grade, issued by a public company, shall not be
considered an acquisition or purchase hereunder;
(d) incur additional indebtedness for borrowed funds in excess of
(i) indebtedness for borrowed money pursuant to the Corporation's Credit
Agreement, dated as of March 22, 2001, among the financial institutions from
time to time parties thereto, Bank of America, N.A., as agent for the Lenders
(as defined therein), and the Corporation, as amended (excluding any such
amendment for the purpose of increasing the borrowing amounts under such
facility), plus (ii) $10 million;
(e) issue any Additional Shares of Common other than (i) the
issuance of Options to employees, officers, directors or consultants with
respect to a number of shares not to exceed twenty three and seven tenths
percent (23.7%) of the number of shares of Common Stock of the Corporation
outstanding on a fully diluted and as converted basis as of February 7, 2002,
and (ii) Additional Shares of Common approved by the Board of Directors; or
(f) enter into any material contract or transaction with any Related
Party other than in the ordinary course of business on arm's-length terms or
other than as approved by a majority of the disinterested members of the Board
of Directors.
7. Notices. Any notice required by the provisions of this Article V to be
given to the holders of Preferred Stock shall be deemed given if (a) deposited
in the United States mail, postage prepaid, and addressed to each holder of
record at such holder's address appearing on the books of the Corporation, or
(b) sent via facsimile or electronic delivery to holders of Preferred Stock if
facsimile or electronic delivery contact information for such holders of
Preferred Stock is available and has been provided by such holders to the
Corporation.
8. Board of Directors. The business and affairs of the Corporation shall
be managed by or under the direction of the Board. In addition to the powers and
authority expressly conferred
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upon them by statute or by this Certificate or the Bylaws of the Corporation,
the directors are hereby empowered to exercise all such powers and do all such
acts and things as may be exercised or done by the Corporation.
9. No Action by Written Consent of Stockholders. Effective upon the
closing of a firm commitment underwritten public offering of Common Stock of the
Corporation, any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders.
10. Special Meetings. Effective upon the closing of a firm commitment
underwritten public offering of Common Stock of the Corporation, special
meetings of stockholders of the Corporation may be called only by the Chairman
of the Board, the Chief Executive Officer, the President or the Board acting
pursuant to a resolution adopted by a majority of the Board and any power of
stockholders to call a special meeting is specifically denied. Only such
business shall be considered at a special meeting of stockholders as shall have
been stated in the notice for such meeting.
11. Advance Notice Provisions. Effective upon the closing of a firm
commitment underwritten public offering of Common Stock of the Corporation,
advance notice of stockholder nominations for the election of directors and of
business to be brought by stockholders before any meeting of the stockholders of
the Corporation shall be given in the manner provided in the Bylaws of the
Corporation.
ARTICLE VI
1. Limitation of Directors' Liability. To the fullest extent permitted by
the Delaware General Corporation Law as the same exists or as may hereafter be
amended, a director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for a breach of fiduciary
duty as a director. If the Delaware General Corporation Law is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law as so amended.
2. Indemnification of Corporate Agents. The Corporation may indemnify to
the fullest extent permitted by law any person made or threatened to be made a
party to an action or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that he, she, his or her testator or
intestate is or was a director, officer, employee or agent of the Corporation or
any predecessor of the Corporation or serves or served at any other enterprise
as a director, officer, employee or agent at the request of the Corporation or
any predecessor to the Corporation.
3. Repeal or Modification. Neither any amendment nor repeal of this
Article VI, nor the adoption of any provision of this Corporation's Certificate
of Incorporation inconsistent with this Article VI, shall eliminate or reduce
the effect of this Article VI, in respect of any matter occurring,
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or any action or proceeding accruing or arising or that, but for this Article
VI, would accrue or arise, prior to such amendment, repeal or adoption of an
inconsistent provision.
ARTICLE VII
The Corporation is to have perpetual existence.
