RESTATED CERTIFICATE OF INCORPORATION
OF
ZEBU
ARTICLE I
The name of the corporation is Zebu (the "CORPORATION").
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is: 1209 Orange Street, City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporate Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE IV
SECTION 1. The total number of shares of all classes of stock which
the Corporation has authority to issue is One Hundred Ten Million (110,000,000)
shares, consisting of two classes: One Hundred Million (100,000,000) shares of
Common Stock, $0.01 par value per share, and Ten Million (10,000,000) shares of
Preferred Stock, $0.01 par value per share, 2,500,000 shares of which are
designated Series A Preferred Stock ("SERIES A PREFERRED"), 1,250,000 shares of
which are designated Series B Preferred Stock ("SERIES B PREFERRED"), 750,000
shares of which are designated Series C Preferred Stock ("SERIES C PREFERRED"),
50,000 shares of which are designated Series D Preferred Stock ("SERIES D
PREFERRED") and 2,041,845 shares of which are designated Series E Preferred
Stock ("SERIES E PREFERRED"). The Series A Preferred, Series B Preferred,
Series C Preferred, Series D Preferred and Series E Preferred shall be known
collectively as the "ORIGINAL PREFERRED STOCK."
SECTION 2. The board of directors of the corporation ("BOARD OF
DIRECTORS") is authorized, subject to any limitations prescribed by the law of
the State of Delaware, to provide for the issuance of additional shares of
Preferred Stock in one or more series by filing a certificate of designations
pursuant to the applicable law of the State of Delaware, to establish from time
to time the number of shares to be included in each such series, to fix the
designations, powers, preferences and rights of the shares of each such series
and any qualifications, limitations or restrictions thereof, and to increase or
decrease the number of shares of any such series (but not below the number of
shares of such series then outstanding). The number of authorized shares of
Preferred Stock may also be increased or decreased (but not below the number of
shares thereof then outstanding) by the affirmative vote of the holders of a
majority of the stock of the Corporation entitled to vote, unless a vote of any
other holders is required pursuant to a certificate or certificates establishing
a series of Preferred Stock.
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Except as otherwise expressly provided in any certificate of designations
designating any series of Preferred Stock pursuant to the foregoing provisions
of this Section 2 or by the General Corporation Law of Delaware, any new series
of Preferred Stock may be designated, fixed and determined as provided herein by
the Board of Directors without approval of the holders of Common Stock or the
holders of Preferred Stock, or any series thereof, and any such new series may
have powers, preferences and rights, including, without limitation, voting
rights, dividend rights, liquidation rights, redemption rights and conversion
rights, senior to, junior to or pari passu with the rights of the Common Stock,
the existing classes of Preferred Stock or any future class or series of
Preferred Stock or Common Stock.
SECTION 3. The powers, preferences and rights of the Original
Preferred Stock shall be as follows:
3.1 DIVIDEND RIGHTS.
(a) SERIES A PREFERRED. The holders of the Series A
Preferred shall be entitled to receive in any fiscal year, when and as declared
by the Board of Directors, out of any assets at the time legally available
therefor, dividends in cash at the rate of $0.00913 per share of Series A
Preferred per annum, before any dividend is paid on shares of Common Stock,
Series B Preferred, Series C Preferred, Series D Preferred or Series E
Preferred.
(b) SERIES B PREFERRED. The holders of the Series B
Preferred shall be entitled to receive in any fiscal year, when and as declared
by the Board of Directors, out of any assets at the time legally available
therefor, dividends in cash at the rate of $0.0365 per share of Series B
Preferred per annum, before any dividend is paid on shares of Common Stock,
Series C Preferred, Series D Preferred or Series E Preferred.
(c) SERIES C PREFERRED. The holders of Series C
Preferred shall be entitled to receive in any fiscal year, when and as declared
by the Board of Directors, out of any assets at the time legally available
therefor, dividends in cash at the rate of $0.073 per share of Series C
Preferred per annum, before any dividend is paid on shares of Common Stock,
Series D Preferred or Series E Preferred.
(d) SERIES D PREFERRED. The holders of Series D
Preferred shall be entitled to receive in any fiscal year, when and as declared
by the Board of Directors, out of any assets at the time legally available
therefor, dividends payable in cash, for each share of Common Stock into which
the holders' shares of Series D Preferred are then convertible pursuant to
Section 3.5, equal to the quotient of (i) the aggregate amount of cash dividends
declared and paid on the Series A Preferred, the Series B Preferred and the
Series C Preferred (the "SENIOR PREFERRED") and any other class or series of
stock, divided by (ii) the number of shares of Senior Preferred on which such
dividends are declared and paid (calculated on an as-converted basis) per annum,
before any dividend is paid on shares of Common Stock.
(e) SERIES E PREFERRED. The holders of Series E
Preferred shall be entitled to receive in any fiscal year, when and as declared
by the Board of Directors, out of any assets at the time legally available
therefor, dividends payable in cash, for each share of Common Stock into which
the holders' shares of Series E Preferred are then convertible pursuant to
Section 3.5, equal to the quotient of (i) the aggregate amount of cash dividends
declared and paid on the Senior Preferred
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and any other class or series of stock, divided by (ii) the number of shares
of Senior Preferred on which such dividends are declared and paid (calculated
on an as-converted basis) per annum, before any dividend is paid on shares of
Common Stock.
