EXHIBIT 3.1.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
HH ACQUISITION CORP.
(Originally incorporated on March 13, 1998)
HH Acquisition Corp., a Delaware corporation (the "Corporation"), DOES
HEREBY CERTIFY:
FIRST: That, the Corporation has not yet received payment for any of its
stock; and
SECOND: That, in accordance with Sections 241 and 245 of the Delaware
General Corporation Law (the "DGCL"), the Board of Directors of the Corporation
duly adopted a resolution approving the amendment to and restatement of the
Corporation's Certificate of Incorporation (the "Amended and Restated
Certificate of Incorporation") such that the Amended and Restated Certificate of
Incorporation reads in its entirety as follows:
ARTICLE I -- NAME
-----------------
The name of the corporation (hereinafter called the "Corporation") is HH
Acquisition Corp.
ARTICLE II -- REGISTERED OFFICE
-------------------------------
The address, including street, number, city, and county, of the registered
office of the Corporation in the State of Delaware is 9 East Loockerman Street,
in the City of Dover County of Kent, Delaware 19901; and the name of the
registered agent of the Corporation in the State of Delaware is National
Registered Agents, Inc.
ARTICLE III -- PURPOSE
----------------------
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 the
State of Delaware.
ARTICLE IV -- CAPITALIZATION
----------------------------
1. Definitions. As used in this Article IV, the following terms shall
-----------
have the following meanings:
"Affiliate", with respect to a Class D Stockholder that is not a
---------
natural person, means (i) any Person which, directly or indirectly, is in
control of, is controlled by, or is under
common control with, such Class D Stockholder or (ii) any Person who is a
director or officer (a) of such Class D Stockholder, (b) of any subsidiary of
such Class D Stockholder or (c) of any Person described in clause (i) above. For
purposes of this definition, "control" of a Person shall mean the power,
directly or indirectly, (y) to vote fifty percent (50%) or more of the
securities having ordinary voting power for the election of directors of such
Person whether by ownership of securities, contract, proxy or otherwise, or (z)
to direct or cause the direction of the management and policies of such Person
whether by ownership of securities, contract, proxy or otherwise.
"Board" means the Board of Directors of the Corporation.
-----
"Business Day" means any day other than a Saturday, Sunday, federal
------------
holiday or other day on which commercial banks in New York City are authorized
or required to close under the laws of the State of New York.
"Certificate of Incorporation" means this Restated Certificate of
----------------------------
Incorporation of the Corporation.
"Class A Stock" means the Class A Common Stock described in Section
-------------
2(c).
"Class B Stock" means the Class B Common Stock described in Section
-------------
2(c).
"Class C Stock" means the Class C Common Stock described in Section
-------------
2(c).
"Class D Stock" means the Class D Common Stock described in Section
-------------
2(c).
"Class A Stockholder" means a record holder of one or more shares of
-------------------
Class A Stock.
"Class B Stockholder" means a record holder of one or more shares of
-------------------
Class B Stock.
"Class C Stockholder" means a record holder of one or more shares of
-------------------
Class C Stock.
"Class D Stockholder" means a record holder of one or more shares of
-------------------
Class D Stock.
"Common Stock" has the meaning set forth in Section 2(c).
------------
"Common Stockholder" means a record holder of one or more shares of
------------------
Common Stock.
"Conversion Date" has the meaning set forth in Section 6.
---------------
"Corporation" means HH Acquisition Corp.
-----------
"Difference Shares" has the meaning set forth in Section 5.
-----------------
2
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
and the rules and regulations promulgated thereunder.
"Initial Public Offering" means the effectiveness after August 11,
-----------------------
1998 of a registration statement under the Securities Act on any of Forms S-1,
S-2, S-3 or any similar successor form covering any of the Stock, and the
completion of a sale of such Stock thereunder, (i) following which the
Corporation is, or becomes, a reporting Corporation under Section 12(b) or 12(g)
of the Exchange Act, and (ii) as a result of which the Stock is traded on the
New York Stock Exchange or the American Stock Exchange, or quoted on the Nasdaq
Stock Market or is traded or quoted on any other national stock exchange.
"IPO Date" means the closing date of the Initial Public Offering.
--------
"Non-Redeemable Shares" means all shares of Class A Stock, Class B
---------------------
Stock or Class C Stock that have been previously sold (whether under Section 4
or Section 5(c)) pursuant to a Tag-Along Transfer other than pursuant to a
Single Transaction Sale.
"Notice Date" has the meaning set forth in Section 4(b).
-----------
"Other Stockholders" has the meaning set forth in Section 4(a).
------------------
"Permitted Transferee" with respect to a Transfer by a Class D
--------------------
Stockholder, means (i) with respect to any Class D Stockholder who is a natural
person, a Transfer to (a) such Stockholder's spouse or issue, or (b) a trust the
beneficiaries of which, and a partnership the limited and general partners of
which, include only the Class D Stockholder, his spouse or issue; (ii) with
respect to any Class D Stockholder that is not a natural person, (A) a Transfer
to an Affiliate of such Class D Stockholder; or (B) a Transfer to another Class
D Stockholder or its Affiliates; provided such other Class D Stockholder
--------
referenced in clauses (i) and (ii) did not acquire its shares of Class D Stock
pursuant to a Tag-Along Transfer.
"Person" means any natural person, partnership, limited liability
------
Corporation, corporation (including the Corporation), trust or unincorporated
organization or a government or a political subdivision thereof.
"Preferred Stock" has the meaning set forth in Section 2(a).
