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EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF QUINTUS CORPORATION,
A Delaware Corporation
Quintus Corporation, a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "General Corporation
Law"),
DOES HEREBY CERTIFY THAT:
FIRST: The name of the corporation is Quintus Corporation and that the
corporation was originally incorporated on June 11, 1990 under the name QTNEWCO,
INC.
pursuant to the General Corporation Law.
SECOND: The Board of Directors of the corporation, at a meeting duly
called and held, adopted resolutions amending and restating the Certificate of
Incorporation to read in full as follows:
"RESOLVED, that the Certificate of Incorporation of the corporation
(the "Certificate") be and it hereby is amended and restated to read in its
entirety as follows:
ARTICLE I
The name of this corporation is Quintus Corporation.
ARTICLE II
The address of the registered office of the corporation in the State of
Delaware is 1209 Orange Street in the City of Wilmington, County of New Castle,
Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law.
ARTICLE IV
A. Classes of Stock. This corporation is authorized to issue two
classes of stock to be designated, respectively, "Common Stock" and "Preferred
Stock," each with a par value of $0.001 per share. The total number of shares
which this corporation is authorized to issue is Fifty-Nine Million Fifty-Five
Thousand (59,055,000) shares. Forty Million (40,000,000) shares shall be Common
Stock and Nineteen Million Fifty-Five Thousand (19,055,000) shares shall be
Preferred Stock.
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B. Rights, Preferences and Restrictions of Preferred Stock. The
Preferred Stock authorized by this Certificate of Incorporation may be issued
from time to time in series. The rights, preferences, privileges, and
restrictions granted to and imposed on the Series A Preferred Stock (the "Series
A Preferred Stock"), which series shall consist of Nine Million One Hundred
Thousand (9,100,000) shares, the Series B Preferred Stock (the "Series B
Preferred Stock"), which series shall consist of One Million (1,000,000) shares,
the Series C Preferred Stock (the "Series C Preferred Stock"), which series
shall consist of Three Million (3,000,000) shares, the Series D Preferred Stock
(the "Series D Preferred Stock"), which series shall consist of One Million Four
Hundred Fifty-Five Thousand (1,455,000) shares, the Series E Preferred Stock
(the "Series E Preferred Stock"), which series shall consist of Three Million
(3,000,000) shares and the Series F Preferred Stock (the "Series F Preferred
Stock"), which series shall consist of One Million Five Hundred Thousand
(1,500,000) shares, are as set forth below in this Article IV(B). The Board of
Directors of this corporation is hereby authorized to fix or alter the rights,
preferences, privileges, and restrictions granted to or imposed upon additional
series of Preferred Stock, and the number of shares constituting any such series
and the designation thereof, or any of them. Subject to compliance with
applicable protective voting rights which have been or may be granted to the
Preferred Stock or series thereof ("Protective Provisions") and other applicable
rights under the General Corporation Law, but notwithstanding any other rights
of the Preferred Stock or any series thereof, the rights, privileges,
preferences and restrictions of any such additional series may be subordinated
to, pari passu with (including, without limitation, inclusion in provisions with
respect to liquidation and acquisition preferences, redemption and/or approval
of matters by vote or written consent), or senior to any of those of any present
or future class or series of Preferred or Common Stock. Subject to compliance
with applicable Protective Provisions, the Board of Directors is also authorized
to increase or decrease the number of shares of any series (other than the
Series A Preferred Stock, the Series B Preferred Stock, the Series C Preferred
Stock, the Series D Preferred Stock, the Series E Preferred Stock or the Series
F Preferred Stock) prior or subsequent to the issue of that series, but not
below the number of shares of such series then outstanding. In case the number
of shares of any series shall be so decreased, the shares constituting such
decrease shall resume the status which they had prior to the adoption of the
resolution originally fixing the number of shares of such series.
1. Dividend Provisions.
(a) The holders of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred
Stock and Series F Preferred Stock shall be entitled to receive dividends, out
of any assets legally available therefor, prior and in preference to any
declaration or payment of any dividend (payable other than in Common Stock or
other non-redeemable equity securities and rights convertible into or entitling
the holder thereof to receive, directly or indirectly, additional shares of
Common Stock of this corporation) on the Common Stock of this corporation, at
the per share rate of $0.20, $0.286, $0.382, $0.55, $0.83 and $1.65 per annum,
respectively, (as adjusted for any stock dividends, combinations or splits with
respect to such shares) or, if greater (as determined on a per annum basis), an
amount equal to that paid on any other outstanding shares of this corporation,
payable only when and if declared by the Board of Directors. If any dividends
are declared or paid in any year on the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock, the
Series E Preferred Stock and the Series F Preferred Stock in an
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amount less than $0.20, $0.286, $0.382, $0.55, $0.83 and $1.65 respectively, per
share, all such Series A, Series B, Series C, Series D, Series E and Series F
Preferred Stock dividends during such year shall be declared or paid, as
applicable, ratably among the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred
Stock and Series F Preferred Stock in proportion to the full preferential
dividend amounts for such Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and
Series F Preferred Stock set forth above. The right to such dividends on shares
of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock and Series F Preferred Stock
shall not be cumulative and no right shall accrue to holders of shares of Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock or Series F 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.
