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EXHIBIT 3.3
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
RASTER GRAPHICS, INC.
ARTICLE I
The name of the corporation is Raster Graphics, Inc. (the "CORPORATION").
ARTICLE II
The address of the corporation's registered office in the State of Delaware
is The Corporation Trust Center, 1209 Orange Street, County of New Castle,
Wilmington, Delaware 19801. The name of its registered agent at such address is
The Corporation Trust Company.
ARTICLE III
The purpose of the corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE IV
(a) Classes of Stock. This corporation is authorized to issue two
classes of shares, designated "Preferred Stock" and "Common Stock,"
respectively. The total number of shares which this corporation shall have
authority to issue is Seventy Million One Hundred-Fifty Thousand (70,150,000)
shares. The number of shares of Preferred Stock authorized to be issued is
Thirty Million One Hundred-Fifty Thousand (30,150,000), par value $.001 per
share, and the number of shares of Common Stock authorized to be issued is Forty
Million (40,000,000), par value $.001 per share. The Preferred Stock shall be
issued in three series. The first series of Preferred Stock shall be designated
Series A Preferred Stock (the "Series A Preferred") and shall consist of One
Million Six Hundred Thousand (1,600,000) shares with the rights, preferences,
privileges and restrictions set forth in paragraph (b) below. The second series
of Preferred Stock shall be designated Series B Preferred Stock (the "Series B
Preferred") and shall consist of Five Million Two Hundred-Fifty Thousand
(5,250,000) shares with the rights, preferences, privileges and restrictions set
forth in paragraph (b) below. The third series of Preferred Stock shall be
designated Series C Preferred Stock (the "Series C Preferred") and shall consist
of Twenty-Three Million Three Hundred Thousand (23,300,000) shares with the
rights, preferences, privileges and restrictions set forth in paragraph (b)
below.
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(b) Rights, Preferences and Restrictions of Preferred Stock. A statement of the
rights, preferences, privileges and restrictions granted to or imposed on the
Series A Preferred, Series B Preferred and Series C Preferred and the holders
thereof is as follows:
(1) Dividends.
(aa)(i) The holders of outstanding Series C
Preferred shall be entitled to receive in any fiscal year, when and as declared
by the Board of Directors, out of any assets at the time legally available
therefor, dividends in cash at the rate of $0.03 per share of Series C
Preferred, per annum, before any cash dividend is paid on Series A Preferred,
Series B Preferred or Common Stock. After payment to the holders of Series C
Preferred of the amounts as aforesaid, the holders of outstanding Series A and
Series B Preferred shall be entitled to receive in any fiscal year, when and as
declared by the Board of Directors, out of any assets at the time legally
available therefor, dividends in cash at the rate of $0.04 and $0.04 per share
of Series A and Series B Preferred, respectively, per annum, before any cash
dividend is paid on Common Stock. Such dividend or distribution may be payable
annually or otherwise as the Board of Directors may from time to time determine.
Dividends or distributions may be declared and paid upon shares of Series A
Preferred or Series B Preferred in any fiscal year of the corporation only if
dividends shall have been paid on or declared and set apart upon all shares of
Series C Preferred at the annual rate as aforesaid. Dividends or distributions
may be declared and paid upon shares of Series A Preferred or Series B Preferred
in any fiscal year of the corporation only if dividends shall have been paid on
or declared and set apart upon all shares of Preferred Stock at such annual
rates. The right to such dividends on shares of Preferred Stock shall not be
cumulative and no right shall accrue to holders of shares of Preferred Stock by
reason of the fact that dividends on such shares are not declared in any prior
year, nor shall any undeclared or unpaid dividend bear or accrue interest.
(ii) In the event this corporation shall determine,
after payment of dividends to holders of Preferred Stock at the annual rates set
forth above, to pay cash dividends to the holders of Common Stock, such
dividends may be paid to holders of Common Stock only if equal dividends are
also paid to holders of Preferred Stock (based upon the number of shares of
Common Stock into which such shares of Preferred Stock are then convertible) at
the same time. The right to such dividends on shares of Common Stock and
Preferred Stock shall not be cumulative and no rights shall accrue to holders of
shares of Common Stock and Preferred Stock by reason of the fact that dividends
on such shares are not declared in any prior year, nor shall any undeclared or
unpaid dividends bear or accrue interest.
