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EXHIBIT 3.2
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 One Hundred Thirty-Three
Million (133,000,000) shares. One Hundred Million (100,000,000) shares shall be
Common Stock and Thirty-Three Million (33,000,000) 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 one or more 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, the Series F Preferred Stock (the "Series F Preferred
Stock"), which series shall consist of One Million Five Hundred Thousand
(1,500,000) shares, the Series G-1 Preferred Stock (the "Series G-1 Preferred
Stock"), which series shall consist of __________ (_______) shares, the Series
G-2 Preferred Stock (the "Series G-2 Preferred Stock"), which series shall
consist of __________ (_______) shares, the Series G-3 Preferred Stock (the
"Series G-3 Preferred Stock"), which series shall consist of __________
(_______) shares, the Series G-4 Preferred Stock (the "Series G-4 Preferred
Stock"), which series shall consist of __________ (_______) shares, the Series
G-5 Preferred Stock (the "Series G-5 Preferred Stock"), which series shall
consist of __________ (_______) shares, and the Series G-6 Preferred Stock (the
"Series G-6 Preferred Stock"), which series shall consist of __________
(_______) shares, are as set forth below in this Article IV(B). The Series G-1
Preferred Stock, Series G-2 Preferred Stock, Series G-3 Preferred Stock, Series
G-4 Preferred Stock, Series G-5 Preferred Stock and Series G-6 Preferred Stock
are sometimes collectively referred to herein as the "Series G Preferred Stock."
The Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock, Series E Preferred Stock, Series F Preferred
Stock and Series G Preferred Stock are sometimes collectively referred to herein
as the "Series Preferred Stock." 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 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.
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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, Series F Preferred Stock, Series G-1 Preferred Stock, Series G-2
Preferred Stock, Series G-3 Preferred Stock, Series G-4 Preferred Stock, Series
G-5 Preferred Stock and Series G-6 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,
$1.65,
[THIS NUMBER (THE "Series G-1 Dividend") SHALL BE THE PRODUCT OF (x) 0.20 AND
(y) A FRACTION, THE NUMERATOR OF WHICH IS $1.00 AND THE DENOMINATOR OF WHICH IS
THE "EXCHANGE RATIO" AS SET FORTH IN SECTION 1.6(a) (THE "EXCHANGE RATIO") OF
THE AGREEMENT AND PLAN OF REORGANIZATION, DATED SEPTEMBER __, 1999, BY AND AMONG
THE COMPANY, RIBEYE ACQUISITION CORP.AND ACUITY CORP. (THE "MERGER AGREEMENT")],
[THIS NUMBER (THE "Series G-2 Dividend") SHALL BE THE PRODUCT OF (x) 0.20 AND
(y) A FRACTION, THE NUMERATOR OF WHICH IS $1.50 AND THE DENOMINATOR OF WHICH IS
THE "EXCHANGE RATIO"],
[THIS NUMBER (THE "Series G-3 Dividend") SHALL BE THE PRODUCT OF (x) 0.20 AND
(y) A FRACTION, THE NUMERATOR OF WHICH IS $1.75 AND THE DENOMINATOR OF WHICH IS
THE "EXCHANGE RATIO"],
[THIS NUMBER (THE "Series G-4 Dividend") SHALL BE THE PRODUCT OF (x) 0.20 AND
(y) A FRACTION, THE NUMERATOR OF WHICH IS $3.00 AND THE DENOMINATOR OF WHICH IS
THE "EXCHANGE RATIO"],
[THIS NUMBER (THE "Series G-5 Dividend") SHALL BE THE PRODUCT OF (x) 0.20 AND
(y) A FRACTION, THE NUMERATOR OF WHICH IS $3.50 AND THE DENOMINATOR OF WHICH IS
THE "EXCHANGE RATIO"] and
[THIS NUMBER (THE "Series G-6 Dividend") SHALL BE THE PRODUCT OF (x) 0.20 AND
(y) A FRACTION, THE NUMERATOR OF WHICH IS $2.59 AND THE DENOMINATOR OF WHICH IS
THE "EXCHANGE RATIO"]
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,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock, Series G-1 Preferred Stock,
Series G-2 Preferred Stock, Series G-3 Preferred Stock, Series G-4 Preferred
Stock, the Series G-5 Preferred Stock and the Series G-6 Preferred Stock in an