(b) In the event this corporation shall declare any other
dividend or 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 evidence of
indebtedness, then, in each such case the holders of the Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock, Series E Preferred Stock and Series F Preferred Stock shall be entitled
to a proportionate share of any such dividend or distribution as though the
holders of the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F
Preferred Stock were the holders of the number of shares of Common Stock of this
corporation into which their respective shares of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock and Series F 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.
2. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up
of this corporation, either voluntary or involuntary, subject to the rights of
series of Preferred Stock which may from time to time come into existence, the
holders of Series F Preferred Stock shall be entitled to receive, prior and in
preference to any distribution of any of the assets of this corporation to the
holders of the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Common
Stock by reason of their ownership thereof, an amount per share equal to $8.25
(the "Original Series F Issue Price") for each share (as adjusted for any stock
dividends, combinations or splits with respect to such shares) of Series F
Preferred Stock held by each such holder plus any undeclared but unpaid
dividends on such share (the "Series F Liquidation Preference"). After payment
of the Series F Liquidation Preference, the holders of the Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock and Series E Preferred Stock shall be entitled to receive, prior and in
preference to any distribution of any of the assets of this corporation to the
holders of the Common Stock by reason of their ownership thereof, (i) an amount
per share equal to $1.00 (the "Original Series A Issue Price") for each share
(as adjusted for any stock dividends, combinations or splits with respect to
such shares) of Series A Preferred
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Stock held by each such holder plus any declared but unpaid dividends on such
share, (ii) an amount per share equal to $1.43 (the "Original Series B Issue
Price") for each share (as adjusted for any stock dividends, combinations or
splits with respect to such shares) of Series B Preferred Stock held by each
such holder plus any declared but unpaid dividends on such share, (iii) an
amount per share equal to $1.91 (the "Original Series C Issue Price") for each
share (as adjusted for any stock dividends, combinations or splits with respect
to such shares) of Series C Preferred Stock held by each such holder plus any
undeclared but unpaid dividends on such share, (iv) an amount per share equal to
$2.75 (the "Original Series D Issue Price") for each share (as adjusted for any
stock dividends, combinations or splits with respect to such shares) of Series D
Preferred Stock held by each such holder plus any undeclared but unpaid
dividends on such share, and (v) an amount per share equal to $4.15 (the
"Original Series E Issue Price") for each share (as adjusted for any stock
dividends, combinations or splits with respect to such shares) of Series E
Preferred Stock held by each such holder plus any undeclared but unpaid
dividends on such share. If upon the occurrence of such event and after payment
of the Series F Liquidation Preference, the assets and funds thus distributed
among the holders of the Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock
shall be insufficient to permit the payment to such holders of the full
aforesaid preferential amounts, then, subject to the rights of series of
Preferred Stock which may from time to time come into existence, the assets and
funds of this corporation legally available for distribution shall be
distributed ratably among the holders of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series E
Preferred Stock in proportion to the full preferential amount each such holder
is otherwise entitled to receive under this subsection 2(a).
(b) Upon the completion of the distributions required by
subsection (a) of this Section 2, the remaining assets of this corporation
available for distribution to stockholders shall be distributed among the
holders of Series E Preferred Stock, Series F Preferred Stock and Common Stock
pro rata based on the number of shares of Common Stock held by each (assuming
full conversion of all such Series E Preferred Stock and Series F Preferred
Stock) until, with respect to the holders of the Series E Preferred Stock and
Series F Preferred Stock, such holders shall have received an aggregate of
$10.375 per share and $12.375 per share, respectively (as adjusted for any stock
splits, stock dividends, recapitalizations or the like) (including amounts paid
pursuant to subsection (a) of this Section 2); thereafter, if assets remain in
this corporation, the holders of the Common Stock of this corporation shall
receive all of the remaining assets of this corporation pro rata based on the
number of shares of Common Stock held by each.
(c) A consolidation or merger of this corporation with or into
any other corporation or corporations (other than a wholly-owned subsidiary or
parent corporation), or a sale, conveyance or disposition of all or
substantially all of the assets of this corporation or the effectuation by this
corporation of a transaction or series of related transactions in which more
than 50% of the voting power of this corporation is disposed of, shall be deemed
to be a liquidation, dissolution or winding up within the meaning of this
Section 2.
(d) In the event a liquidation, dissolution or winding up of
this corporation under this Section 2 is effected, whether in whole or in part,
through a noncash
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distribution, such noncash distribution shall be valued at the fair value
thereof as determined in good faith by the Board of Directors of this
corporation.