(bb) In the event this corporation shall declare a
distribution payable in securities of other persons, evidences of indebtedness
issued by this corporation or other persons, assets (excluding cash dividends)
or options or rights to purchase any such securities or evidences of
indebtedness, then, in each such case the holders of the Preferred Stock shall
be entitled to a proportionate share of any such distribution as though the
holders of the Preferred Stock were the holders of the number of shares of
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Common Stock of the corporation into which their respective shares of Preferred
Stock are convertible as of the record date fixed for the determination of the
holders of Common Stock of the corporation entitled to receive such
distribution.
(2) Voting Rights.
(aa) Each holder of shares of Preferred Stock shall
be entitled to the number of votes equal to the number of shares of Common Stock
into which such shares of Preferred Stock could be converted on the record date
for the vote or consent of shareholders and shall have voting rights and powers
equal to the voting rights and powers of the Common Stock. The holder of each
share of Preferred Stock shall be entitled to notice of any shareholders'
meeting in accordance with the Bylaws of the corporation and, except as provided
in paragraph (bb) below, shall vote with holders of the Common Stock upon any
matter submitted to a vote of shareholders, except those matters required by law
to be submitted to a class vote. Fractional votes by the holders of Preferred
Stock 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 rounded to
the nearest whole number.
(bb) The holders of shares of Series C Preferred
shall be entitled, voting as a separate class, to elect two members of the Board
of Directors of this corporation. The holders of shares of Series A Preferred
and Series B Preferred shall be entitled, voting as a single class, to elect two
members of the Board of Directors of this corporation. The holders of shares of
Common Stock shall be entitled, voting as a separate class, to elect two members
of the Board of Directors of this corporation. The holders of shares of
Preferred Stock and Common Stock shall be entitled, voting as a single class, to
elect the remaining directors of this corporation. In the case of any vacancy in
the office of a director elected by the holders of a particular class or series
of stock, the vacancy may be filled only by the vote of the holders of such
class or series of stock. Any director who shall have been elected by the
holders of a particular class or series of stock may be removed without cause
by, and only by, the applicable vote of the holders of shares of such class or
series of stock. The provisions of this paragraph (2)(bb) shall expire and be of
no further force or effect immediately upon conversion of the outstanding shares
of Preferred Stock pursuant to the provisions of paragraph (3)(aa)(ii) below.
(3) Conversion. The holders of the Preferred Stock shall have
conversion rights as follows (the "Conversion Rights"):
(aa) Right to Convert.
(i) 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 at the office of the corporation or any transfer agent
for the Preferred Stock, into that number of fully-paid and non-assessable
shares of Common Stock that is equal, in the case
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of Series A Preferred, to $0.50 divided by the Conversion Price for such series
(as hereinafter defined) , in the case of Series B Preferred, to $0.50 divided
by the Conversion Price for such series (as hereinafter defined) and, in the
case of Series C Preferred, to $0.50 divided by the Conversion Price for such
series (as hereinafter defined). The Conversion Prices for the Series A, Series
B and Series C Preferred shall initially be $0.50, $0.50 and $0.50,
respectively, subject to adjustment as provided herein. (The number of shares of
Common Stock into which each share of Series A, Series B or Series C Preferred
may be converted is hereinafter referred to as the "Conversion Rate" for each
such series.) Upon any decrease or increase in the Conversion Price or the
Conversion Rate for a series, as described in this Section (b)(3), the
Conversion Rate or Conversion Price for such series, as the case may be, shall
be appropriately increased or decreased.
(ii) Each share of Preferred Stock shall
automatically be converted into shares of Common Stock at the then effective
Conversion Rate for such share immediately upon the consummation of the
corporation's sale of Common Stock pursuant to a registration statement under
the Securities Act of 1933, as amended, pursuant to an underwritten firm
commitment public offering, provided that the price per share is not less than
$1.50 (net of underwriter commissions and expenses and subject to appropriate
adjustment for all stock splits, dividends, subdivisions, combinations,
recapitalizations and the like) and the gross aggregate offering price is not
less than $10,000,000.
(bb) 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 such fractional shares as determined by the Board of Directors
of the corporation. Before any holder of Preferred Stock shall be entitled to
convert the same into full shares of Common Stock, he shall surrender the
certificate or certificates therefor, 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 he elects to convert the
same; provided, however, that in the event of an automatic conversion pursuant
to paragraph (b)(3)(aa)(ii) above, 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 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 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.