(f) TIMING OF DIVIDENDS. Dividends may be payable
quarterly or otherwise as the Board of Directors may from time to time
determine. The Board of Directors shall make no distributions to the holders of
Common Stock in any fiscal year unless and until dividends have been paid to or
declared and set apart upon all Original Preferred Stock at the rates set forth
above for such fiscal year.
(g) NO CUMULATIVE RIGHTS. The right to such dividends on
Original Preferred Stock shall not be cumulative, and no rights shall accrue to
the holder of the Original Preferred Stock by reason of the fact that dividends
on said shares are not declared in any prior year, nor shall any undeclared or
unpaid dividends bear or accrue interest.
(h) SERIES D AND SERIES E DIVIDENDS. No dividends shall
be declared with respect to either the Series D Preferred or the Series E
Preferred (each series, individually and collectively, the "JUNIOR PREFERRED")
unless an equivalent dividend is declared on each series of Junior Preferred.
If dividends are declared on Junior Preferred in an amount less than that to
which the holders thereof are entitled pursuant to this Section 3.1, then the
holders of Junior Preferred shall share ratably in such dividends according to
the respective amounts to which such holders are entitled.
3.2 REDEMPTION RIGHTS.
(a) OPTIONAL REDEMPTION OF SERIES A PREFERRED. The
Corporation may at any time at the option of the Board of Directors redeem all
or part (selected pro rata among all shares of Series A Preferred) of the
outstanding shares of the Series A Preferred at the Redemption Price set forth
below, provided that the Corporation shall give written notice to the holders of
the Series A Preferred to be redeemed at least sixty (60) days prior to the date
specified for redemption ("REDEMPTION DATE"). During the period between the
date of the notice and the Redemption Date, the rights under Section 3.5 shall
continue to exist.
(i) Subject to the terms of Section 3.2(a), the
Series A Preferred may be redeemed at a cash price equal to $0.1377 per
share, together with all declared and unpaid dividends to and including
the redemption date ("REDEMPTION PRICE"); provided, however, that payment
of the Redemption Price shall be made from any funds of the Corporation
legally available therefor.
(ii) From and after the Redemption Date (unless
default shall be made by the Corporation in duly paying the Redemption
Price) the holders of the shares of Series A Preferred called for
redemption shall cease to have any rights as stockholders of the
Corporation except the right to receive, without interest, the Redemption
Price thereof upon surrender of Certificates representing the shares of
the Series A Preferred, and such shares shall not thereafter be
transferred (except with the consent of the Corporation) on the books of
the Corporation and shall not be deemed outstanding for any purpose
whatsoever.
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(iii) There shall be no redemption of any shares of
Series A Preferred where such action would be in violation of applicable
law.
(b) NO REDEMPTION OF SERIES B PREFERRED OR SERIES C
PREFERRED. There shall be no mandatory or optional redemption of any
shares of Series B Preferred or Series C Preferred.
(c) MANDATORY REDEMPTION OF SERIES D PREFERRED AND
SERIES E PREFERRED. On December 27, 2004 (the "MANDATORY REDEMPTION DATE"), the
Corporation shall (unless otherwise prevented by law) redeem all of the shares
of Series D Preferred and Series E Preferred then outstanding for a cash amount
per share equal to the greater of (i) the fair market value of one share of
Series D Preferred or Series E Preferred, as applicable, as determined pursuant
to the valuation method set forth in Section 3.3(e), and (ii) the applicable
Liquidation Amount calculated as of the Mandatory Redemption Date (the
"MANDATORY REDEMPTION PRICE").
(i) At any time on or after the Mandatory
Redemption Date, the holders of Series D Preferred and Series E Preferred
shall be entitled to receive the Mandatory Redemption Price for each such
share owned by such holder upon actual delivery to the Corporation or its
transfer agent of the certificates representing such shares.
(ii) If on the Mandatory Redemption Date less than
all of the shares of Series D Preferred and Series E Preferred then
outstanding may be legally redeemed by the Corporation, the Mandatory
Redemption shall be made to the respective holders, PRO RATA based upon
the respective amounts which would be payable on or with respect to such
shares if all amounts payable on or with respect to such shares were paid
in full. On or after the Mandatory Redemption Date, all rights in
respect of the shares of Series D Preferred and Series E Preferred,
except the right to receive the Mandatory Redemption Price as herein
provided, shall cease and terminate (unless default shall be made by the
Corporation in the payment of the Mandatory Redemption Price as herein
provided, in which event such rights shall be exercisable until such
default is cured), and such shares shall no longer be deemed to be
outstanding, whether or not the certificates representing such shares
have been received by the Corporation.
(iii) Anything contained herein to the contrary
notwithstanding, the holders of Series D Preferred and Series E Preferred
shall have the right, exercisable at any time up to the close of business
on the business day immediately preceding the Mandatory Redemption Date,
to convert all or any part of such shares into shares of Common Stock.
(d) OPTIONAL REDEMPTION OF SERIES D PREFERRED AND SERIES
E PREFERRED. The Corporation (unless otherwise prevented by law) shall have the
right (the "CALL RIGHT"), exercisable at any time on or after December 27, 2001
and prior to December 27, 2004 (the "OPTIONAL REDEMPTION DATE" of such series),
to redeem all or any part of the shares of Series D Preferred and Series E
Preferred then outstanding for a cash amount per share of Series D Preferred or
Series E Preferred, as applicable, equal to the Liquidation Amount of such
series, calculated as of the date on which the Corporation shall redeem such
shares (as applicable, the "REDEMPTION AMOUNT" of such series).