---------------
"Preferred Stock Designation" has the meaning set forth in Section
---------------------------
2(b).
"Proposed Purchase Amount" has the meaning set forth in Section 4(a).
------------------------
"Proposed Transferee" has the meaning set forth in Section 4(a).
-------------------
"Proposed Transferor" has the meaning set forth in Section 4(a).
-------------------
"Redemption Date" has the meaning set forth in Section 5(d).
---------------
3
"Sale of the Corporation" means, (i) the sale of one hundred percent
-----------------------
(100%) of the outstanding shares of Stock; (ii) a sale of all or substantially
all of the assets of the Corporation; or (iii) a merger, consolidation or
recapitalization of the Corporation as a result of which the ownership of the
Stock of the Corporation (or the voting stock of the surviving corporation, if
the Corporation is not the survivor) is changed to the extent of one hundred
percent (100%); provided, however, that, the merger of the Corporation with and
-------- -------
into Harborside Healthcare Corporation ("Harborside") pursuant to the
----------
transactions contemplated by the Agreement and Plan of Merger, dated as of April
15, 1998, as such agreement may be amended from time to time, between the
Corporation and Harborside, shall not be a Sale of the Corporation.
"SEC" means the Securities and Exchange Commission.
---
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations promulgated thereunder.
"Single Transaction Sale" means a Sale of the Corporation in a single
-----------------------
transaction.
"Staggered Sale" means a Sale of the Corporation in more than one
--------------
transaction, each such transaction also being referred to individually as a
"Staggered Sale."
"Stock" has the meaning set forth in Section 2(c).
-----
"Stockholder" means a record holder of one or more shares of Class A
-----------
Stock, Class B Stock, Class C Stock, Class D Stock, or Common Stock.
"Tag-Along Acceptance Date" has the meaning set forth in Section 4(c).
-------------------------
"Tag-Along Notice" has the meaning set forth in Section 4(c).
----------------
"Tag-Along Pro Rata Amount" has the meaning set forth in Section 4(a).
-------------------------
"Tag-Along Redemption Price" has the meaning set forth in Section
--------------------------
5(a).
"Tag-Along Transfer" has the meaning set forth in Section 4(a).
------------------
"Transfer", with respect to any share of Stock, means the sale,
--------
assignment, pledge, hypothecation, gift or any other disposition whatsoever of
such share (other than pursuant to the Initial Public Offering or pursuant to
the redemption or conversion of any such share of Stock, in either case in
accordance with the terms of this Certificate of Incorporation), or the
encumbrance or granting of any rights or interests whatsoever in or with respect
to such share.
"Transfer Notice" has the meaning set forth in Section 4(b).
---------------
"Warrant" means the Class B Stock Purchase Warrant to be issued on or
-------
about August 11, 1998 by the Corporation which entitles the Warrant Holder(s),
upon the occurrence of a Warrant Triggering Event, to purchase a number of
shares of Common Stock of the Corporation as specified therein.
4
"Warrant Date" means, (i) if the Warrant Triggering Event is the
------------
Initial Public Offering, the IPO Date, or (ii) if the Warrant Triggering Event
is a Sale of the Corporation, the closing date of (A) the Single Transaction
Sale, if the Sale of the Corporation is pursuant to a Single Transaction Sale,
or (B) the Staggered Sale that causes a Sale of the Corporation to occur, if the
Sale of the Corporation is pursuant to a series of Staggered Sales.
"Warrant Holder(s)" means the holder(s) of the Warrants.
-----------------
"Warrant Redemption Price" has the meaning set forth in Section 5(b).
------------------------
"Warrant Shares" means the shares of Common Stock purchasable by the
--------------
Warrant Holder(s) pursuant to the exercise of the Warrants, which shall equal in
all cases the number of shares of Class B Stock redeemed in connection with the
exercise of such Warrant.
"Warrant Triggering Event" means the first to occur of (i) an Initial
------------------------
Public Offering or (ii) a Sale of the Corporation, whether such sale occurs
pursuant to a Single Transaction Sale or a series of Staggered Sales.
2. Designation and Number.
----------------------
(a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 19,500,000 of which 500,000 shares
shall be preferred stock and shall have a par value of $0.01 per share
("Preferred Stock") and 19,000,000 shares shall be common stock, as set forth in
paragraph (c) below.
(b) Preferred Stock. The Board is expressly authorized to provide for
---------------
the issue of all or any shares of the Preferred Stock, in one or more series,
and to fix for each such series such voting powers, full or limited, and such
designations, preferences and relative, participating, optional or other special
rights and such qualifications, limitations or restrictions thereof as shall be
stated and expressed in the resolution or resolutions adopted by the Board
providing for the issue of such series (a "Preferred Stock Designation") and as
may be permitted by the Delaware General Corporation Law ("DGCL"). The
Corporation may, by an amendment to the Certificate of Incorporation duly
adopted, increase or decrease, at any time and from time to time (but not below
the number of shares of Preferred Stock then outstanding), the number of
authorized shares of Preferred Stock. Unless otherwise provided in a Preferred
Stock Designation, shares of Preferred Stock redeemed, purchased or otherwise
acquired by the Corporation pursuant to the terms hereof shall be retired and
shall revert to authorized but unissued Preferred Stock.