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
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Stock, a certificate or certificates for the number of shares of Common Stock to
which he 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 of
1933, as amended, 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.
(cc) Adjustments to Conversion Price for Diluting
Issues.
(i) Special Definitions. For purposes of this
paragraph (3)(cc), the following definitions shall apply:
(1) "Options" shall mean rights, options or
warrants to subscribe for, purchase or otherwise acquire either Common Stock or
Convertible Securities.
(2) "Original Issue Date" shall mean, with
respect to a particular series of Preferred Stock, the first date on which the
first share of such series of Preferred Stock was first issued.
(3) "Convertible Securities" shall mean any
evidences of indebtedness, shares or other securities (other than the shares of
Preferred Stock) convertible into or exchangeable for Common Stock.
(4) "Additional Shares of Common" shall mean
all shares of Common Stock issued (or, pursuant to paragraph (3)(cc)(iii),
deemed to be issued) by the corporation after the Original Issue Date of a
particular series of Preferred Stock, other than shares of Common Stock issued
or issuable:
(A) upon conversion of shares of
Preferred Stock;
(B) 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
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of Directors or upon exercise of options or warrants granted to such parties
pursuant to any such plan or arrangement;
(C) as a dividend or distribution on
Preferred Stock or pursuant to any event for which adjustment is made pursuant
to paragraph (3)(cc)(vi), (vii) or (viii) hereof;
(D) to lenders in connection with any
loan or lease financing transaction pursuant to arrangements approved by the
Board of Directors or upon exercise of options or warrants granted to such
parties pursuant to any such arrangement;
(E) upon exercise of warrants for the
purchase of an aggregate of 622,220 shares of Common Stock at an exercise price
of $0.30 per share issued by the corporation on November 28, 1988 and March 30,
1989 in connection with consulting services provided to the corporation by the
holders of such warrants;
(F) upon exercise of warrants for the
purchase of up to an aggregate of 806,547 shares of Common Stock at an exercise
price of $0.30 per share issued by the corporation on December 19, 1989 and
March 6, 1990 in connection with the sale and issuance of the corporation's
Series B Preferred to certain investors; and
(G) to persons or entities in connection
with any corporate partnership or reorganizations approved by the Board of
Directors, or upon exercise of options or warrants granted to such parties
pursuant to any such transaction.
(ii) No Adjustment of Conversion Price. No
adjustment in the Conversion Price of a particular share of Preferred Stock
shall be made in respect of the issuance of Additional Shares of Common unless
the consideration per share 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 share of Preferred
Stock.
(iii) Deemed Issue of Additional Shares of
Common.
(1) Options and Convertible
Securities. In the event the corporation at any time or from time to time after
the Original Issue Date of a particular series of Preferred Stock shall issue
any Options or 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
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exercise of such Options or, in the case of Convertible Securities and Options
therefor, the conversion or exchange of such Convertible Securities or exercise
of such Options, shall be deemed to be Additional Shares of Common 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 Additional Shares of
Common shall not be deemed to have been issued unless the consideration per
share (determined pursuant to paragraph (3)(cc)(v) hereof) of such Additional
Shares of Common would be less than the Conversion Price of such series of
Preferred Stock in effect on the date of and immediately prior to such issue, or
such record date, as the case may be, and provided further that in any such case
in which Additional Shares of Common are deemed to be issued:
(A) no further adjustment in the
Conversion Price of such series of Preferred Stock shall be made upon the
subsequent issue of Convertible Securities or shares of Common Stock upon the
exercise of such Options or conversion or exchange of such Convertible
Securities;
(B) 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 such series of 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;
(C) no readjustment pursuant to clause
(B) above shall have the effect of increasing the Conversion Price of such
series of Preferred Stock to an amount which exceeds the lower of (i) the
Conversion Price of such series of Preferred Stock on the original adjustment
date, or (ii) the Conversion Price of such series of Preferred Stock that would
have resulted from any issuance of Additional Shares of Common between the
original adjustment date and such readjustment date;
(D) 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 Prices 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 therefor was the consideration
actually received by the corporation for the issue of such exercised Options
plus the consideration actually received by the
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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
(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 paragraph (3)(cc)(v)) upon the issue of the Convertible Securities
with respect to which such Options were actually exercised;
(E) in the case of any Options which
expire by their terms not more than 30 days after the date of issue thereof, no
