EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
PHARSIGHT CORPORATION
I.
The name of this corporation is Pharsight Corporation.
II.
The address of the registered office of the corporation in the State of
Delaware is 9 Lookerman Street, City of Dover, County of Kent, and the name of
the registered agent of the corporation in the State of Delaware at such address
is the National Registered Agents.
III.
The purpose of this corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
the State of Delaware.
IV.
A. This corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares which the corporation is authorized to issue is one hundred thirty-two
million (132,000,000) shares. one hundred and twenty million (120,000,000)
shares shall be Common Stock, each having a par value of one-tenth of one cent
($.001). Twelve million (12,000,000) shares shall be Preferred Stock, each
having a par value of one-tenth of one cent ($.001).
B. The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized, by filing a certificate (a
"Preferred Stock Designation") pursuant to the Delaware General Corporation Law
("DGCL"), to fix or alter from time to time the designation, powers, preferences
and rights of the shares of each such series and the qualifications, limitations
or restrictions of any wholly unissued series of Preferred Stock, and to
establish from time to time the number of shares constituting any such series or
any of them; and to increase or decrease the number of shares of any series
subsequent to the issuance of shares of that series, but not below the number of
shares of such series then outstanding. In case the number of shares of any
series shall be decreased in accordance with the foregoing sentence, the shares
constituting such decrease shall resume the status that they had prior to the
adoption of the resolution originally fixing the number of shares of such
series.
C. One million nine hundred thirty-five thousand two hundred seventy-four
(1,935,274) of the authorized shares of Preferred Stock are hereby designated
"Series A Preferred Stock" (the "Series A Preferred"). Five hundred forty
thousand (540,000) shares of the authorized shares of Preferred Stock are hereby
designated "Series B Preferred Stock" (the
1.
"Series B Preferred"). Two million five hundred eighty-one thousand six hundred
forty (2,581,640) shares of the authorized shares of Preferred Stock are hereby
designated "Series C Preferred Stock" (the "Series C Preferred"). Two million
nine hundred thirty thousand (2,930,000) shares of the authorized shares of
Preferred Stock are hereby designated "Series D Preferred Stock" (the "Series D
Preferred"). Two million seven hundred seventy-seven thousand seven hundred
seventy-eight (2,777,778) shares of the authorized Preferred Stock are hereby
designated "Series E Preferred Stock" (the "Series E Preferred"). One million
two hundred thirty-five thousand three hundred eight (1,235,308) shares of the
authorized Preferred Stock remain undesignated (the "Undesignated Preferred").
The Series A Preferred, Series B Preferred, Series C Preferred, Series D
Preferred, Series E Preferred and Undesignated Preferred are collectively
referred to as the "Preferred Stock."
D. The respective rights, preferences, privileges, restrictions and other
matters relating to the Series A Preferred, Series B Preferred, Series C
Preferred, Series D Preferred and Series E Preferred are as follows:
1. DIVIDEND RIGHTS.
a. Holders of the Series A Preferred, Series B Preferred, Series
C Preferred, Series D Preferred and Series E Preferred, in preference to the
holders of any other stock of the Company ("Junior Stock"), shall be entitled to
receive, when and as declared by the Board of Directors, but only out of funds
that are legally available therefor, cash dividends at the rate of ten percent
(10%) of the "Original Issue Price" with respect to the Series A Preferred, the
Series B Preferred, the Series C Preferred and Series E Preferred and at the
rate of nine percent (9%) of the "Original Issue Price" per annum with respect
to the Series C Preferred on each outstanding share of such series of Preferred
Stock (as adjusted for any stock dividends, combinations, splits
recapitalization and the like with respect to such shares). The Original Issue
Price of the Series A Preferred shall be $0.98; the Original Issue Price of the
Series B Preferred shall be $1.50; the Original Issue Price of the Series C
Preferred shall be $2.37; the Original Issue Price of the Series D Preferred
shall be $3.27; and the Original Issue Price of the Series E Preferred shall be
$7.20. Such dividends shall be payable only when, as and if declared by the
Board of Directors and shall be non-cumulative.
b. So long as any shares of Preferred Stock shall be outstanding,
no dividend, whether in cash or property, shall be paid or declared, nor shall
any other distribution be made, on any Junior Stock, nor shall any shares of any
Junior Stock of the Corporation be purchased, redeemed, or otherwise acquired
for value by the Corporation (except for acquisitions of Common Stock by the
Corporation pursuant to agreements which permit the Corporation to repurchase
such shares upon termination of services to the Corporation or in exercise of
the Corporation's right of first refusal upon a proposed transfer) until all
dividends (set forth in Section 1(a) above) on the Preferred Stock shall have
been paid or declared and set apart. In the event dividends are paid on any
share of Common Stock, an additional dividend shall be paid with respect to all
outstanding shares of Preferred Stock in an amount equal per share (on an
as-if-converted to Common Stock basis) to the amount paid or set aside for each
share of Common Stock. The provisions of this Section 1(b) shall not, however,
apply to (i) a dividend payable in Common Stock, (ii) the acquisition of shares
of any Junior Stock in exchange for shares of any other Junior Stock, or (iii)
any repurchase of any outstanding securities of the Corporation that is
2.
unanimously approved by the Corporation's Board of Directors. The holders of the
Preferred Stock expressly waive their rights, if any, as described in California
Corporations Code Sections 502, 503 and 506 as they relate to repurchase of
shares pursuant to a written repurchase option upon termination of employment.
