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EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF BOLT MEDIA, INC.
Bolt Media, Inc., a corporation organized and existing under the laws
of the State of Delaware (the "Corporation"), hereby certifies as follows:
1. The name of the Corporation is Bolt Media, Inc.
2. The Corporation was originally incorporated under the name "Concrete
Media, Inc.", and the original Certificate of Incorporation of the Corporation
was filed with the Secretary of the State of Delaware on August 15, 1996.
3. The Corporation filed a Restated Certificate of Incorporation of the
Corporation with the Secretary of the State of Delaware on January 10, 1997 and
further amended such Restated Certificate of Incorporation by filing with the
Secretary of the State of Delaware (i) a Certificate of Ownership and Merger to
change the name of the Corporation from "Concrete Media, Inc." to "Bolt Media,
Inc." on February 16, 1999, (ii) an Amendment to Restated Certificate of
Incorporation of the Corporation on February 22, 1999, (iii) a Restated
Certificate of Incorporation of the Corporation on March 1, 1999 and (iv) an
Amendment to the Restated Certificate of Incorporation of the Corporation on
March 9, 1999.
4. This Amended and Restated Certificate of Incorporation was duly
adopted in accordance with the provisions of Sections 141(f), 242, 245 and 228
of the General Corporation Law of the State of Delaware by the unanimous written
consent of the Corporation's Board of Directors and by the Corporation's
stockholders having not less than the minimum number of votes required to adopt
this Amended and Restated Certificate of Incorporation, with written notice
being provided to all stockholders in accordance with Section 228(d) of such
law. This Amended and Restated Certificate of Incorporation restates,
integrates, amends and supersedes the provisions of the Certificate of
Incorporation of this Corporation as heretofore amended.
5. The text of the Certificate of Incorporation as heretofore amended
is hereby restated and further amended to read in its entirety as follows:
FIRST. The name of the Corporation is Bolt, Inc.
SECOND. The name and address of the Corporation's registered agent in
the State of Delaware is National Registered Agents, Inc., 9 East Lockerman
Street in the City of Dover, County of Kent.
THIRD. The purpose or purposes 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, and to have and exercise all the
powers conferred by the laws of the State of Delaware upon corporations formed
under the General Corporation Law of the State of Delaware.
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FOURTH. The amount of the total authorized capital stock of this
Corporation shall be thirty-seven million five hundred thousand (37,500,000)
shares, divided as follows: (i) thirty million (30,000,000) shares of Common
Stock, par value $0.001 per share (the "Common Stock"), and (ii) seven million
five hundred thousand (7,500,000) shares of preferred stock, par value $0.001
per share (the "Preferred Stock"). The Preferred Stock shall be divided into
series. The first series shall consist of six hundred thousand (600,000) shares
which shall be designated as "Series A-1 Convertible Preferred Stock" (the
"Series A-1 Preferred Stock"). The second series shall consist of one hundred
twenty-five thousand (125,000) shares which shall be designated as "Series A-2
Convertible Preferred Stock" (the "Series A-2 Preferred Stock), (the Series A-1
Preferred Stock and the Series A-2 Preferred Stock, collectively, the "Series A
Preferred Stock"). The third series shall consist of one million forty-eight
thousand three hundred eighty-seven (1,048,387) shares which shall be designated
as "Series B-1 Convertible Preferred Stock" (the "Series B-1 Preferred Stock").
The fourth series shall consist of two hundred sixty-eight thousand eight
hundred eighteen (268,818) shares which shall be designated as "Series B-2
Convertible Preferred Stock", (the "Series B-2 Preferred Stock"). The fifth
Series shall consist of One thousand nine hundred seventy five (1,975) shares
which shall be designated as "Series B-3 Convertible Preferred Stock" (the
"Series B-3 Preferred Stock" and together with the Series B-1 Preferred and the
Series B-2 Preferred Stock, collectively, (the "Series B Preferred Stock"). The
sixth series shall consist of four million four hundred thousand (4,400,000)
shares which shall be designated as Series C Convertible Preferred Stock (the
"Series C Preferred Stock"). One million fifty-five thousand eight hundred
twenty (1,055,820) shares of the Preferred Stock shall be undesignated
("Undesignated Preferred Stock"), subject to the provisions of paragraph (b) of
this Article Fourth.
(a) Common Stock. The Common Stock authorized for issuance by
the Corporation shall be thirty million (30,000,000) shares, at a par value of
$0.001 per share. Each share shall be entitled to one vote.
(b) Preferred Stock. The Preferred Stock authorized by this
Amended and Restated Certificate of Incorporation may be divided and issued from
time to time in series. Except as otherwise provided in this Amended and
Restated Certificate of Incorporation, or as may be provided in that certain
Second Amended and Restated Stockholders Agreement by and among the Corporation,
Sandler Capital Partners IV, L.P., Sandler Capital Partners IV FTE, L.P.,
Bechtel Enterprises Holdings, Inc., Highland Capital Partners IV Limited
Partnership, Highland Entrepreneurs Fund IV Limited Partnership, Oak Investment
Partners VIII, Limited Partnership, Oak VIII Affiliates Fund, Limited
Partnership, Moore Global Investments, Ltd., Remington Investments Strategies,
L.P. and the parties listed on Schedules 1 and 2 thereto (the "Stockholders
Agreement"), and subject to limitations and requirements prescribed by law, the
Board of Directors of the Corporation (the "Board") is expressly authorized, by
a vote or written consent of at least a majority of the Board then in office, to
provide for the issuance of the Undesignated Preferred Stock in one or more
series, each with such designations, preferences, voting powers (or no voting
powers), relative, participating, optional or other special rights and
privileges and such qualifications, limitations or restrictions thereof as shall
be stated in the resolution or resolutions adopted by the Board to create such
series, and a Certificate of Designations of said resolution or resolutions
shall be filed in accordance with the General Corporation Law of the State of
Delaware.
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The Board is also authorized to decrease the number of shares of any
series, including the Series A-1 Preferred Stock, the Series A-2 Preferred
Stock, the Series B-1 Preferred Stock, the Series B-2 Preferred Stock, the
Series B-3 Preferred Stock and the Series C Preferred Stock, subsequent to the
issuance of such series, but not below the number of shares of such series then
outstanding. In case the number of shares of any series shall be so decreased,
the shares constituting such decrease shall resume the status which they had
prior to the adoption of the resolution originally fixing the number of shares
of such series.
The powers, rights, preferences, restrictions, and other matters
relating to the Series A Preferred Stock, the Series B Preferred Stock and the
Series C Preferred Stock are as follows (section references below are to the
corresponding sections of paragraph (b) of this Article Fourth):
Section 1. Dividends.