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(i) The Corporation shall exercise the Call Right
by providing written notice of such exercise (the "CALL NOTICE") to the
holders of Series D Preferred and Series E Preferred at least 30 days
prior to the applicable Optional Redemption Date. The Call Notice shall
set forth the Option Redemption Date, the Redemption Amount applicable to
the Optional Redemption Date and the number of shares of Series D
Preferred and Series E Preferred to be redeemed.
(ii) At any time on or after the applicable
Optional Redemption Date, the holders of Series D Preferred and Series E
Preferred to be redeemed shall be entitled to receive the applicable
Redemption Amount upon actual delivery to the Corporation or its transfer
agent of the certificates representing such shares.
(iii) If the Corporation elects to exercise the
Call Right as to less than all shares of Series D Preferred and Series E
Preferred then outstanding, the Corporation shall redeem such shares
pursuant to the Call Right PRO RATA based upon the respective amounts
which would be payable on or with respect to such shares if all shares of
Series D Preferred and Series E Preferred were redeemed in full. On or
after the Optional Redemption Date, all rights in respect of the shares
which are the subject of the Call Notice, except the right to receive the
applicable Redemption Amount as herein provided, shall cease and
terminate (unless default shall be made by the Corporation in the payment
of the Redemption Amount as herein provided, in which event such rights
shall be exercisable until such default is cured), and such shares shall
no longer be deemed to be outstanding, whether or not the certificates
representing such shares have been received by the Corporation.
(iv) Anything contained herein to the contrary
notwithstanding, the holders of Series D Preferred and Series E Preferred
shall have the right, exercisable at any time up to the close of business
on the business day immediately preceding the applicable Optional
Redemption Date, to convert all or any part of such shares which are the
subject of the Call Notice into shares of Common Stock.
3.3 LIQUIDATION PREFERENCES.
(a) RIGHTS AND PREFERENCES. In the event of any
liquidation, dissolution or winding up of the Corporation;
(i) The holders of Senior Preferred shall be
entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders, whether from capital, surplus or earnings,
before any payment shall be made in respect of the Common Stock, the Series D
Preferred or the Series E Preferred, an amount equal to $0.15 per share of
Series A Preferred, $0.61 per share of Series B Preferred and $1.22 per share of
Series C Preferred, plus any dividends thereon declared but unpaid.
(ii) The holders of the Series D Preferred shall
be entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders, whether from capital, surplus or earnings,
before any payment shall be made in respect of the Common Stock or any class or
series of the Corporation's stock with liquidation rights junior to the Series D
Preferred, an amount equal to the sum of (A) the original purchase price of the
Series D Preferred, and (B)
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interest on the daily weighted average of the excess of the purchase price of
the Series D Preferred, over all dividends, distributions, and amounts paid
in redemption of the Series D Preferred, whether in cash or in kind, at a
rate of 25% per annum, compounded annually, from the original issue date of
such shares until the date of such event.
(iii) The holders of the Series E Preferred shall
be entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders, whether from capital, surplus or earnings,
before any payment shall be made in respect of the Common Stock or any class or
series of the Corporation's stock with liquidation rights junior to the Series E
Preferred, an amount equal to the sum of (A) the original purchase price of the
Series E Preferred, and (B) interest on the daily weighted average of the excess
of the purchase price of the Series E Preferred, over all dividends,
distributions, and amounts paid in redemption of the Series E Preferred, whether
in cash or in kind, at a rate of 25% per annum, compounded annually, from the
original issue date of such shares until the date of such event.
(iv) The amount specified in this Section 3.3(a),
as of the date of determination, as applicable to each series of Original
Preferred Stock, shall be referred to as the "LIQUIDATION AMOUNT" of such
series. If upon liquidation, dissolution or winding up of the Corporation, the
assets of the Corporation available for distribution to its shareholders as set
forth in this Section 3.3(a) shall be insufficient to pay in full the holders of
shares of the same rank with respect to the right to receive payments in the
event of any liquidation, dissolution or winding up of the Corporation as set
forth above, then the holders of such shares shall share ratably in any
distribution of assets according to the respective amounts which would be
payable in respect of such shares held by them upon such distribution if all
amounts payable on or with respect to such shares were paid in full. With
respect to the right to receive payments in the event of any liquidation,
dissolution or winding up of the Corporation under this Section 3.3(a), the
shares of Series D Preferred and the shares of Series E Preferred shall be
considered shares of the same rank.
(b) DEEMED LIQUIDATION EVENT.
(i) With respect to the Senior Preferred, a
Deemed Liquidation Event (as defined below) shall not be deemed a liquidation,
dissolution or winding up of the Corporation as those terms are used in Section
3.3(a).
(ii) With respect to the Series D Preferred or the
Series E Preferred, unless otherwise agreed by the holders of a majority of the
shares of such series, as applicable, a Deemed Liquidation Event (as defined
below) shall be deemed a liquidation, dissolution or winding up of the
Corporation as those terms are used in Section 3.3(a).
