1
EXHIBIT 3.3
CERTIFICATE OF AMENDMENT
OF
AMENDED & RESTATED CERTIFICATE OF INCORPORATION
OF
CARDIOVASCULAR DYNAMICS, INC.
A DELAWARE CORPORATION
CARDIOVASCULAR DYNAMICS, INC., a Delaware corporation organized and
existing under and by virtue of the Delaware General Corporation Law (the
"Corporation"), does hereby certify:
(1) The Board of Directors of the Corporation, at a meeting of the Board
of Directors, duly adopted resolutions proposing and declaring advisable the
following amendments to the Amended & Restated Certificate of Incorporation of
the Corporation, directing that such amendments be submitted to the stockholders
of the Corporation for consideration thereof. The resolutions setting forth the
proposed amendments are as follows:
NOW, THEREFORE, BE IT RESOLVED, that Article IV, Section 4 of the
Company's Amended and Restated Certificate of Incorporation be amended
to read as follows:
"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."
NOW, THEREFORE, BE IT RESOLVED, that Article VIII of the
Company's Amended and Restated Certificate of Incorporation be amended
to add the following:
"The Board of Directors shall be divided into three (3) classes,
as nearly equal in number as possible, designated Class I, Class II and
Class III. The number of directors constituting each Class shall be
fixed from time to time by a resolution duly adopted by the Board of
Directors. Class I directors shall hold office for an initial term
expiring at the annual meeting of stockholders in 1999. Class II
directors shall hold office for an initial term expiring at the annual
meeting of stockholders in 2000, and Class III directors shall hold
office for a term expiring at the annual meeting of stockholders in
2001. At each annual meeting of stockholders held thereafter, directors
shall be elected for a three-year term to succeed the directors of the
Class whose terms then expire."
2
(2) That thereafter, the holders of the necessary number of shares of
capital stock of the Corporation voted in favor of the foregoing amendments in
accordance with the provisions of Section 228 of the Delaware General
Corporation Law.
(3) That such amendment was duly adopted in accordance with the
provisions of Section 242 of the Delaware General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, CARDIOVASCULAR DYNAMICS, INC. has caused this
Certificate of Amendment to be signed by its duly authorized Chief Financial
Officer and Secretary, Stephen R. Kroll, on November 12, 1998.
CARDIOVASCULAR DYNAMICS, INC.,
a Delaware corporation
By: /s/ STEPHEN R. KROLL
-------------------------------------
Stephen R. Kroll
Chief Financial Officer and Secretary
2
3
AMENDED & RESTATED
CERTIFICATE OF INCORPORATION
OF
CARDIOVASCULAR DYNAMICS, INC.
(Pursuant to Sections 228, 242 and 245 of the
General Corporation Law of the State of Delaware)
Cardiovascular Dynamics, Inc., a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "General
Corporation Law").
DOES HEREBY CERTIFY:
FIRST: That the name of this corporation is Cardiovascular Dynamics,
Inc, and that this corporation was originally incorporated on June 2, 1993,
pursuant to the General Corporation Law.
SECOND: That the Board of Directors duly adopted resolutions proposing
to amend and restate the Certificate of Incorporation of this corporation,
declaring said amendment and restatement to be advisable and in the best
interests of this corporation and its stockholders, and authorizing the
appropriate officers of this corporation to solicit the consent of the
stockholders therefore, which resolution setting forth the proposed amendment
and restatement is as follows:
"RESOLVED, that the Amended and Restated Certificate of Incorporation of
this corporation be amended and restated in its entirety as follows:
ARTICLE I
The name of this corporation is Cardiovascular Dynamics, Inc.
ARTICLE II
The address of the registered office of this corporation in the State of
Delaware is 1013 Centre Road, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address if The Prentice-Hall
Corporation System, Inc.
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 of Delaware.
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." The total number of shares that this corporation is authorized to issue
is thirty seven million five hundred and sixty thousand (37,560,000). The number
of shares of Preferred Stock authorized to be issued is seven million five
hundred sixty thousand (7,560,000), par value $.001 per share, 2,060,000 of
which shares have been
4
designated Series A Preferred Stock (the "Series A Preferred Stock") and 500,000
of which shares have been designated Series B Preferred Stock (the "Series B
Preferred Stock"). The number of shares of Common Stock authorized to be issued
is thirty million (30,000,000), par value $.001 per share.