2. VOTING RIGHTS.
a. GENERAL RIGHTS. Except as otherwise provided herein or as
required by law, the Preferred Stock shall be voted equally with the shares of
the Common Stock of the Company and not as a separate class, at any annual or
special meeting of stockholders of the Company, and may act by written consent
in the same manner as the Common Stock, in either case upon the following basis:
each holder of shares of the Preferred Stock shall be entitled to such number of
votes as shall be equal to the whole number of shares of Common Stock into which
such holder's aggregate number of shares of the Preferred Stock are convertible
(pursuant to Section 4 hereof) immediately after the close of business on the
record date fixed for such meeting or the effective date of such written
consent.
b. SEPARATE VOTE OF SERIES A PREFERRED. For so long as at least
one hundred fifty thousand (150,000) shares of Series A Preferred remain
outstanding, in addition to any other vote or consent required herein or by law,
the vote or written consent of the holders of more than fifty percent (50%) of
the outstanding Series A Preferred shall be necessary for effecting or
validating the following actions:
(i) Any amendment, alteration, or repeal of any provision of
the Amended and Restated Certificate of Incorporation (the "Restated
Certificate") or the Bylaws of the Corporation (including any filing of a
Certificate of Determination), that materially alters or changes the rights,
preferences, or privileges of the Series A Preferred;
(ii) Any increase in the authorized number of shares of
Series A Preferred; or
(iii) Any authorization of any class of shares or series of
equity securities of the Corporation ranking on a parity with or senior to the
Series A Preferred in right of redemption, liquidation preference, voting or
dividends.
c. SEPARATE VOTE OF SERIES B PREFERRED. For so long as at least
one hundred fifty thousand (150,000) shares of Series B Preferred remain
outstanding, in addition to any other vote or consent required herein or by law,
the vote or written consent of the holders of more than fifty percent (50%) of
the outstanding Series B Preferred shall be necessary for effecting or
validating the following actions:
(i) Any amendment, alteration, or repeal of any provision of
the Restated Certificate or the Bylaws of the Corporation (including any filing
of a Certificate of Determination), that materially alters or changes the
rights, preferences, or privileges of the Series B Preferred;
(ii) Any increase in the authorized number of shares of
Series B Preferred; or
3.
(iii) Any authorization of any class of shares or series of
equity securities of the Corporation ranking on a parity with or senior to the
Series B Preferred in right of redemption, liquidation preference, voting or
dividends.
d. SEPARATE VOTE OF SERIES C PREFERRED. For so long as at least
one hundred fifty thousand (150,000) shares of Series C Preferred remain
outstanding, in addition to any other vote or consent required herein or by law,
the vote or written consent of the holders of more than fifty percent (50%) of
the outstanding Series C Preferred shall be necessary for effecting or
validating the following actions:
(i) Any amendment, alteration, or repeal of any provision of
the Restated Certificate or the Bylaws of the Corporation (including any filing
of a Certificate of Determination), that materially alters or changes the
rights, preferences, or privileges of the Series C Preferred;
(ii) Any increase in the authorized number of shares of
Series C Preferred; or
(iii) Any authorization of any class of shares or series of
equity securities of the Corporation ranking on a parity with or senior to the
Series C Preferred in right of redemption, liquidation preference, voting or
dividends.
e. SEPARATE VOTE OF SERIES D PREFERRED. For so long as at
least one hundred fifty thousand (150,000) shares of Series D Preferred remain
outstanding, in addition to any other vote or consent required herein or by law,
the vote or written consent of the holders of more than fifty percent (50%) of
the outstanding Series D Preferred shall be necessary for effecting or
validating the following actions:
(i) Any amendment, alteration, or repeal of any provision of
the Restated Certificate or the Bylaws of the Corporation (including any filing
of a Certificate of Determination), that materially alters or changes the
rights, preferences, or privileges of the Series D Preferred;
(ii) Any increase in the authorized number of shares of
Series D Preferred; or
(iii) Any authorization of any class of shares or series of
equity securities of the Corporation ranking on a parity with or senior to the
Series D Preferred in right of redemption, liquidation preference, voting or
dividends.
f. SEPARATE VOTE OF SERIES E PREFERRED. For so long as at least
one hundred fifty thousand (150,000) shares of Series E Preferred remain
outstanding, in addition to any other vote or consent required herein or by law,
the vote or written consent of the holders of more than fifty percent (50%) of
the outstanding Series E Preferred shall be necessary for effecting or
validating the following actions:
(i) Any amendment, alteration, or repeal of any provision of
the Restated Certificate or the Bylaws of the Corporation (including any filing
of a Certificate of
4.
Determination), that materially alters or changes the rights, preferences, or
privileges of the Series E Preferred;
(ii) Any increase in the authorized number of shares of
Series E Preferred; or
(iii) Any authorization of any class of shares or series of
equity securities of the Corporation ranking senior to the Series E Preferred as
to redemption, liquidation preference, voting or dividend rights; provided,
however, that greater liquidation preference or dividend rights that are merely
proportional to the difference in original issue price of such equity securities
from that of the Series E Preferred shall not cause such equity securities to be
deemed senior to the Series E Preferred.
g. SEPARATE VOTE OF PREFERRED STOCK. For so long as at least
seven hundred fifty thousand (750,000) shares of Preferred Stock remain
outstanding, in addition to any other vote or consent required herein or by law,
the vote or written consent of the holders of more than sixty-six percent (66%)
of the then outstanding shares of Series A Preferred, Series B Preferred, Series
C Preferred, Series D Preferred and Series E Preferred, voting together as one
class, shall be necessary for effecting or validating the following actions:
(i) Any approval by the Corporation or its stockholders of
an Asset Transfer or Acquisition (each as defined in Section 3(c)) or any
voluntary dissolution or liquidation of the Corporation;
(ii) Any redemption, repurchase, or acquisition of any
Common Stock of the Corporation (except for acquisitions of Common Stock by the
Corporation pursuant to agreements which permit the Corporation to repurchase
such shares upon termination of services to the Corporation or in exercise of
the Corporation's right of first refusal upon a proposed transfer); or
(iii) Any authorization of any debt securities of the
Corporation other than (a) unsecured debt in an amount not to exceed five
million dollars ($5,000,000), (b) equipment financing, or (c) any debt secured
by accounts receivable, inventory, real property, fixtures, or equipment.