(iii) For the purposes of this Section 3.3(b), a
"DEEMED LIQUIDATION EVENT" shall mean: (A) the Corporation's sale of all or
substantially all of its assets, or (B) the acquisition of the Corporation by
another entity by way of merger or consolidation (other than a merger or
consolidation in which the holders of voting securities of the Corporation or
their affiliates immediately before the merger or consolidation own, immediately
after the merger or consolidation, voting securities of the surviving or
acquiring corporation or of a parent party of such surviving or acquiring
corporation, possessing more than fifty percent (50%) of the voting power of the
surviving or acquiring corporation or parent party) resulting in the exchange of
the outstanding
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shares of capital stock of the Corporation for securities or consideration
issued, or caused to be issued, by the acquiring corporation or its
subsidiary.
(c) NOTICE. In the event the Corporation shall propose
to take any action of the types described in Sections 3.3(a) or 3.3(b)(iii), the
Corporation shall, within ten (10) days after the date the Board of Directors of
the Corporation approves such action or twenty (20) days prior to any
shareholders' meeting called to approve such action, whichever is earlier, give
each holder of Original Preferred Stock initial written notice of the proposed
action. Such initial written notice shall describe the material terms and
conditions of such proposed action, including a description of the stock, cash
and property to be received by such holders upon consummation of the proposed
action and the date of delivery thereof. If any material change in the facts
set forth in the initial notice shall occur, the Corporation shall promptly give
written notice to each holder of Original Preferred Stock of such material
change.
(d) WAITING PERIOD. The Corporation shall not
consummate any proposed action of the type described in Sections 3.3(a) or
3.3(b)(iii) before the expiration of thirty (30) days after the mailing of the
initial notice or ten (10) days after the mailing of any subsequent written
notice, whichever is later; provided that any such 30-day or 10-day period may
be shortened upon the written consent of all holders of Original Preferred
Stock.
(e) FAIR MARKET VALUE. In the event the Corporation
shall propose to take any action of the types described in Section 3.3(a) or
3.3(b)(iii) which will involve the distribution of assets other than cash, the
value of such assets will be deemed to be their fair market value. In the case
of publicly traded securities, fair market value shall mean the closing market
price for such securities on the date such event is consummated or the most
recent closing market price if there was no closing market price on such date.
If the consideration is in a form other than cash or publicly traded securities,
its value will be determined by an independent investment banker or qualified
appraiser promptly selected in good faith by the Board of Directors of the
Corporation, which determination shall be binding on the Corporation and the
holders of Original Preferred Stock.
3.4 VOTING RIGHTS. The holders of Original Preferred Stock
shall have the following voting rights:
(a) GENERAL. Except as otherwise required by law or as
otherwise explicitly provided in Section 3.4(b) or (c), the shares of Original
Preferred Stock shall be voted together with the Common Stock as a single class
at any annual or special meeting of the shareholders of the Corporation, or may
act by written consent in the same manner as the Common Stock and the other
series of Original Preferred Stock. Each holder of Original Preferred Stock
shall be entitled to such number of votes for the Original Preferred Stock held
by him on the record date fixed for such meeting or on the effective date of
such written consent as shall be equal to the whole number of shares of Common
Stock into which his shares of Original Preferred Stock are convertible
immediately after the close of business on the record date fixed for such
meeting or on the effective date of such written consent.
(b) SERIES D PREFERRED. The vote or written consent of
the holders of not less than 67% of all shares of Series D Preferred then
outstanding shall be required in order for the Corporation to undertake any
action which (a) alters or changes the rights, preferences or privileges
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of the Series D Preferred, (b) increases or decreases (other than by
redemption pursuant to Section 3.2 or conversion pursuant to Section 3.5) the
outstanding number of shares of Series D Preferred or Series E Preferred, (c)
increases the number of shares of Senior Preferred or Series E Preferred
outstanding, or (d) creates any new class of equity security having rights
preferential to or PARI PASSU with the rights of the Series D Preferred with
respect to voting, dividends, redemption or liquidation preference, or which
amends the terms of any existing series of Preferred Stock with the same
effect.
(c) SERIES E PREFERRED. The vote or written consent of
the holders of not less than 80% of all shares of Series E Preferred then
outstanding shall be required in order for the Corporation to undertake any
action which alters or changes the rights, preferences or privileges of the
Series E Preferred. The vote or written consent of the holders of not less than
67% of all shares of Series E Preferred then outstanding shall be required in
order for the Corporation to undertake any action which (a) increases or
decreases (other than by redemption pursuant to Section 3.2 or conversion
pursuant to Section 3.5) the outstanding number of shares of Series E Preferred,
(b) increases the number of shares of Senior Preferred or Series D Preferred
outstanding, or (c) creates any new class of equity security having rights
preferential to or PARI PASSU with the rights of the Series E Preferred with
respect to voting, dividends, redemption or liquidation preference, or which
amends the terms of any existing series of Preferred Stock with the same effect.
3.5 CONVERSION RIGHTS. The holders of Original Preferred Stock
shall have conversion rights as follows:
(a) CONVERSION RATIOS.
(i) Each holder of Senior Preferred may, at any
time after the date of issuance, upon surrender of the certificates therefor at
the principal office of the Corporation or the office of any transfer agent for
the Senior Preferred, convert any or all of such holder's Senior Preferred into
fully paid and non-assessable shares of Common Stock, at the rate of one (1)
share of Common Stock for each share of Senior Preferred so surrendered (the
"SENIOR PREFERRED CONVERSION RATIO").