(a) Priority of Dividends. No dividends shall be declared or
set aside for the Common Stock, the Series A Preferred Stock or any other
classes or series of the Corporation's capital stock which ranks junior to the
Series C Preferred Stock and Series B Preferred Stock (collectively, the "Junior
Stock") (other than dividends of Common Stock or other securities and rights
convertible into or entitling the holder thereof to receive, directly or
indirectly, additional shares of the Common Stock of the Corporation) unless
prior thereto all accrued and unpaid dividends on the Series C Preferred Stock
and Series B Preferred Stock shall be declared, set aside and paid on all the
then outstanding shares of Series C Preferred Stock and Series B Preferred
Stock. In the event that any such dividends or distributions are declared and
paid on the Series C Preferred Stock and Series B Preferred Stock, dividends or
distributions may be declared and paid to holders of the Series A Preferred
Stock in accordance with paragraph (h) hereof. In the event that any such
dividends or distributions are declared and paid on the Series C Preferred
Stock, Series B Preferred Stock and the Series A Preferred Stock, dividends or
distributions may be declared and paid to holders of the Common Stock equal to
such holder's pro rata share (as determined on a fully-converted basis) of the
aggregate "grossed up" amount of such dividends or distributions paid on the
Series C Preferred Stock, Series B Preferred Stock and the Series A Preferred
Stock. After the payment of all accrued and unpaid dividends on the Series C
Preferred Stock, the Series B Preferred Stock and the Series A Preferred Stock
in accordance with this Section 1, the holders of Series C Preferred Stock,
Series B Preferred Stock and the Series A Preferred Stock shall be entitled to
participate with the Common Stock in the issuance of any further dividends on
the Common Stock ratably in proportion to the number of shares of Common Stock
that would be held by each such holder if all outstanding shares of Series C
Preferred Stock, Series B Preferred Stock and Series A Preferred Stock were
converted into Common Stock. Notwithstanding the provisions contained in this
Section 1(a), no dividends may be declared or paid to the Series B Preferred
Stock without the declaration or payment of such dividends to the Series C
Preferred Stock.
(b) In the event that funds legally available for distribution
on any Series C Dividend Payment Date (as defined in paragraph (d) of this
Section 1) are insufficient to fully pay the cash dividend due and payable on
such Series C Dividend Payment Date to all holders of outstanding Series C
Preferred Stock entitled to receive such dividend, then all funds legally
available for distribution shall be paid in cash to holders of Series C
Preferred Stock entitled to
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receive such dividend in accordance with the number of shares of Series C
Preferred Stock for which dividend has been declared held by each such holder.
Any remaining dividend amount owed to holders of the Series C Preferred Stock
shall be accrued in accordance with paragraph (e) of this Section 1. The holders
of the Series C Preferred Stock shall have senior preference and priority to the
Series A Preferred Stock and Common Stock with respect to the dividends of the
Corporation and pari passu preference and priority to the Series B Preferred
Stock to the dividends of the Corporation.
(c) In the event that funds legally available for distribution
on any Series B Dividend Payment Date (as defined in paragraph (f) of this
Section 1) are insufficient to fully pay the cash dividend due and payable on
such Series B Dividend Payment Date to all holders of outstanding Series B
Preferred Stock entitled to receive such dividend, then all funds legally
available for distribution shall be paid in cash to holders of Series B
Preferred Stock entitled to receive such dividend in accordance with the number
of shares of Series B Preferred Stock for which dividend has been declared held
by each such holder. Any remaining dividend amount owed to holders of the Series
B Preferred Stock shall be accrued in accordance with paragraph (f) of this
Section 1. The holders of the Series B Preferred Stock shall have senior
preference and priority to the Series A Preferred Stock and Common Stock with
respect to the dividends of the Corporation and pari passu preference and
priority to the Series C Preferred Stock to the dividends of the Corporation.
(d) In the event that funds legally available for distribution
on any Series A Dividend Payment Date (as defined in paragraph (g) of this
Section 1) are insufficient to fully pay the cash dividend due and payable on
such Series A Dividend Payment Date to all holders of outstanding Series A
Preferred Stock entitled to receive such dividend, then all funds legally
available for distribution shall be paid in cash to holders of Series A
Preferred Stock entitled to receive such dividend in accordance with the number
of shares of Series A Preferred Stock for which a dividend has been declared
held by each such holder. Any remaining dividend amount owed to holders of the
Series A Preferred Stock entitled to receive dividends shall be accrued in
accordance with paragraph (g) of this Section 1. The holders of the Series A
Preferred Stock shall have senior preference and priority to the Common Stock
with respect to the dividends of the Corporation and junior preference and
priority to the Series C Preferred Stock and Series B Preferred Stock to the
dividends of the Corporation.
(e) Series C Preferred Stock Dividend Rate; Series C Dividend
Payment Dates. Each holder of the Series C Preferred Stock shall be entitled to
receive when, as and if declared by the Board, out of funds legally available
therefor, cash dividends, in preference and priority to dividends on any Junior
Stock, that shall accrue on the Stated Value for the Series C Preferred Stock
(as defined in Section 2(a)) of each share of the Series C Preferred Stock at
the rate of eight percent (8%) per annum, from and including the date on which
such stock was first issued (the "Series C Original Issue Date") to and
including the date on which the Series C Liquidation Price (as defined) of such
share is paid in full to the holder of such share pursuant to Section 2. The
accrued dividends will be appropriately adjusted for stock splits, stock
dividends, combinations, recapitalizations, reclassifications, mergers,
consolidations and other similar events (together referred to as
"Recapitalization Events") which affect the number of outstanding shares of the
Series C Preferred Stock. Accrued dividends on the Series C Preferred Stock
shall be payable out of funds legally available therefor when, as, and if
declared by the Board (a
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"Series C Dividend Payment Date"), to the holders of record of Series C
Preferred Stock for which such dividend has been declared as of the close of
business on the applicable record date. Dividends shall not be cumulative.
Previously declared but unpaid dividends with respect to an outstanding share of
Series C Preferred Stock shall, upon conversion of such share to Common Stock
(except in the case of a Series C Qualified Public Offering (as defined below))
be paid out of assets legally available therefor, in cash or in shares of Common
Stock, as the Board may elect, and in the case of assets or shares of Common
Stock, valued at the fair market value on the date of payment as determined by
the Board in good faith. The amount of dividends "accrued" with respect to any
share of Series C Preferred Stock as of the first Series C Dividend Payment Date
with respect to such share after the applicable Series C Original Issue Date
with respect to such share, or as of any other date after the applicable Series
C Original Issue Date with respect to such share that is not a Series C Dividend
Payment Date with respect to such share, shall be calculated on the basis of the
actual number of days elapsed from and including the applicable Series C
Original Issue Date with respect to such share, in the case of the first Series
C Dividend Payment Date with respect to such share and any date of determination
prior to the first Series C Dividend Payment Date with respect to such share, or
from and including the last preceding Series C Dividend Payment Date with
respect to such share, in the case of any other date of determination, to and
including such date of determination which is to be made with respect to such
share, in each case based on a year of 365 or 366 days, as the case may be.
Whenever the Board declares any dividend pursuant to this Section 1, notice of
the applicable record date and related Series C Dividend Payment Date shall be
given. As used herein, a "Series C Qualified Public Offering" shall mean the
closing of a firm commitment underwritten public offering, pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(the "Securities Act"), covering the offer and sale of Common Stock to the
public that raises proceeds for the Company of at least $25,000,000 after
underwriters' discounts and expenses and at an offering price to the public of
at least $17.94, subject to Recapitalization Events.