3. LIQUIDATION RIGHTS.
a. Upon any liquidation, dissolution, or winding up of the
Corporation, whether voluntary or involuntary, before any distribution or
payment shall be made to the holders of any Junior Stock, (i) the holders of
Series A Preferred shall be entitled to be paid out of the assets of the
Corporation an amount per share of Series A Preferred equal to the sum of (A)
the Original Issue Price of the Series A Preferred, and (B) all declared and
unpaid dividends on such shares of Series A Preferred (as adjusted for any stock
dividends, combinations, splits, recapitalizations and the like with respect to
such shares) for each share of Series A Preferred held by them; (ii) the holders
of Series B Preferred shall be entitled to be paid out of the assets of the
Corporation an amount per share of Series B Preferred equal to the sum of (A)
the Original Issue Price of the Series B Preferred, and (B) all declared and
unpaid dividends on such shares of Series B Preferred (as adjusted for any stock
dividends, combinations, splits,
5.
recapitalizations and the like with respect to such shares) for each share of
Series B Preferred held by them; (iii) the holders of Series C Preferred shall
be entitled to be paid out of the assets of the Corporation an amount per share
of Series C Preferred equal to the sum of (A) the Original Issue Price of the
Series C Preferred, (B) all declared and unpaid dividends on such shares of
Series C Preferred and (C) an amount, if any, equal to eight percent (8%) of the
Original Issue Price of the Series C Preferred times the number of full years
elapsed between the original issue date of the Series C Preferred and the date
of liquidation, dissolution or winding up of the Corporation (as adjusted for
any stock dividends, combinations, splits, recapitalizations and the like with
respect to such shares) for each share of Series C Preferred held by them; (iv)
the holders of Series D Preferred shall be entitled to be paid out of the assets
of the Corporation an amount per share of Series D Preferred equal to the sum of
(A) the Original Issue Price of the Series D Preferred, and (B) all declared and
unpaid dividends on such shares of Series D Preferred (as adjusted for any stock
dividends, combinations, splits, recapitalizations and the like with respect to
such shares) for each share of Series D Preferred held by them; and (v) the
holders of Series E Preferred shall be entitled to be paid out of the assets of
the Corporation an amount per share of Series E Preferred equal to the sum of
(A) the Original Issue Price of the Series E Preferred, and (B) all declared and
unpaid dividends on such shares of Series E Preferred (as adjusted for any stock
dividends, combinations, splits, recapitalizations and the like with respect to
such shares) for each share of Series E Preferred held by them.
b. After the payment of the full liquidation preference of the
Preferred Stock as set forth in Section 3(a) above, the remaining assets of the
Corporation legally available for distribution, if any, shall be distributed
ratably to the holders of the Common Stock and Series C Preferred.
c. The following events shall be considered a liquidation under
Section 3(a):
(i) any consolidation or merger of the Corporation with or
into any other corporation or other entity or person, or any other corporate
reorganization, in which the stockholders of the Corporation immediately prior
to such consolidation, merger or reorganization, own less than 50% of the
resulting company's voting power immediately after such consolidation, merger or
reorganization, or any transaction or series of related transactions in which in
excess of fifty percent (50%) of the Corporation's voting power is transferred
(an "Acquisition"); or
(ii) a sale, lease or other disposition of all or
substantially all of the assets of the Corporation (an "Asset Transfer").
d. If, upon any liquidation, distribution, or winding up, the
assets of the Corporation shall be insufficient to make payment in full to all
holders of Preferred Stock of the liquidation preference set forth in Section
3(a), then such assets shall be distributed among the holders of Preferred Stock
at the time outstanding, ratably in proportion to the full amounts to which they
would otherwise be respectively entitled.
e. In the event the Corporation proposes to distribute assets
other than cash in connection with any liquidation, dissolution or winding up of
the Corporation, the value
6.
of the assets to be distributed to the holders of shares of the Preferred Stock
shall be determined in good faith by the Board. Any securities not subject to
investment letter or similar restrictions on free marketability shall be valued
as follows:
(i) If traded on a securities exchange, the value shall be
deemed to be the average of the security's closing prices on such exchange over
the thirty (30) day period ending three (3) days prior to the distribution;
(ii) If actively traded over-the-counter, the value shall be
deemed to be the average of the closing bid prices over the thirty (30) day
period ending three (3) days prior to the distribution; and
(iii) If there is no active public market, the value shall
be the fair market value thereof as determined in good faith by the Board.
The method of valuation of securities subject to investment letter or other
restrictions on free marketability shall be adjusted to make an appropriate
discount from the market value determined as above in clauses (i), (ii) or (iii)
to reflect the fair market value thereof as determined in good faith by the
Board. The holders of at least fifty-one percent (51%) of the outstanding
Preferred Stock shall have the right to challenge any determination by the Board
of fair market value pursuant to this Section 3(e), in which case the
determination of fair market value shall be made by an independent appraiser
selected jointly by the Board and the challenging parties, the cost of such
appraisal to be borne equally by the Corporation and the challenging parties.
4. CONVERSION RIGHTS.
The holders of the Preferred Stock shall have the following
rights with respect to the conversion of the Preferred Stock into shares of
Common Stock (the "Conversion Rights"):
a. OPTIONAL CONVERSION. Subject to and in compliance with the
provisions of this Section 4, and subject to the restriction set forth in
Section 5(e) below, any shares of Series A Preferred, Series B Preferred, Series
C Preferred, Series D Preferred and Series E Preferred may, at the option of the
holder, be converted at any time into fully-paid and nonassessable shares of
Common Stock. The number of shares of Common Stock to which a holder of Series A
Preferred, Series B Preferred, Series C Preferred, Series D Preferred or Series
E Preferred shall be entitled upon conversion shall be the product obtained by
multiplying the "Series A Conversion Rate," "Series B Conversion Rate," "Series
C Conversion Rate," "Series D Conversion Rate" or "Series E Conversion Rate"
then in effect (determined as provided in Section 4(b)) by the respective number
of shares of Series A Preferred, Series B Preferred, Series C Preferred, Series
D Preferred or Series E Preferred being converted.
b. CONVERSION RATE. Subject to and in compliance with the
provisions of this Section 4, and subject to the restriction set forth in
Section 5(e) below, any shares of Series A Preferred, Series B Preferred, Series
C Preferred, Series D Preferred and Series E Preferred may, at the option of the
holder, be converted at any time into fully-paid and nonassessable shares of
Common Stock. The number of shares of Common Stock to which a
7.