(c) Common Stock. There shall be five classes of common stock of the
------------
Corporation. The first class of common stock of the Corporation shall have a
par value of $0.01 per share and shall be designated as "Class A Common Stock"
and the number of shares constituting such class shall be 1,200,000. The second
class of common stock of the Corporation shall have a par value of $0.01 per
share and shall be designated as "Class B Common Stock" and the number of shares
constituting such class shall be 6,700,000. The third class of common stock of
the Corporation shall have a par value of $0.01 per share and shall be
designated as "Class C
5
Common Stock" and the number of shares constituting such class shall be
1,580,000. The fourth class of common stock of the Corporation shall have a par
value of $0.01 per share and shall be designated as "Class D Common Stock" and
the number of shares constituting such class shall be 20,000. The fifth class of
common stock of the Corporation shall have a par value of $0.01 per share and
shall be designated as "Common Stock" and the number of shares constituting such
class shall be 9,500,000. The Class A Stock, Class B Stock, Class C Stock, Class
D Stock and Common Stock are sometimes referred to collectively herein as the
"Stock". The Corporation may, by an amendment to the Certificate of
Incorporation duly adopted, increase or decrease, at any time and from time to
time (but not below the number of shares of Class A Stock, Class B Stock, Class
C Stock, Class D Stock or Common Stock then outstanding), the number of
authorized shares of Class A Stock, Class B Stock, Class C Stock, Class D Stock
or Common Stock, as the case may be. Shares of Stock redeemed, purchased or
otherwise acquired by the Corporation pursuant to the terms hereof shall be
retired and shall revert to authorized but unissued Class A Stock, Class B
Stock, Class C Stock, Class D Stock or Common Stock, as the case may be.
3. Restrictions on Transfer.
------------------------
(a) Except for Transfers to a Permitted Transferee, no Class D
Stockholder shall Transfer any share of Class D Stock owned by such Class D
Stockholder except in accordance with the terms of this Certificate of
Incorporation. Any Transfer or attempt to Transfer any share of Class D Stock
in violation of the terms and conditions of this Certificate of Incorporation
shall be null and void and of no force and effect, the transferee thereof shall
not be deemed to be the registered holder thereof nor entitled to any rights
with respect thereto, and the Corporation shall refuse to Transfer any of such
Class D Stock on its books to such alleged transferee.
(b) No Stockholder shall Transfer any shares of Stock unless such
Transfer complies with the conditions specified in this Section 3(b), which are
intended to ensure compliance with the provisions of the Securities Act. Prior
to any Transfer, the holder of the shares of Stock proposed to be Transferred
(other than a holder of Class A Stock who is not an officer or director of the
Corporation) shall give written notice to the Corporation of such holder's
intention to effect such Transfer. Each such notice shall describe the manner
and circumstances of the proposed Transfer in sufficient detail, and, if
requested by the Corporation, shall be accompanied by either (i) a written
opinion of legal counsel who is reasonably satisfactory to the Corporation,
addressed to the Corporation and reasonably satisfactory in form and substance
to the Corporation's counsel, to the effect that the proposed Transfer may be
effected without registration under the Securities Act and qualification under
applicable state securities laws, or (ii) a "no action" letter from the SEC to
the effect that the Transfer of such securities without registration under the
Securities Act will not result in a recommendation by the staff of the SEC that
action be taken with respect thereof, or a combination of (i) and (ii) above,
whereupon the holder of such shares of Stock shall be entitled to Transfer such
shares in accordance with the terms of this Certificate and the written notice
delivered by the holder to the Corporation. Each certificate evidencing the
shares of Stock Transferred as above provided shall bear the appropriate
restrictive legend set forth in Section 9, provided that, following the Initial
-------- ----
Public Offering, such certificates shall bear the legend set forth in Section 9
or another legend only if, in the opinion of
6
counsel to the Corporation, the imposition of such legend is required under the
Securities Act or other applicable law. Any purported Transfer in violation of
this Section 3(b) shall be null and void and of no force or effect, and the
Corporation shall not record any such Transfer on its stock transfer books. The
restrictions on Transfer contained in this Section 3(b) shall not apply to
Transfers of shares of Stock (i) in the Initial Public Offering; or (ii)
following the Initial Public Offering, provided that such Transfer is made in
-------- ----
compliance with the Securities Act and state securities laws and in accordance
with any restrictions on transfer contained in any restrictive legend set forth
on the certificates representing such shares.
4. Tag-Along Rights.
----------------
(a) Transfer by Class D Stockholders. If, other than in connection
--------------------------------
with the Initial Public Offering, any Class D Stockholder or Stockholders (for
purposes of this Section 4, singularly or collectively, the "Proposed
Transferor"), at any time or from time to time in one transaction or in a series
of transactions, desires to enter into an agreement (whether oral or written) to
Transfer its shares of Class D Stock or any part thereof in a transaction which
is a sale to any Person other than a Permitted Transferee (the "Proposed
Transferee"), such proposed Transfer shall be deemed a "Tag-Along Transfer" and,
each of the Class A Stockholders, Class B Stockholders and Class C Stockholders
(collectively, the "Other Stockholders") shall have the right, as a condition to
such Tag-Along Transfer, to have the Proposed Transferee purchase from each such
Other Stockholder up to the number of shares (the "Tag-Along Pro Rata Amount")
of Class A Stock, Class B Stock or Class C Stock derived by multiplying the
total number of shares of Class A Stock, Class B Stock or Class C Stock
exclusive of Non-Redeemable Shares, as the case may be, owned by such Other
Stockholder by a fraction, the numerator of which is equal to the number of
shares of Class D Stock that is proposed to be Transferred by the Proposed
Transferor to the Proposed Transferee (the "Proposed Purchase Amount") and the
denominator of which is the total number of shares of Class D Stock (other than
shares of Class D Stock that have previously been Transferred pursuant to a Tag-
Along Transfer) outstanding as of the Notice Date (as defined in Section 4(b)).