(f) Series B Preferred Stock Dividend Rate; Series B Dividend
Payment Dates. Each holder of the Series B Preferred Stock shall be entitled to
receive when, as and if declared by the Board, out of funds legally available
therefor, cash dividends, in preference and priority to dividends on any Junior
Stock, that shall accrue on the Stated Value for the Series B-1 Preferred Stock,
the Stated Value for the Series B-2 Preferred Stock and the Stated Value for the
Series B-3 Preferred Stock (as defined in Section 2(a)) of each share of the
Series B-1 Preferred Stock, Series B-2 Preferred Stock and Series B-3 Preferred
Stock, respectively, at the rate of eight percent (8%) per annum, from and
including the date on which such stock was first issued (each, a "Series B
Original Issue Date") to and including the date on which the Series B-1
Liquidation Price (as defined), or the Series B-2 Liquidation Price (as defined)
or the Series B-3 Liquidation Price (as defined), as the case may be, of such
share is paid in full to the holder of such share pursuant to Section 2. The
accrued dividends will be appropriately adjusted for Recapitalization Events
which affect the number of outstanding shares of the Series B Preferred Stock.
Accrued dividends on the Series B-1 Preferred Stock, the Series B-2 Preferred
Stock and Series B-3 Preferred Stock shall be payable out of funds legally
available therefor when, as, and if declared by the Board (each a "Series B
Dividend Payment Date"), to the holders of record of each Series B Preferred
Stock for which such dividend has been declared as of the close of business on
the applicable record date. Dividends shall not be cumulative. Previously
declared but unpaid dividends with respect to an outstanding share of Series B
Preferred Stock shall, upon conversion of such share to Common Stock (except in
the case of a Series B Qualified Public
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Offering (as defined below)) be paid out of assets legally available therefor,
in cash or in shares of Common Stock, as the Board may elect, and in the case of
assets or shares of Common Stock, valued at the fair market value on the date of
payment as determined by the Board in good faith. The amount of dividends
"accrued" with respect to any share of Series B Preferred Stock as of the first
Series B Dividend Payment Date with respect to such share after the applicable
Series B Original Issue Date with respect to such share, or as of any other date
after the applicable Series B Original Issue Date with respect to such share
that is not a Series B Dividend Payment Date with respect to such share, shall
be calculated on the basis of the actual number of days elapsed from and
including the applicable Series B Original Issue Date with respect to such
share, in the case of the first Series B Dividend Payment Date with respect to
such share and any date of determination prior to the first Series B Dividend
Payment Date with respect to such share, or from and including the last
preceding Series B Dividend Payment Date with respect to such share, in the case
of any other date of determination, to and including such date of determination
which is to be made with respect to such share, in each case based on a year of
365 or 366 days, as the case may be. Whenever the Board declares any dividend
pursuant to this Section 1, notice of the applicable record date and related
Series B Dividend Payment Date shall be given. As used herein, a "Series B
Qualified Public Offering" shall mean the closing of a firm commitment
underwritten public offering, pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), covering
the offer and sale of Common Stock to the public that raises gross proceeds for
the Company of at least $20,000,000 and at an initial aggregate offering price
to the public that reflects a value of the Company, on a Fully-Diluted Basis, of
(i) at least $25,000,000 (on a pre-money equity valuation) if such offering is
commenced on or before the first anniversary of the Series B-1 Original Issue
Date or (ii) at least $31,250,000 (on a pre-money equity valuation) if such
offering is commenced after the first anniversary of the Series B-1 Original
Issue Date. "Fully-Diluted Basis" gives effect, without duplication, to (i) all
shares of Common Stock outstanding at the time of determination plus (ii) all
shares of Common Stock issuable upon conversion of the Series A Preferred Stock
and Series B Preferred Stock or any other convertible securities of the
Corporation or upon the exercise of any option, warrant or similar right
(whether or not presently exercisable) to acquire shares of Common Stock or
shares of Preferred Stock convertible into Common Stock, as if such Series A
Preferred Stock and Series B Preferred Stock or other convertible securities had
been so converted or such option, warrant or similar right had been so
exercised.
(g) Series A Preferred Stock Dividend Rate; Series A Dividend
Payment Dates. Each holder of the Series A Preferred Stock shall be entitled to
receive when, as and if declared by the Board, out of funds legally available
therefor, cash dividends, in preference and priority to dividends on any Common
Stock or any other classes or series of the Corporation's capital stock which
rank junior to the Series A Preferred Stock, that shall accrue on each share of
the Series A Preferred Stock at a rate per annum determined by the Board, from
and including the date on which such stock was first issued (each, a "Series A
Original Issue Date") to and including the date on which the Series A-1
Liquidation Price (as defined) or the Series A-2 Liquidation Price (as defined),
as the case may be, of such share is paid in full to the holder of such share
pursuant to Section 2. The accrued dividends will be adjusted for
Recapitalization Events which affect the number of outstanding shares of the
Series A Preferred Stock. Accrued dividends on the Series A-1 Preferred Stock
and the Series A-2 Preferred Stock shall be payable out of funds legally
available therefor when, as, and if declared by the Board (each a "Series A
Dividend Payment Date"), to the holders of record of such Series A Preferred
Stock for which
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such dividend has been declared as of the close of business on the applicable
record date. Dividends shall not be cumulative. Declared but unpaid dividends
with respect to an outstanding share of Series A Preferred Stock shall, upon
conversion of such share to Common Stock (except in the case of a Series A
Qualified Public Offering (as defined below)) be paid when, as and if declared
by the Board, out of assets legally available therefor, in cash or in shares of
Common Stock as the Board may elect, and in the case of assets or shares of
Common Stock, valued at the fair market value on the date of payment as
determined by the Board in good faith. The amount of dividends "accrued" with
respect to any share of Series A Preferred Stock as of the first Series A
Dividend Payment Date with respect to such share after the applicable Series A
Original Issue Date with respect to such share, or as of any other date after
the applicable Series A Original Issue Date that with respect to such share is
not a Series A Dividend Payment Date with respect to such share, shall be
calculated on the basis of the actual number of days elapsed from and including
the applicable Series A Original Issue Date with respect to such share, in the
case of the first Series A Dividend Payment Date with respect to such share and
any date of determination prior to the first Series A Dividend Payment Date with
respect to such share, or from and including the last preceding Series A
Dividend Payment Date with respect to such share, in the case of any other date
of determination, to and including such date of determination which is to be
made with respect to such share, in each case based on a year of 365 or 366
days, as the case may be. Whenever the Board declares any dividend pursuant to
this Section 1, notice of the applicable record date and related Series A
Dividend Payment Date shall be given. As used herein, a "Series A Qualified
Public Offering" shall mean the closing of the sale of the Corporation's Common
Stock in a firm commitment underwritten public offering registered under the
Securities Act, other than a registration relating solely to a transaction under
Rule 145 promulgated under the Securities Act (or any successor thereto) or to
an employee benefit plan of the Corporation, at a public offering price (prior
to underwriters' discounts and expenses) equal to or exceeding ten dollars
($10.00) per share of Common Stock (as adjusted for Recapitalization Events with
respect to such shares), and the aggregate proceeds to the Corporation and/or
any selling stockholders (after deduction for underwriters' discounts and
expenses relating to the issuance, including, without limitation, fees of
counsel to the Corporation) of which exceed ten million dollars ($10,000,000).