adjustment of the Conversion Prices shall be made until the expiration or
exercise of all such Options issued on the same date, whereupon such adjustment
shall be made in the same manner provided in clause (C) above; and
(F) if such record date shall have
been fixed and such Options or Convertible Securities are not issued on the date
fixed therefor, the adjustment previously made in the Conversion Prices which
became effective on such record date shall be canceled as of the close of
business on such record date, and thereafter the Conversion Prices shall be
adjusted pursuant to this paragraph (3)(cc)(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 (3)(cc)(iii)) without consideration or for a
consideration per share less than the Conversion Price for a particular series
of Preferred Stock in effect on the date of and immediately prior to such issue,
then and in such event, such Conversion Price shall be reduced, concurrently
with such issue, to a price determined by multiplying such Conversion Price by a
fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such issue plus the number of shares of Common
Stock 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 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; and provided further that, for the
purposes of this paragraph (3)(cc)(iv), all shares of Common Stock issuable upon
exercise, conversion or exchange of outstanding Options or Convertible
Securities, as the case may be, shall be deemed to be outstanding, and
immediately after any Additional Shares of Common are deemed issued pursuant to
paragraph (3)(cc)(iii), such Additional Shares of Common shall be deemed to be
outstanding.
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(v) Determination of Consideration. For
purposes of this subsection (b)(3)(cc), the consideration received by the
corporation for the 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;
(B) insofar as it consists of
property other than cash, be computed at the fair value thereof at the time of
such issue, as determined in good faith by the Board; 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
determined in good faith by the Board.
(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
(3)(cc)(iii)(1), relating to Options and Convertible Securities, 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.
(vi) Adjustments for Stock Dividends
and for Subdivisions or Combinations of Common. In the event that this
corporation at any time or from time to time after the Original Issue Date of a
particular series of Preferred Stock shall declare or pay, without
consideration, any dividend on the Common Stock payable in
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Common Stock or in any right to acquire Common Stock for no consideration, or if
the outstanding shares of Common Stock shall be subdivided (by stock split,
reclassification or otherwise than by payment of a dividend in Common Stock or
in any right to acquire Common Stock) into a greater number of shares of Common
Stock, the Conversion Prices in effect immediately prior to such event shall,
concurrently with the effectiveness of such event, be proportionately decreased.
In the event the outstanding shares of Common Stock shall be combined or
consolidated (by reclassification or otherwise) into a lesser number of shares
of Common Stock, the Conversion Prices in effect immediately prior to such event
shall, concurrently with the effectiveness of such event, be proportionately
increased.
(vii) Adjustments for Other Distributions.
In the event the corporation at any time or from time to time makes or fixes a
record date for the determination of holders of Common Stock entitled to receive
any distribution payable in securities of other persons, evidences of
indebtedness issued by this corporation or other persons, assets (excluding cash
dividends) or options or rights not otherwise referred to in subsection
(b)(3)(cc)(vi), then and in each such event provision shall be made so that the
holders of Preferred Stock shall be entitled to receive a proportionate share of
any such distribution as though they were holders of the number of shares of
Common Stock of this corporation into which their shares of Preferred Stock are
convertible as of the record date fixed for the determination of the holders of
Common Stock of this corporation entitled to receive such distribution.
(viii) Adjustments for Reclassification,
Exchange and Substitution. 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
provided for above), the Conversion Prices then in effect shall, concurrently
with the effectiveness of such reorganization or reclassification, be
proportionately adjusted such that the Preferred Stock shall be convertible
into, in lieu of the number of shares of Common Stock which the holders would
otherwise have been entitled to receive, a number of shares of such other class
or classes of stock equivalent to the number of shares of Common Stock that
would have been subject to receipt by the holders upon conversion of the
Preferred Stock immediately before that change.
(dd) No Impairment. The corporation will
not, by amendment of its Articles of Incorporation or through any
reorganization, transfer of assets, 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 (b)(3) 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 the Preferred Stock against impairment.
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(ee) Certificate as to Adjustments. Upon the occurrence of
each adjustment or readjustment of any Conversion Price pursuant to this Section
(b)(3), 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 Prices at the time in effect, and (iii) the number of shares of
Common Stock and the amount, if any, of other property which at the time would
be received upon the conversion of Preferred Stock.