(ii) Each share of Series D Preferred shall be
convertible, without the payment of any additional consideration by the holder
thereof and at the option of the holder thereof, at any time, at the office of
the Corporation or any transfer agent for such share, into such number of fully
paid and nonassessable shares of Common Stock as is determined by dividing One
Hundred Dollars ($100.00) by the Series D Conversion Price (the "SERIES D
CONVERSION RATIO"). The price at which shares of Common Stock will be
deliverable upon conversion of Series D Preferred (the "SERIES D CONVERSION
PRICE") shall initially be Four Dollars and Fifty Cents ($4.50) per share of
Common Stock. The initial Series D Conversion Price shall be subject to
adjustment as hereinafter provided.
(iii) Each share of Series E Preferred shall be
convertible, without the payment of any additional consideration by the holder
thereof and at the option of the holder thereof, at any time, at the office of
the Corporation or any transfer agent for such share, into such number of fully
paid and nonassessable shares of Common Stock as is determined by dividing Five
Dollars and Fifteen Cents ($5.15) by the Series E Conversion Price (the "SERIES
E CONVERSION
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RATIO;" each of the Senior Preferred Conversion Ratio, the Series D
Conversion Ratio and the Series E Conversion Ratio, the "CONVERSION RATIO" of
such series). The price at which shares of Common Stock will be deliverable
upon conversion of Series E Preferred (the "SERIES E CONVERSION PRICE") shall
initially be Five Dollars and Fifteen Cents ($5.15). The initial Series E
Conversion Price shall be subject to adjustment as hereinafter provided.
(b) AUTOMATIC CONVERSION.
(i) Each share of Senior Preferred Stock shall
automatically be converted into shares of Common Stock at the Senior Preferred
Conversion Ratio immediately upon the closing of any public offering of shares
of the corporation pursuant to a registration statement filed under the
Securities Act of 1933, as amended.
(ii) Each share of Series D Preferred and Series E
Preferred shall automatically be converted into shares of Common Stock at the
then effective Series D Conversion Ratio or Series E Conversion Ratio, as
applicable, immediately upon the closing of a firm commitment underwritten
public offering pursuant to an effective registration statement under the
Securities Act of 1933, as amended, covering the offer and sale on or before
December 31, 2000 of Common Stock for the account of the Corporation to the
public at a price of at least Ten Dollars ($10.00) per share (as adjusted for
stock splits, reverse stock splits, stock dividends and the like), and resulting
in gross proceeds to the Company of at least Twenty-Five Million Dollars
($25,000,000).
(iii) In the event of the automatic conversion of
the Original Preferred Stock as provided in clauses (i) or (ii) above, the
person(s) entitled to receive the Common Stock issuable upon such conversion
shall not be deemed to have converted such Original Preferred Stock until
immediately prior to the closing of such sale of securities. All of the
outstanding shares of Original Preferred Stock shall be automatically converted
(without any action by the holder thereof) into fully paid and nonassessable
shares of Common Stock. Any authorized and unissued shares of Original
Preferred Stock shall be converted, without further action by the Corporation,
into authorized and unissued shares of Preferred Stock subject to the provisions
of Article IV, Section 2 hereof, and the provisions of Article IV, Section 3
shall expire and cease to have any force or effect thereafter.
(c) NO FRACTIONAL SHARES. No fractional shares of
Common Stock shall be issued upon conversion of the Original Preferred Stock.
In lieu of any fractional shares to which the holder of Original Preferred Stock
would otherwise be entitled (computing the number of shares of Common Stock to
which such holder is entitled on an aggregate basis with respect to all shares
to be converted by such holder at the time of such conversion), the corporation
shall pay cash equal to such fraction multiplied by the fair market value of the
Common Stock, determined by the Board of Directors in good faith. Before any
holder of Original Preferred Stock shall be entitled to convert the same into
Common Stock pursuant to Section 3.5(a), such holder shall surrender the
certificate or certificates therefor, duly endorsed in blank or accompanied by
proper instruments of transfer, at the office of the Corporation or of any
transfer agent for the Original Preferred Stock, and, in the case of a
conversion pursuant to Section 3.5(a), shall give written notice to the
Corporation at such office that such holder elects to convert the same and shall
state therein the name or names in which such holder wishes the certificate or
certificates for Common Stock to be issued. The Corporation, as soon as
practicable thereafter, shall issue and deliver to such holder or to such
holder's nominee
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or nominees, a certificate or certificates for the number of full shares of
Common Stock to which such holder or nominees shall be entitled, together
with cash in lieu of any fraction of a share as provided above. Such
conversion shall be deemed to have been made as of the date of such surrender
of the Original 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
Common Stock on said date.
(d) ADJUSTMENTS FOR STOCK SPLITS, DIVIDENDS AND
COMBINATIONS. In case the Corporation shall at any time effect a subdivision of
the outstanding Common Stock, or shall fix a record date for determination of
holders entitled to receive a dividend of Common Stock on its outstanding Common
Stock, the conversion price for the Senior Preferred, the Series D Conversion
Price or the Series E Conversion Price, as applicable (each a "CONVERSION PRICE"
and, collectively, the "CONVERSION PRICES") then in effect immediately before
such subdivision or as of such record date shall be proportionately reduced, and
if the Corporation shall combine the outstanding shares of Common Stock, the
respective Conversion Prices then in effect immediately before the combination
shall be proportionately increased. Any adjustment under this Section 3.5(d)
shall become effective at the close of business on the date the subdivision or
combination becomes effective or on the record date for determining holders of
any class of securities entitled to receive the dividend, provided that if such
record date shall have been fixed and such dividend shall not have been fully
paid on the date fixed therefor, the adjustment previously made in the
respective Conversion Prices that became effective on such record date shall be
canceled as of the close of business on such record date, and thereafter the
respective Conversion Prices shall be adjusted pursuant to this Section 3.5(d)
as of the date of the payment of such dividend.