3. Conversion. The holders of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock and Series F Preferred Stock shall have conversion rights (the
"Conversion Rights") as follows:
(a) Right to Convert. The Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock shall be
convertible, at any time upon the election of the holders of at least a majority
of the then-outstanding shares of Series A Preferred, Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock, voting together as a
single class, into shares of Common Stock and a right to receive cash, (i) with
each share of Series A Preferred Stock converting upon such an election into
such number of fully paid and nonassessable shares of Common Stock as is
determined by dividing the Original Series A Issue Price by the Conversion Price
applicable to Series A Preferred Stock, determined as hereafter provided, in
effect on the date of such conversion and a right to receive from this
corporation a cash payment in an amount equal to $0.925 for each share of Series
A Preferred Stock held, plus all declared but unpaid dividends on such share
(the "Series A Cash Amount"), (ii) with each share of Series B Preferred Stock
converting upon such an election into such number of fully paid and
nonassessable shares of Common Stock as is determined by dividing the Original
Series B Issue Price by the Conversion Price applicable to Series B Preferred
Stock, determined as hereafter provided, in effect on the date of such
conversion and a right to receive from this corporation a cash payment in an
amount equal to $1.325 for each share of Series B Preferred Stock held, plus all
declared but unpaid dividends on such share (the "Series B Cash Amount"), (iii)
with each share of Series C Preferred Stock converting upon such an election
into such number of fully paid and nonassessable shares of Common Stock as is
determined by dividing the Original Series C Issue Price by the Conversion Price
applicable to the Series C Preferred Stock, determined as hereafter provided, in
effect on the date of such conversion and a right to receive from this
corporation a cash payment in an amount equal to $1.765 for each share of Series
C Preferred Stock held, plus all declared but unpaid dividends on such share
(the "Series C Cash Amount") and (iv) with each share of Series D Preferred
Stock converting upon such an election into such number of fully paid and
nonassessable shares of Common Stock as is determined by dividing the Original
Series D Issue Price by the Conversion Price applicable to Series D Preferred
Stock, determined as hereafter provided, in effect on the date of such
conversion and a right to receive from this corporation a cash payment in an
amount equal to $2.544 for each share of Series D Preferred Stock held, plus all
declared but unpaid dividends on such share (the "Series D Cash Amount"). Each
share of Series E Preferred Stock and Series F Preferred Stock shall be
convertible, at the option of the holder thereof at any time after the date of
issuance of such share, into such number of fully paid and nonassessable shares
of Common Stock as is determined by dividing the Original Series E Issue Price
or Original Series F Issue Price, as the case may be, by the Conversion Price
(determined as hereinafter provided) per share in effect for such series of
Preferred Stock at the time of conversion. The initial Conversion Price per
share for shares of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F
Preferred Stock shall be the Original Series A Issue Price, the Original Series
B Issue Price, the Original Series C Issue Price, the Original Series D Issue
Price, the Original Series E Issue Price and the Original Series F Issue Price,
respectively; provided, however, that the Conversion Prices
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for the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock, Series E Preferred Stock and Series F Preferred
Stock shall be subject to adjustment as set forth in subsection 3(d). The Series
A Cash Amount, the Series B Cash Amount, the Series C Cash Amount and the Series
D Cash Amount are sometimes hereinafter referred to collectively as the "Cash
Amounts."
(b) Automatic Conversion.
(i) Each share of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock shall
automatically be converted into shares of Common Stock and a right to receive
cash, with each share of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock converting into: (i) fully
paid and nonassessable shares of Common Stock at the respective Conversion
Prices for each of the Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock at the time in effect for
such Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock, respectively; and (ii) a right to receive
from this corporation a cash payment in an amount equal to the Series A Cash
Amount for each share of Series A Preferred Stock held, the Series B Cash Amount
for each share of Series B Preferred Stock held, the Series C Cash Amount for
each share of Series C Preferred Stock held and the Series D Cash Amount for
each share of Series D Preferred Stock held, except as provided below in
subsection 3(c), immediately upon the corporation's sale of its Common Stock in
a firm commitment underwritten public offering pursuant to a registration
statement on Form S-1 under the Securities Act of 1933, as amended, the public
offering price of which is not less than $40,000,000 in the aggregate.
(ii) Each share of Series E Preferred Stock shall
automatically be converted into shares of Common Stock at the Conversion Price
at the time in effect for such Series E Preferred Stock immediately upon the
earlier of (A) the corporation's sale of its Common Stock in a firm commitment
underwritten public offering pursuant to a registration statement on Form S-1
under the Securities Act of 1933, as amended, the public offering price of which
was not less than $40,000,000 in the aggregate, or (B) the date specified by
written consent or agreement of the holders of at least sixty percent (60%) of
the then outstanding shares of Series E Preferred Stock; provided, however, that
to the extent that the Series E Preferred Stock would automatically convert into
Common Stock pursuant to clause (A) of this subsection 3(b)(ii) and the public
offering price is less than $8.30 per share (adjusted to reflect subsequent
stock dividends, stock splits or recapitalization) (as so adjusted, the "Series
E Price"), each share of Series E Preferred Stock shall automatically convert
into such number of fully paid and nonassessable shares of Common Stock as is
determined (X) by dividing the Series E Price by the price per share of the
public offering or (Y) by dividing the Original Series E Issue Price by the
Conversion Price applicable to the Series E Preferred Stock (as adjusted, if
applicable, by Section 3(d)) in effect on the date of such conversion, whichever
is greater.
(iii) Each share of Series F Preferred Stock shall
automatically be converted into shares of Common Stock at the Conversion Price
then in effect for such series of Preferred Stock immediately upon the earlier
of (A) the corporation's sale of its Common Stock in a firm commitment
underwritten public offering pursuant to a registration statement on Form S-1
under the Securities Act of 1933, as amended, the public offering price of
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which is not less than $40,000,000 in the aggregate, or (B) the date specified
by written consent or agreement of the holders of at least a majority of the
then outstanding shares of Series F Preferred Stock, respectively; provided,
however, that to the extent that the Series F Preferred Stock would
automatically convert into Common Stock pursuant to clause (A) of this
subsection 3(b)(ii) and the public offering price is less than $11.00 per share
(adjusted to reflect subsequent stock dividends, stock splits or
recapitalization), each share of Series F Preferred Stock shall automatically
convert into such number of fully paid and nonassessable shares of Common Stock
as is determined (X) by dividing $11.00 by the price per share of the public
offering or (Y) by dividing the Original Series F Issue Price by the Conversion
Price per share (as adjusted, if applicable, by Section 3(d)) in effect for such
series of Preferred Stock at the time of such conversion, whichever is greater.
