Exhibit 3.1
CERTIFICATE OF AMENDMENT TO
CERTIFICATE OF INCORPORATION
OF
SCC TECHNOLOGIES, INC.
Pursuant to Section 242
of the General Corporation Law of the State of Delaware
SCC Technologies, Inc. (hereinafter called the "Corporation"), organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware, does hereby certify as follows;
By written consent of the Board of Directors of the Corporation,
resolutions were duly adopted, pursuant to Sections 141(f) and 242 of the
General Corporation Law of the State of Delaware, setting forth amendments to
the Certificate of Incorporation of the Corporation (the "Certificate of
Incorporation") and declaring said amendments to be advisable. The stockholders
duly approved said proposed amendments by written consent in accordance with
Sections 228 and 242 of the General Corporation Law of the State of Delaware.
The resolutions setting forth the amendments are as follows:
RESOLVED: That Article I of the Certificate of Incorporation be deleted in
its entirety and the following Article I be inserted in lieu
thereof:
"ARTICLE I"
"NAME"
"The name of the corporation is I-many, Inc."
IN WITNESS WHEREOF, SCC Technologies. Inc. has caused this Certificate to
be signed by its Treasurer this 6th day of January, 2000.
By: /s/ Mark Tilly
---------------------------
Mark Tilly
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SCC TECHNOLOGIES, INC.
FIRST: The name of the corporation is SCC Technologies, Inc. (the
"Corporation") The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on April 2, 1998.
SECOND: This Amended and Restated Certificate of Incorporation (this
"Amended and Restated Certificate") has been duly adopted in accordance with the
provisions of Sections 242 and 245 of the General Corporation Law of the State
of Delaware (the "GCL").
THIRD: This Amended and Restated Certificate restates, integrates and
amends the provisions of the Corporation's Certificate of Incorporation, as
follows:
* * * * * * * * * * *
ARTICLE I
NAME
The name of the corporation is SCC Technologies, Inc.
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of its registered office 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
PURPOSE
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 GCL.
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ARTICLE IV
CAPITAL STOCK
The total number of shares of all classes of stock which the Corporation
shall have authority to issue is 15,750,000 shares, consisting of (i) 12,000,000
shares of Common Stock, $0.0001 par value per share ("Common Stock") and (ii)
3,750,000 shares of Preferred Stock, par value $0.01 per share ("Preferred
Stock"). The Preferred Stock will be divided into series. The first series will
consist of 2,100,000 shares and is designated "Series A Preferred Stock." The
second series will consist of 400,000 shares and is designated "Series B
Preferred Stock." The third series will consist of 1,250,000 shares and is
designated "Series C Preferred Stock." The Series A Preferred Stock, the Series
B Preferred Stock and the Series C Preferred Stock are collectively referred to
as the "Preferred Stock."
The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations and restrictions
thereof in respect of each class of capital stock of the Corporation.
1. Dividends.
(a) Dividends on Series C Preferred Stock. Dividends on the Series C
Preferred Stock shall accrue on a daily basis from the Original Issuance Date
(as defined in Section 2(a), below) of the Series C Preferred Stock, and to the
extent they are not paid, shall accumulate annually, at the rate of 8% of the
Series C Issue Price (as defined below), whether or not the Corporation has
earnings or profits, whether or not there are funds legally available for the
payment of such dividends and whether or not dividends arc declared. Dividends
received and not previously paid to the holders of shares of Series C Preferred
Stock shall be paid, in cash or in shares of Series C Preferred Stock, at the
option of the holders of the Series C Preferred Stock at the time of (i) a
redemption of the Series C Preferred Stock pursuant to Section 5, below; (ii) a
Liquidation (as defined in Section 2(a), below); or (iii) conversion of the
Series C Preferred Stock pursuant to Section 4, below; provided, however, that
if the fair market value of the Common Stock at the time of conversion of the
Series C Preferred Stock, as determined by the Board of Directors, is greater
than two times the Series C Issue Price, but is less than four times the then
applicable Series C Issue Price, then the Series C Preferred Stock shall be paid
one half of the amount of all such accrued and unpaid dividends and the
remaining amount of all such dividends shall be waived; provided further,
however, that if the fair market value of the Common Stock at the time of
conversion of the Series C Preferred Stock, as determined by the Board of
Directors, is greater than or equal to four times the then applicable Series C
Issue Price, then no dividends shall be paid on the Series C Preferred Stock
pursuant to this Section 1(a) and the total amount of all such dividends shall
be waived.