(ff) Notices of Record Date. In the event that this
corporation shall propose at any time:
(i) to declare any dividend or distribution 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 offer for subscription pro rata to the holders
of any class or series of its stock any additional shares of stock of any class
or series or other rights;
(iii) to effect any reclassification or recapitalization
of its Common Stock outstanding involving a change in the Common Stock; or
(iv) to merge with or into any other corporation, or
sell, lease or convey all or substantially all its property or business, or to
liquidate, dissolve or wind up;
then, in connection with each such event, this corporation shall send to the
holders of the Preferred Stock:
(1) at least 20 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 Common
Stock shall be entitled thereto) or for determining rights to vote in respect of
the matters referred to in (iii) and (iv) above; and
(2) in the case of the matters referred to in (iii)
and (iv) above, at least 20 days' prior written notice of the date when the same
shall take place (and specifying the date on which the holders of Common Stock
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon the occurrence of such event).
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Each such written notice shall be given by first class mail, postage
prepaid, addressed to the holders of Preferred Stock at the address for each
such holder as shown on the books of this corporation.
(gg) 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.
(4) Liquidation Preference. In the event of any liquidation,
dissolution or winding up of the corporation, either voluntary or involuntary,
distributions to the shareholders of the corporation shall be made in the
following manner:
(aa) The holders of the Series C Preferred shall be entitled to
receive, prior and in preference to any distribution of any of the assets or
surplus funds of the corporation to the holders of the Series A Preferred,
Series B Preferred or Common Stock by reason of their ownership of such stock,
the amount of Fifty Cents ($0.50) per share for each share of Series C Preferred
then held by them (appropriately adjusted in each case for any combinations, or
stock distributions or dividends with respect to such shares) plus, in addition,
an amount equal to all declared but unpaid dividends, if any, on the shares of
Series C Preferred then held by them. If, upon the occurrence of such event, the
assets and property legally available to be distributed among the holders of the
Series C Preferred shall be insufficient to permit the payment to such holders
of the full preferential amount aforesaid, then the entire assets and property
of the corporation legally available for distribution shall be distributed
ratably among the holders of the Series C Preferred Stock pro rata based on the
number of shares of Series C Preferred then held.
(bb) After payment has been made to the holders of the Series C
Preferred of the full preferential amounts to which they shall be entitled, if
any, as aforesaid, the holders of the Series A Preferred and Series B Preferred
shall be entitled to receive, out of the remaining assets (up to a maximum of
$3,360,000), prior and in preference to any distribution of any of the assets or
surplus funds of the corporation to the holders of the Common Stock by reason of
their ownership of such stock:
(i) for each share of Series A Preferred then held by them
the amount per share equal to $560,000 divided by the number of shares of Series
A Preferred then outstanding; and
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(ii) for each share of Series B Preferred then held by
them the amount per share equal to $2,800,000 divided by the number of shares of
Series B Preferred then outstanding,
plus, in addition, an amount equal to all declared but unpaid dividends, if any,
on the respective shares of Series A Preferred and Series B Preferred then held
by them. If, upon the occurrence of such event, the assets and property legally
available to be distributed among the holders of the Series A Preferred and
Series B Preferred shall be insufficient to permit the payment to such holders
of the full preferential amount aforesaid, then the entire remaining assets and
property of the corporation legally available for distribution shall be
distributed ratably among the holders of the Series A Preferred and Series B
Preferred as follows: (1) as among the series of Series A Preferred and Series B
Preferred, one-sixth (1/6) of the remaining assets and property of the
corporation legally available for distribution shall be distributed to holders
of Series A Preferred and five-sixths (5/6) of the remaining assets and property
of the corporation legally available for distribution shall be distributed to
holders of Series B Preferred, and (2) as among the holders of Series A
Preferred and Series B Preferred Stock of any one series, the aggregate amount
of assets and property available for distribution to such holders in accordance
with subparagraph (1) herein shall be distributed among such holders pro rata
based on the number of shares then held; and, no amount shall be paid or set
apart for payment on any series of Series A Preferred or Series B Preferred
unless, at the same time, amounts in proportion to the respective preferential
amounts to which the other series of Preferred Stock are entitled (in accordance
with subparagraph (1) herein) shall be paid or set apart for payment.