All Tag-Along Transfers by Other Stockholders shall be on the same terms and
conditions (with such changes as are necessary to apply such terms and
conditions to a sale by such Other Stockholders) as the proposed Tag-Along
Transfer by the Proposed Transferor, provided that no Other Stockholder may be
-------- ----
required to make any representation or warranty in connection with the Tag-Along
Transfer other than as to its ownership and authority to Transfer the shares of
Stock to be Transferred by it, free and clear of any and all liens and
encumbrances (other than under this Certificate of Incorporation) and in
compliance with all applicable laws.
(b) Transfer Notice. The Proposed Transferor participating in a Tag-
---------------
Along Transfer shall at least thirty (30) Business Days prior to the closing
date thereof provide the Corporation and the Other Stockholders with written
notice (the "Transfer Notice") of the proposed Tag-Along Transfer containing the
following:
(i) the name and address of the Proposed Transferor and the
Proposed Transferee;
(ii) the Proposed Purchase Amount;
7
(iii) the proposed amount to be paid for such shares of Class D
Stock, the terms and conditions of payment offered by the Proposed
Transferee, the closing date for the proposed Tag-Along Transfer and the
estimated expenses payable pursuant to Section 4(d);
(iv) the aggregate number of shares of Class A Stock, Class B
Stock or Class C Stock, as the case may be, held of record as of the date
the Transfer Notice is sent (the "Notice Date") by the Other Stockholder to
whom the notice is sent;
(v) the aggregate number of shares of Class A Stock, Class B
Stock or Class C Stock, as the case may be, held of record as of the Notice
Date by all Other Stockholders as a group;
(vi) the Tag-Along Pro Rata Amount for the Other Stockholder to
whom the notice is sent; and
(vii) a statement confirming that the Proposed Transferee has
agreed (i) to the tag-along rights, and (ii) pursuant to Section 5(c), to
purchase the number of shares of Stock redeemed pursuant to Section 5(a).
Upon written request by the Proposed Transferor, the Corporation shall
provide to the Proposed Transferor the information referred to in (iv) and (v)
above for inclusion in the Transfer Notice and such other information as may be
required to enable the Proposed Transferor to comply with the terms of this
Section 4(b).
(c) Tag-Along Notice. Each Other Stockholder desiring to participate
----------------
in the proposed Tag-Along Transfer shall provide a written notice (the "Tag-
Along Notice") to the Proposed Transferor on or before the expiration of ten
(10) Business Days after the Notice Date (the "Tag-Along Acceptance Date")
stating the number of shares held by such Other Stockholder (up to its Tag-Along
Pro Rata Amount) to be included in the proposed Tag-Along Transfer on the terms
and conditions specified in the Transfer Notice. The Tag-Along Notice given by
each Other Stockholder shall include and constitute such Other Stockholder's
binding agreement to include a number of shares equal to its Tag-Along Pro Rata
Amount (or such lesser amount as stated in the Tag-Along Notice) in the Tag-
Along Transfer on the terms and conditions specified in the Transfer Notice and
in this Certificate of Incorporation. If the Proposed Transferee does not
purchase all of the shares of Stock of the Proposed Transferor and the Other
Stockholders included in such proposed Tag-Along Transfer, as well as shares to
be issued under Section 5(c) in connection with the Tag-Along Transfer, then the
proposed Tag-Along Transfer to such Proposed Transferee shall be prohibited and
any attempt to consummate the proposed Tag-Along Transfer shall be null and void
and of no force and effect.
(d) Each Proposed Transferor and each Other Stockholder whose shares
are sold in a Tag-Along Transfer shall be entitled to receive the proceeds of
such Tag-Along Transfer less its pro rata share, based on the number of shares
included in such Tag-Along Transfer, of the expenses of the transaction
including, without limitation, legal, accounting and investment
8
banking fees and expenses, such determination of expenses to be made in the sole
discretion of the Board.
(e) The provisions of this Section 4 shall not apply to a subsequent
Transfer of any share of Class D Stock that has previously been the subject of a
completed Tag-Along Transfer which complied with the provisions of this Section
4.
5. Redemption.
----------
(a) The number of shares of Class A Stock, Class B Stock or Class C
Stock equal to the difference ("Difference Shares") between (i) the number of
shares included in any Tag-Along Transfer by the Class A Stockholder, Class B
Stockholder or Class C Stockholder pursuant to Section 4 and (ii) the Tag-Along
Pro Rata Amount for each such Class A Stockholder, Class B Stockholder or Class
C Stockholder shall be redeemed by the Corporation, to the extent it is lawfully
permitted to do so, out of funds legally available therefor pro rata, based on
--- ----
the number of Difference Shares held by such Stockholders, from each of the
Class A Stockholders, Class B Stockholders and Class C Stockholders who elected
to include in the Tag-Along Transfer a number of shares of Stock less than the
number of shares that constitute their Tag-Along Pro Rata Amount or any such
Stockholders that did not elect to participate in a Tag-Along Transfer at a
redemption price (the "Tag-Along Redemption Price") for each share of Class A
Stock, Class B Stock or Class C Stock so redeemed equal to the per share price
paid for the Class D Stock by the Proposed Transferee (provided that, if the
consideration to be paid by the Proposed Transferee includes any non-cash
consideration, the per share amount to be paid in such redemption shall be the
fair value of the per share consideration to be paid by such Proposed Transferee
as determined in good faith by the Board) less such Other Stockholder's pro rata
--- ----
share, based on the number of shares of Stock so redeemed from such Other
Stockholder, of the expenses of the Tag-Along Transfer including, without
limitation, legal, accounting and investment banking fees and expenses, such
determination of expenses to be made in the sole discretion of the Board of
Directors of the Corporation. The provisions of this Section 5(a) shall not
apply to the Non-Redeemable Shares. Redemption under this subsection is
conditioned upon the contemporaneous purchase by the Proposed Transferee of the
shares issuable under Section 5(c) in connection with the applicable Tag-Along
Transfer.