holder of Series A Preferred, Series B Preferred, Series C Preferred, Series D
Preferred or Series E Preferred shall be entitled upon conversion shall be the
product obtained by multiplying the "Series A Conversion Rate," "Series B
Conversion Rate," "Series C Conversion Rate," "Series D Conversion Rate" or
"Series E Conversion Rate" then in effect (determined as provided in Section
4(b)) by the respective number of shares of Series A Preferred, Series B
Preferred, Series C Preferred, Series D Preferred or Series E Preferred being
converted.
c. CONVERSION PRICE. The conversion price for the Series A
Preferred shall initially be the Original Issue Price of the Series A Preferred
(the "Series A Conversion Price"), the conversion price for the Series B
Preferred shall initially be the Original Issue Price of the Series B Preferred
(the "Series B Conversion Price"), the conversion price for the Series C
Preferred shall initially be the Original Issue Price of the Series C Preferred
(the "Series C Conversion Price"), the conversion price for the Series D
Preferred shall initially be the Original Issue Price of the Series D Preferred
(the "Series D Conversion Price") and the conversion price for the Series E
Preferred shall initially be the Original Issue Price of the Series E Preferred
(the "Series E Conversion Price"). Such initial Series A Conversion Price,
Series B Conversion Price, Series C Conversion Price, Series D Conversion Price
and Series E Conversion Price shall be adjusted from time to time in accordance
with this Section 4. All references to the Series A Conversion Price, Series B
Conversion Price, Series C Conversion Price, Series D Conversion Price and
Series E Conversion Price herein shall mean the Series A Conversion Price,
Series B Conversion Price, Series C Conversion Price, Series D Conversion Price
and Series E Conversion Price as so adjusted.
d. MECHANICS OF CONVERSION. Each holder of Series A Preferred,
Series B Preferred, Series C Preferred, Series D Preferred or Series E Preferred
who desires to convert the same into shares of Common Stock pursuant to this
Section 4 shall surrender the certificate or certificates therefor, duly
endorsed, at the office of the Corporation or any transfer agent for the
Preferred Stock, and shall give written notice to the Corporation at such office
that such holder elects to convert the same. Such notice shall state the number
of shares of such series of Preferred Stock being converted. Thereupon, the
Corporation shall promptly issue and deliver at such office to such holder a
certificate or certificates for the number of shares of Common Stock to which
such holder is entitled (and, in the case of conversion of the Series C
Preferred, cash receivable upon such conversion pursuant to Section 4(r), if
any) and shall promptly pay in cash or, to the extent sufficient funds are not
then legally available therefor, in Common Stock (at the Common Stock's fair
market value determined by the Board of Directors as of the date of such
conversion), any declared and unpaid dividends on the shares of such series of
Preferred Stock being converted. Such conversion shall be deemed to have been
made at the close of business on the date of such surrender of the certificates
representing the shares of such series of Preferred Stock to be converted, and
the person entitled to receive the shares of Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder of such shares
of Common Stock on such date.
e. ADJUSTMENT FOR STOCK SPLITS AND COMBINATIONS. If the
Corporation shall at any time or from time to time after the date that the first
share of Series A Preferred, Series B Preferred, Series C Preferred, Series D
Preferred or Series E Preferred is issued (the "Original Issue Date" for such
series) effect a subdivision of the outstanding Common Stock, the Series A
Conversion Price, the Series B Conversion Price, the Series C
8.
Conversion Price, the Series D Conversion Price and the Series E Conversion
Price in effect immediately before that subdivision shall be proportionately
decreased. Conversely, if the Corporation shall at any time or from time to time
after the Original Issue Date combine the outstanding shares of Common Stock
into a smaller number of shares, the Series A Conversion Price, the Series B
Conversion Price, the Series C Conversion Price, the Series D Conversion Price
and the Series E Conversion Price in effect immediately before the combination
shall be proportionately increased. Any adjustment under this Section 4(e) shall
become effective at the close of business on the date the subdivision or
combination becomes effective.
f. ADJUSTMENT FOR COMMON STOCK DIVIDENDS AND DISTRIBUTIONS. If
the Corporation at any time or from time to time after the Original Issue Date
makes, or fixes a record date for the determination of holders of Common Stock
entitled to receive, a dividend or other distribution payable in additional
shares of Common Stock, in each such event the Series A Conversion Price, the
Series B Conversion Price, the Series C Conversion Price, the Series D
Conversion Price and the Series E Conversion Price that are then in effect shall
be decreased as of the time of such issuance or, in the event such record date
is fixed, as of the close of business on such record date, by multiplying the
Series A Conversion Price, the Series B Conversion Price, the Series C
Conversion Price, the Series D Conversion Price and the Series E Conversion
Price then in effect by a fraction (1) the numerator of which is the total
number of shares of Common Stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record date, and (2) the
denominator of which is the total number of shares of Common Stock issued and
outstanding immediately prior to the time of such issuance or the close of
business on such record date plus the number of shares of Common Stock issuable
in payment of such dividend or distribution; provided, however, that if such
record date is fixed and such dividend is not fully paid or if such distribution
is not fully made on the date fixed therefor, the Series A Conversion Price, the
Series B Conversion Price, the Series C Conversion Price, the Series D
Conversion Price and the Series E Conversion Price shall be recomputed
accordingly as of the close of business on such record date and thereafter the
Series A Conversion Price, the Series B Conversion Price, the Series C
Conversion Price, the Series D Conversion Price and the Series E Conversion
Price shall be adjusted pursuant to this Section 4(f) to reflect the actual
payment of such dividend or distribution.
g. ADJUSTMENTS FOR OTHER DIVIDENDS AND DISTRIBUTIONS. If the
Corporation at any time or from time to time after the Original Issue Date
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, in each such event provision
shall be made so that the holders of the Series A Preferred, Series B Preferred,
Series C Preferred, Series D Preferred and Series E Preferred shall receive upon
conversion thereof, in addition to the number of shares of Common Stock
receivable thereupon (and, in the case of conversion of the Series C Preferred,
cash receivable upon such conversion pursuant to Section 4(r), if any) the
amount of other securities of the Corporation which they would have received had
their shares of such series of Preferred Stock been converted into Common Stock
on the date of such event and had they thereafter, during the period from the
date of such event to and including the conversion date, retained such
securities receivable by them as aforesaid during such period, subject to all
other adjustments called for during such period under this Section 4 with
respect to the rights of the holders of such series of Preferred Stock or with
respect to such other securities by their terms.