(cc) After payment has been made to the holders of the Series A
Preferred, Series B Preferred and Series C Preferred of the full preferential
amounts to which they shall be entitled, if any, as aforesaid, the holders of
the Series A Preferred, Series B Preferred and Series C Preferred shall be
entitled to receive, out of the remaining assets (up to a maximum of
$6,750,000), prior and in preference to any distribution of any of the assets or
surplus funds of the corporation to the holders of the Common Stock by reason of
their ownership of such stock:
(i) For each share of Series C Preferred then held by them
the amount per share equal to the Series C Incremental Amount (as hereinafter
defined) divided by the number of shares of Series C Preferred then outstanding.
For purposes of Section (b)(4), the "Series C Incremental Amount" shall equal
$6,750,000 (or, if lesser, the entire remaining assets and property of the
corporation legally available for distribution after giving effect to the
provisions of paragraphs (b)(4)(aa) and (b)(4)(bb)) multiplied by a fraction,
the numerator of which shall be the number of shares of Common Stock issuable
upon conversion of the then outstanding Series C Preferred and the denominator
of which shall be the sum of the number of shares of Common Stock then
outstanding plus the number of shares of Common Stock issuable upon conversion
of the then outstanding Preferred Stock;
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(ii) For each share of Series A Preferred then held by
them the amount per share equal to $6,750,000 (or, if lesser, the entire
remaining assets and property of the corporation legally available for
distribution after giving effect to the provisions of paragraphs (b)(4)(aa) and
(b)(4)(bb)) less the Series C Incremental Amount , with such result multiplied
by a fraction of one-sixth (1/6) (such product hereinafter referred to as the
"Series A Residual Amount"), and then divided by the number of shares of Series
A Preferred then outstanding; provided, that the maximum Series A Residual
Amount distributable to the holders of Series A Preferred Stock pursuant to this
paragraph shall not exceed $0.50 multiplied by the number of shares of Series A
Preferred then held and any Series A Residual Amount in excess of such maximum
(the "Series A Excess Amount") shall be distributed to holders of Series B
Preferred as provided in, and subject to the conditions of, paragraph
(4)(cc)(iii); and
(iii) For each share of Series B Preferred then held by
them the amount per share equal to $6,750,000 (or, if lesser, the entire
remaining assets and property of the corporation legally available for
distribution after giving effect to the provisions of paragraphs (b)(4)(aa) and
(b)(4)(bb)) less the Series C Incremental Amount, with such result multiplied by
a fraction of five-sixths (5/6), with the resulting product added to the Series
A Excess Amount (if any) and such sum then divided by the number of shares of
Series B Preferred then outstanding; provided, that the maximum amount
distributable to the holders of Series B Preferred Stock pursuant to this
paragraph shall not exceed $2.50 multiplied by the number of shares of Series B
Preferred then held;
and no amount shall be paid or set apart for payment on any series of Series A
Preferred, Series B Preferred or Series C Preferred unless, at the same time,
amounts in proportion to the respective preferential amounts to which the other
series of Preferred Stock are entitled as aforesaid shall be paid or set apart
for payment.
(dd) After payment has been made to the holders of the
Preferred Stock of the full preferential amounts to which they shall be
entitled, if any, as aforesaid, any remaining proceeds shall be distributed
ratably to the holders of the Common Stock and Preferred Stock based upon the
number of shares of Common Stock then held (with each share of Preferred Stock
being treated as that number of shares of Common Stock into which such share of
Preferred Stock is at that time convertible).
(ee) For purposes of this Section (b)(4), a merger of the
corporation with or into any other corporation or corporations, or the merger of
any other corporation or corporations into the corporation, in which merger the
shareholders of the corporation receive distributions in cash or securities of
another corporation or corporations as a result of such merger (unless the
shareholders of this corporation hold more than a majority of the voting equity
securities of the surviving corporation), or a sale, conveyance or disposition
of all or substantially all of the assets of this corporation shall be treated
as a liquidation, dissolution or winding up of the corporation.
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(5) Covenants.