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(b) Dividends on Series A and Series B Preferred Stock. Unless full
cumulative dividends on all outstanding shares of Series C Preferred Stock shall
have been declared and paid in full or waived, then no dividend shall be
declared or paid upon, or any sum set apart for the payment of dividends upon,
any shares of Series A and Series B Preferred Stock or Common Stock. At such
time as full cumulative dividends have been paid to the holders of the Series C
Preferred Stock or waived, the holders of the Series A and Series B Preferred
shall be entitled to receive dividends out of funds legally available therefor
and when and if declared by the Board of Directors. The right to dividends on
shares of Series A and Series B Preferred Stock shall not be cumulative and no
right shall accrue to holders of Series A and Series B Preferred Stock by reason
of the fact that dividends on such shares are not declared.
2. Liquidity Event
(a) Definitions.
(i) "Series A Issue Price" means $2.965 per share of Series A
Preferred stock subject to adjustment in the same manner as
the Conversion Price is adjusted under Section 4(d) below.
(ii) "Series B Issue Price" means $5.00 per share of Series B
Preferred Stock, subject to adjustment in the same manner
as the Conversion Price is adjusted under Section 4(d),
below.
(ii) "Series C Issue Price" means $10.05 per share of Series C
Preferred Stock, subject to adjustment in the same manner
as the Conversion Price is adjusted under Section 4(d),
below
(iv) "Liquidation" means any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of
the Corporation, other than any dissolution, liquidation or
winding up in connection with any reincorporation of the
Corporation in another jurisdiction.
(v) "Liquidation Amount" means (A) with respect to any share of
Series A Preferred Stock where the Distribution Amount is
less than four times the Series A Issue Price, an amount
equal to the sum of (x) the Series A Issue Price and (y)
such share's pro rata portion of the remaining proceeds
calculated based upon the number of shares of Common Stock
into which such share is then convertible pursuant to
Section 4(a) plus all declared but unpaid dividends payable
with respect to such share of Series A Preferred Stock and
(B) in all other cases with respect to shares of any series
of Preferred Stock, the Issue Price of such series of
Preferred Stock plus all declared but unpaid dividends
payable with respect to such shares.
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(vi) "Corporate Transaction" means (A) any consolidation or
merger of the Corporation, other than any merger or
consolidation resulting in the holders of the capital stock
of the Corporation entitled to vote for the election of
directors holding a majority of the capital stock of the
surviving or resulting entity entitled to vote for the
election of directors (B) any sale or other disposition by
the holders of shares of Common Stock of a majority of such
shares to a person or entity that is not a Stockholder of
the Corporation as of the Original Issuance Date for Series
C Preferred Stock or (C) any sale or other disposition by
the Corporation or any material subsidiary of all or
substantially all of its assets.
(vii) "Distribution Amount" means, in connection with any
Liquidity Event, the quotient obtained by dividing (A) the
aggregate amount available for distribution to the holders
of capital stock of the Corporation in such Liquidity Event
by (B) the number of outstanding shares of Common Stock at
the time of such distribution, assuming the prior
conversion of all shares of Series A, Series B and Series C
Preferred Stock.
(viii) "Original Issuance Date" for both the Series A and Series B
Preferred Stock, means the date of original issuance of the
first share of Series A Preferred Stock and, for the Series
C Preferred Stock, means the date of original issuance of
the first share of Series C Preferred Stock.
(ix) "Public Offering" means any underwritten public offering
for the account of the Corporation of Common Stock pursuant
to a registration statement filed under the Securities Act
of 1933, as amended (the "Securities Act") (other than on
Form S-8 promulgated under the Securities Act or any
successor forms thereto) that is not a Qualified Public
Offering (defined below).
(x) "Qualified Public Offering" means the first underwritten
public offering for the account of the Corporation of
Common Stock pursuant to a registration statement filed
under the Securities Act at an offering price per share of
Common Stock to the public of not less than three times the
Series C Issue Price and with aggregate proceeds (net of
underwriting discounts and commissions) to the Corporation
of not less than $25,000,000.
(b) Series A and Series C Liquidation Amount. Upon a Liquidation,
Corporate Transaction or Public Offering (collectively, a "Liquidity Event")
after payment or provision for payment of the debts and other liabilities of the
Corporation and all amounts which the holders of any class of capital stock
ranking senior to the Series A Preferred Stock and Series C Preferred
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Stock shall be entitled to receive upon such Liquidity Event, the holders of
Series A Preferred Stock and Series C Preferred Stock shall be entitled to
receive, out of the remaining assets of the Corporation available for
distribution to its stockholders, with respect to each share of Series A
Preferred Stock or Series C Preferred Stock, as applicable, an amount equal to
the Series A Liquidation Amount or Series C Preferred Stock, as applicable,
before any distribution shall be made to the holders of the Common Stock, the
Series B Preferred Stock or any other class of capital stock of the Corporation
ranking junior to the Series A Preferred Stock and Series C Preferred Stock. If,
upon any Liquidity Event, the assets of the Corporation available for
distribution to its stockholders shall be insufficient to pay the holders of
Series A Preferred Stock and Series C Preferred Stock the full Liquidation
Amounts to which they shall be entitled, the holders of Series A Preferred Stock
and Series C Preferred Stock shall share pro rata amongst themselves in any
distribution of assets in accordance with their respective full Liquidation
Amounts.