Upon filing this Amended and Restated Certificate of Incorporation,
each share of Common Stock shall be, and is, hereby reclassified and divided
into two (2) shares of Common Stock.
(B) RIGHTS, PREFERENCES AND RESTRICTIONS OF THE PREFERRED STOCK. The
Preferred Stock authorized by this Restated 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, which series shall consist of 2,060,000 shares, and the Series B
Preferred Stock, which series shall consist of 500,000 shares, are as set forth
below in this Article IV(B). The Board of Directors 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 of 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 in Certificates of
Determination or the corporation's Restated Certificate of Incorporation
("Protective Provisions"), 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 and the Series B 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 that they had
prior to the adoption of the resolution originally fixing the number of shares
of such series.
1. DIVIDEND PROVISIONS. Subject to the rights of series of Preferred
Stock that may from time to time come into existence, the holders of shares of
Series A Preferred Stock and Series B Preferred Stock shall, on a pari passu
basis, 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 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 rate of $.50 per share per annum for the Series A
Preferred Stock, and $1.50 per share per annum for the Series B Preferred Stock,
or, if greater (as determined on a per annum basis and on an as converted basis
for the Series A Preferred Stock and Series B Preferred Stock), plus an amount
equal to that paid on any other outstanding shares of this corporation, payable
quarterly, when, as, and if declared by the Board of Directors. Such dividends
shall not be cumulative.
-2-
5
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 that may from time to time come into existence, the
holders of Series A Preferred Stock and Series B Preferred Stock shall, on a
pari passu basis, be entitled to receive, prior and in preference to any
distribution of any of the assets of this corporation to the holders of Common
Stock by reason of their ownership thereof, (i) with respect to the Series A
Preferred Stock, an amount per share equal to the sum of (A) $6.58 for each
outstanding share of Series A Preferred Stock (the "Original Series A Issue
Price"), and (B) an amount equal to declared but unpaid dividends on such share;
and (ii) with respect to the Series B Preferred Stock, an amount per share equal
to the sum of (A) $20.00 for each outstanding share of Series B Preferred Stock
(the "Original Series B Issue Price"), and (B) an amount equal to declared but
unpaid dividends on such share. If upon the occurrence of such event, the assets
and funds thus distributed among the holders of the Series A Preferred Stock and
Series B 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 that may from time to time come into existence, the
entire assets and funds of this corporation legally available for distribution
shall be distributed ratably among the holders of the Series A Preferred Stock
and Series B Preferred Stock in proportion to the amount of such stock owned by
each such holder.
(b) After the distributions described in subsection (a) above have
been paid, subject to the rights of series of Preferred Stock which may from
time to time come into existence, the remaining assets of the corporation
available for distribution to shareholders shall be distributed among the
holders of Common Stock pro rata based on the number of shares of Common Stock
held by each.
(c)(i) For purposes of this Section 2, a liquidation, dissolution or
winding up of this corporation shall be deemed to be occasioned by, or to
include (A) the acquisition of the corporation by another entity by means of any
transaction or series of related transactions (including, without limitation,
any reorganization, merger or consolidation but, excluding any merger effected
exclusively for the purpose of changing the domicile of the corporation); or (B)
a sale of all or substantially all of the assets of the corporation; unless the
corporation's shareholders of record as constituted immediately prior to such
acquisition or sale will, immediately after such acquisition or sale (by virtue
of securities issued as consideration for the corporation's acquisition or sale
or otherwise) hold at least 50% of the voting power of the surviving or
acquiring entity.
(ii) In any of such events, if the consideration received by the
corporation is other than cash, its value will be deemed its fair market value.