(aa) In addition to any other rights provided by law, so long
as any Series A Preferred or Series B Preferred shall be outstanding, this
corporation shall not, without first obtaining the affirmative vote or written
consent of the holders of not less than a majority (determined on the basis of
assumed conversion of all Preferred Stock into Common Stock) of the outstanding
shares of Series A Preferred and Series B Preferred, voting as a class:
(i) amend or repeal any provision of, or add any provision
to, this corporation's Articles of Incorporation or Bylaws if such action would
materially and adversely alter or change the rights, preferences, privileges or
restrictions of any outstanding Series A Preferred or Series B Preferred;
(ii) authorize or issue shares of any class of stock
having any preference or priority as to dividends, voting rights, liquidation
preferences or assets superior to or on a parity with any such preference or
priority of the Series A Preferred or Series B Preferred or authorize or issue
shares of stock of any class or any bonds, debentures, notes or other
obligations convertible into or exchangeable for, or having option rights to
purchase, any shares of stock of this corporation having any preference or
priority as to dividends, voting rights, liquidation preferences or assets
superior to or on a parity with any such preference or priority of the Series A
Preferred or Series B Preferred;
(iii) reclassify any shares of Common Stock into shares
having any preference or priority as to dividends, voting rights, liquidation
preferences or assets superior to or on a parity with any such preference or
priority of the Series A Preferred or Series B Preferred;
(iv) pay or declare any dividend on any shares of Common
Stock (except dividends payable solely in shares of Common Stock) while any
Series A Preferred or Series B Preferred remains outstanding or apply any of its
assets to the redemption, retirement, purchase or acquisition, directly or
indirectly, through subsidiaries or otherwise, of any shares of Common Stock,
except from officers, directors, employees or consultants of the corporation
upon termination of the employment or consulting relationship between the
corporation and such persons pursuant to the terms of restrictive stock
agreements providing for such repurchase of such shares of Common Stock between
the corporation and such persons;
(v) merge with or into any other corporation (other than a
wholly-owned subsidiary of this corporation) resulting in the exchange of 50% of
the outstanding shares of this corporation for securities issued, or caused to
be issued, by the acquiring corporation or its subsidiary, or sell or otherwise
transfer in a single transaction or a series of related transactions all or
substantially all assets of this corporation; or
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(vi) increase the authorized number of shares of Series A
Preferred or Series B Preferred.
(bb) In addition to any other rights provided by law, so long
as any Series C Preferred shall be outstanding, this corporation shall not,
without first obtaining the affirmative vote or written consent of the holders
of not less than a majority of the outstanding shares of Series C Preferred,
voting separately as a class:
(i) amend or repeal any provision of, or add any provision
to, this corporation's Articles of Incorporation or Bylaws if such action would
materially and adversely alter or change the rights, preferences, privileges or
restrictions of any outstanding Series C Preferred;
(ii) authorize or issue shares of any class of stock
having any preference or priority as to dividends, voting rights, liquidation
preferences or assets superior to or on a parity with any such preference or
priority of the Series C Preferred or authorize or issue shares of stock of any
class or any bonds, debentures, notes or other obligations convertible into or
exchangeable for, or having option rights to purchase, any shares of stock of
this corporation having any preference or priority as to dividends, voting
rights, liquidation preferences or assets superior to or on a parity with any
such preference or priority of the Series C Preferred;
(iii) reclassify any shares of Common Stock into shares
having any preference or priority as to dividends, voting rights, liquidation
preferences or assets superior to or on a parity with any such preference or
priority of the Series C Preferred;
(iv) pay or declare any dividend on any shares of Common
Stock (except dividends payable solely in shares of Common Stock) while any
Series C Preferred remains outstanding or apply any of its assets to the
redemption, retirement, purchase or acquisition, directly or indirectly, through
subsidiaries or otherwise, of any shares of Common Stock, except from officers,
directors, employees or consultants of the corporation upon termination of the
employment or consulting relationship between the corporation and such persons
pursuant to the terms of restrictive stock agreements providing for such
repurchase of such shares of Common Stock between the corporation and such
persons;
(v) merge with or into any other corporation (other than a
wholly-owned subsidiary of this corporation) resulting in the exchange of 50% of
the outstanding shares of this corporation for securities issued, or caused to
be issued, by the acquiring corporation or its subsidiary, or sell or otherwise
transfer in a single transaction or a series of related transactions all or
substantially all assets of this corporation;
(vi) increase the authorized number of shares of Series C
Preferred;
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(vii) do any act or thing which would result in taxation
of the holders of shares of Series C Preferred under Section 305 of the Internal
Revenue Code of 1986, as amended (or any successor provision); or
(viii) amend the Bylaws of the corporation to increase the
number of authorized number of directors to more than seven (7).