(c) Series B Liquidation Amount. Upon a Liquidity Event, after payment or
provision for payment of the debts and other liabilities of the Corporation and
all amounts which the holders of the Series A Preferred Stock and Series C
Preferred Stock and any other class of capital stock ranking senior to the
Series B Preferred Stock shall be entitled to receive upon such Liquidity Event,
the holders of Series B Preferred Stock shall be entitled to receive, out of the
remaining assets of the Corporation available for distribution to its
stockholders, with respect to each share of Series B Preferred Stock an amount
equal to the Series B Liquidation Amount before any distribution shall be made
to the holders of the Common Stock or any other class of capital stock of the
Corporation ranking junior to the Series B Preferred Stock. If, upon any
Liquidity Event the assets of the Corporation available for distribution to its
stockholders shall be insufficient to pay the holders of Series B Preferred
Stock the full Series B Liquidation Amount to which they shall be entitled, the
holders of Series B Preferred Stock shall share pro rata amongst themselves in
any distribution of assets in accordance with such full Liquidation Amount.
(d) Additional Distributions. After the payment or setting apart for
payment of the Series A, Series B and Series C Liquidation Amounts as set forth
above, the remaining assets of the Corporation shall be distributed ratably
among the holders of the Series C Preferred Stock and the Common Stock in
proportion to the number of shares of Common Stock that would be held by each
such holder if all shares of Series C Preferred Stock were converted into Common
Stock at the then effective Series C Conversion Price (as defined in Section
4(a), below) until the holders of the Series C Preferred Stock have received an
amount per share pursuant to this subsection (d) equal to one times the Series C
Issue Price (the "Participating Liquidation Amount"). If, upon any Liquidity
Event the assets of the Corporation available for distribution to its
stockholders shall be insufficient to pay the holders of the Common Stock and
the Series C Preferred Stock the Participating Liquidation Amount, then the
holders of the Common Stock and the Series C Preferred Stock shall share pro
rata amongst themselves in any distribution of assets in proportion to the
number of shares of Common Stock which would be held by each
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such holder if all shares of Series C Preferred Stock were converted into Common
Stock at the then effective Series C Conversion Price (as defined in Section
4(a), below). After the payment or setting apart for payment of the
Participating Liquidation Amount, the remaining assets of the Corporation shall
be distributed ratably among the holders of the Common Stock.
3. Voting Rights.
(a) in addition to the rights provided by law or in the Corporation's
Bylaws, each share of Preferred Stock shall entitle the holder thereof to such
number of votes as shall equal the number of shares of Common Stock into which
such share of Preferred Stock is then convertible pursuant to Section 4(a),
below. The holders of Series A and Series B and Series C Preferred Stock shall
be entitled to vote on all matters as to which holders of Common Stock shall be
entitled to vote, in the same manner and with the same effect as such holders of
Common Stock, voting together with the holders of Common Stock as one class.
There shall be no cumulative voting.
(b) Voting for Directors. The authorized number of directors of the
Corporation will be determined from time to time by the Board of Directors and
shall be at least one, but not more than 15. The Board of Directors will be
composed as follows: (a) the holders of the Series C Preferred Stock, voting as
a separate class on an "as converted to Common Stock" basis, will be entitled to
elect one director to the Board of Directors and (b) the remaining directors
will be elected by the holders of the Preferred Stock and the holders of the
Common Stock as follows: each holder of Preferred Stock will have one vote for
each full share of Common Stock into which its respective shares of Preferred
Stock would be convertible pursuant to Section 4(a) on the record date of the
vote and each holder of Common Stock will have one vote per share of Common
Stock. Any director elected by a class of shares voting aforesaid may be removed
by such holders. Any vacancy in the Board of Directors occurring because of the
death, resignation, or removal of a director elected by the holders of a class
of shares voting as aforesaid will be filled by the vote or written consent of
the holders of a majority of the class which elected such director.