(b) If the Warrant Holder(s) exercise(s) the Class B Warrant, the
Corporation shall redeem, to the extent it is lawfully permitted to do so, from
the Class B Stockholders, pro rata based on the number of shares of such Class B
--- ----
Stock then owned by each such Stockholder, out of funds legally available
therefor, a number of shares of Class B Stock equal to the number of Warrant
Shares at a redemption price (the "Warrant Redemption Price") equal to the par
value of each share of Class B Stock so redeemed. The provisions of this
Section 5(b) shall not apply to the Non-Redeemable Shares. If a redemption
pursuant to this Section 5(b) occurs as a result of a Sale of the Corporation,
such redemption shall occur immediately prior to any redemption pursuant to
Section 5(a) hereof. Redemption under this subsection is conditioned upon the
contemporaneous purchase of the Warrant Shares by the Warrant Holder(s) pursuant
to the Class B Warrant.
9
(c) The shares of Class B Stock redeemed by the Corporation pursuant
to a Section 5(b) mandatory redemption shall, on the Redemption Date (as defined
in Section 5(d)), be retired and upon such retirement shall automatically revert
to authorized but unissued shares of Class B Stock, and the Corporation shall,
on the Redemption Date, but immediately after such redemption and retirement,
issue, to the extent it is lawfully permitted to do so, to the Warrant Holder(s)
a number of shares of Common Stock equal to the number of Warrant Shares. The
shares of Class A Stock, Class B Stock or Class C Stock redeemed by the
Corporation pursuant to a Section 5(a) mandatory redemption pursuant to a Tag-
Along Transfer shall, on the Redemption Date, be retired and upon such
retirement shall automatically revert to authorized but unissued shares of Class
A Stock, Class B Stock or Class C Stock, as relevant, and the Corporation shall,
on the Redemption Date, but immediately after such redemption and retirement,
issue, to the extent it is lawfully permitted to do so, to the Proposed
Transferee a number of shares of Class A Stock, Class B Stock or Class C Stock
equal to the number of shares of such classes of Stock so redeemed. Upon any
issuance of shares of Class A Stock, Class B Stock or Class C Stock equal to the
number of shares of such class of Stock redeemed pursuant to a Section 5(a)
mandatory redemption (and as a condition to such issuance), the Corporation
shall receive from the Proposed Transferee as the purchase price for such shares
an amount equal to the Tag-Along Redemption Price.
(d) The Corporation shall give to each holder of record of the shares
of Class A Stock, Class B Stock or Class C Stock to be redeemed pursuant to the
terms of this Section 5 prior written notice of such redemption not less than
two Business Days prior to the date such shares will be redeemed (the
"Redemption Date") which (i) in the case of a redemption pursuant to Section
5(a) shall be the closing date of the Tag-Along Transfer and (ii) in the case of
a redemption pursuant to Section 5(b) shall be the Warrant Date. Each such
notice shall state: (A) the Redemption Date; (B) the total number of shares of
the Class A Stock, Class B Stock or Class C Stock to be redeemed and, if fewer
than all the shares held by such holder are to be redeemed, the number of such
shares to be redeemed from such holder; (C) the Tag-Along Redemption Price or
the Warrant Redemption Price, as relevant; and (D) the fact that the
certificates for the shares subject to redemption are to be surrendered in
exchange for payment of the Tag-Along Redemption Price or Warrant Redemption
Price, as relevant, at the principal office of the Corporation or at such other
place as the Corporation shall designate.
(e) On the Redemption Date, the shares of Class A Stock, Class B
Stock or Class C Stock required to be redeemed pursuant to the terms of this
Section 5 shall be deemed to have been so redeemed, notwithstanding that the
certificates representing such Class A Stock, Class B Stock or Class C Stock
shall not have been surrendered at the principal office of the Corporation or
such other place as the Corporation may have designated or that notice from the
Corporation shall not have been given by the Corporation or, if given, shall not
have been received by any holder of Class A Stock, Class B Stock or Class C
Stock whose shares of Stock are to be so redeemed. All certificates representing
the redeemed shares of Class A Stock, Class B Stock or Class C Stock, including
all certificates not so delivered by such Class A Stockholders, Class B
Stockholders or Class C Stockholders, shall be, or shall be deemed to be,
canceled by the Corporation as of the Redemption Date and shall thereafter no
longer be of any force or effect.