(6) Residual Rights. All rights accruing to the outstanding
shares of this corporation not expressly provided for to the contrary herein
shall be vested in the Common Stock.
ARTICLE V
The Board of Directors of the corporation is expressly authorized to make,
alter or repeal Bylaws of the corporation, but the stockholders may make
additional Bylaws and may alter or repeal any Bylaw whether adopted by them or
otherwise.
ARTICLE VI
Elections of directors need not be by written ballot unless otherwise
provided in the Bylaws of the corporation.
ARTICLE VII
(A) 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 breach of fiduciary duty as a director.
(B) The corporation shall 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, his testator or intestate is or was a director, officer or employee of
the corporation or any predecessor of the corporation, or serves or served at
any other enterprise as a director, officer or employee at the request of the
corporation or any predecessor to the corporation.
(C) Neither any amendment nor repeal of this Article VII, nor the adoption
of any provision of this corporation's Certificate of Incorporation inconsistent
with this Article VII, shall eliminate or reduce the effect of this Article VII
in respect of any matter occurring, or any action or proceeding accruing or
arising or that, but for this Article VII, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
ARTICLE VIII
The corporation is to have perpetual existence.
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ARTICLE IX
The number of directors which will constitute the whole Board of Directors
of the corporation shall be designated in the Bylaws of the corporation.
ARTICLE X
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 statutory provision) outside the State of Delaware at such place
or places as may be designated from time to time by the Board of Directors in
the Bylaws of the corporation.
ARTICLE XI
"Listing Event" as used in this Amended and Restated Certificate of
Incorporation shall mean the Corporation becoming a "Listed Corporation" within
the meaning of Section 301.5 of the California Corporations Code. For the
management of the business and for the conduct of the affairs of the
Corporation, and in further definition, limitation and regulation of the powers
of the Corporation, its directors and its stockholders or any class thereof, as
the case may be, it is further provided that, effective upon the occurrence of
the Listing Event:
(i) The Board of Directors of the Corporation shall divide the
directors into three classes, as nearly equal in number as reasonably possible
with the term of office of the first class to expire at the 1997 annual meeting
of stockholders or any special meeting in lieu thereof, the term of office of
the second class to expire at the 1998 annual meeting of stockholders or any
special meeting in lieu thereof and the term of office of the third class to
expire at the 1999 annual meeting of stockholders or any special meeting in lieu
thereof. At each annual meeting of stockholders or special meeting in lieu
thereof following such initial classification, directors elected to succeed
those directors whose terms expire shall be elected for a term of office to
expire at the third succeeding annual meeting of stockholders or special meeting
in lieu thereof after their election and until their successors are duly elected
and qualified.
(ii) Subject to the rights of the holders of any series of
Preferred Stock then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause may be filled only by a majority vote of the
directors then in office even though less than a quorum, or by a sole remaining
director. In the event of any increase or decrease in the authorized number of
directors, (i) each director then serving as such shall nevertheless continue as
a director of the class of which he or she is a member until the expiration of
his or her current term or his or her prior death, retirement, removal or
resignation and (ii) the newly created or eliminated directorships resulting
from such increase or decrease shall
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if reasonably possible be apportioned by the Board of Directors among the three
classes of directors so as to ensure that no one class has more than one
director more than any other class. To the extent reasonably possible,
consistent with the foregoing rule, any newly created directorships shall be
added to those classes whose terms of office are to expire at the latest dates
following such allocation and newly eliminated directorships shall be subtracted
from those classes whose terms of office are to expire at the earliest dates
following such allocation, unless otherwise provided for from time to time by
resolution adopted by a majority of the directors then in office, although less
than a quorum. In the event of a vacancy in the Board of Directors, the
remaining directors, except as otherwise provided by law, may exercise the
powers of the full Board of Directors until the vacancy is filled.
Notwithstanding the foregoing provisions of this Article XI, each director shall
serve until his or her successor is duly elected and qualified or until his or
her death, resignation, or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
(iii) There shall be no right with respect to shares of stock
of the corporation to cumulate votes in the election of directors.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed this certificate on July
3, 1996.
_____________________________________
Edmund S. Ruffin, Jr., Incorporator
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