(h) Pro Rata Declaration and Payment of Dividends. All
dividends paid with respect to shares of Series C Preferred Stock, Series B-1
Preferred Stock, Series B-2 Preferred Stock, Series B-3 Preferred Stock, Series
A-1 Preferred Stock, Series A-2 Preferred Stock or Common Stock, as the case may
be, pursuant to this Section 1 shall be declared and paid pro rata within each
class to all the holders of the shares of Series C Preferred Stock, Series B-1
Preferred Stock, Series B-2 Preferred Stock, Series B-3 Preferred Stock, Series
A-1 Preferred Stock, Series A-2 Preferred Stock or Common Stock, as the case may
be, outstanding as of the applicable record date.
(i) Form of Payment of Dividends. In the event that the
Corporation declares and pays dividends to the holders of its capital stock,
each holder shall receive the same form of consideration.
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Section 2. Liquidation, Dissolution or Winding Up.
(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
any merger or consolidation of the Corporation with another entity, the sale of
substantially all of its assets or the consummation of an Approved Sale (as
defined below), pursuant to which, the holders of the Series C Preferred Stock
do not receive an amount of consideration per share equal to the Stated Value
(as defined below) for the Series C Preferred Stock (each such event, a
"Liquidation"), except as provided in paragraph (b) of this Section 2, the
holders of shares of Series C Preferred Stock, Series B-1 Preferred Stock,
Series B-2 Preferred Stock, Series B-3 Preferred Stock, Series A-1 Preferred
Stock and Series A-2 Preferred Stock then outstanding shall be entitled, ratably
in proportion to the shares of Series C Preferred Stock, Series B-1 Preferred
Stock, Series B-2 Preferred Stock, Series B-3 Preferred Stock, Series A-1
Preferred Stock, Series A-2 Preferred Stock held by such holders, to be paid out
of the assets of the Corporation available for distribution to its stockholders
before payment to the holders of Junior Stock (excluding in this case, the
Series A Preferred Stock) by reason of their ownership thereof, an amount equal
to: (i) in the case of the Series C Preferred Stock (1) $10.25 per share
(subject to appropriate adjustments for any Recapitalization Events) (the
"Stated Value for the Series C Preferred Stock"), plus (2) an amount equal to
all declared and unpaid dividends on such shares since the Series C Original
Issue Date thereof as of such time of determination (the "Series C Liquidation
Price"); (ii) in the case of the Series B-1 Preferred Stock, (1) $6.20 per share
(subject to appropriate adjustment for any Recapitalization Events) (the "Stated
Value for the Series B-1 Preferred Stock"), plus (2) an amount equal to all
declared and unpaid dividends on such shares since the Series B-1 Original Issue
Date thereof as of such time of determination (the "Series B-1 Liquidation
Price"); (iii) in the case of the Series B-2 Preferred Stock, (1) equal to $7.44
per share (subject to appropriate adjustment for any Recapitalization Events)
(the "Stated Value for the Series B-2 Preferred Stock"), plus (2) an amount
equal to all declared and unpaid dividends on such shares since the Series B-2
Original Issue Date thereof as of such time of determination (the "Series B-2
Liquidation Price"); (iv) in the case of the Series B-3 Preferred Stock (1)
$30.37 per share (subject to appropriate adjustment for any Recapitalization
Events) (the "Stated Value for the Series B-3 Preferred Stock"), plus (2) an
amount equal to all declared and unpaid dividends on such shares since the
Series B-3 Original Issue Date thereof as of such time of determination (the
"Series B-3 Liquidation Price"); (v) in the case of the Series A-1 Convertible
Preferred Stock, (l) $2.50 per share (subject to appropriate adjustment for any
Recapitalization Events), plus (2) an amount equal to all declared and unpaid
dividends on such shares since the Series A-1 Original Issue Date thereof as of
such time of determination (the "Series A-1 Liquidation Price"); and (vi) in the
case of the Series A-2 Convertible Preferred Stock, (l) $3.60 per share (subject
to appropriate adjustment for any Recapitalization Events), plus (2) an amount
equal to all declared and unpaid dividends on such shares since the Series A-2
Original Issue Date thereof as of such time of determination (the "Series A-2
Liquidation Price"). "Approved Sale" means the sale of the Corporation, in a
single transaction or a series of related transactions, to a third party (which
is not an affiliate of any of the Approving Stockholders): (i) pursuant to which
such third party proposes to acquire all or substantially all of the outstanding
capital stock (on a fully-diluted basis) (whether by merger, consolidation,
recapitalization, reorganization, purchase of all of the capital stock or
otherwise) of the Corporation or all or substantially all of the assets of the
Corporation; (ii) which has been approved by the Board of Directors and holders
of a majority of the outstanding shares of Series A Stock, the Series B Stock
and the Series C Stock, voting
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together as a single class (the "Approving Stockholders"); and (iii) pursuant to
which all holders of Common Stock will receive with respect thereto (whether in
such transaction or, with respect to an asset sale, upon a subsequent
liquidation) the same form and amount of consideration per share of Common
Stock, or if any holders are given an option as to the form and amount of
consideration to be received, all holders are given the same option.
(b) If upon any such Liquidation the remaining assets of the
Corporation available for distribution to its stockholders shall be insufficient
to pay the holders of shares of Series C Preferred Stock, Series B Preferred
Stock and Series A Preferred Stock the full amount to which they shall be
entitled, then the entire assets of the Corporation shall be distributed among
the holders of shares of Series C Preferred Stock, Series B Preferred Stock and
Series A Preferred Stock, ratably in proportion to the full amount to which such
holders are entitled.
(c) After the payment of all preferential amounts required to
be paid to the holders of Series C Preferred Stock, Series B Preferred Stock and
Series A Preferred Stock, upon the Liquidation of the Corporation, the holders
of shares of the other Junior Stock (excluding in this case, the Series A
Preferred Stock) then outstanding shall be entitled to receive the remaining
assets and funds of the Corporation available for distribution to its
stockholders.
(d) In the event of a distribution pursuant to this Section 2,
such distribution shall be payable in cash, securities or property. Whenever
such distribution shall be in securities or property other than cash, the value
of such securities or property other than cash shall be the fair market value of
such securities or other property as determined by the Board in good faith.
Section 3. Voting Rights.