(c) Mechanics of Conversion. Following such a conversion, each
holder of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock, Series E Preferred Stock or Series F Preferred
Stock shall surrender the certificate or certificates therefor, duly endorsed,
at the office of this corporation or of any transfer agent for such holder, and
shall indicate in writing the name or names in which the certificate or
certificates for shares of Common Stock are to be issued. This corporation shall
issue and deliver to each such holder, or to the nominee or nominees of such
holder, a certificate or certificates for the number of shares of Common Stock
to which such holder shall be entitled pursuant to Section 3(a) or Section 3(b)
above, as applicable, and shall pay (i) to each holder of Series A Preferred
Stock the applicable Series A Cash Amount for each share of Series A Preferred
Stock held by such holder, (ii) to each holder of Series B Preferred Stock the
applicable Series B Cash Amount for each share of Series B Preferred Stock held
by such holder, (iii) to each holder of Series C Preferred Stock the applicable
Series C Cash Amount for each share of Series C Preferred Stock held by such
holder, and (iv) to each holder of Series D Preferred Stock the applicable
Series D Cash Amount for each share of Series D Preferred Stock held by such
holder, payable by check or wire transfer within ten calendar days following
such conversion. In the case of conversion pursuant to Section 3(a), such
conversion shall be deemed to have been made immediately prior to the close of
business on the date of such election to convert the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock or Series F Preferred Stock, as the case may be, and
the holders entitled to receive the shares of Common Stock issuable and Cash
Amounts payable upon such conversion shall be treated for all purposes as the
record holder or holders of such shares of Common Stock as of such date. If the
conversion is in connection with a public offering of the Company's Common
Stock, the conversion may, at the election of the holders requesting such
conversion, be conditioned upon the closing of the sale of securities pursuant
to such public offering, in which event the conversion of the Series A Preferred
Stock, the Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock and Series F Preferred Stock shall not
be deemed to have occurred until immediately subsequent to the closing of such
sale of securities. If the funds of this corporation legally available for
payment of the total Cash Amounts upon conversion of the Series A Preferred
Stock, the Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock are insufficient at the time of such conversion to pay in full
the total Cash Amounts required upon such conversion, those funds that are
legally available at such time, if any, shall be applied ratably to the payment
of the Cash Amounts, and, thereafter, when additional funds of this corporation
become legally
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available for payment of the remaining portion of such total Cash Amounts, such
funds shall be applied ratably to the payment of such remaining Cash Amounts
until it is paid in full.
(d) Conversion Price Adjustments of Preferred Stock for Certain
Dilutive Issuances, Splits and Combinations. The Conversion Price of the Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock and Series F Preferred Stock shall be
subject to adjustment from time to time as follows:
(i) (A) If the corporation shall issue, after the date upon
which any shares of Series A Preferred Stock are first issued (the "Series A
Purchase Date") or the shares of Series B Preferred Stock are first issued (the
"Series B Purchase Date") or the shares of Series C Preferred Stock are first
issued (the "Series C Purchase Date") or the shares of Series D Preferred Stock
are first issued (the "Series D Purchase Date") or the shares of Series E
Preferred Stock are first issued (the "Series E Purchase Date") or the shares of
Series F Preferred Stock are first issued (the "Series F Purchase Date") (the
"Purchase Date" with respect to such series), any Additional Stock (as defined
below) without consideration or for a consideration per share less than the
Conversion Price for such series in effect immediately prior to the issuance of
such Additional Stock, the Conversion Price for such series in effect
immediately prior to each such issuance shall forthwith (except as otherwise
provided in this clause (i)) be adjusted 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 issuance
(including the number of shares of Common Stock issuable upon conversion of
outstanding Preferred Stock) plus the number of shares of Common Stock that the
aggregate consideration received by the corporation for such issuance would
purchase at such Conversion Price; and the denominator of which shall be the
number of shares of Common Stock (including the number of share of Common Stock
issuable upon conversion of outstanding Preferred Stock) outstanding immediately
prior to such issuance plus the number of shares of such Additional Stock.
(B) No adjustment of the Conversion Price for the Series
A Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock,
the Series D Preferred Stock, the Series E Preferred Stock, or the Series F
Preferred Stock shall be made in an amount less than one cent per share,
provided that any adjustments which are not required to be made by reason of
this sentence shall be carried forward and shall be either taken into account in
any subsequent adjustment made prior to 3 years from the date of the event
giving rise to the adjustment being carried forward, or shall be made at the end
of 3 years from the date of the event giving rise to the adjustment being
carried forward. Except to the limited extent provided for in subsections
3(d)(i)(E)(3) and 3(d)(i)(E)(4), no adjustment of such Conversion Price pursuant
to this subsection 3(d)(i)(B) shall have the effect of increasing the Conversion
Price above the Conversion Price in effect immediately prior to such adjustment.