(c) The Corporation shall not, without the affirmative consent or approval
of the holders of two-thirds of the shares of Series A Preferred Stock and
Series B Preferred Stock then outstanding, voting together as a single class on
an "as converted to Common Stock" basis and the separate affirmative consent or
approval of the holders of two-thirds of the shares of Series C Preferred Stock
then outstanding, voting as a separate class:
(i) authorize or designate, whether by reclassification or
otherwise, any new class or series of stock or any other securities
convertible into equity securities of the Company ranking senior to
or pari passu with the Preferred Stock in rights of redemption,
liquidation preference, voting or dividends;
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(ii) issue or pay or declare any dividend or distribution on any
shares of Common Stock;
(iii) redeem, purchase or otherwise acquire for value (or pay into
or set aside for a sinking fund for such purpose) any share or
shares of Common Stock or Preferred Stock otherwise than by
redemption in accordance with Section 5 of this Amended and Restated
Certificate; provided, that this restriction shall not apply to (i)
the repurchase of shares of Common Stock from employees, officers,
directors, consultants or other persons performing services for the
Corporation pursuant to agreements under which the Corporation has
the option to repurchase such shares at cost or (ii) separate
repurchases of 5,000 or fewer shares of stock;
(iv) amend, modify or repeal any provision of or add any provision
to the Amended and Restated Certificate or Bylaws if such action
would adversely affect the rights, privileges, preferences or
restrictions created for the benefit of the Preferred Stock;
(v) authorize any transaction or series of transaction which is
reasonably likely to result in a "change of control" as that term is
used in Item 1 of Form 8-K under the Securities Exchange Act of
1934, as amended;
(vi) approve or authorize any Liquidation or any recapitalization or
reorganization of the Corporation or any of its subsidiaries;
(vii) increase or decrease (other than by redemption or conversion)
the authorized number of shares of Preferred Stock; or
(viii) increase or decrease the size of the Board of Directors.
(d) The Corporation shall not, without the affirmative consent or approval
of the holders of a majority of the shares of Series B Preferred Stock then
outstanding, voting separately as a class:
(i) in any manner alter or change the powers, preferences, or
rights, or qualifications, limitations or restrictions
thereof, of the shares of Series B Preferred Stock as to
affect them adversely; or
(ii) approve or authorize any Liquidation or any recapitalization
or reorganization of the Corporation or any subsidiary.
4. Conversion. The holders of Preferred Stock shall have conversion rights as
follows:
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(a) Optional Conversion. Each share of Series A Preferred Stock will be
convertible, at the option of the holder thereof at the office of the
Corporation or any transfer agent for the Preferred Stock, into such number of
fully paid and nonassessable shares of Common Stock as is determined by dividing
$2.965 by the conversion price applicable to such share, determined as
hereinafter provided, in effect at the time of such conversion. The price at
which one share of Common Stock will be deliverable upon conversion of one share
of Series A Preferred Stock (the "Series A Conversion Price") will initially be
$2.965. Each share of Series B Preferred Stock will be convertible at the option
of the holder thereof at the office of the Corporation or any transfer agent for
the Preferred Stock, into such number of fully paid and nonassessable shares of
Common Stock as is determined by dividing $5.00 by the conversion price
applicable to such share, determined as hereinafter provided, in effect at the
time of such conversion. The price at which one share of Common Stock will be
deliverable upon conversion of one share of Series B Preferred Stock (the
"Series B Conversion Price") will initially be $5.00. Each share of Series C
Preferred Stock will be convertible, at the option of the holder thereof at the
office of the Corporation or any transfer agent for the Preferred Stock, into
such number of fully paid and nonassessable shares of Common Stock as is
determined by dividing $10.05 by the conversion price applicable to such share,
determined as hereinafter provided, in effect at the time of such conversion.
The price at which one share of Common Stock will be deliverable upon conversion
of one share of Series C Preferred Stock (the "Series C Conversion Price") will
initially be $10.05. The Series A Conversion Price. Series B Conversion Price
and Series C Conversion Price are referred to individually as a "Conversion
Price" and collectively as the "Conversion Prices." Each such initial Conversion
Price will be subject to adjustment as provided in Section 4(d).
(b) Mechanics of Conversion. The holder of any shares of Preferred Stock
may exercise the conversion right pursuant to paragraph (a) above by delivering
to the Corporation the certificate or certificates for the shares to be
converted, duly endorsed or assigned in blank or to the Corporation (if required
by it), accompanied by written notice stating that the holder elects to convert
such shares and stating the name or names (with address) in which the
certificate or certificates for the shares of Common Stock are to be issued.
