AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MONOLITHIC SYSTEM TECHNOLOGY, INC.
ARTICLE I
The name of the corporation is Monolithic System Technology, Inc.
(the "CORPORATION").
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is: 1209 Orange Street, City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporate Trust
Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of Delaware.
ARTICLE IV
SECTION 1. AUTHORIZED SHARES. The total number of shares of all
classes of stock which the Corporation has authority to issue is One Hundred
Forty Million (140,000,000) shares, consisting of two classes: One Hundred
Twenty Million (120,000,000) shares of Common Stock, $0.01 par value per
share, and Twenty Million (20,000,000) shares of Preferred Stock, $0.01 par
value per share. The Preferred Stock may be issued from time to time in one
or more series. Of the Preferred Stock, 500,000 shares shall be designated
Series A Preferred Stock, $0.01 par value per share ("Series A Preferred"),
1,000,000 shares shall be designated Series B Preferred Stock, $0.01 par
value per share ("Series B Preferred"), 1,010,000 shares shall be designated
Series C Preferred Stock, $0.01 par value per share ("Series C Preferred"),
300,000 shares shall be designated Series D Preferred Stock, $0.01 par value
per share ("Series D Preferred"), 264,487 shares shall be designated Series E
Preferred Stock, $0.01 par value per share ("Series E Preferred"), 1,224,552
shares shall be designated Series F Preferred Stock, $0.01 par value per
share ("Series F Preferred"), 290,000 shares shall be designated Series F-1
Preferred Stock, $0.01 par value per share ("Series F-1 Preferred"),
1,343,433 shares shall be designated Series G Preferred Stock, $0.01 par
value per share ("Series G Preferred") and 650,000 shares shall be designated
Series H Preferred, $0.01 par value per share ("Series H Preferred"). The
Series A Preferred, Series B Preferred, Series C Preferred, Series D
Preferred, Series E Preferred, Series F Preferred, Series F-1 Preferred,
Series G Preferred, and Series H Preferred shall be known collectively as the
"Original Preferred Stock."
SECTION 2. ADDITIONAL DESIGNATIONS. The board of directors of the
Corporation ("Board of Directors") is authorized, subject to any limitations
prescribed by the law of the State of Delaware, to provide for the issuance
of additional shares of Preferred Stock in one or more series by filing a
certificate of designations pursuant to the applicable law of the State of
Delaware, to establish from
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time to time the number of shares to be included in each such series, to fix
the designations, powers, preferences and rights of the shares of each such
series and any qualifications, limitations or restrictions thereof, and to
increase or decrease the number of shares of any such series (but not below
the number of shares of such series then outstanding). The number of
authorized shares of Preferred Stock may also be increased or decreased (but
not below the number of shares thereof then outstanding) by the affirmative
vote of the holders of a majority of the stock of the Corporation entitled to
vote, unless a vote of any other holders is required pursuant to a
certificate or certificates establishing a series of Preferred Stock.
Except as otherwise expressly provided in any certificate of
designations designating any series of Preferred Stock pursuant to the
foregoing provisions of this Section 2 or by the General Corporation Law of
Delaware, any new series of Preferred Stock may be designated, fixed and
determined as provided herein by the Board of Directors without approval of
the holders of Common Stock or the holders of Preferred Stock, or any series
thereof, and any such new series may have powers, preferences and rights,
including, without limitation, voting rights, dividend rights, liquidation
rights, redemption rights and conversion rights, senior to, junior to or pari
passu with the rights of the Common Stock, any series of Original Preferred
Stock or any future class or series of Preferred Stock or Common Stock.
SECTION 3. POWERS, PREFERENCES AND RIGHTS OF ORIGINAL PREFERRED
STOCK. The powers, preferences and rights of Original Preferred Stock shall
be as follows:
SECTION 3.1. DIVIDEND RIGHTS OF ORIGINAL PREFERRED STOCK.