(a) Each holder of shares of Series C Preferred Stock, Series
B Preferred Stock or Series A Preferred Stock, as the case may be, shall be
entitled to votes equal in the aggregate to the number of votes to which the
number of whole shares of Common Stock into which such shares of Series B
Preferred Stock or Series A Preferred Stock, as the case may be, held by such
holder are convertible would be entitled (as adjusted from time to time pursuant
to Section 4 hereof), at each meeting of the stockholders of the Corporation
(and for purposes of written actions of stockholders in lieu of meetings) with
respect to any and all matters presented to the stockholders of the Corporation
for their action or consideration, and shall be entitled to notice of any
stockholders' meeting in accordance with the Bylaws of the Corporation. Except
as otherwise provided herein or required by law, holders of shares of Series C
Preferred Stock, Series B Preferred Stock or Series A Preferred Stock shall vote
with the holders of shares of Common Stock and any other class of stock entitled
to vote and not as a separate class. Each holder of Common Stock is entitled to
one (1) vote per share of Common Stock held by such holder. Except as otherwise
provided herein, holders of the Series C Preferred Stock, Series B Preferred
Stock and the Series A Preferred Stock shall each have the right to vote as
separate classes on all matters requiring their vote or approval under, and in
the manner set forth in, the General Corporation Law of the State of Delaware.
Except as otherwise provided herein, any class vote pursuant to this Section 3
or required by law shall be determined by the holders of a majority of the
shares of capital stock of such class voting as a class as of the applicable
record date.
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(b) Without the written consent or affirmative vote of the
holders of sixty percent (60%) of the then outstanding shares of Series C
Preferred Stock, given in writing or by vote at a meeting, consenting or voting
(as the case may be) separately as a class, in person or by proxy for so long as
any shares of Series C Preferred Stock remain outstanding, the Corporation shall
not (i) amend, alter or repeal or otherwise change any provision of this
Restated Certificate of Incorporation, or the preferences, special rights or
other powers of the Series C Preferred Stock, in each case so as to affect
adversely the Series C Preferred Stock or (ii) create, authorize, issue, or
increase the authorized amount of, any preferred stock or any other class or
series of any equity securities, or any warrants, options or other rights
convertible or exchangeable into any class or series of any equity securities of
the Corporation, having a preference or priority over or ranking pari passu with
the Series C Preferred Stock as to redemption rights, the right to receive
dividends or amounts distributable upon Liquidation of the Corporation. In the
event of a proposed amendment to Section 5B(a) of Article Fourth, Section 5B(a)
shall not be amended without first obtaining the written consent or affirmative
vote of the holders of eighty percent (80%) of the then outstanding shares of
Series C Preferred Stock, given in writing or by a vote at a meeting, consenting
or voting (as the case may be) separately as a class, in person or by proxy for
so long as any shares of Series C Preferred Stock remain outstanding. The
holders of the Series C Preferred Stock shall have the right to vote as a class
for purposes of this paragraph (b) of this Section 3.
(c) For so long as any shares of Series B-2 Preferred Stock or
Series B-3 Preferred Stock remain outstanding, the Corporation shall not amend,
alter or repeal or otherwise change any provision of this Restated Certificate
of Incorporation, the resolutions of its Board of Directors authorizing and
creating the Series B-2 Preferred Stock and Series B-3 Preferred Stock, or the
preferences, special rights or other powers of the Series B-2 Preferred Stock
and Series B-3 Preferred Stock, in each case so as to affect adversely the
Series B-2 Preferred Stock or Series B-3 Preferred Stock, without the written
consent or affirmative vote of the holders of sixty-six and two-thirds percent
(66-2/3%) of the then outstanding shares of Series B-2 Preferred Stock and
Series B-3 Preferred Stock, given in writing or by vote at a meeting, consenting
or voting (as the case may be) together as a single class, in person or by
proxy. For this purpose, without limiting the generality of the foregoing,
amendments, alterations, repeals or other changes to any provision of this
Restated Certificate of Incorporation considered to affect adversely the Series
B-2 Preferred Stock and Series B-3 Preferred Stock shall include, but are not
limited to: (i) the creation, authorization, issuance, or increase in the
authorized amount of, any preferred stock or any other class or series of any
equity securities, or any warrants, options or other rights convertible or
exchangeable into any class or series of any equity securities of the
Corporation, having a preference or priority over or ranking pari passu with the
Series B-2 Preferred Stock and Series B-3 Preferred Stock as to the right to
receive dividends or amounts distributable upon Liquidation of the Corporation;
(ii) those that reduce the dividend rates on the Series B-2 Preferred Stock or
Series B-3 Preferred Stock or cancel declared and unpaid dividends; (iii) those
that change the relative seniority rights of the holders of the Series B-2
Preferred Stock or Series B-3 Preferred Stock as to the payment of dividends in
relation to the holders of any other capital stock of the Corporation; or (iv)
those that reduce the amount payable to the holders of the Series B-2 Preferred
Stock or Series B-3 Preferred Stock upon Liquidation or change the relative
seniority of the liquidation preferences of the holders of the Series B-2
Preferred or Series B-3 Preferred Stock to the rights upon Liquidation of the
holders of any other capital stock of the Corporation. The holders of the Series
B-2 Preferred Stock and Series B-3 Preferred Stock shall
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have the right to vote together as a single class for purposes of this paragraph
(c) of this Section 3.
(d) For so long as any shares of Series B-1 Preferred Stock
remain outstanding, the Corporation shall not amend, alter or repeal or
otherwise change any provision of this Amended and Restated Certificate of
Incorporation, the resolutions of its Board authorizing and creating the Series
B-1 Preferred Stock, or the preferences, special rights or other powers of the
Series B-1 Preferred Stock, in each case so as to affect adversely the Series
B-1 Preferred Stock, without the written consent or affirmative vote of the
holders of sixty-six and two-thirds percent (66 2/3%) of the then outstanding
shares of Series B-1 Preferred Stock, given in writing or by vote at a meeting,
consenting or voting (as the case may be) separately as a class, in person or by
proxy. For this purpose, without limiting the generality of the foregoing,
amendments, alterations, repeals or other changes to any provision of this
Restated Certificate of Incorporation considered to affect adversely the Series
B-1 Preferred Stock shall include, but are not limited to: (i) the creation,
authorization, issuance, or increase in the authorized amount of, any preferred
stock or any other class or series of any equity securities, or any warrants,
options or other rights convertible or exchangeable into any class or series of
any equity securities of the Corporation, having a preference or priority over
or ranking pari passu with the Series B-1 Preferred Stock as to the right to
receive dividends or amounts distributable upon Liquidation of the Corporation;
(ii) those that reduce the dividend rates on the Series B-1 Preferred Stock or
cancel declared and unpaid dividends; (iii) those that change the relative
seniority rights of the holders of the Series B-1 Preferred Stock as to the
payment of dividends in relation to the holders of any other capital stock of
the Corporation; or (iv) those that reduce the amount payable to the holders of
the Series B-1 Preferred Stock upon Liquidation or change the relative seniority
of the liquidation preferences of the holders of the Series B-1 Preferred to the
rights upon Liquidation of the holders of any other capital stock of the
Corporation. The holders of the Series B-1 Preferred Stock shall have the right
to vote as a class for purposes of this paragraph (d) of this Section 3.