(C) In the case of the issuance of Common Stock for
cash, the consideration shall be deemed to be the amount of cash paid therefor
before deducting any reasonable discounts, commissions or other expenses
allowed, paid or incurred by this corporation for any underwriting or otherwise
in connection with the issuance and sale thereof.
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(D) In the case of the issuance of the Common Stock for
a consideration in whole or in part other than cash, the consideration other
than cash shall be deemed to be the fair value thereof as determined by the
Board of Directors irrespective of any accounting treatment.
(E) In the case of the issuance (whether before, on or
after the applicable Purchase Date) of options to purchase or rights to
subscribe for Common Stock, securities by their terms convertible into or
exchangeable for Common Stock or options to purchase or rights to subscribe for
such convertible or exchangeable securities, the following provisions shall
apply for all purposes of this subsection 3(d)(i) and subsection 3(d)(ii):
(1) The aggregate maximum number of shares of Common
Stock deliverable upon exercise (to the extent then exercisable) of such options
to purchase or rights to subscribe for Common Stock shall be deemed to have been
issued at the time such options or rights were issued and for a consideration
equal to the consideration (determined in the manner provided in subsections
3(d)(i)(C) and 3(d)(i)(D)), if any, received by the corporation upon the
issuance of such options or rights plus the minimum exercise price provided in
such options or rights (without taking into account potential antidilution
adjustments) for the Common Stock covered thereby.
(2) The aggregate maximum number of shares of Common
Stock deliverable upon conversion of or in exchange (to the extent then
convertible or exchangeable) for any such convertible or exchangeable securities
or upon the exercise of options to purchase or rights to subscribe for such
convertible or exchangeable securities and subsequent conversion or exchange
thereof shall be deemed to have been issued at the time such securities were
issued or such options or rights were issued and for a consideration equal to
the consideration, if any, received by the corporation for any such securities
and related options or rights (excluding any cash received on account of accrued
interest or accrued dividends), plus the minimum additional consideration, if
any, to be received by the corporation (without taking into account potential
antidilution adjustments) upon the conversion or exchange of such securities or
the exercise of any related options or rights (the consideration in each case to
be determined in the manner provided in subsections 3(d)(i)(C) and 3(d)(i)(D)).
(3) In the event of any change in the number of
shares of Common Stock deliverable or in the consideration payable to this
corporation upon exercise of such options or rights or upon conversion of or in
exchange for such convertible or exchangeable securities, including, but not
limited to, a change resulting from the antidilution provisions thereof, the
Conversion Prices of the Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and
Series F Preferred Stock, to the extent in any way affected by or computed using
such options, rights or securities, shall be recomputed to reflect such change,
but no further adjustment shall be made for the actual issuance of Common Stock
or any payment of such consideration upon the exercise of any such options or
rights or the conversion or exchange of such securities.
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(4) Upon the expiration of any such options or
rights, the termination of any such rights to convert or exchange or the
expiration of any options or rights related to such convertible or exchangeable
securities, the Conversion Prices of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock and Series F Preferred Stock, to the extent in any way affected
by or computed using such options, rights or securities or options or rights
related to such securities, shall be recomputed to reflect the issuance of only
the number of shares of Common Stock (and convertible or exchangeable securities
which remain in effect) actually issued upon the exercise of such options or
rights, upon the conversion or exchange of such securities or upon the exercise
of the options or rights related to such securities.
(5) The number of shares of Common Stock deemed
issued and the consideration deemed paid therefor pursuant to subsections
3(d)(i)(E)(1) and 3(d)(i)(E)(2) shall be appropriately adjusted to reflect any
change, termination or expiration of the type described in either subsection
3(d)(i)(E)(3) or 3(d)(i)(E)(4).
(ii) "Additional Stock" shall mean any shares of Common Stock
issued (or deemed to have been issued pursuant to subsection 3(d)(i)(E)) by this
corporation after the applicable Purchase Date other than
(A) securities issued pursuant to a transaction
described in subsection 3(d)(iii) hereof;
(B) shares of Common Stock issuable or issued to
employees, consultants or directors of this corporation directly or pursuant to
stock option plans or restricted stock plans approved by the Board of Directors
of this corporation prior to the Series E Purchase Date and pursuant to stock
option plans or restricted stock plans approved by the Board of Directors of
this corporation after the Series F Purchase Date and approved by the holders of
a majority of outstanding shares of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock and Series F Preferred
Stock, voting together as a single class;
(C) securities issuable upon the conversion of the
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock or Series F Preferred Stock;
(D) securities issued pursuant to the acquisition of
another business entity or business segment of any such entity by this
corporation by merger, purchase of substantially all the assets or other
reorganization whereby this corporation will own a majority of the voting power
of such business entity or business segment of any such entity, in each such
instance, approved by the Board of Directors;
(E) securities issued to vendors or customers or to
other persons in similar commercial situations with this corporation if such
issuance is approved by the Board of Directors;
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(F) securities issued in connection with obtaining lease
financing, whether issued to a lessor, guarantor or other person if such
issuance is approved by the Board of Directors;
(G) any right, option or warrant to acquire any security
convertible into the securities excluded from the definition of Additional Stock
pursuant to subsections (D) through (F) above;
(H) warrants issued April 17, 1996 to purchase 5,000
shares of Common Stock and the Common Stock issuable upon exercise thereof;
(I) warrants issued August 16, 1996 to purchase 192,262
shares of Series B Preferred Stock and the Preferred Stock issuable upon
exercise thereof;
(J) warrants to purchase 331,312 shares of Common Stock
and the Common Stock issuable upon exercise thereof issued pursuant to that
certain Note and Warrant Purchase Agreement dated November 10, 1997 by and among
the corporation and the other parties thereto;
(K) warrants to purchase 300,000 shares of Common Stock
issued on or about August 19, 1999 and the Common Stock issuable upon exercise
thereof.