amount less than $0.20, $0.286, $0.382, $0.55, $0.83,
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$1.65, the Series G-1 Dividend, the Series G-2 Dividend, the Series G-3
Dividend, the Series G-4 Dividend, the Series G-5 Dividend and the Series G-6
Dividend, respectively, per share, all such Series Preferred Stock dividends
during such year shall be declared or paid, as applicable, ratably among the
Series Preferred Stock in proportion to the full preferential dividend amounts
for such Series Preferred Stock set forth above. The right to such dividends on
shares of Series Preferred Stock shall not be cumulative and no right shall
accrue to holders of shares of Series 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 Preferred Stock
shall be entitled to a proportionate share of any such dividend or distribution
as though the holders of the Series Preferred Stock were the holders of the
number of shares of Common Stock of this corporation into which their respective
shares of Series 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, Series G
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, Series E Preferred Stock and Series G 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 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
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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,
(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,
(vi) an amount per share equal to [THIS NUMBER (THE "Original Series G-1 Issue
Price") SHALL BE A FRACTION, THE NUMERATOR OF WHICH IS $1.00 AND THE DENOMINATOR
OF WHICH IS THE "EXCHANGE RATIO"] for each share (as adjusted for any stock
dividends, combinations or splits with respect to such shares) of Series G-1
Preferred Stock held by each such holder plus any undeclared but unpaid
dividends on such share,
(vii) an amount per share equal to [THIS NUMBER (THE "Original Series G-2 Issue
Price") SHALL BE A FRACTION, THE NUMERATOR OF WHICH IS $1.50 AND THE DENOMINATOR
OF WHICH IS THE "EXCHANGE RATIO"] for each share (as adjusted for any stock
dividends, combinations or splits with respect to such shares) of Series G-2
Preferred Stock held by each such holder plus any undeclared but unpaid
dividends on such share,
(viii) an amount per share equal to [THIS NUMBER (THE "Original Series G-3 Issue
Price") SHALL BE A FRACTION, THE NUMERATOR OF WHICH IS $1.75 AND THE DENOMINATOR
OF WHICH IS THE "EXCHANGE RATIO"] for each share (as adjusted for any stock
dividends, combinations or splits with respect to such shares) of Series G-3
Preferred Stock held by each such holder plus any undeclared but unpaid
dividends on such share,
(ix) an amount per share equal to [THIS NUMBER (THE "Original Series G-4 Issue
Price") SHALL BE A FRACTION, THE NUMERATOR OF WHICH IS $3.00 AND THE DENOMINATOR
OF WHICH IS THE "EXCHANGE RATIO"] for each share (as adjusted for any stock
dividends, combinations or splits with respect to such shares) of Series G-4
Preferred Stock held by each such holder plus any undeclared but unpaid
dividends on such share,
(x) an amount per share equal to [THIS NUMBER (THE "Original Series G-5 Issue
Price") SHALL BE A FRACTION, THE NUMERATOR OF WHICH IS $3.50 AND THE DENOMINATOR
OF WHICH IS THE "EXCHANGE RATIO"] for each share (as adjusted for any stock
dividends, combinations or splits with respect to such shares) of Series G-5
Preferred Stock held by each such holder plus any undeclared but unpaid
dividends on such share, and
(xi) an amount per share equal to [THIS NUMBER (THE "Original Series G-6 Issue
Price") SHALL BE A FRACTION, THE NUMERATOR OF WHICH IS $____ AND THE DENOMINATOR
OF WHICH IS THE "EXCHANGE RATIO"] for each share (as adjusted for any stock
dividends, combinations or splits with respect to such shares) of Series G-6
Preferred Stock held by each such holder plus any undeclared but unpaid
dividends on such share.