Conversion shall be deemed to have been effected on the date when such delivery
is made (the "Conversion Date"). As promptly as practicable thereafter, the
Corporation shall issue and deliver to or upon the written order of such holder,
to the place designated by such holder, a certificate or certificates for the
number of full shares of Common Stock to which such holder is entitled, and a
cash amount in respect of any fractional interest in a share of Common Stock as
provided in paragraph (c) below. The person in whose name the certificate or
certificates for Common Stock are to be issued shall be deemed to have become a
stockholder of record on the applicable Conversion Date unless the transfer
books of the Corporation are closed on that date, in which event such person
shall be deemed to have become a stockholder of record on the next succeeding
date on which the transfer books are open, but the Conversion Price shall be
that in effect on the Conversion Date. Upon conversion of only a portion of the
number of shares covered by a certificate representing shares of Preferred Stock
surrendered for conversion, the Corporation shall issue and deliver to
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or upon the written order of the holder of the certificate so surrendered for
conversion, at the expense of the Corporation, a new certificate covering the
number of shares of Preferred Stock representing the unconverted portion of the
certificate so surrendered.
(c) Fractional Shares. No fractional shares of Common Stock or scrip shall
be issued upon conversion of shares of Preferred Stock. The number of full
shares of Common Stock issuable upon conversion of Preferred Stock shall be
computed on the basis of the aggregate number of shares of such Preferred Stock
to be converted. Instead of any fractional shares of Common Stock which would
otherwise be issuable upon conversion of any such shares, the Corporation shall
pay a cash adjustment in respect of such fractional interest in an amount equal
to the product of (i) the price of one share of Common Stock as determined in
good faith by the Board and (ii) such fractional interest. The holders of
fractional interests shall not be entitled to any rights as stockholders of the
Corporation in respect of such fractional interests.
(d) Adjustments to Conversion Prices of Preferred Stock. The Conversion
Prices shall be subject to adjustment from time to time as follows:
(i) If the Corporation shall, at any time or from time to time after
the Original Issuance Date, with respect to any series of Preferred
Stock, issue (or pursuant to Section 4(d)(C) hereof be deemed to
have issued) any shares of Common Stock other than Excluded Stock
without consideration or for a consideration per share less than any
Conversion Price in effect immediately prior to the issuance of such
Common Stock ("Additional Shares"), then such Conversion Price in
effect immediately prior to each such issuance shall forthwith be
lowered to a price equal to the quotient obtained by dividing:
(A) an amount equal to the sum of (x) the total number of
shares of Common Stock outstanding on a fully-diluted basis
immediately prior to such issuance, multiplied by such
Conversion Price in effect immediately prior to such issuance,
and (y) the consideration received by the Corporation upon
such issuance; by
(B) the total number of shares of Common Stock outstanding on
a fully-diluted basis immediately after the issuance of such
Common Stock.
(ii) For the purposes of any adjustment of the Conversion Prices
pursuant to clause (i) above, the following provisions shall be
applicable:
(A) In the case of the issuance of Common Stock for cash in a
public offering or private placement, the consideration shall
be deemed to be the amount of cash paid therefor after
deducting therefrom any discounts, commissions or placement
fees payable by the Corporation to any
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underwriter or placement agent in connection with the issuance
and sale thereof.
(B) In the case of the issuance of 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
market value thereof as determined in good faith by the Board
of Directors, irrespective of any accounting treatment.
(C) In the case of the issuance 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 except for options to
acquire Excluded Stock:
(1) the aggregate maximum number of shares of Common
Stock deliverable upon exercise 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
subdivisions (A) and (B) above), if any, received by the
Corporation upon the issuance of such options or rights
plus the minimum purchase price provided in such options
or rights for the Common Stock covered thereby;
(2) the aggregate maximum number of shares of Common
Stock deliverable upon conversion of or in exchange 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, options, or rights were issued and for a
consideration equal to the consideration 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
additional consideration, if any, to be received by the
Corporation upon the conversion or exchange of such
securities or the exercise of any related options or
rights (the consideration in each case to be determined
in the manner provided in subdivisions (A) and (B)
above);
(3) on any change in the number of shares or exercise
price of Common Stock deliverable upon exercise of any
such options or
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rights or conversions of or exchange for such
securities, other than a change resulting from the
antidilution provisions thereof, the Conversion Price
shall forthwith be readjusted to such Conversion Price
as would have obtained had the adjustment made upon the
issuance of such options, rights or securities not
converted prior to such change or options or rights
related to such securities not converted prior to such
change been made upon the basis of such change; and
(4) on 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
Price shall forthwith be readjusted to such Conversion
Price as would have obtained had the adjustment made
upon the issuance of such options, rights, securities or
options or rights related to such securities been made
upon the basis of the issuance of only the number of
shares of Common Stock 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 and
subsequent conversion or exchange thereof.