(iii) In the event the corporation should at any time or from
time to time after the Series A Purchase Date, the Series B Purchase Date, the
Series C Purchase Date, the Series D Purchase Date, the Series E Purchase Date,
or the Series F Purchase Date fix a record date for the effectuation of a split
or subdivision of the outstanding shares of Common Stock or the determination of
holders of Common Stock entitled to receive a dividend or other distribution
payable in additional shares of Common Stock or other securities or rights
convertible into, or entitling the holder thereof to receive directly or
indirectly, additional shares of Common Stock (hereinafter referred to as
"Common Stock Equivalents") without payment of any consideration by such holder
for the additional shares of Common Stock or the Common Stock Equivalents
(including the additional shares of Common Stock issuable upon conversion or
exercise thereof), then, as of such record date (or the date of such dividend
distribution, split or subdivision if no record date is fixed), the Conversion
Price of the Series A Preferred Stock, the Series B Preferred Stock, the Series
C Preferred Stock, the Series D Preferred Stock, the Series E Preferred Stock
and the Series F Preferred Stock, respectively, shall be appropriately decreased
so that the number of shares of Common Stock issuable on conversion of each
share of such series shall be increased in proportion to such increase of the
aggregate of shares of Common Stock outstanding and those issuable with respect
to such Common Stock Equivalents.
(iv) If the number of shares of Common Stock outstanding at
any time after the Series A Purchase Date, Series B Purchase Date, Series C
Purchase Date, Series D Purchase Date, Series E Purchase Date or Series F
Purchase Date is decreased by a combination of the outstanding shares of Common
Stock, then, following the record date of such combination, the Conversion Ratio
shall be appropriately adjusted so that the
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number of shares of Common Stock issuable on conversion of each share of Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock and Series F Preferred Stock,
respectively, shall be decreased in proportion to such decrease in outstanding
shares.
(e) Other Distributions. 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 not referred to in subsection 3(d)(iii), then, in each such
case for the purpose of this subsection 3(e), the holders of the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock and Series F Preferred Stock shall be
entitled to a proportionate share of any such distribution as though they were
the holders of the number of shares of Common Stock of the corporation into
which their shares of Series A Preferred Stock, Series B Preferred Stock, Series
C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series
F Preferred Stock, respectively, 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.
(f) Recapitalizations. If at any time or from time to time there
shall be a recapitalization of the Common Stock (other than a subdivision,
combination or merger or sale of assets transaction provided for elsewhere in
this Section 3), provision shall be made so that the holders of the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, and Series F Preferred Stock shall
thereafter be entitled to receive upon conversion of the Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock, Series E Preferred Stock and Series F Preferred Stock, respectively, the
number of shares of stock or other securities or property of the Company or
otherwise, to which a holder of Common Stock deliverable upon conversion would
have been entitled on such recapitalization. In any such case, appropriate
adjustment shall be made in the application of the provisions of this Section 3
with respect to the rights of the holders of the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock and Series F Preferred Stock after the recapitalization
to the end that the provisions of this Section 3 (including adjustment of the
Conversion Price then in effect and the number of shares purchasable upon
conversion of the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F
Preferred Stock) shall be applicable after that event as nearly equivalent as
may be practicable.
(g) No Impairment. This corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, recapitalization,
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 this
corporation, but will at all times in good faith assist in the carrying out of
all the provisions hereof 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 Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F
Preferred Stock against impairment.
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(h) No Fractional Shares. No fractional shares shall be issued upon
conversion of the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock or Series F
Preferred Stock, and the number of shares of Common Stock to be issued shall be
rounded to the nearest whole share. Such rounding shall be based on the total
number of shares of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock or Series F
Preferred Stock such holder is converting into Common Stock and the number of
shares of Common Stock issuable upon such aggregate conversion.
(i) Reservation of Stock Issuable Upon Conversion. This 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
Preferred Stock such number of its shares of Common Stock as shall from time to
time be sufficient to effect the conversion of all outstanding shares of
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 Preferred Stock, in addition to such other remedies as
shall be available to the holder of such Preferred Stock, this 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 purposes.
4. Notices of Record Date. In the event of any taking by this
corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, this
corporation shall mail to each applicable holder of Preferred Stock, at least 20
days prior to the date specified therein, a notice specifying the date on which
any such record is to be taken for the purpose of such dividend, distribution or
right, and the amount and character of such dividend, distribution or right.