(e) ADJUSTMENTS FOR DIVIDENDS AND DISTRIBUTIONS. In the
event the Corporation at any time or from time to time shall make or issue, or
fix a record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in securities of the
Corporation other than shares of Common Stock, then and in each such event
provision shall be made so that the holders of shares of Original Preferred
Stock shall receive upon conversion thereof, in addition to the number of shares
of Common Stock receivable thereupon, the amount of securities of the
Corporation that they would have received had their shares of Original Preferred
Stock been converted into shares of Common Stock on the date of such event,
giving effect to all adjustments called for with respect to such securities
during the period from the date of such event to and including the conversion
date.
(f) ADJUSTMENTS FOR RECLASSIFICATIONS, EXCHANGES OR
SUBSTITUTIONS. If the Common Stock issuable upon the conversion of the shares
of Original Preferred Stock shall be changed into the same or a different number
of shares of any class or series of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination of shares
or stock dividend provided for in Sections 3.5(d) or 3.5(e), or a merger,
consolidation, sale of assets or other transaction provided for in Section
3.5(g)), then and in each such event the holder of each share of Original
Preferred Stock shall have the right thereafter to convert such share into the
kind and amount of shares of stock and other securities and property receivable
upon such reorganization, reclassification or other change by holders of the
number of shares of Common Stock into which such share of Original Preferred
Stock might have been converted immediately prior to such reorganization,
reclassification or change, all subject to further adjustment as provided
herein.
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(g) ADJUSTMENTS FOR MERGERS OR REORGANIZATIONS. In the
event of any merger or consolidation of the Corporation with or into another
corporation or the conveyance of all or substantially all of the assets of the
Corporation to another corporation in a transaction not deemed to be a
liquidation pursuant to Section 3.3, each share of Original Preferred Stock
shall thereafter be convertible into the number of shares of stock or other
securities or property to which a holder of the number of shares of Common Stock
of the Corporation deliverable upon conversion of such Original Preferred Stock
would have been entitled upon such consolidation, merger or conveyance; and, in
any such case, appropriate adjustment (as determined by the Board) shall be made
in the application of the provisions herein set forth with respect to the rights
and interests thereafter of the holders of Original Preferred Stock, to the end
that the provisions set forth herein (including provisions with respect to
changes in and other adjustments of the respective Conversion Prices) shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
share of stock or other property thereafter deliverable upon the conversion of
Original Preferred Stock.
(h) NO IMPAIRMENT. The Corporation will not, by
amendment of its Restated Certificate of Incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Corporation but will at all times in good faith assist in the
carrying out of all the provisions of this Section 3.5 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 Original Preferred Stock pursuant to this
Section 3.5 against impairment.
(i) CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence
of each adjustment or readjustment of any Conversion Price pursuant to this
Section 3.5 or Section 3.6, the Corporation at its expense shall promptly
compute such adjustment or readjustment in accordance with the terms hereof and
furnish to each holder of Original Preferred Stock, as the case may be, a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based. The Corporation
shall, upon the written request at any time of any holder of Original Preferred
Stock, furnish or cause to be furnished to such holder a like certificate
setting forth (a) such adjustments and readjustments, (b) the applicable
Conversion Price for the applicable Original Preferred Stock 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 such
holder's shares of Original Preferred Stock.
(j) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The
Corporation shall at all times reserve and keep available, out of its authorized
but unissued Common Stock, solely for the purpose of effecting the conversion of
the Original Preferred Stock, the full number of shares of Common Stock
deliverable upon the conversion of all Original Preferred Stock from time to
time outstanding. The Corporation shall from time to time take such corporate
action as may be necessary, in the opinion of its counsel (including all
necessary director and shareholder action) and in accordance with the laws of
the State of Delaware, to increase the authorized amount of its Common Stock if
at any time the authorized number of shares of Common Stock remaining unissued
shall not be sufficient to permit the conversion of all of the shares of
Original Preferred Stock at the time outstanding.
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(k) REISSUANCE OF PREFERRED STOCK. Subject to the
provisions of Section 3.4 hereof, upon any conversion of Original Preferred
Stock pursuant to this Section 3.5, the shares of Original Preferred Stock which
are converted can be reissued at the discretion of the Board of Directors as
shares of the same or different series of Original Preferred Stock.