9.
h. ADJUSTMENT FOR RECLASSIFICATION, EXCHANGE AND SUBSTITUTION. If
at any time or from time to time after the Original Issue Date, the Common Stock
issuable upon the conversion of the Series A Preferred, Series B Preferred,
Series C Preferred, Series D Preferred or Series E Preferred is changed into the
same or a different number of shares of any class or classes of stock, whether
by recapitalization, reclassification or otherwise (other than an Acquisition or
Asset Transfer as defined in Section 3(c) or a subdivision or combination of
shares or stock dividend or a reorganization, merger, consolidation or sale of
assets provided for elsewhere in this Section 4), in any such event each holder
of such series of Preferred Stock shall have the right thereafter to receive
upon conversion of such series of Preferred Stock (in addition to any cash
receivable upon such conversion of the Series C Preferred pursuant to Section
4(r)) the kind and amount of stock and other securities and property receivable
upon such recapitalization, reclassification or other change by holders of the
maximum number of shares of Common Stock into which such shares of Preferred
Stock could have been converted immediately prior to such recapitalization,
reclassification or change, all subject to further adjustment as provided herein
or with respect to such other securities or property by the terms thereof.
i. REORGANIZATIONS, MERGERS, CONSOLIDATIONS OR SALES OF ASSETS.
If at any time or from time to time after the Original Issue Date, there is a
capital reorganization of the Common Stock (other than an Acquisition or Asset
Transfer as defined in Section 3(c) or a recapitalization, subdivision,
combination, reclassification, exchange or substitution of shares provided for
elsewhere in this Section 4), as a part of such capital reorganization,
provision shall be made so that the holders of the Series A Preferred, Series B
Preferred, Series C Preferred, Series D Preferred and Series E Preferred shall
thereafter be entitled to receive upon conversion of such series of Preferred
Stock (in addition to any cash receivable upon such conversion of the Series C
Preferred pursuant to Section 4(r)) the number of shares of stock or other
securities or property of the Corporation to which a holder of the number of
shares of Common Stock deliverable upon conversion would have been entitled on
such capital reorganization, subject to adjustment in respect of such stock or
securities by the terms thereof. In any such case, appropriate adjustment shall
be made in the application of the provisions of this Section 4 with respect to
the rights of the holders of Series A Preferred, Series B Preferred, Series C
Preferred, Series D Preferred and Series E Preferred after the capital
reorganization to the end that the provisions of this Section 4 (including
adjustment of the Series A Conversion Price, the Series B Conversion Price,
Series C Conversion Price, the Series D Conversion Price and the Series E
Conversion Price then in effect and the number of shares issuable upon
conversion of such series of Preferred Stock) shall be applicable after that
event and be as nearly equivalent as practicable.
j. CERTIFICATE OF ADJUSTMENT. In each case of an adjustment or
readjustment of the Series A Conversion Price, the Series B Conversion Price,
Series C Conversion Price, the Series D Conversion Price or the Series E
Conversion Price for the number of shares of Common Stock or other securities or
property issuable upon conversion of such series of Preferred Stock, if the
Preferred Stock is then convertible pursuant to this Section 4, the Corporation,
at its expense, shall compute such adjustment or readjustment in accordance with
the provisions hereof and prepare a certificate showing such adjustment or
readjustment, and shall mail such certificate, by first class mail, postage
prepaid, to each registered holder of such series of Preferred Stock at the
holder's address as shown in the Corporation's books. The certificate shall set
forth such adjustment or readjustment, showing in detail the facts upon which
10.
such adjustment or readjustment is based, including a statement of (1) the
Series A Conversion Price, the Series B Conversion Price, the Series C
Conversion Price, the Series D Conversion Price and the Series E Conversion
Price at the time in effect, and (2) the type and amount, if any, of other
securities or property which at the time would be received upon conversion of
such series of Preferred Stock.
k. NOTICES OF RECORD DATE. Upon (i) any taking by the Corporation
of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend or
other distribution, or (ii) any Acquisition (as defined in Section 3(c)) or
other capital reorganization of the Corporation, any reclassification or
recapitalization of the capital stock of the Corporation, any merger or
consolidation of the Corporation with or into any other corporation, or any
Asset Transfer (as defined in Section 3(c)), or any voluntary or involuntary
dissolution, liquidation or winding up of the Corporation, the Corporation shall
mail to each holder of Preferred Stock at least twenty (20) days prior to the
record date specified therein a notice specifying (1) the date on which any such
record is to be taken for the purpose of such dividend or distribution and a
description of such dividend or distribution, (2) the date on which any such
Acquisition, reorganization, reclassification, transfer, consolidation, merger,
Asset Transfer, dissolution, liquidation or winding up is expected to become
effective and a general description of the proposed transaction, and (3) the
date, if any, that is to be fixed as to when the holders of record of Common
Stock (or other securities) shall be entitled to exchange their shares of Common
Stock (or other securities) for securities or other property deliverable upon
such Acquisition, reorganization, reclassification, transfer, consolidation,
merger, Asset Transfer, dissolution, liquidation or winding up.
l. AUTOMATIC CONVERSION.