5. Voting Rights.
(a) Subject to Section 5(b) below, the Common Stock and Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock and Series F Preferred Stock will vote
together as a single class on all matters submitted for stockholder consent or
approval; provided, however, that if at any time the voting power of the
then-outstanding Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F
Preferred Stock would otherwise be insufficient to elect all of this
corporation's directors (any period during which such condition exists referred
to as the "Voting Shift Period"), then, during the Voting Shift Period, (i) the
number of authorized directors of this corporation shall be set at a number not
less than five (5), (ii) the Series A Preferred Stock and Series B Preferred
Stock then outstanding shall be entitled to elect, voting as a separate class,
that number of directors equal to three-fourths (3/4ths) of the then-authorized
directors (rounded to the nearest whole number), (iii) the Series C Preferred
Stock shall be entitled, pursuant to subsection 5(b), to elect, voting
separately as a series, one (1) director, and (iii) the holders of the Common
Stock then outstanding shall be entitled to elect the remaining number of
authorized directors.
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(b) The holders of the Series C Preferred Stock, voting separately
as a series, shall be entitled to elect one (1) member of the Board of
Directors.
(c) The holder of each share of Series A Preferred Stock shall have
ten votes for each share of Common Stock into which such Series A Preferred
Stock could then be converted (with any fractional share determined on an
aggregate conversion basis being rounded to the nearest whole share), and with
respect to such votes by the holders of Series A Preferred Stock, each share of
Series A Preferred Stock shall have full voting rights and powers equal to the
voting rights and powers of ten shares of Common Stock, and the holders thereof
shall be entitled, notwithstanding any provision hereof, to notice of any
stockholders' meeting in accordance with the bylaws of this corporation, and
shall be entitled to vote, together with holders of Common Stock, with respect
to any question upon which holders of Common Stock have the right to vote. The
holder of each share of Series B Preferred Stock shall have fourteen votes for
each share of Common Stock into which such Series B Preferred Stock could then
be converted (with any fractional share determined on an aggregate conversion
basis being rounded to the nearest whole share), and with respect to such votes
by the holders of Series B Preferred Stock, each share of Series B Preferred
Stock shall have full voting rights and powers equal to the voting rights and
powers of fourteen shares of Common Stock, and the holders thereof shall be
entitled, notwithstanding any provision hereof, to notice of any stockholders'
meeting in accordance with the bylaws of this corporation, and shall be entitled
to vote, together with holders of Common Stock, with respect to any question
upon which holders of Common Stock have the right to vote. The holder of each
share of Series C Preferred Stock shall have fourteen votes for each share of
Common Stock into which such Series C Preferred Stock could then be converted
(with any fractional share determined on an aggregate conversion basis being
rounded to the nearest whole share), and with respect to such votes by the
holders of Series C Preferred Stock, each share of Series C Preferred Stock
shall have full voting rights and powers equal to the voting rights and powers
of fourteen shares of Common Stock, and the holders thereof shall be entitled,
notwithstanding any provision hereof, to notice of any stockholders' meeting in
accordance with the bylaws of this corporation, and shall be entitled to vote,
together with holders of Common Stock, with respect to any question upon which
holders of Common Stock have the right to vote. The holder of each share of
Series D Preferred Stock shall have fourteen votes for each share of Common
Stock into which such Series D Preferred Stock could then be converted (with any
fractional share determined on an aggregate conversion basis being rounded to
the nearest whole share), and with respect to such votes by the holders of
Series D Preferred Stock, each share of Series D Preferred Stock shall have full
voting rights and powers equal to the voting rights and powers of fourteen
shares of Common Stock, and the holders thereof shall be entitled,
notwithstanding any provision hereof, to notice of any stockholders' meeting in
accordance with the bylaws of this corporation, and shall be entitled to vote,
together with holders of Common Stock, with respect to any question upon which
holders of Common Stock have the right to vote. The holder of each share of
Series E Preferred Stock shall have fourteen votes for each share of Common
Stock into which such Series E Preferred Stock could then be converted (with any
fractional share determined on an aggregate conversion basis being rounded to
the nearest whole share), and with respect to such votes by the holders of
Series E Preferred Stock, each share of Series E Preferred Stock shall have full
voting rights and powers equal to the voting rights and powers of fourteen
shares of Common Stock, and the holders thereof shall be entitled,
notwithstanding any provision hereof, to notice of any stockholders' meeting in
accordance with the bylaws of this corporation, and shall be entitled to vote,
together with
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holders of Common Stock, with respect to any question upon which holders of
Common Stock have the right to vote. The holder of each share of Series F
Preferred Stock shall have fourteen votes for each share of Common Stock into
which such Series F Preferred Stock could then be converted (with any fractional
share determined on an aggregate conversion basis being rounded to the nearest
whole share), and with respect to such votes by the holders of Series F
Preferred Stock, each share of Series F Preferred Stock shall have full voting
rights and powers equal to the voting rights and powers of fourteen shares of
Common Stock, and the holders thereof shall be entitled, notwithstanding any
provision hereof, to notice of any stockholders' meeting in accordance with the
bylaws of this corporation, and shall be entitled to vote, together with holders
of Common Stock, with respect to any question upon which holders of Common Stock
have the right to vote.