Any securities shall be valued as follows:
(A) Securities not subject to investment letter or other
similar restrictions on free marketability covered by (B) below:
(i) If traded on a securities exchange or through the
Nasdaq National Market, the value shall be deemed to be the average of the
closing prices of the securities on such exchange over the thirty-day period
ending three (3) days prior to the closing;
-3-
6
(ii) If actively traded over-the-counter, the value
shall be deemed to be the average of the closing bid or sale prices (whichever
is applicable) over the thirty-day period ending three (3) days prior to the
closing; and
(iii) If there is no active public market, the value
shall be the fair market value thereof, as mutually determined by the
corporation and the holders of at least a majority of the voting power of all
then outstanding shares of Preferred Stock.
(B) The method of valuation of securities subject to
investment letter or other restrictions on free marketability (other than
restrictions arising solely by virtue of a shareholder's status as an affiliate
or former affiliate) shall be to make an appropriate discount from the market
value determined as above in (A) (1), (2) or (3) to reflect the appropriate fair
market value thereof, as mutually determined by the corporation and the holders
of at least a majority of voting power of all then outstanding shares of such
Preferred Stock.
(iii) In the event the requirements of this subjection 2(c) are
not complied with, this corporation shall forthwith either:
(A) cause such closing to be postponed until such time as
the requirements of this Section 2 have been complied with; or
(B) cancel such transaction, in which event the rights,
preferences and privileges of the holders of the Series A Preferred Stock and
Series B Preferred Stock shall revert to and be the same as such rights,
preferences and privileges existing immediately prior to the date of the first
notice referred to in subsection 2(c)(iv) hereof.
(iv) The corporation shall give each holder of record of Series
A Preferred Stock and Series B Preferred Stock written notice of such impending
transaction not later than twenty (20) days prior to the shareholders' meeting
called to approve such transaction, or twenty (20) days prior to the closing of
such transaction, whichever is earlier, and shall also notify such holders in
writing of the final approval of such transaction. The first of such notices
shall describe the material terms and conditions of the impending transaction
and the provisions of this Section 2, and the corporation shall thereafter give
such holders prompt notice of any material changes. The transaction shall in no
event take place sooner than twenty (20) days after the corporation has given
the first notice provided for herein or sooner than ten (10) days after the
corporation has given notice of any material changes provided for herein;
provided, however, that such periods may be shortened upon the written consent
of the holders of Preferred Stock that are entitled to such notice rights or
similar notice rights and that represent at least a majority of the voting power
of all then outstanding shares of such Preferred Stock.
3. CONVERSION. The holders of Series A Preferred Stock and Series B
Preferred Stock shall have conversion rights as follows (the "Conversion
Rights"):
(a) RIGHT TO CONVERT. Each share of Series A Preferred Stock and
Series B Preferred Stock shall be convertible, at the option of the holder
thereof, at any time after the date of issuance of such share, at the office of
this corporation or any transfer agent for the Series A Preferred Stock and
Series B Preferred Stock, into such number fully paid and nonassessable shares
of Common Stock as is determined by dividing the Original Issue Price for such
series by the Conversion Price at the time in effect for such series. The
initial Conversion Price per share for shares of Series A Preferred Stock and
Series B Preferred Stock shall be the Original Series A Issue Price and Original
Series B Issue Price, respectively.
-4-
7
(b) AUTOMATIC CONVERSION. Each share of Series A Preferred Stock and
Series B Preferred Stock shall automatically be converted into shares of Common
Stock at the Conversion Price at the time in effect for such series immediately
upon the earlier of (A) the consummation of this corporation's sale of its
Common Stock in a bona fide, firm commitment underwriting pursuant to a
registration statement on Form S-1 under the Securities Act of 1933, as amended,
the public offering price of which was $7,500,000 in the aggregate, or (B) the
date upon which this corporation obtains the consent of the holders of a
majority of the then outstanding shares of Series A Preferred Stock and Series B
Preferred Stock, voting together as a single class on an as-converted to Common
Stock basis.
(c) MECHANICS OF CONVERSION. Before any holder of Series A Preferred
Stock or Series B Preferred Stock shall be entitled to convert the same into
shares of Common Stock, he or she shall surrender the certificate or
certificates therefor, duly endorsed, at the office of this corporation or of
any transfer agent for the Series A Preferred Stock and Series B Preferred
Stock, and shall give written notice by mail, postage prepaid, to this
corporation at its principal corporate office, of the election to convert the
same and shall state therein the name or names in which the certificate or
certificates for shares of Common Stock are to be issued. This corporation
shall, as soon as practicable thereafter, issue and deliver at such office to
such holders of Series A Preferred Stock or Series B Preferred Stock, 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 as aforesaid.