The holder of each share of Series A Preferred, Series B Preferred, Series C
Preferred, Series D Preferred, Series E Preferred, Series F Preferred, Series
F-1 Preferred, Series G Preferred, and Series H Preferred shall be entitled
to receive, prior and in preference to any declaration and payment of any
dividend (payable other than in stock of the Corporation) on the Common
Stock, noncumulative dividends at an annual rate equal to $0.10, $0.20,
$0.50, $0.57, $1.60, $0.55, $0.55, $0.60 and $.80 per share, respectively,
when and as declared by the Board of Directors. Dividends, if paid, or if
declared and set apart for payment, must be paid on, or declared and set
apart for payment on, all series of Original Preferred Stock
contemporaneously, and if less than full dividends are paid or declared and
set apart for payment, the same percentage of the applicable dividend rate
will be paid on or declared and set apart for payment on each series of
Original Preferred Stock.
In the event that the Corporation shall declare a
distribution payable in securities of other persons, evidences of
indebtedness issued by the Corporation or other persons, assets (excluding
cash dividends) or options or rights to purchase any such securities or
evidences of indebtedness, then, in each such case, the holders of Original
Preferred Stock shall be entitled to a proportionate share of any such
distribution as though the holders of Original Preferred Stock were the
holders of the number of shares of Common Stock of the Corporation into which
their respective shares of Original Preferred Stock are convertible at the
Conversion Prices (as defined in paragraph 3.3(a) below) in effect as of the
record date fixed for the determination of the holders of Common Stock of the
Corporation entitled to receive such distribution.
SECTION 3.2. LIQUIDATION PREFERENCE OF ORIGINAL PREFERRED
STOCK.
(a) In the event of any liquidation,
dissolution or winding up of the Corporation, either voluntarily or
involuntarily, the holders of each share of Series A Preferred,
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Series B Preferred, Series C Preferred, Series D Preferred, Series E
Preferred, Series F Preferred, Series F-1 Preferred, Series G Preferred, and
Series H Preferred shall be entitled to receive, prior and in preference to
any distribution of any of the assets of the Corporation to the holders of
the Common Stock, an amount per share equal to $1.00, $2.00, $5.00, $7.50,
$16.00, $5.50, $5.50, $6.00 and $8.00, respectively, plus in each case any
declared but unpaid dividends for each share of Original Preferred Stock then
held by them. If, upon the occurrence of such event, the assets thus
distributed among the holders of Original Preferred Stock then held by them
shall be insufficient to permit the payment to such holders of the full
aforesaid preferential amount, then the same percentage of the aggregate
preferential amounts owed to the holders of each series of Original Preferred
Stock, respectively, shall be paid to such holders until the assets and funds
of the Corporation legally available for distribution among the holders of
Original Preferred Stock shall be exhausted.
(b) Upon the completion of the distribution
required by subparagraph (a) of this Section 3.2, any remaining assets of the
Corporation shall be distributed ratably among the holders of Common Stock
and Original Preferred Stock based on the number of shares of Common Stock
held by each, assuming conversion of all outstanding shares of Original
Preferred Stock into Common Stock at the then applicable Conversion Price (as
defined in paragraph 3.3(a) below).
(c) For purposes of this Section 3.2, a
liquidation, dissolution or winding up of the Corporation shall be deemed to
be occasioned by and to include (i) the Corporation's sale of all or
substantially all of its assets or (ii) any transaction or series of related
transactions (including, without limitation, any reorganization, merger or
consolidation) which will result in the holders of the outstanding voting
equity securities of the Corporation immediately prior to such transaction or
series of related transactions holding securities representing less than 50%
of the voting power of the surviving entity immediately following such
transaction or series of related transactions. In any such event, if the
consideration received by the Corporation is other than cash or indebtedness,
its value will be deemed to be its fair market value. In the case of publicly
traded securities, fair market value shall mean the closing market price of
such securities on the date such consolidation, merger or sale is
consummated. If a consideration is in a form other than publicly traded
securities, its fair market value shall be determined by the Board of
Directors.
SECTION 3.3. CONVERSION OF ORIGINAL PREFERRED STOCK.