6. Protective Provisions. In addition to the vote provided for
pursuant to Section 5 above, and subject to the rights of series of Preferred
Stock which may from time to time come into existence:
(a) so long as any shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock or Series F Preferred Stock are outstanding, this corporation
shall not, without first obtaining the approval (by vote or written consent, as
provided by law) of the holders of at least seventy-five percent (75%) of the
voting power of the then outstanding shares of such Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock and Series F Preferred Stock voting together as a
single class:
(i) increase or decrease the authorized number of shares of
any series of Preferred Stock;
(ii) create any new class or series of stock or any other
securities convertible into equity securities of this corporation (by
reclassification or otherwise) having a preference over or on parity with the
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock, or Series F Preferred Stock
with respect to voting, dividends, conversion, redemption or upon liquidation;
(iii) redeem or repurchase any other class or series of
stock prior to the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock or Series F
Preferred Stock;
(iv) alter or change the rights, preferences, or privileges
of the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock, Series E Preferred Stock or Series F Preferred
Stock so as to adversely affect such shares of Series A Preferred Stock, Series
B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock or Series F Preferred Stock; or
(v) amend or alter the voting percentage required to approve
an event or change listed in this Section 6(a);
(b) So long as any shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock or
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Series F Preferred Stock are outstanding, this corporation shall not, without
first obtaining the approval (by vote or written consent, as provided by law) of
the holders of at least a majority of the voting power of the then outstanding
shares of such Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock or Series F
Preferred Stock, voting together as a single class, sell, convey, or otherwise
dispose of or encumber all or substantially all of its property or business or
merge into or consolidate with any other corporation (other than a wholly-owned
subsidiary corporation) or effect any transaction or series of related
transactions in which more than fifty percent (50%) of the voting power of the
corporation is disposed of.
(c) This corporation shall not (i) alter or change the rights,
preferences or privileges of any series of Preferred Stock so as to affect
adversely the shares of such series in a manner different than the shares of any
other series of Preferred Stock, or (ii) amend the provisions of this Section
6(c) without first obtaining the approval (by vote or written consent, as
provided by law) of the holders of shares of such adversely affected series that
are entitled to vote with respect to the matter and that hold at least a
majority of the then outstanding shares of such series.
(d) This corporation shall not (i) amend or alter Section 2(b)
of Article IV or Section 3(b)(ii) of Article IV or (ii) amend the provisions of
this Section 6(d) 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 then outstanding shares of Series E Preferred Stock.
(e) This corporation shall not (i) amend or alter Section 2(b)
of Article IV or Section 3(b)(iii) of Article IV or (ii) amend the provisions of
this Section 6(e) 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 then outstanding shares of Series F Preferred Stock.
C. Common Stock.
1. Dividend Rights. Subject to the prior rights of holders of
all classes of stock at the time outstanding having prior rights as to
dividends, the holders of the Common Stock shall be entitled to receive, only
when and if declared by the Board of Directors, out of any assets of this
corporation legally available therefor, such dividends as may be declared from
time to time by the Board of Directors.
2. Liquidation Rights. Upon the liquidation, dissolution or
winding up of this corporation, the assets of this corporation shall be
distributed as provided in Section B(2) of this Article IV of this Certificate
of Incorporation.
3. Redemption. The Common Stock is not redeemable.
4. Voting Rights. The holder of each share of Common Stock shall
have the right to one vote, and shall be entitled to notice of any stockholders'
meeting in accordance with the Bylaws of this corporation, and shall be entitled
to vote upon such matters and in such manner as may be provided by law.
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ARTICLE V
Except as otherwise provided in this Certificate, in furtherance and
not in limitation of the powers conferred by statute, the Board of Directors is
expressly authorized to make, repeal, alter, amend and rescind any or all of the
bylaws of this corporation.
ARTICLE VI
The number of directors of this corporation shall be fixed from time to
time by a bylaw or amendment thereof duly adopted by the Board of Directors or
by the stockholders.
ARTICLE VII
Elections of directors need not be by written ballot unless the bylaws
of this corporation shall so provide.
ARTICLE VIII
Meetings of stockholders may be held within or outside the State of
Delaware, as the bylaws may provide. The books of this corporation may be kept,
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the bylaws of this corporation.
ARTICLE IX
A director of this corporation shall not be personally liable to this
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to this corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law, or
(iv) for any transaction from which the director derived any improper personal
benefit. If the General Corporation Law is amended after approval by the
stockholders of this Article to authorize corporate action further eliminating
or limiting the personal liability of directors then the liability of a director
of this corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law as so amended.
Any repeal or modification of the foregoing provisions of this Article
IX by the stockholders of this corporation shall not adversely affect any right
or protection of a director of this corporation existing at the time of such
repeal or modification.
ARTICLE X
Except as provided for in Section 6 of Article IV, this corporation
reserves the right to amend, alter, change or repeal any provision contained in
this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject
to this reservation."
* * *
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THIRD: That thereafter, pursuant to resolution of the Board of
Directors, the Amended and Restated Certificate of Incorporation was submitted
to the stockholders for their approval, which approval was given by written
consent of a majority of the stockholders pursuant to Section 228 of the General
Corporation Law.
FOURTH: That said Amended and Restated Certificate of Incorporation was
duly adopted in accordance with the provisions of Sections 242 and 245 of the
General Corporation Law.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation has been
signed by the President and the Secretary of the Corporation this 24th day of
August, 1999.
QUINTUS CORPORATION
/s/ Alan K. Anderson
-----------------------------------------
Alan K. Anderson
Chief Executive Officer
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