Such conversion shall be deemed to have been made immediately prior to the close
of business on the date of such surrender of the shares of Series A Preferred
Stock or Series B Preferred Stock to be converted, and the person or persons
entitled to receive the shares of Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder or holders of such shares
of Common Stock as of such date. If the conversion is in connection with an
underwritten offer of securities registered pursuant to the Securities Act of
1933, the conversion may, at the option of any holder tendering Series A
Preferred Stock or Series B Preferred Stock for conversion, be conditioned upon
the closing with the underwriter of the sale of securities pursuant to such
offering, in which event the person(s) entitled to receive the Common Stock
issuable upon such conversion of the Series A Preferred Stock or Series B
Preferred Stock shall not be deemed to have converted such Series A Preferred
Stock or Series B Preferred Stock until immediately prior to the closing of such
sale of securities.
(d) CONVERSION PRICE ADJUSTMENTS OF PREFERRED STOCK. The Conversion
Price of the Series A Preferred Stock and Series B Preferred Stock shall be
subject to adjustment from time to time as follows:
(i) In the event this corporation should at any time or from
time to time after the date upon which this corporation first issued any shares
of Series B Preferred Stock (the "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
-5-
8
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
and Series B Preferred Stock shall be appropriately decreased so that the number
of shares of Common Stock issuable on conversion of each share of Series A
Preferred Stock and Series B Preferred Stock 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.
(ii) If the number of shares of Common Stock outstanding at any
time after the Purchase Date is decreased by a combination of the outstanding
shares of Common Stock, then, following the record date of such combination, the
Conversion Price for the Series A Preferred Stock and Series B Preferred Stock
shall be appropriately increased so that the number of shares of Common Stock
issuable on conversion of each share of Series A Preferred Stock and Series B
Preferred Stock 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)(i), then, in each such
case for the purpose of this subsection 3(e), the holders of the Series A
Preferred Stock and Series B 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 this corporation into which their shares
of Series A Preferred Stock and Series B 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.
(f) RECAPITALIZATIONS. If 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
or Section 5) provision shall be made so that the holders of the Series A
Preferred Stock and Series B Preferred Stock shall thereafter be entitled to
receive upon conversion of the Series A Preferred Stock and Series B Preferred
Stock the number of shares of stock or other securities or property of the
Company or otherwise, to which a holder of Commons 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 and Series B 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 and Series B 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 this
Restated 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 of this Section 3 and in the taking of all
such action as may be necessary or appropriate in order to protect the
Conversion Rights of the holders of the Series A Preferred Stock and Series B
Preferred Stock against impairment.
-6-
9
(h) NO FRACTIONAL SHARES AND CERTIFICATES AS TO ADJUSTMENTS.
(i) No fractional shares shall be issued upon conversion of the
Series A Preferred Stock and Series B Preferred Stock, and the number of shares
of Common Stock to be issued shall be rounded to the nearest whole share.
Whether or not fractional shares are issuable upon such conversion shall be
determined on the basis of the total number of Series A Preferred Stock and
Series B Preferred Stock the holder is at the time converting into Common Stock
and the number of shares of Common Stock issuable upon such aggregate
conversion.
(ii) Upon the occurrence of each adjustment or readjustment of
the Conversion Price of Series A Preferred Stock and Series B Preferred Stock
pursuant to this Section 3, this corporation, at its expense, shall promptly
compute such adjustment or readjustment in accordance with the terms hereof and
prepare and furnish to each holder of Series A Preferred Stock and Series B
Preferred Stock a certificate setting forth such adjustment or readjustment and
showing in detail the facts upon which such adjustment or readjustment is based.
This corporation shall, upon the written request at any time of any holder of
Series A Preferred Stock or Series B Preferred Stock, furnish or cause to be
furnished to such holder a like certificate setting forth (A) such adjustment or
readjustment, (B) the Conversion Price at the time in effect, and (C) the number
of shares of Common Stock and the amount, if any, of other property which at the
time would be received upon the conversion of a share of Series A Preferred
Stock and Series B Preferred Stock .