The holders of Original Preferred Stock shall have conversion rights
as follows (the "Conversion Rights"):
(a) RIGHT TO CONVERT. Each share of Series A
Preferred, Series B Preferred, Series C Preferred, Series D Preferred, Series
E Preferred, Series F Preferred, Series F-1 Preferred, Series G Preferred,
and Series H Preferred shall be convertible, at the option of the holder
thereof, at any time after the date of issuance of such share, at the office
of the Corporation or any transfer agent for the Original Preferred Stock,
into such number of fully paid and nonassessable shares of Common Stock as is
determined, by dividing $1.00, $2.00, $5.00, $7.50, $16.00, $5.50, $5.50,
$6.00 and $8.00, respectively, by the Conversion Price applicable to such
series. The Conversion Price applicable to the Series A Preferred, Series B
Preferred,
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Series C Preferred, Series D Preferred, Series E Preferred, Series F
Preferred, Series F-1 Preferred, Series G Preferred, and Series H Preferred
shall initially be $0.333, $0.667, $1.667, $2.50, $5.333, $5.50, $5.50, $6.00
and $8.00, respectively. The term "Conversion Price" as used herein shall
refer to the respective Conversion Price for each series of Original
Preferred Stock, as the context so requires. The initial Conversion Price
shall be subject to adjustment as hereinafter provided.
Upon conversion, all declared and unpaid dividends on the Preferred
Stock shall be paid either in cash or in shares of Common Stock of the
Corporation, at the election of the Corporation, wherein the shares of Common
Stock shall be valued at the fair market value at the time of such
conversion, as determined by the Board of Directors of the Corporation.
(b) AUTOMATIC CONVERSION. Each share of
Original Preferred Stock shall automatically be converted (without any action
by the holder thereof) into fully paid and nonassessable shares of Common
Stock at the then effective Conversion Price upon the earlier to occur of (i)
the closing of an 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 to the
public at a price per share (prior to underwriter commissions and offering
expenses) of not less than $8.00, appropriately adjusted for any
recapitalization, and an aggregate offering price to the public of not less
than $7,500,000 (a "Qualified IPO"), or (ii) the vote or written consent of
the holders of at least a majority of the then outstanding shares of Original
Preferred Stock (on an as converted basis). In the event of the automatic
conversion of Original Preferred Stock under clause (i) above, the person(s)
entitled to receive Common Stock upon such conversion of Original Preferred
Stock shall not be deemed to have converted such Original Preferred Stock
until immediately prior to the closing of such sale of securities. Upon
automatic conversion of the Original Preferred Stock as provided in this
subsection (b), any authorized and unissued shares of Original Preferred
Stock shall be converted, without further action of the Corporation, into
authorized and unissued shares of Preferred Stock and will become subject to
designation by the Board of Directors pursuant to the provisions of Article
IV, Section 2 of this Certificate.
(c) MECHANICS OF CONVERSION.
(i) FRACTIONAL SHARES. No fractional
shares of Common Stock shall be issued upon conversion of Original Preferred
Stock. In lieu of any fractional shares to which the holder would otherwise
be entitled, the Corporation shall pay cash equal to such fraction multiplied
by the then effective Conversion Price.
(ii) SURRENDER OF CERTIFICATES ON
CONVERSION. Except as otherwise provided herein, before any holder of
Original Preferred Stock shall be entitled to convert the same into full
shares of Common Stock and to receive certificates therefor, he shall
surrender the certificate or certificates therefor, duly endorsed, at the
office of the Corporation or of any transfer agent for Original Preferred
Stock, and shall give written notice to the Corporation at such office that
he elects to convert the same.
(iii) AUTOMATIC CONVERSION.
Notwithstanding the foregoing clause (ii), in the event of an automatic
conversion pursuant to Section 3.3(b), the outstanding shares of
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Original Preferred Stock 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, but the Corporation shall not be obligated to issue certificates
evidencing the shares of Common Stock issuable upon such automatic conversion
unless the certificates evidencing such shares of Original Preferred Stock
are either delivered to the Corporation or its transfer agent as provided
above, 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.
(iv) DELIVERY OF CERTIFICATES.
The Corporation shall, as soon as practicable after such delivery, or such
agreement and indemnification in the case of a lost certificate, issue and
deliver at such office to such holder of Original Preferred Stock, a
certificate or certificates for the number of shares of Common Stock to which
he shall be entitled as aforesaid and a check payable to the holder in the
amount of any cash amounts payable as the result of a conversion into
fractional shares of Common Stock. Such conversion shall be deemed to have
been made immediately prior to the close of business on the date of such
surrender of the shares of Original Preferred Stock to be converted, or in
the case of automatic conversion on the date of closing of the Qualified IPO
or the date of the vote or written consent by the holders of a majority of
the shares of Original Preferred Stock, as the case may be, and the person or
persons entitled to receive the shares of Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder or holders
of such shares of Common Stock on such date.