10
6. Conversion.
----------
If the Initial Public Offering or a Sale of the Corporation (whether
pursuant to a Single Transaction Sale or a series of Staggered Sales) occurs,
each issued and outstanding share of Class A Stock, Class B Stock, Class C
Stock, and Class D Stock, not otherwise redeemed by the Corporation pursuant to
the mandatory redemption provisions of Section 5(a) or 5(b) hereof shall
automatically convert into one share of Common Stock effective on the Redemption
Date (or, in the case of an Initial Public Offering in which no Redemption Date
occurs, the IPO Date, or, in the case of a Sale of the Corporation in which no
Redemption Date occurs, then effective immediately prior to the consummation of
such Sale of the Corporation), but immediately after the redemptions and
issuances described in Section 5 (the "Conversion Date"). Prior to or on the
Conversion Date, each holder of shares of Class A Stock, Class B Stock, Class C
Stock, or Class D Stock shall surrender such holder's certificates evidencing
such shares at the principal office of the Corporation or at such other place as
the Corporation shall designate to such holder in writing at least ten (10)
Business Days prior to the Conversion Date, and shall, within ten (10) Business
Days after the Conversion Date, be entitled to receive from the Corporation
certificates evidencing the number of shares of Common Stock into which such
shares of Class A Stock, Class B Stock, Class C Stock or Class D Stock are
converted. On the Conversion Date, each holder of shares of Class A Stock,
Class B Stock, Class C Stock or Class D Stock shall be deemed to be a holder of
record of the Common Stock issuable upon such conversion, notwithstanding that
the certificates representing such Class A Stock, Class B Stock, Class C Stock
or Class D Stock shall not have been surrendered at the principal office of the
Corporation or such other place as the Corporation may have designated, that
notice from the Corporation shall not have been given or, if given, shall not
have been received by any holder of shares of Class A Stock, Class B Stock,
Class C Stock or Class D Stock, or that certificates evidencing such shares of
Common Stock shall not then be actually delivered to such holder. All
certificates representing the converted shares of Class A Stock, Class B Stock,
Class C Stock or Class D Stock, including all certificates not so delivered by
such Class A Stock, Class B Stock, Class C Stock or Class D Stockholders, shall
be, or shall be deemed to be, canceled by the Corporation as of the Conversion
Date and shall thereafter no longer be of any force or effect and the
Corporation shall not thereafter issue any such shares of Class A Stock, Class B
Stock, Class C Stock or Class D Stock.
7. Voting Rights.
-------------
(a) Holders of shares of Class A Stock and Common Stock shall be
entitled to one vote, and holders of Class D Stock shall be entitled to 319
votes, for each share of such stock held on all matters as to which stockholders
may be entitled to vote pursuant to the DGCL.
(b) Holders of Class B or Class C Stock shall not have any voting
rights, except that the holders of the Class B and Class C Stock shall have the
right to vote to the extent required under the laws of the State of Delaware.
Unless otherwise required by the terms of this Certificate of Incorporation,
paragraph (2) of subsection (b) of (S) 242 of the DGCL shall not entitle the
holders of any shares of Stock to vote as a class on the increase of the number
of authorized shares of such class of Stock or the decrease of the number of
authorized but not outstanding shares of such class of Stock. Except as
otherwise required by the DGCL and except
11
as set forth in Section 7(c) below, the holders of any class of Stock entitled
to vote on any matter submitted to such holders for a vote shall vote together
as a single group and not as separate classes.
(c) Any amendment, alteration or repeal of any provision of this
Certificate of Incorporation, whether by merger, consolidation or otherwise,
that would alter or change the relative powers, preferences, or special rights
of any class of capital stock so as to affect the holders of the Class A Stock
materially and adversely, will require, in addition to any other approvals
required by the DGCL and this Certificate of Incorporation, the approval by the
holders of a majority of the then outstanding shares of Class A Stock, if any.
8. Liquidation; Dividends; Certain Adjustments; Merger.
---------------------------------------------------
(a) Subject to the rights of the holders of any shares of then
outstanding Preferred Stock, any distribution made upon the liquidation,
dissolution or winding up of the affairs of the Corporation, whether voluntary
or involuntary, shall be allocated pro rata based upon the number of shares of
--- ----
Stock held by each Stockholder. None of the sale, transfer, conveyance or lease
of all or substantially all of the property or business of the Corporation, the
merger or consolidation of the Corporation into or with any other corporation or
the merger or consolidation of any other corporation into or with the
Corporation shall be deemed to be a dissolution, liquidation or winding up,
voluntary or involuntary, for the purposes of this Section 8(a).
(b) Subject to the rights of the holders of any shares of then
outstanding Preferred Stock, holders of Class A Stock, Class B Stock, Class C
Stock, Class D Stock and Common Stock shall be entitled to share ratably as a
single class in all dividends and other distributions of cash or any other right
or property as may be declared thereon by the Board of Directors from time to
time out of assets or funds of the Corporation legally available therefor.
(c) Whenever, during the period that shares of Class A Stock shall be
outstanding, the Corporation shall (i) declare a dividend on shares of any class
of Stock in shares of such class of Stock or in securities convertible into or
exchangeable for shares of such class of Stock, (ii) subdivide the outstanding
shares of any class of Stock, (iii) combine the outstanding shares of any class
of Stock into a smaller number of shares, or (iv) issue any shares of any class
of Stock upon reclassification of such shares, a corresponding dividend,
subdivision, combination or other adjustment shall be made with respect to the
shares of the other class or classes of Stock if and to the extent necessary to
prevent the interests of the holders of Class A Stock from being materially and
adversely affected.
(d) In the event of a merger or consolidation of the Corporation with
or into another entity (whether or not the Corporation is the surviving entity),
the holders of each share of Class A Stock shall be entitled to receive not less
than the same per share consideration as the per share consideration, if any,
received by the holders of Class B, Class C and Class D Stock in such merger or
consolidation (unless, in addition to such other approvals, if any as may be
required by the DGCL and this Certificate of Incorporation, a different
treatment is approved by holders of a majority of the then outstanding shares of
Class A Stock).