3.6 ADJUSTMENTS TO CONVERSION PRICE FOR DILUTIVE ISSUANCES.
(a) SPECIAL DEFINITIONS. For purposes of this Section
3.6, the following definitions shall apply with respect to the Original
Preferred Stock:
(i) "OPTIONS" shall mean rights, options or
warrants to subscribe for, purchase or otherwise acquire either
Common Stock or Convertible Securities (as hereinafter defined);
(ii) "CONVERTIBLE SECURITIES" shall mean any
evidences of indebtedness, shares or other securities directly or
indirectly convertible into or exchangeable for Common Stock; and
(iii) "ADDITIONAL SHARES OF COMMON STOCK" shall
mean all shares of Common Stock issued (or, pursuant to Section
3.6(c), deemed to be issued) by the Corporation after the original
issue date of the applicable series of Original Preferred Stock,
other than shares of Common Stock issued or issuable:
(A) upon conversion of shares of any then
outstanding series of Preferred Stock;
(B) to officers, directors or employees of
the Corporation in connection with, or as compensation for,
their duties to or services for the Corporation, as
approved by the Board;
(C) as a dividend or distribution on the
Original Preferred Stock;
(D) in any event for which adjustment is
made as provided in Section 3.5 hereof; or
(E) by way of dividend or other
distribution on shares of Common Stock excluded from the
definition of Additional Shares of Common Stock by the
foregoing clauses (A), (B), (C) or (D), or on shares of
Common Stock so excluded.
(b) NO ADJUSTMENT OF CONVERSION PRICE. No adjustment in
the number of shares of Common Stock into which the Series D Preferred Stock or
the Series E Preferred Stock is convertible shall be made, by adjustment in the
applicable Conversion Price, in respect of the issuance or deemed issuance of
Additional Shares of Common Stock, unless the consideration per share for
Additional Shares of Common Stock issued or deemed to be issued by the
Corporation is less than the Series D Conversion Price or Series E Conversion
Price, as applicable, in effect on the date of, and immediately prior to, the
issue of such Additional Shares of Common Stock.
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(c) DEEMED ISSUE OF ADDITIONAL SHARES OF COMMON STOCK.
In the event the Corporation at any time or from time to time shall issue any
Options or Convertible Securities or shall fix a record date for the
determination of holders of any class of securities entitled to receive any such
Options or Convertible Securities, then the maximum number of shares (as set
forth in the instrument relating thereto without regard to any provisions
contained therein for a subsequent adjustment of such number) of Common Stock
issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the conversion or exchange of such Convertible
Securities, shall be deemed to be Additional Shares of Common Stock issued as of
the time of such issue of Options or Convertible Securities or, in case such a
record date shall have been fixed, as of the close of business on such record
date; provided that in any such case in which Additional Shares of Common Stock
are deemed to be issued:
(i) no further adjustment in the Conversion Price
shall be made upon the subsequent issue of Convertible Securities
or shares of Common Stock upon the exercise of such Options or
conversion or exchange of such Convertible Securities;
(ii) if such Options or Convertible Securities by
their terms provide, with the passage of time or otherwise, for
any increase or decrease in the consideration payable to the
Corporation, or any increase or decrease in the number of shares
of Common Stock issuable, upon the exercise, conversion or
exchange thereof, the Conversion Price computed upon the original
issue thereof (or upon the occurrence of a record date with
respect thereto), and any subsequent adjustments based thereon,
shall, upon any such increase or decrease becoming effective, be
recomputed to equal the lesser of (A) a price that reflects such
increase or decrease insofar as it affects such Options or the
rights of conversion or exchange under such Convertible Securities
or (B) a price calculated as if such Options or Convertible
Securities were excluded from the definition of "Additional Shares
of Common Stock," such that the issuance of such Options or
Convertible Securities, together with the foregoing adjustments in
their terms, will not have the net effect of increasing the
Conversion Price for the Original Preferred Stock;
(iii) upon the expiration of any such Options or
any rights of conversion or exchange under such Convertible
Securities that shall not have been exercised, the Conversion
Price computed upon the original issue thereof (or upon the
occurrence of a record date with respect thereto), and any
subsequent adjustments based thereon, shall, upon such expiration,
be recomputed as if:
(A) in the case of Convertible Securities
or Options for Common Stock, the only Additional Shares of
Common Stock issued were the shares of Common Stock, if
any, actually issued upon the exercise of such Options or
conversion or exchange of such Convertible Securities and
the consideration received therefor was the consideration
actually received by the Corporation for the issue of all
such Options, whether or not exercised, plus the
consideration actually received by the Corporation upon
such exercise, or for the issue of all such Convertible
Securities that were actually converted or exchanged, plus
the additional consideration, if any, actually received by
the Corporation upon such conversion or exchange, and
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(B) in the case of Options for Convertible
Securities, only the Convertible Securities, if any,
actually issued upon the exercise thereof were issued at
the time of issue of such Options, and the consideration
received by the Corporation for the Additional Shares of
Common Stock deemed to have been then issued was the
consideration actually received by the Corporation for the
issue of all such Options, whether or not exercised, plus
the consideration deemed to have been received by the
Corporation (determined pursuant to Section 3.6(e)) upon
the issue of the Convertible Securities with respect to
which such Options were actually exercised;
(iv) in the case of any Options that expire by
their terms not more than 30 days after the date of issue thereof,
no adjustment of the Conversion Price shall be made until the
expiration or exercise of all such Options, whereupon such
adjustment shall be made in the same manner provided in clause
(iii) above; and
(v) if such record date shall have been fixed and
such Options or Convertible Securities are not issued on the date
fixed therefor, the adjustment previously made in the Conversion
Price that became effective on such record date shall be canceled
as of the close of business on such record date, and thereafter
the Conversion Price shall be adjusted pursuant to this Section
3.6(c) as of the actual date of their issuance.