(d) ADJUSTMENTS TO CONVERSION PRICE FOR
DILUTING ISSUES.
(i) SPECIAL DEFINITIONS. For
purposes of this Section 3.3(d), the following definitions shall apply:
(A) "OPTIONS" shall mean
rights, options or warrants to subscribe for, purchase or otherwise acquire
either Common Stock or Convertible Securities.
(B) "ORIGINAL ISSUE DATE"
shall mean, for each series, the date on which a share of that series of
Original Preferred Stock was first issued.
(C) "CONVERTIBLE SECURITIES"
shall mean any evidences of indebtedness, Preferred Stock or other securities
convertible into or exchangeable for Common Stock.
(D) "ADDITIONAL SHARES OF
COMMON" shall mean all shares of Common Stock issued (or, pursuant to Section
3.3(d)(iii), deemed to be issued) by the Corporation after the Original Issue
Date, other than shares of Common Stock issued, issuable or, pursuant to
Section 3.3(d)(iii), deemed to be issued:
(1) upon conversion
of shares of Original Preferred Stock;
(2) to officers,
directors or employees of, or consultants to, the Corporation
pursuant to a stock grant, option plan or purchase plan or
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other employee stock incentive program or arrangement approved by
the Board of Directors;
(3) as a dividend or
distribution on Original Preferred Stock;
(4) in connection
with any transaction for which adjustment is made pursuant to
Section 3.3(d)(vi) hereof; and
(5) as a Right
distributed with respect to Common Stock outstanding or issuable
upon conversion of shares of Original Preferred Stock, which has
been declared by the Board of Directors, effective as of the Closing
Date of a Qualified IPO, and shall be subject to the Rights
Agreement by and among the Corporation and __________, dated as of
_______ ___, 2000.
(ii) NO ADJUSTMENT OF CONVERSION
PRICE. No adjustment in the Conversion Price of a particular share of
Original Preferred Stock shall be made in respect of the issuance of
Additional Shares of Common unless the consideration per share for an
Additional Share of Common issued or deemed to be issued by the Corporation
is less than the Conversion Price in effect on the date of, and immediately
prior to such issue, for such share of Original Preferred Stock.
(iii) OPTIONS AND CONVERTIBLE
SECURITIES. In the event the Corporation at any time or from time to time
after the Original Issue Date shall issue any Options or Convertible
Securities or shall fix a record date for the determination of holders of any
class of securities entitled to receive any such Options or Convertible
Securities, then the maximum number of shares of Common Stock issuable upon
the exercise of such Options or, in the case of Convertible Securities and
Options therefor, the conversion or exchange of such Convertible Securities,
shall be deemed to be Additional Shares of Common issued as of the time of
such issue or, in case such a record date shall have been fixed, as of the
close of business on such record date, provided that Additional Shares of
Common shall not be deemed to have been issued unless the consideration per
share determined pursuant to Section 3.3(d)(v) hereof of such Additional
Shares of Common would be less than the Conversion Price in effect on the
date of and immediately prior to such issue, or such record date, as the case
may be, and provided further that in any such case in which Additional Shares
of Common are deemed to be issued:
(A) no further adjustment in
the Conversion Price shall be made upon the subsequent issue of Convertible
Securities or shares of Common Stock upon the exercise of such Options or
conversion or exchange of such Convertible Securities, in each case, pursuant
to their respective terms;
(B) if such Options or
Convertible Securities by their terms provide, with the passage of time or
otherwise, for any increase in the consideration payable to the Corporation,
or decrease in the number of shares of Common Stock issuable, upon the
exercise, conversion or exchange thereof, the Conversion Price computed upon
the original issue thereof (or upon the occurrence of a record date with
respect thereto), and any subsequent adjustments based thereon, shall, upon
any such increase or decrease becoming effective, be
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recomputed to reflect such increase or decrease insofar as it affects such
Options or the rights of conversion or exchange under such Convertible
Securities;
(C) upon the expiration of
any such Options or any rights of conversion or exchange under such
Convertible Securities which shall not have been exercised, the Conversion
Price computed upon the original issue thereof (or upon the occurrence of a
record date with respect thereto), and any subsequent adjustments based
thereon, shall, upon such expiration, be recomputed as if:
(1) in the case of
Convertible Securities or Options for Common Stock, the only
Additional Shares of Common issued were shares of Common Stock, if
any, actually issued upon the exercise of such Options or the
conversion or exchange of such Convertible Securities and the