(D) Special Adjustment Provisions for Series C Preferred
Stock. Notwithstanding the foregoing, in the event that on or
before the second anniversary of the Original Issuance Date of
the Series C Preferred Stock, the Corporation issues (or
pursuant to Section 4(d)(C) hereof is deemed to have issued)
any Additional Shares, then and in such event, the Series C
Conversion Price will be reduced, concurrently with such
issue, to a price determined by dividing the aggregate
consideration received by the Corporation for the total number
of Additional Shares issued (or pursuant to Section 4(d)(C)
hereof deemed to have been issued) by the total number of
Additional Shares issued (or pursuant to Section 4(d)(C)
hereof deemed to have been issued).
(E) "Excluded Stock" means (1) up to 3,213,901 shares of
Common Stock issuable upon exercise of stock options granted
to officers, directors, consultants, service providers and
employees of the Corporation or its subsidiaries approved by
the Board of Directors, (2) shares of Common Stock issued upon
conversion of shares of Preferred Stock; (3) shares of Common
Stock or other securities issued, directly or indirectly, upon
the exercise of options, warrants, convertible notes or other
rights to acquire equity securities outstanding on the
Original Issuance Date of the Series C
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Preferred Stock; (4) up to 29,750 shares of Common Stock (as
equitably adjusted for stock dividends, stock splits, stock
combinations and similar events) issuable to Goulder
Investments, Ltd. or assigns upon exercise of that certain
warrant dated May 27, 1997, as amended; (5) up to 59,525
shares of Common Stock (as equitably adjusted for stock
dividends, stock splits, stock combinations and similar
events) issuable to Bayview Ventures or assigns upon exercise
of that certain warrant dated May 27, 1997, as amended; (6)
securities issued in connection with a Corporate Transaction
that is approved by the Board of Directors; and (7) securities
that are declared to be "Excluded Stock" for purposes of this
Section by the holders of a majority of the shares of Series A
and Series C Preferred Stock; and (8) any shares of Common
Stock issued in connection with any Qualified Public Offering.
(F) If, at any time after the Original Issuance Date of any
series of Preferred Stock, the number of shares of Common
Stock outstanding is increased by a stock dividend payable in
shares of Common Stock or by a subdivision or split-up of
shares of Common Stock, then, following the record date for
the determination of holders of Common Stock entitled to
receive such stock dividend, subdivision or split-up, the
Conversion Prices shall be appropriately decreased so that the
number of shares of Common Stock issuable on conversion of
each share of such series of Preferred Stock shall be
increased in proportion to such increase in outstanding
shares.
(G) If, at any time after the Original Issuance Date of any
series of Preferred Stock, the number of shares of Common
Stock outstanding is decreased by a combination of the
outstanding shares of Common Stock, then, following the record
date for such combination, the Conversion Prices shall be
appropriately increased so that the number of shares of Common
Stock issuable on conversion of each share of such series of
Preferred Stock shall be decreased in proportion to such
decrease in outstanding shares.
(H) In the event of any capital reorganization of the
Corporation, any reclassification of the stock of the
Corporation (other than a change in par value or from par
value to no par value or from no par value to par value or as
a result of a stock dividend or subdivision, split-up or
combination of shares), or any consolidation or merger of the
Corporation, each share of Preferred Stock shall after such
reorganization, reclassification, consolidation, or merger be
convertible into the kind and number of shares of stock or
other securities or property of the Corporation or of the
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corporation resulting from such consolidation or surviving
such merger to which the holder of the number of shares of
Common Stock deliverable (immediately prior to the time of
such reorganization, reclassification, consolidation or
merger) upon conversion of such share of Preferred Stock would
have been entitled upon such reorganization, reclassification,
consolidation or merger. The provisions of this clause shall
similarly apply to successive reorganizations,
reclassifications, consolidations or mergers.
(I) All calculations under this paragraph shall be made to the
nearest one hundredth (1/100) of a cent or the nearest one
tenth (1/10) of a share, as the case may be.
(J) In any case in which the provisions of this Section 4(d)
shall require that an adjustment shall become effective
immediately after a record date of an event, the Corporation
may defer until the occurrence of such event (1) issuing to
the holder of any share of Preferred Stock converted after
such record date and before the occurrence of such event the
shares of capital stock issuable upon such conversion by
reason of the adjustment required by such event in addition to
the shares of capital stock issuable upon such conversion
before giving effect to such adjustments, and (2) paying to
such holder any amount in cash in lieu of a fractional share
of capital stock pursuant to Section 4(c) above; provided,
however, that the Corporation shall deliver to such holder an
appropriate instrument evidencing such holder's right to
receive such additional shares and such cash.