(d) ADJUSTMENT OF CONVERSION PRICE UPON ISSUANCE OF
ADDITIONAL SHARES OF COMMON STOCK. In the event the Corporation shall issue
Additional Shares of Common Stock (including Additional Shares of Common Stock
deemed to be issued pursuant to Section 3.6(c)) without consideration or for a
consideration per share less than the Series D Conversion Price or Series E
Conversion Price, as applicable, in effect on the date of and immediately prior
to such issue, then and in such event, the Series D Conversion Price and/or the
Series E Conversion Price, as applicable, shall be reduced, concurrently with
such issue, to a price (calculated to the nearest cent) determined by dividing:
(i) an amount equal to the sum of (A) the number
of shares of Common Stock outstanding immediately prior to such
issue multiplied by the applicable Conversion Price in effect
immediately prior to such issue, plus (B) the aggregate
consideration, if any, received by the Corporation for the
issuance and sale of such Additional Shares of Common Stock by
(ii) the sum of the number of shares of Common
Stock outstanding immediately prior to such issue plus the number
of such Additional Shares of Common Stock so issued;
provided that, for the purposes of this Section 3.6(d), all shares of Common
Stock issuable upon conversion of outstanding Options and Convertible Securities
(including the Original Preferred Stock) shall be deemed to be outstanding, and
immediately after any Additional Shares of Common Stock are deemed issued
pursuant to Section 3.6(c), such Additional Shares of Common Stock shall be
deemed to be outstanding.
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(e) DETERMINATION OF CONSIDERATION. For purposes of
this Section 3.6, the consideration received by the Corporation for the issue of
any Additional Shares of Common Stock shall be computed as follows:
(i) Such consideration shall:
(A) insofar as it consists of cash, be
computed at the aggregate amount of cash received by the
Corporation excluding amounts paid or payable for accrued interest
or accrued dividends;
(B) insofar as it consists of (1) property
other than cash, or (2) services rendered, be computed at the fair
value thereof at the time of such issue as determined in good
faith by the Board of Directors; and
(C) in the event Additional Shares of
Common Stock are issued together with other shares or Securities
or other assets of the Corporation for consideration which covers
both, be the proportion of such consideration so received,
computed as provided in clauses (A) and (B) above.
(ii) The consideration per share received by the
Corporation for Additional Shares of Common Stock deemed to have been
issued pursuant to Section 3.6(c), relating to Options and Convertible
Securities, shall be determined by dividing:
(A) the total amount, if any, received or
receivable by the Corporation as consideration for the issue of
such Options or Convertible Securities, plus the minimum aggregate
amount of additional consideration (as set forth in the
instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such
consideration) payable to the Corporation upon the exercise of
such Options or the or exchange of such Convertible Securities, or
in the case of Options for Convertible Securities, the exercise of
such Options for Convertible Securities and the conversion or
exchange of such Convertible Securities, by
(B) the maximum number of shares of Common
Stock (as set forth in the instruments relating thereto, without
regard to any provision contained therein for a subsequent
adjustment of such number) issuable upon the exercise of such
Options or the conversion or exchange of such Convertible
Securities.
3.7 Any notice required by the provisions of this Section 3 to
be given to the Holders of Original Preferred Stock shall be deemed given if
deposited in the United States mail, postage prepaid, and addressed to each
Holder of record at its address appearing on the books of the Corporation.
SECTION 4. All rights accruing to the outstanding shares of capital
stock of the Corporation not expressly provided for to the contrary herein shall
be vested in the Common Stock.
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ARTICLE V
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter, amend or repeal
the bylaws of the Corporation.
ARTICLE VI
SECTION 1. To the fullest extent permitted by the General Corporation
Law of Delaware as the same exists or as may hereafter be amended, no director
of the Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
SECTION 2. The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, indemnify
and hold harmless all directors of the Corporation. To the extent permitted by
applicable law, this Corporation is also authorized to provide indemnification
of (and advancement of expenses to) agents (and any other persons to which
Delaware law permits this Corporation to provide indemnification) through bylaw
provisions, agreements with such agents or other persons, vote of stockholders
or disinterested directors or otherwise, in excess of the indemnification and
advancement otherwise permitted by Section 145 of the Delaware General
Corporation Law, subject only to limits created by applicable Delaware law
(statutory or non-statutory) with respect to actions for breach of duty to the
Corporation, its stockholders, and others.
SECTION 3. Neither any amendment nor repeal of any of the foregoing
provisions of this Article VI, nor the adoption of any provision of this
Certificate of Incorporation inconsistent with this Article VI, shall eliminate,
reduce or otherwise adversely affect any limitation on the personal liability of
a director of the Corporation existing at the time of such amendment, repeal or
adoption of such an inconsistent provision.
ARTICLE VII
The Corporation shall not be subject to or governed by the provisions of
Section 203 of the General Corporation Law of Delaware, or any amendment or
successor provisions thereto, with respect to business combinations between the
Corporation and interested stockholders.
ARTICLE VIII
The Corporation reserves the right at any time, and from time to time, to
amend, alter, change or repeal any provision contained in this Restated
Certificate of Incorporation, and other provisions authorized by the laws of the
State of Delaware at the time in force may be added or inserted, in the manner
now or hereafter prescribed by law; and all rights, preferences and privileges
of whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Restated Certificate of Incorporation in its
present form or as hereafter amended are granted subject to the rights reserved
in this article.
ARTICLE IX
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The election of directors under the terms of the bylaws of the
Corporation is not required to occur by written ballot.
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