consideration received therefor was the consideration actually
received by the Corporation for the issue of all such Options,
whether or not exercised, plus the consideration actually received
by the Corporation upon such exercise, or for the issue of all such
Convertible Securities which were actually converted or exchanged,
plus the additional consideration, if any, actually received by the
Corporation upon such conversion or exchange, and
(2) in the case of
Options for Convertible Securities, only the Convertible Securities,
if any, actually issued upon the exercise thereof were issued at the
time of issue of such Options, and the consideration received by the
Corporation for the Additional Shares of Common deemed to have been
then issued was the consideration actually received by the
Corporation for the issue of all such Options, whether or not
exercised, plus the consideration deemed to have been received by
the Corporation upon the issue of the Convertible Securities with
respect to which such Options were actually exercised;
(D) no readjustment pursuant
to clauses (B) or (C) above shall have the effect of increasing the
Conversion Price to an amount which exceeds the lower of (1) the Conversion
Price on the original adjustment date, or (2) the Conversion Price that would
have resulted from any issuance of Additional Shares of Common between the
original adjustment date and such readjustment date; and
(E) in the case of an Option
which expires by its terms not more than 30 days after the date of issue
thereof, no adjustment of the Conversion Price shall be made until the
expiration or exercise of such Option, whereupon such adjustment shall be
made in the same manner provided in clause (C) above.
(iv) ADJUSTMENT OF CONVERSION PRICE
UPON ISSUANCE OF ADDITIONAL SHARES OF COMMON. In the event the Corporation
shall issue Additional Shares of Common (including Additional Shares of
Common deemed to be issued pursuant to Section 3.3(d)(iii)) without
consideration or for a consideration per share less than the Conversion Price
in effect on the date of and immediately prior to such issue, then and in
such event, such Conversion Price shall be reduced, concurrently with such
issue, to a price (calculated to the nearest cent) determined by multiplying
such Conversion Price theretofore in effect by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such issue plus the number of shares of Common Stock which the
aggregate consideration received by the Corporation for the total number of
Additional Shares of Common so issued would purchase at such Conversion
Price; and the denominator of which shall be the number of shares of Common
Stock outstanding
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immediately prior to such issue plus the number of such Additional Shares of
Common so issued; provided further that, for the purposes of this Section
3.3(d)(iv), all shares of Common Stock issuable upon exercise, conversion or
exchange of outstanding Options or Convertible Securities, as the case may
be, shall be deemed to be outstanding, and immediately after any Additional
Shares of Common are deemed issued pursuant to Section 3.3(d)(iii), such
Additional Shares of Common shall be deemed to be outstanding.
(v) DETERMINATION OF CONSIDERATION.
For purposes of this Section 3.3(d), the consideration received by the
Corporation for the issue of any Additional Shares of Common shall be
computed as follows:
(A) CASH AND PROPERTY. Such
consideration shall:
(1) insofar as it
consists of cash, be computed at the aggregate amount of cash
received by the Corporation excluding amounts paid or payable for
accrued interest or accrued dividends;
(2) insofar as it
consists of property other than cash, be computed at the fair value
thereof at the time of such issue, as determined in good faith by
the Board; and
(3) in the event
Additional Shares of Common are issued together with other shares or
securities or other assets of the Corporation for consideration
which covers both, be the proportion of such consideration so
received, computed as provided in clauses (1) and (2) above, as
determined in good faith by the Board.
(B) OPTIONS AND CONVERTIBLE
SECURITIES. The consideration per share received by the Corporation for
Additional Shares of Common deemed to have been issued pursuant to Section
3.3(d)(iii), relating to Options and Convertible Securities, shall be
determined by dividing
(1) the total amount,
if any, received or receivable by the Corporation as consideration
for the issue of such Options or Convertible Securities, plus the
minimum aggregate amount of additional consideration payable to the
Corporation upon the exercise of such Options or the conversion or
exchange of such Convertible Securities, or in the case of Options
for Convertible Securities, the exercise of such Options for
Convertible Securities and the conversion or exchange of such
Convertible Securities by
(2) the maximum
number of shares of Common Stock issuable upon the exercise of such
Options or the conversion or exchange of such Convertible
Securities, as determined in Section 3.3(d)(iii) hereof.