(e) For so long as any shares of Series A Preferred Stock
remain outstanding, the Corporation shall not amend, alter or repeal or
otherwise change any provision of this Amended and Restated Certificate of
Incorporation, the resolutions of its Board authorizing and creating the Series
A Preferred Stock or the preferences, special rights or other powers of the
Series A Preferred Stock so as to affect adversely the Series A Preferred Stock,
without the written consent or affirmative vote of the holders of sixty-six and
two-thirds percent (66 2/3%) of the then outstanding shares of Series A
Preferred Stock, given in writing or by vote at a meeting, consenting or voting
(as the case may be) separately as a class, in person or by proxy. For this
purpose, without limiting the generality of the foregoing, amendments,
alterations, repeals or other changes to any provision of this Restated
Certificate of Incorporation considered to affect adversely the Series A
Preferred Stock shall include, but are not limited to: (i) the creation,
authorization, issuance, or increase in the authorized amount of, any preferred
stock or any other class or series of any equity securities, or any warrants,
options or other rights convertible or exchangeable into any class or series of
any equity securities of the Corporation, having a preference or priority over
or ranking pari passu with the Series A Preferred Stock as to the right to
receive dividends or amounts distributable upon Liquidation of the Corporation;
(ii) those that reduce the dividend rates on the Series A Preferred Stock or
cancel declared and unpaid dividends; (iii) those that change the relative
seniority rights of the holders of the Series
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A Preferred Stock as to the payment of dividends in relation to the holders of
any other capital stock of the Corporation; or (iv) those that reduce the amount
payable to the holders of the Series A Preferred Stock upon Liquidation or
change the relative seniority of the liquidation preferences of the holders of
the Series A Preferred to the rights upon Liquidation of the holders of any
other capital stock or the Corporation. The holders of the Series A Preferred
Stock shall have the right to vote as a class for purposes of this paragraph (e)
of this Section 3.
(f) Subject to the provisions of paragraphs (b), (c), (d) and
(e) of this Section 3, for so long as any shares of Series C Preferred Stock,
Series B Preferred Stock or Series A Preferred Stock (in each case, subject to
appropriate adjustment for any Recapitalization Event) remain outstanding, the
Corporation shall not and shall not permit any subsidiary of the Corporation, to
declare or pay dividends or other distributions upon, or redeem, purchase,
retire or otherwise acquire for value of, any shares of the capital stock of the
Corporation (other than shares of capital stock that rank pari passu with or
senior to the Series C Preferred Stock, Series B Preferred Stock or the Series A
Preferred Stock, shares of capital stock repurchased as contemplated by the
Stockholders Agreement or shares of capital stock repurchased pursuant to the
authorization of the Board of Directors of the Corporation in connection with
employee stock option grants or restricted stock grants) or any shares of the
capital stock of any subsidiary of the Corporation (other than the payment of
dividends or distributions, or other payments in redemption, made by such
subsidiary solely to the Corporation) without the written consent or affirmative
vote of stockholders representing at least a majority of the then outstanding
shares of Series C Preferred Stock Series B Preferred Stock and Series A
Preferred Stock, voting as a single class.
(g) Subject to the provisions of paragraphs (b), (c), (d) and
(e) of this Section 3, for so long as any shares of Series C Preferred Stock,
Series B Preferred Stock or Series A Preferred Stock (in each case, subject to
appropriate adjustment for any Recapitalization Event) remain outstanding, the
Corporation shall not take, and shall not permit any subsidiary of the
Corporation to take, any of the following actions without the written consent or
affirmative vote of stockholders representing at least a majority of the then
outstanding shares of Series C Preferred Stock, Series B Preferred Stock and
Series A Preferred Stock, voting as a single class:
(i) increase or decrease the authorized number of shares of
Preferred Stock.
(ii) merge or consolidate the Corporation or any of its
subsidiaries with or into another entity, or enter into any other
business combination, recapitalization, binding share exchange or
similar transaction with any entity, if such would result in, the
stockholders of the Corporation just prior to the date of the event not
owning a majority of the outstanding shares of the capital stock of the
Corporation after such event, or the Corporation not being the
surviving entity; or
(iii) sell, transfer, lease or dispose of all or substantially
all of the assets of the Corporation or of any of its subsidiaries, in
one transaction or a series of related transactions, or effect the
liquidation, dissolution or winding-up of the Corporation or any of its
subsidiaries.
Section 4. Conversion at the Option of a Holder.
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The holders of the Series C Preferred Stock, Series B Preferred Stock
and Series A Preferred Stock shall have conversion rights as follows (the
"Conversion Rights"):
(a) Each share of Series C Preferred Stock shall be convertible at the
option of the holder thereof, at any time and from time to time, into such
number of fully-paid and nonassessable shares of Common Stock as determined by
dividing the Series C Conversion Value (as defined) by the Series C Conversion
Price (as defined) then in effect (as appropriately adjusted in accordance with
this Section 4) (the "Series C Conversion Rate"). No additional consideration
shall be paid by a holder of Series C Preferred Stock upon exercise of its
respective Conversion Rights pursuant to this paragraph 4(a).
(i) Series C Conversion Value. The conversion value
for each share of Series C Preferred Stock shall be the Stated Value for the
Series C Preferred Stock.
(ii) Series C Conversion Price. The conversion price
at which shares of Common Stock shall be deliverable upon conversion of Series C
Preferred Stock without the payment of additional consideration by the holder
thereof shall initially be the Stated Value for the Series C Preferred Stock
(the "Series C Conversion Price"). Such initial Series C Conversion Price, and
the corresponding rate at which shares of Series C Preferred Stock may be
converted into shares of Common Stock, shall be subject to adjustment as
provided in this Section 4.
(b) Each share of Series B-1 Preferred Stock shall be convertible at
the option of the holder thereof, at any time and from time to time, into such
number of fully-paid and nonassessable shares of Common Stock as determined by
dividing the Series B-1 Conversion Value by the Series B-1 Conversion Price then
in effect (as appropriately adjusted in accordance with this Section 4) (the
"Series B-1 Conversion Rate"). No additional consideration shall be paid by a
holder of Series B-1 Preferred Stock upon exercise of its respective Conversion
Rights pursuant to this paragraph (b). Each share of Series B-2 Preferred Stock
shall be convertible at the option of the holder thereof, at any time and from
time to time, into such number of fully-paid and nonassessable shares of Common
Stock as determined by dividing the Series B-2 Conversion Value by the Series
B-2 Conversion Price then in effect (as appropriately adjusted in accordance
with this Section 4) (the "Series B-2 Conversion Rate"). No additional
consideration shall be paid by a holder of Series B-2 Preferred Stock upon
exercise of its respective Conversion Rights pursuant to this paragraph (b).
Each Share of Series B-3 Preferred Stock shall be convertible at the option of
the holder thereof, at any time and from time to time, into such number of
fully-paid and nonassessable shares of Common Stock as determined by dividing
the Series B-3 Conversion Value by the Series B-3 Conversion Price then in
effect (as appropriately adjusted with this Section 4) (the "Series B-3
Conversion Price").
(i) Series B-1 Conversion Value. The conversion value
for each share of Series B-1 Preferred Stock shall be the Stated Value for the
Series B-1 Preferred Stock.