(i) 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 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.
(j) 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
shares of the Preferred Stock such number of its shares of Common Stock as shall
from time to time be sufficient to effect the conversion of all outstanding
shares of the Preferred Stock; and if at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the conversion
of all then outstanding shares of the Preferred Stock, 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.
(k) NOTICES. Any notice required by the provisions of this Section 3
to be given to the holders of shares of Preferred Stock shall be deemed given if
deposited in the United States mail, postage prepaid, and addressed to each
holder of record at his address appearing on the books of this corporation.
-7-
10
4. VOTING RIGHTS. The holder of each share of Series A Preferred Stock
and Series B Preferred Stock shall have the right to one vote for each share of
Common Stock into which such share 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 vote, such holder shall have full voting
rights and powers equal to the voting rights and powers of the holders of Common
Stock, and shall be entitled, notwithstanding any provision hereof, to notice of
any stockholders' meeting in accordance with the by-laws 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.
5. PROTECTIVE PROVISIONS. Subject to the rights of series of Preferred
Stock that may from time to time come into existence, this corporation shall not
without first obtaining the approval (by vote or written consent, as provided by
law) of at least a majority of the then outstanding shares of Series A Preferred
Stock and Series B Preferred Stock, voting together as a single class and on an
as-converted to Common Stock basis:
(i) 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 50%
of the voting power of this corporation is disposed of;
(ii) create any new class or series of stock or any other securities
convertible into equity securities of the corporation (i) having a preference
over, or being on a parity with, Series A Preferred Stock and Series B Preferred
Stock with respect to voting, dividends or upon liquidation, or (ii) having
rights similar to any of the rights of the Series A Preferred Stock and Series B
Preferred Stock under this Section 5; or
(iii) alter or change the rights, preferences or privileges of the
shares of Series A Preferred Stock and Series B Preferred Stock so as to affect
adversely the shares.
6. STATUS OF CONVERTED OR REDEEMED STOCK. In the event any shares of
Series A Preferred Stock or Series B 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. This Restated Certificate of Incorporation shall
be appropriately amended to effect the corresponding reduction in this
corporation's authorized capital stock. In the event all outstanding shares of
Preferred Stock are automatically converted into Common Stock pursuant to
Section 3 hereof, any designated but unreserved shares of Series A Preferred
Stock and Series B Preferred Stock shall be deemed "converted" pursuant to this
Section.
(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, when and as
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.
-8-
11
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 2 of Division (B) of this Article IV hereof.
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. The
holders of Common Stock shall be entitled to cumulate votes in any election of
directors.
ARTICLE V
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 Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this Article to authorize corporation 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 Delaware General Corporation Law, as
amended.
Any repeal or modification of the foregoing paragraph 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 VI
This corporation reserves the right to amend, alter, change or repeal
any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted to this reservation.
ARTICLE VII
The Board of Directors may from time to time make, amend, supplement or
repeal the Bylaws; provided, however, that the stockholders may change or repeal
any Bylaw adopted by the Board of Directors; and provided, further, that no
amendment or supplement to the Bylaws adopted by the Board of Directors shall
vary or conflict with any amendment or supplement adopted by the stockholders.
-9-
12
ARTICLE VIII
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 IX
Elections of directors need not be by written ballot unless the Bylaws
of this corporation shall so provide.
ARTICLE X
Meetings of stockholders may be held within or without the State of
Delaware, 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.
THIRD: The foregoing amendment was approved by the holders of the
requisite number of shares of said corporation in accordance with Section 228 of
the General Corporation Law.
FOURTH: That said amendments were duly adopted in accordance with the
provisions of Section 242 and 245 of the General Corporation Law.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation has been
signed by the Vice President, Finance and Administration and Chief Financial
Officer and the Assistant Secretary of this corporation this 1st day of May,
1996.
/s/ DANA P. NICKELL
------------------------------------------
Dana P. Nickell
Vice President, Finance and Administration
and Chief Financial Officer
ATTEST
/s/ EDWARD M. LEONARD
- --------------------------------
Edward M. Leonard
Assistant Secretary
-10-