(iii) Whenever the Conversion Prices shall be adjusted as provided
in Section 4(d), the Corporation shall make available for inspection
during regular business hours, at its principal executive offices or
at such other place as may be designated by the Corporation, a
statement, signed by its chief executive officer, showing in detail
the facts requiring such adjustment and the Conversion Prices that
shall be in effect after such adjustment. The Corporation shall also
cause a copy of such statement to be sent by first class certified
mail, return receipt requested and postage prepaid, to each holder
of Preferred Stock at such holder's address appearing on the
Corporation's records. Where appropriate, such copy may be given in
advance and may be included as part of any notice required to be
mailed under the provisions of paragraph (iv) below.
(iv) If the Corporation shall propose to take any action of the
types described in clauses (F), (G) or (H) of Section 4(d) above,
the Corporation shall give notice to each holder of shares of
Preferred Stock, in the manner set forth in paragraph
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(iii) above, which notice shall specify the record date, if any,
with respect to any such action and the date on which such action is
to take place. Such notice shall also set forth such facts with
respect thereto as shall be reasonably necessary to indicate the
effect of such action (to the extent such effect may be known at the
date of such notice) on the Conversion Price and the number, kind or
class of shares or other securities or property which shall be
deliverable or purchasable upon the occurrence of such action or
deliverable upon conversion of shares of Preferred Stock. Failure to
give such notice, or any defect therein, shall not affect the
legality or validity, of any such action.
(v) The Corporation shall reserve, and at all times from and after
the Original Issuance Date keep reserved, free from preemptive
rights, out of its authorized but unissued shares of Common Stock,
solely for the purpose of effecting the conversion of the shares of
Series A, Series B and Series C Preferred Stock, sufficient shares
of Common Stock to provide for the conversion of any outstanding
Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock.
(vi) At any time the Corporation makes or fixes 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, provision shall be
made so that each holder of shares of Preferred Stock shall receive
upon conversion thereof, in addition to the shares of Common Stock
receivable thereupon, the number of securities of the Corporation
which it would have received had its shares of Preferred Stock been
converted into shares of Common Stock on the date of such event and
had such holder thereafter, during the period from the date of such
event to and including the date of conversion, retained such
securities receivable by it pursuant to this paragraph during such
period, subject to the sum of all other adjustments called for
during such period under this Section with respect to the rights of
such holder of shares of Preferred Stock.
(e) Mandatory Conversion.
(i) Upon (A) the consent of at least two-thirds of the outstanding
Preferred Stock, voting together as a single class on an "as
converted to Common Stock" basis, or (B) the consummation of a
Qualified Public Offering, each share of Preferred Stock then
outstanding shall, by virtue of and simultaneously with such consent
or Qualified Public Offering, be deemed automatically converted at
the Conversion Price then in effect for each such series. In the
event of the automatic conversion of the Preferred Stock upon a
Qualified Public Offering, the person(s) entitled to receive the
Common Stock issuable upon such conversion of the
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Preferred Stock shall not be deemed to have converted such Preferred
Stock until immediately prior to the closing of the Qualified Public
Offering.
(ii) As promptly as practicable after the date of consummation of
any automatic conversion and the delivery to the Corporation of the
certificate or certificates representing shares of Preferred Stock
which have been converted, duly endorsed or assigned in blank to the
Corporation (if required by it), the Corporation shall issue and
deliver to or upon the written order of each holder of Preferred
Stock, to the place designated by such holder, a certificate or
certificates for the number of full shares of Common Stock to which
such holder is entitled, and a cash amount in respect of any
fractional interest in a share of Common Stock as provided in
paragraph (iii) below. The person in whose name the certificate or
certificates for Common Stock are to be issued shall be deemed to
have become a stockholder of record on the date of such automatic
conversion and on such date the shares of Preferred Stock shall
cease to be outstanding, whether or not the certificates
representing such shares have been received by the Corporation.
(iii) The provisions set forth in Section 4(c) shall apply to the
conversion of Series A, Series B and Series C Preferred Stock
pursuant to this Section in the same manner as they apply to the
conversion of Series A, Series B and Series C Preferred Stock
pursuant to Section 4(c).