12
9. Legend.
------
(a) All certificates representing shares of Class A, Class B and
Class C Stock in the Corporation shall, in addition to other legends that may be
required by state or federal securities laws, bear the following legend:
"THESE SECURITIES ARE SUBJECT TO MANDATORY REDEMPTION BY THE
CORPORATION. AND SUCH REDEMPTION CAN BE ACCOMPLISHED WITHOUT THE CERTIFICATES
REPRESENTING SUCH SECURITIES BEING SURRENDERED AND WHETHER OR NOT THE
CORPORATION GIVES NOTICE OF SUCH REDEMPTION. THE CORPORATION WILL FURNISH
WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS THE POWERS, DESIGNATIONS,
PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF
EACH CLASS OF STOCK OR SERIES THEREOF AND THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS."
and the certificates representing shares of Class B and Class C Stock of the
Corporation shall bear the following additional legend:
"AS SPECIFIED IN THE CERTIFICATE OF INCORPORATION OF THE CORPORATION,
THE TRANSFERABILITY OF THESE SECURITIES IS SUBJECT TO RESTRICTION. THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE
SECURITIES LAWS OF ANY STATE AND MAY BE REOFFERED AND SOLD ONLY IF SO REGISTERED
OR IF AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE."
(b) All certificates representing shares of Class D Stock in the
Corporation shall, in addition to other legends that may be required by state or
federal securities laws, bear the following legend:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY BE REOFFERED AND SOLD ONLY IF
SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE."
"AS SPECIFIED IN THE CERTIFICATE OF INCORPORATION OF THE CORPORATION,
THE TRANSFERABILITY OF THESE SECURITIES IS SUBJECT TO RESTRICTION. THE
CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS THE
POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER
SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS."
(c) All certificates representing shares of Common Stock in the
Corporation shall, in addition to other legends that may be required by state or
federal securities laws, bear the following legend:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY BE REOFFERED AND
13
SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE."
"THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO
SO REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF AND
THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR
RIGHTS."
provided that, as specified in Section 3(b) hereof, following the Initial Public
- -------- ----
Offering, such certificates shall bear the first legend set forth in this
Section 9 (c) above or another legend similar to it only if, in the opinion of
counsel to the Corporation, the imposition of such legend is required under the
Securities Act or other applicable law and, to the extent applicable, the second
and third legends.
10. Record Holders. The Corporation shall be entitled to recognize the
--------------
exclusive right of a person registered in its records as the holder of shares of
Class A, Class B, Class C, Class D or Common Stock and such record holders shall
be deemed the holders of such shares for all purposes.
ARTICLE V -- MANAGEMENT OF BUSINESS AND AFFAIRS
-----------------------------------------------
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 and of its directors and of its stockholders or any
class thereof, as the case may be, it is further provided:
1. 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
which shall constitute the whole Board of Directors shall be fixed by, or in the
manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total
number of directors" shall be deemed to have the same meaning, to wit, the total
number of directors which the Corporation would have if there were no vacancies.
No election of directors need be by written ballot.
2. After the original or other Bylaws of the Corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of Section 109 of the DGCL, and, after the Corporation has received
any payment for any of its stock, the power to adopt, amend, or repeal the
Bylaws of the Corporation may be exercised by the Board of Directors of the
Corporation.
ARTICLE VI -- DIRECTOR LIABILITY
--------------------------------
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, provided that (except as set forth below) this Article VI
does not eliminate or limit any such liability imposed by law: (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders;
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing
14
violation of law; (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
DGCL hereafter is amended to authorize the further elimination or limitation of
the liability of directors, then the liability of a director of the Corporation
shall be further eliminated or limited pursuant to this Article VI to the
fullest extent permitted by the DGCL as so amended. Unless applicable law
requires otherwise, any repeal of this Article VI by the stockholders of the
Corporation, and any modification to this Article VI (other than one further
eliminating or limiting director personal liability) shall be prospective only
and shall not adversely affect any elimination of, or limitation on, the
personal liability of a director of the Corporation existing at the time of such
repeal or modification.
ARTICLE VII -- INDEMNIFICATION
------------------------------
1. Indemnification. To the fullest extent from time to time permitted by
---------------
Section 145 of the DGCL, the Corporation shall indemnify each Authorized
Representative who was or is a party or who was or is threatened to be made a
party to or is otherwise involved in any threatened, pending or completed
action, suit or proceeding (including, without limitation, one by or in the
right of the Corporation to procure a judgment in its favor), whether civil,
criminal, administrative or investigative (hereinafter a "Proceeding"), by
reason of the fact that he or she is or was a director, officer, employee or
agent of the Corporation or is or was serving at the request of the Corporation
as a director, officer, employee or agent or another corporation, partnership,
joint venture, trust, limited liability Corporation or other enterprise,
including service with respect to employee benefit plans, from and against any
and all expenses (including, without limitation, attorneys' fees and expenses),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such Authorized Representative or on such Authorized Representative's behalf
in connection with such Proceeding. The Corporation shall make such
indemnification to the Authorized Representative within 30 days after receipt by
the Corporation of the written request of the Authorized Representative for such
indemnification unless, within that time, the Corporation (by resolution of its
directors or stockholders or the written opinion of its independent legal
counsel) has determined that the Authorized Representative is not entitled to
such indemnification.