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(vi) ADJUSTMENTS FOR SUBDIVISIONS,
STOCK DIVIDENDS, COMBINATIONS OR CONSOLIDATIONS OF COMMON STOCK. In the event
the Corporation effects a subdivision or combination of its outstanding
shares of Common Stock into a greater or smaller number of shares without a
proportionate and corresponding subdivision or combination of its outstanding
shares of Original Preferred Stock, then and in each such event the
Conversion Price shall be increased or decreased proportionally.
(vii) ADJUSTMENTS FOR OTHER DIVIDENDS
AND DISTRIBUTIONS. In the event the Corporation at any time or from time to
time makes, or fixes a record date for the determination of holders of Common
Stock entitled to receive, any distribution payable in securities of the
Corporation other than shares of Common Stock and other than as otherwise
adjusted in this Section 3.3, then and in each such event provision shall be
made so that the holders of Original Preferred Stock shall receive upon
conversion thereof, in addition to the number of shares of Common Stock
receivable thereupon, the amount of securities of the Corporation which they
would have received had their shares of Original 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 date of conversion, retained such securities receivable by them as
aforesaid during such period, subject to all other adjustments called for
during such period under this Section 3.3 with respect to the rights of the
holders of Original Preferred Stock.
(viii) ADJUSTMENTS FOR RECLASSIFICATION,
EXCHANGE AND SUBSTITUTION. If the Common Stock issuable upon conversion of
Original Preferred Stock shall be changed into the same or a different number
of shares of any other class or classes of stock, whether by capital
reorganization, reclassification or otherwise (other than in an event
provided for in Section 3.3(d) above), the Conversion Price then in effect
shall, concurrently with the effectiveness of such reorganization or
reclassification, be proportionately adjusted such that Original Preferred
Stock shall be convertible into, in lieu of the number of shares of Common
Stock which the holders would otherwise have been entitled to receive, a
number of shares of such other class or classes of stock equivalent to the
number of shares of Common Stock that would have been subject to receipt by
the holders upon conversion of Original Preferred Stock immediately before
that change.
(e) NO IMPAIRMENT. The Corporation will not,
by amendment of its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms to be observed or performed
hereunder by the Corporation but will at all times in good faith assist in
the carrying out of all the provisions of this Section 3.3 and in the taking
of all such action as may be necessary or appropriate in order to protect the
Conversion Rights of the holders of Original Preferred Stock against
impairment.
(f) CERTIFICATE AS TO ADJUSTMENTS. Upon the
occurrence of each adjustment or readjustment of the Conversion Price
pursuant to this Section 3.3, the Corporation shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and furnish to
each holder of Original Preferred Stock a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is
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based. The Corporation shall, upon the written request at any time of any
holder of Original Preferred Stock, furnish or cause to be furnished to such
holder a like certificate setting forth (i) such adjustments and
readjustments, (ii) the Conversion Price at the time in effect, and (iii) the
number of shares of Common Stock and the amount, if any, of other property
which at the time would be received upon the conversion of Original Preferred
Stock.
(g) NOTICES OF RECORD DATE. In the event of
any taking by the Corporation of the record of the holders of any class or
series of securities for the purpose of determining the holders thereof who
are entitled to receive any dividend (other than a cash dividend or a
distribution described in Section 3.3(d)(i)(5)) or other distribution, the
Corporation shall mail to each holder of Original Preferred Stock, at least
twenty (20) days prior to the date specified herein, a notice specifying the
date on which any such record is to be taken for the purpose of such dividend
or distribution.
(h) RESERVATION OF STOCK. 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 Original Preferred Stock such number of its
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of Original Preferred Stock; and if at
any time the number of authorized but unissued shares of Common Stock shall
not be sufficient to effect the conversion of all the then outstanding shares
of Original 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. Any reserve of its authorized but
unissued shares of Common Stock established by the Corporation in accordance
with this paragraph may not be diminished without the consent of the holders
of a majority of the outstanding Original Preferred Stock.