(ii) Series B-1 Conversion Price. The conversion
price at which shares of Common Stock shall be deliverable upon conversion of
Series B-1 Preferred Stock without the payment of additional consideration by
the holder thereof shall initially be the Stated Value for the Series B-1
Preferred Stock (the "Series B-1 Conversion Price"). Such initial Series B-1
Conversion Price, and the corresponding rate at which shares of Series B-1
Preferred Stock may
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be converted into shares of Common Stock, shall be subject to adjustment as
provided in this Section 4.
(iii) Series B-2 Conversion Value. The conversion
value for each share of Series B-2 Preferred Stock shall be the Stated Value for
the Series B-2 Preferred Stock.
(iv) Series B-2 Conversion Price. The conversion
price at which shares of Common Stock shall be deliverable upon conversion of
Series B-2 Preferred Stock without the payment of additional consideration by
the holder thereof shall initially be the Stated Value for the Series B-2
Preferred Stock (the "Series B-2 Conversion Price"). Such initial Series B-2
Conversion Price, and the corresponding rate at which shares of Series B-2
Preferred Stock may be converted into shares of Common Stock, shall be subject
to adjustment as provided in this Section 4.
(v) Series B-3 Conversion Value. The conversion value for each
share of Series B-3 Preferred Stock shall be the Stated Value for the Series B-3
Preferred Stock.
(vi) Series B-3 Conversion Price. The conversion
price at which shares of Common Stock shall be deliverable upon conversion of
Series B-3 Preferred Stock without the payment of additional consideration by
the holder thereof shall initially be the Stated Value for the Series B-3
Preferred Stock (the "Series B-3 Conversion Price"). Such initial Series B-3
Conversion Price, and the corresponding rate at which shares of Series B-3
Preferred Stock may be converted into shares of Common Stock, shall be subject
to adjustment as provided in this Section 4.
(c) Each share of Series A Preferred Stock shall be
convertible at the option of the holder thereof, at any time and from time to
time, into one share of fully-paid and nonassessable shares of Common Stock (the
number of shares of Common Stock into which one share of Series A Preferred
Stock is convertible shall be referred to herein as the "Series A Conversion
Amount"). No additional consideration shall be paid by a holder of Series A
Preferred Stock upon exercise of its Conversion Rights pursuant to this
paragraph (c).
(d) Fractional Shares. No fractional shares of Common Stock
shall be issued upon conversion of the Series C Preferred Stock, Series B
Preferred Stock or the Series A Preferred Stock. In lieu of any fractional
shares to which a holder of Series C Preferred Stock, Series B Preferred Stock
or Series A Preferred Stock would otherwise be entitled, the Corporation shall
pay cash equal to such fraction multiplied by: (i) in the case of the Series C
Preferred Stock, the then effective Series C Conversion Price; (ii) in the case
of the Series B-1 Preferred Stock, the then effective Series B-1 Conversion
Price; (iii) in the case of the Series B-2 Preferred Stock, the then effective
Series B-2 Conversion Price; (iv) in the case of the Series B-3 Preferred Stock,
the then effective Series B-3 Conversion Price; (v) in the case of the Series
A-1 Convertible Preferred Stock, $2.50; and (vi) in the case of the Series A-2
Convertible Preferred Stock, $3.60.
(e) Mechanics of Conversion.
(i) In order for a holder of Series C Preferred Stock, Series
B Preferred Stock or Series A Preferred Stock to convert shares of Series C
Preferred Stock, Series B Preferred
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Stock or Series A Preferred Stock, as the case may be, into shares of Common
Stock, such holder shall surrender the certificate or certificates for such
shares of Series C Preferred Stock, Series B Preferred Stock or Series A
Preferred Stock, as the case may be, at the office of the transfer agent for the
Series C Preferred Stock, Series B Preferred Stock or the Series A Preferred
Stock, as the case may be (or at the principal office of the Corporation if the
Corporation serves as its own transfer agent), together with written notice that
such holder elects to convert all or any number of the shares of Series C
Preferred Stock, Series B Preferred Stock or Series A Preferred Stock
represented by such certificate or certificates and stating therein the name or
names the holder desires the certificate or certificates for shares of the
Common Stock to be issued. If required by the Corporation, certificates
surrendered for conversion shall be endorsed or accompanied by a written
instrument or instruments of transfer, in form satisfactory to the Corporation,
duly executed by the registered holder or his or its attorney duly authorized in
writing. Each date of receipt of such certificates and notice by the
transferring agent (or by the Corporation if the Corporation serves as its own
transfer agent) shall be a conversion date (each, a "Conversion Date"). The
Corporation shall, as soon as practicable after each Conversion Date, issue and
deliver at such office to such holder of Series C Preferred Stock, Series B
Preferred Stock or Series A Preferred Stock, as the case may be, a certificate
or certificates for the number of shares of Common Stock to which such holder
shall be entitled as aforesaid, together with cash in lieu of any fraction of a
share in accordance with paragraph (d) above. Such conversion shall be deemed to
have been made immediately prior to the close of business on the applicable
Conversion Date, and the person entitled to receive certificates of Common Stock
on such date shall be regarded for all corporate purposes as the holder of the
number of shares of Common Stock to which he or it is entitled upon the
conversion on such Conversion Date.
(ii) If the conversion of the Series A Preferred Stock is in
connection with a Series A Required Conversion Event (as defined in Section 6),
the conversion may, at the option of any holder tendering shares of Series A
Preferred Stock for conversion, be conditioned upon the closing of the Series A
Required Conversion Event, in which event the person or persons entitled to
receive the Common Stock upon such conversion shall not be deemed to have
converted such shares until immediately prior to the closing of the Series A
Required Conversion Event.
(iii) The Corporation shall, at all times when any of Series C
Preferred Stock, the Series B Preferred Stock or Series A Preferred Stock shall
remain outstanding, reserve and keep available out of its authorized but
unissued stock, for the purpose of effecting the conversion of the Series C
Preferred Stock, Series B Preferred Stock or the Series A Preferred Stock, such
number of its duly authorized shares of Common Stock as shall from time to time
be sufficient to effect the conversion of all outstanding Series B Preferred
Stock and Series A Preferred Stock.
(iv) All shares of Series C Preferred Stock, Series B
Preferred Stock or Series A Preferred Stock which shall have been surrendered
for conversion as herein provided shall no longer be deemed to be outstanding
and all rights with respect to such shares, shall immediately cease and
terminate on the applicable Conversion Date, except only the right of the
holders thereof to receive shares of Common Stock in exchange therefor. Any
shares of Series C Preferred Stock, Series B Preferred Stock or Series A
Preferred Stock so converted shall be retired and canceled and shall not be
reissued, and the Corporation may from time to time take
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such appropriate action as may be necessary to reduce the authorized Series C
Preferred Stock, Series B Preferred Stock or Series A Preferred Stock, as the
case may be, accordingly.
(f) Adjustments to Series C Conversion Price, Series B-1
Conversion Price, Series B-2 Conversion Price and Series B-3 Conversion Price
for Diluting Issues.