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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, Series E Preferred Stock and Series G 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, Series E
Preferred Stock and Series G 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, Series G
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, Series F Preferred Stock and Series G Preferred Stock) until,
with respect to the holders of Series E Preferred Stock, Series F Preferred
Stock, Series G-1 Preferred Stock, Series G-2 Preferred Stock, Series G-3
Preferred Stock, Series G-4 Preferred Stock, Series G-5 Preferred Stock and
Series G-6 Preferred Stock, such holders shall have received an aggregate of
$10.375, $12.375,
[THIS NUMBER SHALL BE THE PRODUCT OF (i) THE ORIGINAL SERIES G-1 ISSUE PRICE AND
(ii) 2.0],
[THIS NUMBER SHALL BE THE PRODUCT OF (i) THE ORIGINAL SERIES G-2 ISSUE PRICE AND
(ii) 2.0],
[THIS NUMBER SHALL BE THE PRODUCT OF (i) THE ORIGINAL SERIES G-3 ISSUE PRICE AND
(ii) 2.0],
[THIS NUMBER SHALL BE THE PRODUCT OF (i) THE ORIGINAL SERIES G-4 ISSUE PRICE AND
(ii) 2.0],
[THIS NUMBER SHALL BE THE PRODUCT OF (i) THE ORIGINAL SERIES G-5 ISSUE PRICE AND
(ii) 2.0],
[THIS NUMBER SHALL BE THE PRODUCT OF (i) THE ORIGINAL SERIES G-6 ISSUE PRICE AND
(ii) 2.0],
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
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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 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, Series F Preferred Stock and Series G 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 theSeries 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, Series F Preferred Stock, Series G-1
Preferred Stock, Series G-2 Preferred Stock, Series G-3 Preferred Stock, Series
G-4 Preferred Stock, Series G-5 Preferred Stock and Series G-6 Preferred
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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, Original Series F Issue Price, the Original Series G-1
Issue Price, the Original Series G-2 Issue Price, the Original Series G-3 Issue
Price, the Original Series G-4 Issue Price, the Original Series G-5 Issue Price
or the Original Series G-6 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 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, the Original
Series F Issue Price, the Original Series G-1 Issue Price, the Original Series
G-2 Issue Price, the Original Series G-3 Issue Price, the Original Series G-4
Issue Price, the Original Series G-5 Issue Price and the Original Series G-6
Issue Price, respectively; provided, however, that the Conversion Prices for the
Series 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
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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 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; 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)(iii) 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.
(iv) Each share of Series G 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 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 G Preferred Stock.
(c) Mechanics of Conversion. Following such a conversion, each
holder of Series 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
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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, Series F Preferred Stock, or
Series G 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 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 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
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") or the shares of
Series G Preferred Stock are first issued (the "Series G 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
Preferred Stock shall be made in an amount less than one cent per share,
provided that
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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.
(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
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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 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.
(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 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 G Purchase Date and pursuant to stock
option plans or restricted stock plans approved by the Board of Directors of
this corporation after the Series G Purchase Date and approved by the holders of
a majority of outstanding shares of Series Preferred Stock, voting together as a
single class;
(C) securities issuable upon the conversion of the Series
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,
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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;
(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 issued to purchase 55,340 shares of Series C
Preferred Stock and the Preferred Stock issuable upon exercise thereof;
(K) warrants to purchase 385,530 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;
(L) warrants to purchase 300,000 shares of Common Stock issued on
or about August 19, 1999 and the Common Stock issuable upon exercise thereof;
and
(M) securities issued in connection with 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.
(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,
the Series F Purchase Date or the Series G 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
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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, the Series F Preferred Stock, and
Series G 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, Series F Purchase Date or
Series G 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 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, Series F Preferred Stock, and Series G 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
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 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.
(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 Preferred Stock
shall thereafter be entitled to receive upon conversion of the Series Preferred
Stock, 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 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 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
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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 Preferred Stock against
impairment.
(h) No Fractional Shares. No fractional shares shall be issued
upon conversion of the Series 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 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, Series F Preferred Stock and Series G
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 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
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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.
(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
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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 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. The holder of each
share of Series G Preferred Stock shall have fourteen votes for each share of
Common Stock into which such Series G 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 G Preferred Stock, each share of Series G 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, Series F Preferred Stock or Series G 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 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, Series F Preferred Stock or
Series G 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,
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Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or
Series G 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 or Series G Preferred Stock so as to adversely affect such shares of
Series 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 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
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.
(f) This corporation shall not (i) amend or alter Section 2(b) of
Article IV or Section 3(b)(iv) of Article IV or (ii) amend the provisions of
this Section 6(f) without first obtaining the approval (by vote or written
consent, as provided by law) of the holders of at least fifty percent (50%) of
the then outstanding shares of Series G Preferred Stock.
7. Status of Converted Stock. In the event any shares of Series
Preferred Stock shall be converted pursuant to Section 3 hereof, the shares so
converted shall be cancelled and shall not be issuable by this corporation.
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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.
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
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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 Chief Executive Officer of the Corporation this _____ day
of _________, 1999.
QUINTUS CORPORATION
By:
------------------------------------------
Alan K. Anderson,
Chief Executive Officer