ARTICLE VIII
Elections of directors need not be by written ballot unless the Bylaws of
the Corporation shall so provide.
ARTICLE IX
1. Subject to the rights of the holders of any series of Preferred Stock
to elect additional directors under specified circumstances, the number of
directors which constitute the Board of Directors of the Corporation shall be as
designated or provided for in the Bylaws of the Corporation.
2. The provisions of this paragraph shall be effective upon the closing of
a firm commitment underwritten public offering of Common Stock of the
Corporation and subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances. Each
director, including a director elected to fill a vacancy, shall hold office
until the expiration of the term for which elected and until such director's
successor is elected and qualified or until such director's earlier death,
resignation or removal.
3. The provisions of this paragraph shall be effective upon the closing of
a firm commitment underwritten public offering of Common Stock of the
Corporation and subject to the rights of the holders of any series of Preferred
Stock then outstanding. Unless the Board otherwise determines, newly created
directorships resulting from any increase in the authorized number of directors
or any vacancies in the Board resulting from death, resignation, retirement,
disqualification, removal from office or other cause shall, unless otherwise
provided by law or by resolution of the Board, be filled only by a majority vote
of the directors then in office, whether or not less than a quorum, and
directors so chosen shall hold office until such director's successor is
elected and qualified. No
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reduction in the authorized number of directors shall have the effect of
removing any director before such director's term of office expires.
4. Effective upon the closing of a firm commitment underwritten public
offering of Common Stock of the Corporation and subject to the rights of the
holders of any series of Preferred Stock then outstanding, unless otherwise
restricted by statue, by this Certificate or the Bylaws of the Corporation, any
director, or all of the directors, may be removed from the Board, with or
without cause, but only by the affirmative vote of the holders of at least a
majority of the voting power of all of the then outstanding shares of capital
stock of the Corporation then entitled to vote at the election of directors,
voting together as a single class.
ARTICLE X
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors of the Corporation is expressly authorized to make,
alter, amend or repeal the Bylaws of the Corporation, provided that the Board of
Directors of the Corporation has obtained the approval of the holders of the
Preferred Stock as may be required by Section 5(g) of Article V.
Effective upon the closing of a firm commitment underwritten public
offering of Common Stock of the Corporation, the Board is expressly empowered to
adopt, amend or repeal any of the Bylaws of the Corporation. Any adoption,
amendment or repeal of the Bylaws of the Corporation by the Board shall require
the approval of a majority of the Board. The stockholders shall also have power
to adopt, amend or repeal the Bylaws of the Corporation; provided, however,
that, in addition to any vote of the holders of any class or series of stock of
the Corporation required by law or by this Certificate, the affirmative vote of
the holders of at least 66-2/3% of the voting power of the then outstanding
shares of voting stock entitled to vote generally in the election of directors,
voting together as a single class, shall be required to adopt, amend or repeal
all or any portion of Article II, Section 3.2, Section 3.3, Section 3.4, Section
3.14, Article VI or Article IX of the Bylaws of the Corporation.
ARTICLE XI
Meetings of stockholders may be held within or without the 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 of 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.
ARTICLE XII
Effective upon the closing of a firm commitment underwritten public
offering of Common Stock of the Corporation, the Corporation reserves the right
to amend or repeal any provision contained in this Certificate in the manner
prescribed by the laws of the State of Delaware and all rights conferred upon
stockholders are granted subject to this reservation; provided, however, that,
notwithstanding any other provision of this Certificate, or any provision of law
that might otherwise
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permit a lesser vote or no vote, but in addition to any vote of the holders of
any class or series of the stock of this Corporation required by law or by this
Certificate, the affirmative vote of the holders of at least 66-2/3% of the
voting power of the then outstanding shares of voting stock entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to amend or repeal this Article XII, Section 5(d) of Article V,
Section 8 of Article V, Section 9 of Article V, Section 10 of Article V, Section
11 of Article V, Article VI, Article VIII, Article IX or Article X.
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