(i) NO REISSUANCE OF ORIGINAL PREFERRED
STOCK. No share or shares of Original Preferred Stock acquired by the
Corporation by reason of purchase, conversion or otherwise shall be reissued,
and all such shares shall be canceled, retired and eliminated from the shares
which the Corporation shall be authorized to issue.
(j) NOTICES. Any notice required by the
provisions of this Section 3 to be given to the holders of shares of Original
Preferred Stock shall be deemed given if deposited in the United States mail,
postage prepaid, and addressed to each holder of record at his or her address
appearing on the books of the Corporation.
SECTION 3.4. VOTING MATTERS. Except as otherwise required
by law, each share of Common Stock issued and outstanding shall have one
vote. Each share of Original Preferred Stock issued and outstanding shall
have the number of votes equal to the number of shares of Common Stock into
which such Original Preferred Stock is convertible as adjusted from time to
time pursuant to Section 3.3 hereof. The holder of each share of Original
Preferred Stock shall be entitled to notice of any stockholders' meeting in
accordance with the bylaws of the Corporation and shall vote with the holders
of the Common Stock and upon any matter submitted to a vote of stockholders,
except those matters required by law to be submitted to a class vote (in
which case, except as otherwise required by law, the Original Preferred Stock
shall vote together as a class).
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SECTION 4. RESIDUAL RIGHTS. All rights accruing to the outstanding
shares of the Corporation not expressly provided for to the contrary herein
shall be vested in the Common Stock.
SECTION 5. CONSENT FOR CERTAIN REPURCHASES OF COMMON STOCK DEEMED TO
BE DISTRIBUTIONS. Each holder of capital stock of the Corporation shall be
deemed to have consented, for purposes of the Delaware General Corporations
Law, to distributions made by the Corporation in connection with the
repurchase of shares of Common Stock issued to or held by employees or
consultants upon termination of their employment or services or pursuant to
agreements providing for the right of said repurchase between the Corporation
and such persons.
ARTICLE V
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter, amend
or repeal the bylaws of the Corporation.
ARTICLE VI
SECTION 1. NO DIRECTOR LIABILITY. To the fullest extent permitted by
the General Corporation Law of Delaware as the same exists or as may
hereafter be amended, no director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director.
SECTION 2. DIRECTOR INDEMNITY. The Corporation shall, to the fullest
extent permitted by Section 145 of the General Corporation Law of the State
of Delaware, indemnify and hold harmless all directors of the Corporation. To
the extent permitted by applicable law, the Corporation is also authorized to
provide indemnification of (and advancement of expenses to) agents (and any
other persons to which Delaware law permits the Corporation to provide
indemnification) through bylaw provisions, agreements with such agents or
other persons, vote of stockholders or disinterested directors or otherwise,
in excess of the indemnification and advancement otherwise permitted by
Section 145 of the Delaware General Corporation Law, subject only to limits
created by applicable Delaware law (statutory or non-statutory) with respect
to actions for breach of duty to the Corporation, its stockholders, and
others.
SECTION 3. SURVIVAL OF DIRECTOR PROTECTIONS. Neither any amendment
nor repeal of any of the foregoing provisions of this Article VI, nor the
adoption of any provision of this Certificate of Incorporation inconsistent
with this Article VI, shall eliminate, reduce or otherwise adversely affect
any limitation on the personal liability of a director of the Corporation
existing at the time of such amendment, repeal or adoption of such an
inconsistent provision.
ARTICLE VII
The Corporation reserves the right at any time, and from time to
time, to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation, and other provisions authorized by the laws of
the State of Delaware at the time in force may be added or inserted, in the
manner now or hereafter prescribed by law; and all rights, preferences and
privileges of whatsoever nature conferred upon stockholders, directors or any
other persons whomsoever by and pursuant to this Certificate of Incorporation
in its present form or as hereafter amended are granted subject to the rights
reserved in this article.
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ARTICLE VIII
The election of directors under the terms of the bylaws of the
Corporation is not required to occur by written ballot.
* * *
The undersigned incorporator hereby acknowledges that the foregoing
Certificate of Incorporation is his act and deed and that the facts stated
herein are true.
Dated: September __, 2000
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