(1) Each share of Series A Preferred, Series B Preferred,
Series C Preferred, Series D Preferred and Series E Preferred shall
automatically be converted into shares of Common Stock (a) (i) with respect to
the Series A Preferred, at any time upon the affirmative vote of the holders of
at least fifty-one percent (51%) of the outstanding shares of Series A
Preferred, based on the then-effective Series A Conversion Price, (ii) with
respect to the Series B Preferred, at any time upon the affirmative vote of the
holders of at least fifty-one percent (51%) of the outstanding shares of Series
B Preferred, based on the then-effective Series B Conversion Price, (iii) with
respect to the Series C Preferred, at any time upon the affirmative vote of the
holders of at least fifty-one percent (51%) of the outstanding shares of Series
C Preferred, based on the then-effective Series C Conversion Price, (iv) with
respect to the Series D Preferred, at any time upon the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66 2/3%) of the
outstanding shares of Series D Preferred, based on the then-effective Series D
Conversion Price, or (v) with respect to the Series E Preferred, at any time
upon the affirmative vote of the holders of at least fifty-one percent (51%) of
the outstanding shares of Series E Preferred, based on the then-effective Series
E Conversion Price, or (b) immediately upon the closing of a firmly underwritten
public offering pursuant to an effective registration statement under the
Securities Act of 1933, as amended, covering the offer and sale of Common Stock
for the account of the Corporation in which (i) the per share price is at least
$10.88 (as adjusted for any stock dividends, combinations, splits,
recapitalizations and the like with respect to such shares), and (ii) the gross
cash proceeds to the Corporation (before
11.
underwriting discounts, commissions and fees) are at least $20,000,000 (a
"Qualified Initial Public Offering").
(2) Upon the occurrence of the event specified in paragraph
(1) above, the outstanding shares of Series A Preferred, Series B Preferred,
Series C Preferred, Series D Preferred and Series E Preferred shall be converted
automatically without any further action by the holders of such shares and
whether or not the certificates representing such shares are surrendered to the
Corporation or its transfer agent; PROVIDED, HOWEVER, that the Corporation shall
not be obligated to issue certificates evidencing the shares of Common Stock
issuable upon such conversion unless the certificates evidencing such shares of
Series A Preferred, Series B Preferred, Series C Preferred, Series D Preferred
and Series E Preferred are either delivered to the Corporation or its transfer
agent as provided below, or the holder notifies the Corporation or its transfer
agent that such certificates have been lost, stolen or destroyed and executes an
agreement satisfactory to the Corporation to indemnify the Corporation from any
loss incurred by it in connection with such certificates. Upon the occurrence of
such automatic conversion of the Series A Preferred, Series B Preferred, Series
C Preferred, Series D Preferred and Series E Preferred, the holders of such
series of Preferred Stock shall surrender the certificates representing such
shares at the office of the Corporation or any transfer agent for the Preferred
Stock. Thereupon, there shall be issued and delivered to such holder promptly at
such office and in its name as shown on such surrendered certificate or
certificates, a certificate or certificates for the number of shares of Common
Stock into which the shares of Series A Preferred, Series B Preferred, Series C
Preferred, Series D Preferred and Series E Preferred surrendered were
convertible on the date on which such automatic conversion occurred, and any
declared and unpaid dividends shall be paid in accordance with the provisions of
Section 4(d).
m. FRACTIONAL SHARES. No fractional shares of Common Stock shall
be issued upon conversion of the Series A Preferred, Series B Preferred, Series
C Preferred, Series D Preferred or Series E Preferred. All shares of Common
Stock (including fractions thereof) issuable upon conversion of more than one
share of Preferred Stock by a holder thereof shall be aggregated for purposes of
determining whether the conversion would result in the issuance of any
fractional share. If, after the aforementioned aggregation, the conversion would
result in the issuance of any fractional share, the Corporation shall, in lieu
of issuing any fractional share, pay cash equal to the product of such fraction
multiplied by the Common Stock's fair market value (as determined by the Board)
on the date of conversion.
n. RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The Corporation
shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of Series A Preferred, Series B Preferred, Series C Preferred, Series
D Preferred and Series E Preferred, such number of its shares of Common Stock as
shall from time to time be sufficient to effect the conversion of all
outstanding shares of such series of Preferred Stock. If at any time the number
of authorized but unissued shares of Common Stock shall not be sufficient to
effect the conversion of all then outstanding shares of such series of Preferred
Stock, the Corporation will take such corporate action as may, in the opinion of
its counsel, be necessary to increase its authorized but unissued shares of
Common Stock to such number of shares as shall be sufficient for such purpose.
12.
o. NOTICES. Any notice required by the provisions of this Section
4 shall be in writing and shall be deemed effectively given: (i) upon personal
delivery to the party to be notified, (ii) when sent by confirmed telex or
facsimile if sent during normal business hours of the recipient; if not, then on
the next business day, (iii) five (5) days after having been sent by registered
or certified mail, return receipt requested, postage prepaid, or (iv) one (1)
day after deposit with a nationally recognized overnight courier, specifying
next day delivery, with written verification of receipt. All notices shall be
addressed to each holder of record at the address of such holder appearing on
the books of the Corporation.
p. PAYMENT OF TAXES. The Corporation will pay all taxes (other
than taxes based upon income) and other governmental charges that may be imposed
with respect to the issue or delivery of shares of Common Stock upon conversion
of shares of Series A Preferred, Series B Preferred, Series C Preferred, Series
D Preferred and Series E Preferred, excluding any tax or other charge imposed in
connection with any transfer involved in the issue and delivery of shares of
Common Stock in a name other than that in which the shares of Preferred Stock so
converted were registered.
q. NO DILUTION OR IMPAIRMENT. The Corporation shall not amend its
Certificate of Incorporation or participate in any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, for the purpose of avoiding or seeking to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Corporation, but shall at all times in good faith assist in
carrying out all such action as may be reasonably necessary or appropriate in
order to protect the conversion rights of the holders of the Series A Preferred,
Series B Preferred, Series C Preferred, Series D Preferred and Series E
Preferred against diminution or other impairment.
r. PAYMENT UPON CONVERSION. Upon any of the following conversion
events, each share of Series C Preferred shall be entitled to receive, in
addition to the Common Stock receivable upon such conversion, an amount in cash
equal to the Original Issue Price of the Series C Preferred:
(i) automatic conversion of the Series C Preferred pursuant
to clause (b) of Section 4(l)(1);
(ii) provided that at least six (6) months have elapsed
since the closing of the first public offering of Common Stock for the account
of the Corporation pursuant to an effective registration statement under the
Securities Act of 1933, as amended, automatic conversion of the Series C
Preferred pursuant to clause (a)(iii) of Section 4(l)(1); or
(iii) provided that at least six (6) months have elapsed
since the closing of the first public offering of Common Stock for the account
of the Corporation pursuant to an effective registration statement under the
Securities Act of 1933, as amended, conversion of the Series C Preferred
pursuant to Section 4(a).