2. Advancement of Expenses. Expenses (including attorneys' fees and
-----------------------
expenses) incurred by an Authorized Representative or on such Authorized
Representative's behalf in defending any such Proceeding shall be paid by the
Corporation in advance of the final disposition of such Proceeding, within 10
days after receipt by the Corporation of the written request of the Authorized
Representative for such advance. To the extent required by law, the Corporation
may condition such advance upon the receipt of the written undertaking of such
Authorized Representative or on such Authorized Representative's behalf to repay
such amount if it shall ultimately be determined that the Authorized
Representative is not entitled to be indemnified by the Corporation. Such
undertaking shall not be required to be guarantied by any other person or
collateralized, and shall be accepted by the Corporation without regard to the
financial ability of the person providing such undertaking to make such
repayment.
3. Presumptions, Enforcement. For all purposes of this Article VII and to
-------------------------
the fullest extent permitted by applicable law, there shall be a rebuttable
presumption in favor of the
15
Authorized Representative that all requested indemnifications and advancements
of expenses are reasonable and that all conditions to indemnification or expense
advancements, whether required under this Article VII or the DGCL, have been
satisfied. The rights to indemnification and advancements of expenses provided
by, or granted pursuant to, this Article VII shall be enforceable by any person
entitled to such indemnification or advancement of expenses in any court of
competent jurisdiction. Neither the failure of the Corporation (including the
directors, its independent legal counsel and its stockholders) to have made a
determination prior to the commencement of such action that such indemnification
or advancement of expenses is proper in the circumstances nor an actual
determination by the Corporation (including its directors, independent legal
counsel and its stockholders) that such person in not entitled to
indemnification or advancement of expenses shall constitute a defense to the
action or create a presumption that such person is not so entitled. Such a
person shall also be indemnified for any expenses incurred in connection with
successfully establishing his or her right to such indemnification or
advancement of expenses, in whole or in part, in any such proceeding.
4. Definitions, Etc. As used in this Article VII, "Authorized
-----------------
Representative" means, collectively: (i) any person who is or was an officer or
director of the Corporation or is or was serving as a director, officer,
employee or agent or in any capacity at the request of the Corporation, for any
other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise; and (ii) any other person who may be designated by the Board
from time to time as an "authorized representative" for purposes of this Article
VII. The provisions of Section 145(h), (i) and (j) of the DGCL shall apply to
this Article VII.
5. Insurance. The Corporation may maintain insurance, at its expense, to
---------
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust, limited liability
Corporation or other enterprise against expense, liability or loss, whether or
not the Corporation would have the power to indemnify such person against such
expense, liability or loss under the DGCL or this Article VII.
6. Article Not Exclusive. The rights to indemnification and to the
---------------------
advancement of expenses conferred in this Article VII shall not be exclusive of
any other right which any Authorized Representative may have or hereafter
acquire under any statute, this Certificate of Incorporation, any by-law,
agreement (including any insurance policy), vote of stockholders or
disinterested directors or otherwise, both as to action in such Authorized
Representative's official capacity and as to action in another capacity while
holding such office. Nothing in this Article VII shall affect the right of the
Corporation to grant rights of indemnification, and the advancement of expenses,
to any other person or in any other circumstance.
7. Reliance. Each Authorized Representative shall be deemed to have acted
--------
in reliance upon the rights to indemnification and advancement of expenses
established in this Article VII. Unless applicable law requires otherwise, any
repeal or modification of this Article VII (other than a modification expanding
the right to indemnification and expense advancement in favor of Authorized
Representatives) shall be prospective only and shall not adversely affect any
right or benefit of an Authorized Representative to indemnification or expense
advancement at the time of such repeal or modification.
16
8. Severability. If any portion of this Article VII shall be held to be
------------
illegal, invalid or otherwise unenforceable by any court having appropriate
jurisdiction, then the Corporation nevertheless shall indemnify and advance
expenses to each Authorized Representative to the fullest extent permitted by
the applicable portions of this Article VII not so held to be illegal, invalid,
unenforceable, and otherwise to the fullest extent permitted by law.
9. Related Service. Any director or officer of the Corporation serving in
---------------
any capacity in (i) another corporation of which a majority of the shares
entitled to vote in the election of its directors is held, directly or
indirectly, by the Corporation or (ii) any employee benefit plan of the
Corporation or any corporation referred to in clause (i) shall be deemed to be
doing so at the request of the Corporation.
10. Applicable Law. To the extent permitted by law, any person entitled
--------------
to indemnification or advancement of expenses as a matter of right pursuant to
this Article VII may elect to have the right to indemnification or advancement
of expenses interpreted on the basis of the applicable law in effect at the time
of the occurrence of the event or events giving rise to the applicable
Proceeding, or on the basis of the applicable law in effect at the time such
indemnification or advancement of expenses is sought. Such election shall be
made, by a notice in writing to the Corporation, at the time indemnification or
advancement of expenses is sought; provided, however, that if no such notice is
given, the right to indemnification or advancement of expenses shall be
determined by the law in effect at the time such indemnification or advancement
or expenses is sought.
ARTICLE VIII -- AMENDMENTS
--------------------------
From time to time any of the provisions of this certificate of
incorporation may be amended, altered or repealed, 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 and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the Corporation by this
certificate of incorporation are granted subject to the provisions of this
Article VIII.
17
IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation
which restates and integrates and further amends the provisions the provisions
of the Certificate of Incorporation of this Corporation, and which has been duly
adopted in accordance with Sections 241 and 245 of the DGCL, has been executed
by its duly authorized officer this 30th day of July, 1998.
HH ACQUISITION CORP.
By: /s/ Christopher J. O'Brien
--------------------------
Name: Christopher J. O'Brien
Title: President
18