5. Redemption. To the extent permitted by the GCL and presuming there
previously has not been a Liquidity Event, the Series C Preferred Stock shall be
redeemable as follows:
(a) On each of the fifth, sixth and seventh anniversaries of the Original
Issuance Date of the Series C Preferred Stock (each a "Series C Redemption
Date"), the Corporation shall, upon the affirmative vote of the holders of a
majority of shares of the Series C Preferred Stock as specified in Section 5(c)
below, at the option of a holder of the Series C Preferred Stock, such option to
be effected by delivering a Series C Redemption Notice (as defined below) to the
Corporation at least 60 days prior to such Series C Redemption Date, redeem: (i)
on the fifth anniversary of the Original Issuance Date of the Series C Preferred
Stock (the "First Redemption Date"), an amount not to exceed 33.3% of all such
Series C Preferred Stock outstanding immediately prior to such date, (ii) on the
sixth anniversary of the Original Issuance Date of the Series C Preferred Stock,
an amount not to exceed 33.3% of all shares of Series C Preferred Stock
outstanding as of the First Redemption Date plus any shares of Series C
Preferred Stock which were eligible for redemption on the First Redemption Date,
and (iii) on the seventh anniversary of the Original Issuance Date of the Series
C Preferred Stock, the remainder of all outstanding Series C Preferred Stock.
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(b) The Series C Preferred Stock to be redeemed on any Series C Redemption
Date shall be redeemed by paying for each share in cash an amount equal to the
Series C Liquidation Amount. Such notice shall state the number of shares of
Series C Preferred Stock to be redeemed.
(c) On or before 90 days prior to each Series C Redemption Date, the
Corporation shall conduct a vote of the holders of the Series C Preferred Stock
with regard to whether to effectuate the redemption provisions as of the then
forthcoming Series C Redemption Date. Should a majority of the then outstanding
shares of the Series C Preferred Stock approve that redemption no less than 60
days prior to each Redemption Date the Company shall send a notice (a "Series C
Redemption Notice") to all holders of Series C Preferred Stock to be redeemed,
setting forth (i) the Series C Liquidation Amount for the shares to be redeemed
and (ii) the place at which such holders may obtain payment of the Series C
Redemption Price upon surrender of their share certificates.
(d) Shares subject to redemption pursuant to this Section 5 shall be
redeemed from each holder of the Series C Preferred Stock on a pro rata basis.
If the Corporation does not have sufficient funds legally available to redeem
all shares to be redeemed at a Series C Redemption Date, then it shall redeem
such shares on a pro rata basis (based on the portion of the aggregate Series C
Liquidation Amount payable to them) to the extent possible and shall redeem the
remaining shares to be redeemed as soon as sufficient funds are legally
available.
ARTICLE V
CORPORATE EXISTENCE
The Corporation is to have perpetual existence.
ARTICLE VI
MANAGEMENT OF THE CORPORATION
In furtherance and not in limitation of the powers conferred by the laws
of the State of Delaware:
(a) The Board of Directors of the corporation is expressly authorized to
adopt, amend or repeal the Bylaws of the corporation.
(b) Elections of directors need not be by written ballot unless the Bylaws
of the corporation shall so provide.
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(c) The books of the corporation may be kept at such place within or
without the State of Delaware as the Bylaws of the corporation may provide or as
may be designated from time to time by the board of directors of the
corporation.
ARTICLE VII
CREDITORS MEETINGS
Whenever a compromise or arrangement is proposed between this corporation
and its creditors or any class of them and/or between this corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
the provisions of Section 279 of Title 8 of the Delaware Code, order a meeting
of the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be a binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this corporation, as the case may be, and also on this
corporation.
ARTICLE VIII
PERSONAL LIABILITY
The corporation eliminates the personal liability of each member of its
board of directors to the corporation or its stockholders for monetary damages
for breach of fiduciary duty, as a director, provided that the foregoing shall
not eliminate the liability of a director (i) for any breach of such director's
duty of loyalty to the 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 Title 8 of the Delaware Code or
(iv) for any transaction from which such director derived any improper personal
benefit.
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ARTICLE IX
AMENDMENTS
The corporation reserves the right to amend or repeal any provision
contained in this Amended and Restated Certificate, in the manner now or
hereafter prescribed by statute, except as set forth in Article IV Section 3 of
this Amended and Restated Certificate.
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IN WITNESS WHEREOF, the Company has caused this Amended and Restated
Certificate of Incorporation to be signed by Mark Tilly, its Treasurer, and
attested by Philip M. St. Germain, its Secretary, this 30th day of December
1999.
SCC TECHNOLOGIES, INC.
By: /s/ Mark Tilly
--------------------------
Name:
Title:
Attested:
By: /s/ Philip M. St. Germain
------------------------------
Name: Philip M. St. Germain
Title: Secretary
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