5. REDEMPTION.
a. The Corporation shall be obligated to redeem the Series C
Preferred upon the vote of the holders of at least fifty-one percent (51%) of
the then outstanding
13.
shares of Series C Preferred to the extent it may lawfully do so, at any time
after the fifth anniversary of the Original Issue Date for the Series C
Preferred. The Corporation shall be obligated to redeem the Series D Preferred
upon the vote of the holders of at least sixty-six and two-thirds percent (66
2/3%) of the then outstanding shares of Series D Preferred to the extent it may
lawfully do so, at any time after the fifth anniversary of the Original Issue
Date for the Series D Preferred. Such redemptions of the Series C Preferred or
Series D Preferred shall be made in three (3) annual installments beginning
sixty (60) days after the Corporation receives notice of such vote or on the
date specified in such vote, whichever is later, and ending on the date two (2)
years from such first redemption date (each a "Redemption Date"). The
Corporation shall effect such redemptions on the applicable Redemption Date by
paying in cash in exchange for each such share of Series C Preferred or Series D
Preferred to be redeemed a sum equal to (A) the respective Original Issue Price
per share of such Series C Preferred or Series D Preferred, plus (B) all accrued
but unpaid dividends with respect to such share of Series C Preferred or Series
D Preferred, plus (C) an amount, if any, equal to eight percent (8%) of the
respective Original Issue Price of each such share of the Series C Preferred or
Series D Preferred, times the number of full years elapsed between the
respective Original Issue Date of the Series C Preferred or Series D Preferred
and such Redemption Date (as adjusted for any stock dividends, combinations,
splits, recapitalizations and the like with respect to such shares). The total
amount to be paid for the Series C Preferred or Series D Preferred is
hereinafter referred to as the "Redemption Price." The number of shares of
Series C Preferred or Series D Preferred that the Corporation shall be required
to redeem on any one Redemption Date shall be equal to the amount determined by
dividing (i) the aggregate number of such shares of Series C Preferred or Series
D Preferred outstanding immediately prior to such Redemption Date by (ii) the
number of remaining Redemption Dates (including the Redemption Date to which
such calculation applies). Shares subject to redemption pursuant to this Section
5(a) shall be redeemed from each such holder of Series C Preferred or Series D
Preferred on a pro rata basis.
b. At least thirty (30) days but no more than sixty (60) days
prior to the first Redemption Date, the Corporation shall send by mail, first
class postage prepaid, to all holders of Series C Preferred or Series D
Preferred to be redeemed, as the case may be, a written notice (a "Redemption
Notice") notifying such holders of the redemption to be effected on the
Redemption Date and setting forth (i) the Redemption Price for the shares to be
redeemed, and (ii) the place at which such holders may obtain payment of the
Redemption Price upon surrender of their share certificates. If the Corporation
does not have sufficient funds legally available to redeem all of the shares to
be redeemed at the Redemption Date then it shall redeem such shares pro rata
(based on the portion of the aggregate Redemption Price payable to them) to the
extent possible and shall redeem the remaining shares to be redeemed as soon as
sufficient funds are legally available.
c. On or prior to the Redemption Date, the Corporation shall
deposit the Redemption Price of all shares to be redeemed with a bank or trust
company having aggregate capital and surplus in excess of $100,000,000, as a
trust fund, with irrevocable instructions and authority to the bank or trust
company to pay, on and after such Redemption Date, the Redemption Price of the
shares to their respective holders upon the surrender of their share
certificates. Any moneys deposited by the Corporation pursuant to this paragraph
5(c) for the redemption of shares thereafter converted into shares of Common
Stock pursuant to Section 4 hereof no later than the fifth (5th) day preceding
the Redemption Date shall be returned to the
14.
Corporation forthwith upon such conversion. The balance of any funds deposited
by the Corporation pursuant to this Section 5(c) remaining unclaimed at the
expiration of one (1) year following such Redemption Date shall be returned to
the Corporation promptly upon its written request.
d. On or after such Redemption Date, each such holder of shares
of Series C Preferred or Series D Preferred to be redeemed shall surrender such
holder's certificates representing such shares to the Corporation in the manner
and at the place designated in the Redemption Notice, and thereupon the
Redemption Price of such shares shall be payable to the order of the person
whose name appears on such certificate or certificates as the owner thereof and
each surrendered certificate shall be canceled. In the event less than all the
shares represented by such certificates are redeemed, a new certificate shall be
issued representing the unredeemed shares. From and after such Redemption Date,
unless there shall have been a default in payment of the Redemption Price or the
Corporation is unable to pay the Redemption Price due to not having sufficient
legally available funds, all rights of the holders of such shares as holders of
Series C Preferred or Series D Preferred, as the case may be (except the right
to receive the Redemption Price without interest upon surrender of their
certificates), shall cease and terminate with respect to such shares, provided
that in the event that such shares of Series C Preferred or Series D Preferred
are not redeemed due to a default in payment by the Corporation or because the
Corporation does not have sufficient legally available funds, such shares of
Series C Preferred or Series D Preferred shall remain outstanding and shall be
entitled to all of the rights and preferences provided herein.
e. In the event of a call for redemption of any shares of Series
C Preferred or Series D Preferred, the Conversion Rights (as defined in Section
4) for such Series C Preferred or Series D Preferred shall terminate as to the
shares designated for redemption at the close of business on the fifth (5th) day
preceding the Redemption Date, unless default is made in payment of the
Redemption Price.
6. NO REISSUANCE OF PREFERRED STOCK. No share or shares of Preferred
Stock acquired by the Corporation by reason of redemption, purchase, conversion
or otherwise shall be reissued.
7. NO PREEMPTIVE RIGHTS. Stockholders shall have no preemptive rights
except as granted by the Company pursuant to written agreements.
V.
For the management of the business and for the conduct of the affairs of
the corporation, and in further definition, limitation and regulation of the
powers of the corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
15.
A.
1. MANAGEMENT OF BUSINESS
The management of the business and the conduct of the affairs of
the corporation shall be vested in its Board of Directors. The number of
directors that shall constitute the whole Board of Directors shall be fixed
exclusively by one or more resolutions adopted by the Board of Directors.
2. BOARD OF DIRECTORS
a. Subject to the rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances,
following the closing of the initial public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended (the "Act"),
covering the offer and sale of Common Stock to the public (the "Initial Public
Offering"), the directors shall be divided into three classes designated as
Class I, Class II and Class III, respectively. Directors shall be assigned to
each class in accordance with a resolution or resolutions adopted by the Board
of Directors. At the first annual meeting of stockholders following the closing
of the Initial Public Offering, the term of office of the Class I directors
shall expire and Class I directors shall be elected for a full term of three
years. At the second annual meeting of stockholders following the Initial Public
Offering, the term of office of the Class II directors shall expire and Class II
directors shall be elected for a full term of three years. At the third annual
meeting of stockholders following the Initial Public Offering, the term of
office of the Class III directors shall expire and Class III directors shall be
elected for a full term of three years. At each succeeding annual meeting of
stockholders, directors shall be elected for a full term of three years to
succeed the directors of the class whose terms expire at such annual meeting.
During such time or times that the corporation is subject to Section 2115(b) of
the California General Corporation Law ("CGCL"), this Section a.2.a of this
Article V shall become effective and be applicable only when the corporation is
a "listed" corporation within the meaning of Section 301.5 of the CGCL.
b. In the event that the corporation is subject to Section
2115(b) of the CGCL AND is not a "listed" corporation or ceases to be a "listed"
corporation under Section 301.5 of the CGCL, Section a. 2. a. of this Article V
shall not apply and all directors shall be shall be elected at each annual
meeting of stockholders to hold office until the next annual meeting.
c. No person entitled to vote at an election for directors may
cumulate votes to which such person is entitled, unless, at the time of such
election, the corporation is subject to Section 2115(b) of the CGCL AND is not a
"listed" corporation or ceases to be a "listed" corporation under Section 301.5
of the CGCL. During this time, every stockholder entitled to vote at an election
for directors may cumulate such stockholder's votes and give one candidate a
number of votes equal to the number of directors to be elected multiplied by the
number of votes to which such stockholder's shares are otherwise entitled, or
distribute the stockholder's votes on the same principle among as many
candidates as such
16.
stockholder thinks fit. No stockholder, however, shall be entitled to so
cumulate such stockholder's votes unless (i) the names of such candidate or
candidates have been placed in nomination prior to the voting and (ii) the
stockholder has given notice at the meeting, prior to the voting, of such
stockholder's intention to cumulate such stockholder's votes. If any stockholder
has given proper notice to cumulate votes, all stockholders may cumulate their
votes for any candidates who have been properly placed in nomination. Under
cumulative voting, the candidates receiving the highest number of votes, up to
the number of directors to be elected, are elected.
Notwithstanding the foregoing provisions of this section, each director
shall serve until his successor is duly elected and qualified or until his
death, resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
3. REMOVAL OF DIRECTORS
Removal of directors shall be governed as provided in the Bylaws
of the corporation.
4. VACANCIES
a. Subject to the rights of the holders of any series of
Preferred Stock, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes and any newly created
directorships resulting from any increase in the number of directors, shall,
unless the Board of Directors determines by resolution that any such vacancies
or newly created directorships shall be filled by the stockholders, except as
otherwise provided by law, be filled only by the affirmative vote of a majority
of the directors then in office, even though less than a quorum of the Board of
Directors, and not by the stockholders. Any director elected in accordance with
the preceding sentence shall hold office for the remainder of the full term of
the director for which the vacancy was created or occurred and until such
director's successor shall have been elected and qualified.
b. If at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole board (as constituted immediately prior to any such increase), the
Delaware Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent (10%) of the total number of the
shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in offices as aforesaid, which election shall be governed by Section 211 of the
DGCL.
c. At any time or times that the corporation is subject to
Section 2115(b) of the CGCL, if, after the filling of any vacancy by the
directors then in office who have been elected by stockholders shall constitute
less than a majority of the directors then in office, then:
17.
(i) Any holder or holders of an aggregate of five percent
(5%) or more of the total number of shares at the time outstanding having the
right to vote for those directors may call a special meeting of stockholders; or
(ii) The Superior Court of the proper county shall, upon
application of such stockholder or stockholders, summarily order a special
meeting of stockholders, to be held to elect the entire board, all in accordance
with Section 305(c) of the CGCL. The term of office of any director shall
terminate upon that election of a successor.
B.
1. BYLAW AMENDMENTS
Subject to paragraph (h) of Section 43 of the Bylaws, the Bylaws
may be altered or amended or new Bylaws adopted by the affirmative vote of at
least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of
the then-outstanding shares of the voting stock of the corporation entitled to
vote. The Board of Directors shall also have the power to adopt, amend, or
repeal Bylaws.
2. BALLOTS
The directors of the corporation need not be elected by written
ballot unless the Bylaws so provide.
3. ACTION BY STOCKHOLDERS
No action shall be taken by the stockholders of the corporation
except at an annual or special meeting of stockholders called in accordance with
the Bylaws or by written consent of stockholders in accordance with the Bylaws
prior to the closing of the Initial Public Offering and following the closing of
the Initial Public Offering no action shall be taken by the stockholders by
written consent. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the corporation shall be given in the manner provided in the
Bylaws of the corporation.
4. ADVANCE NOTICE
Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the corporation shall be given in the manner provided in the
Bylaws of the corporation.
VI.
A. The liability of the directors for monetary damages shall be eliminated
to the fullest extent under applicable law.
B. Any repeal or modification of this Article VI shall be prospective and
shall not affect the rights under this Article VI in effect at the time of the
alleged occurrence of any act or
18.
C. omission to act giving rise to liability or indemnification.
VII.
A. The corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, except as provided in paragraph b. of this
Article VII, and all rights conferred upon the stockholders herein are granted
subject to this reservation.
B. Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the voting stock required by law, this Certificate
of Incorporation or any Preferred Stock Designation, the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting
power of all of the then-outstanding shares of the voting stock, voting together
as a single class, shall be required to alter, amend or repeal Articles V, VI,
and VII.
19.