(i) Special Definitions. For purposes of this Section 4(f),
the following definitions shall apply:
(A) "Option" shall mean rights, options or
warrants to subscribe for, purchase or otherwise acquire Common Stock or
Convertible Securities, excluding options to purchase up to an aggregate of
870,570 shares of Common Stock, appropriately adjusted for Recapitalization
Events (the "Initial Option Pool Amount") of Common Stock of the Company, or
such greater number of shares as may be approved by the Compensation Committee
of the Board, issued to employees pursuant to stock option or restricted stock
agreements adopted by the Board and approved by the Compensation Committee of
the Board after the Series C Original Issue Date (such options herein referred
to as "Employee Options").
(B) "Series B-1 Original Issue Date" shall
mean the date on which a share of Series B-1 Preferred Stock was first issued.
(C) "Series B-2 Original Issue Date" shall
mean the date on which a share of Series B-2 Preferred Stock was first issued.
(D) "Convertible Securities" shall mean any evidences of
indebtedness, shares or other securities directly or indirectly convertible into
or exchangeable for Common Stock.
(E) "Series B-3 Original Issue Date" shall mean the date on
which a share of Series B-3 Preferred Stock was first issued.
(F) "Series C Original Issue Date" shall mean the date on
which a share of Series C Preferred Stock was first issued.
(G) "Additional Shares of Common Stock" shall mean all shares
of Common Stock issued (or, pursuant to subparagraph (iii) below, deemed to be
issued) by the Corporation after the Series C Original Issue Date, Series B-1
Original Issue Date, the Series B-2 Original Issue Date or the Series B-3
Original Issue Date, as the case may be, other than shares of Common Stock
issued or issuable:
(I) upon the conversion of shares
of Series C Preferred Stock, Series B Preferred Stock and Series A Preferred
Stock outstanding;
(II) as a dividend or distribution
on the Series C Preferred Stock or Series B Preferred Stock;
(III) by reason of a dividend,
stock split, split-up or other distribution on shares of Common Stock;
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(IV) upon the exercise of Employee
Options or Options granted on or prior to the Series C Original Issue Date,
Series B-1 Original Issue Date, the Series B-2 Original Issue Date or the Series
B-3 Original Issue Date, as the case may be;
(V) pursuant to equity compensation
plans adopted by the Board and approved by the Compensation Committee of the
Board after the applicable Series C Original Issue Date, Series B-1 Original
Issue Date, the Series B-2 Original Issue Date or the Series B-3 Original Issue
Date, as the case may be; or
(VI) in debt financings approved by
the Board of Directors where the Common Stock equivalents of such securities in
the aggregate does not exceed five (5%) of the Company's Common Stock, on a
fully-diluted basis.
(ii) No Adjustment of Conversion Price. No adjustment in the
number of shares of Common Stock into which the Series C Preferred Stock or
Series B Preferred Stock is convertible shall be made, by adjustment in the
applicable Series C Conversion Price, applicable Series B-1 Conversion Price,
the applicable Series B-2 Conversion Price or the applicable Series B-3
Conversion Price thereof: unless the consideration per share (determined
pursuant to subparagraph (v) below) for an Additional Share of Common Stock
issued or deemed to be issued pursuant to subparagraph (iii) below by the
Corporation is less than the applicable Series C Conversion Price, applicable
Series B-1 Conversion Price, the applicable Series B-2 Conversion Price or the
applicable Series B-3 Conversion Price in effect on the date of, and immediately
prior to, the issuance of such Additional Shares, provided, that if prior to
such issuance, the Corporation receives written notice from the holders of at
least sixty percent (60%) of the then outstanding shares of Series C Preferred
Stock, or at least a majority of the Series B-1 Preferred Stock, Series B-2
Preferred Stock or Series B-3 Preferred Stock, as the case may be, agreeing that
no such adjustment shall be made as the result of the issuance of such
Additional Shares of Common Stock, then no such adjustments shall be made to
such series.
(iii) Issue of Securities Deemed Issue of Additional Shares of
Common Stock. If the Corporation at any time or from time to time after the
applicable Series C Original Issue Date, Series B-1 Original Issue Date, the
Series B-2 Original Issue Date or Series B-3 Original Issue Date, as the case
may be, shall issue any Options or Convertible Securities, then the maximum
number of shares of Common Stock (as set forth in the instrument relating
thereto without regard to any provision contained therein for a subsequent
adjustment of such number) issuable upon the exercise of such Options or, in the
case of Convertible Securities and Options therefor, the conversion or exchange
of such Convertible Securities, shall be deemed to be Additional Shares of
Common Stock issued as of the time of such issuance, provided that Additional
Shares of Common Stock shall not be deemed to have been issued unless the
consideration per share (determined pursuant to subparagraph (v) below) of such
Additional Shares of Common Stock would be less than the Series C Conversion
Price, Series B-1 Conversion Price, the Series B-2 Conversion Price or Series
B-3 Conversion Price, as the case may be, in effect on the date of and
immediately prior to such issuance, and provided further that in any such case
in which Additional Shares of Common Stock are deemed to be issued:
(A) No further adjustment in the Series C Conversion Price,
Series B-1 Conversion Price, the Series B-2 Conversion Price or the Series B-3
Conversion
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Price, respectively, shall be made upon the subsequent issuance of Convertible
Securities or shares of Common Stock upon the exercise of such Options or
conversion or exchange of such Convertible Securities;
(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 issuance
thereof (or upon the occurrence of a record date with respect thereto), and any
subsequent adjustments based thereon, shall, upon any such increase or decrease
becoming effective, be recomputed to reflect such increase or decrease insofar
as it affects such Options or the rights of conversion or exchange under such
Convertible Securities;
(C) No readjustment pursuant to clause (B)
above shall have the effect of increasing the Series C Conversion Price, Series
B-1 Conversion Price, the Series B-2 Conversion Price or the Series B-3
Conversion Price, respectively, to an amount which exceeds the Series C
Conversion Price, Series B-1 Conversion Price, the Series B-2 Conversion Price
or the Series B-3 Conversion Price, respectively, on the original adjustment
date; and
(D) In the event of any change in the number
of shares of Common Stock issuable upon the exercise, conversion or exchange of
any Option or Convertible Security, including, but not limited to, a change
resulting from the anti-dilution provisions thereof, the Series C Conversion
Price, the Series B-1 Conversion Price, the Series B-2 Conversion Price or the
Series B-3 Conversion Price, respectively, then in effect shall forthwith be
readjusted to such Series C Conversion Price, Series B-1 Conversion Price the
Series B-2 Conversion Price or the Series B-3 Conversion Price, respectively, as
would have obtained had the adjustment which was made upon the issuance of such
Option or Convertible Security not exercised or converted prior to such change
been made upon the basis of such change, but no further adjustment shall be made
for the actual issuance of Common Stock upon the exercise or conversion of any
such Option or Convertible Security.
(E) 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 Series C Conversion Price, the Series B-1
Conversion Price, the Series B-2 Conversion Price or the Series B-3 Conversion
Price computed upon the Series C Original Issue Date, the Series B-1 Original
Issue Date, the Series B-2 Original Issue Date or the Series B-3 Original Issue
Date, respectively (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
Stock issued were the 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 Company 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 Company upon such
conversion or exchange; and
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(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 Company for the Additional Shares of Common
Stock deemed to have been then issued was the consideration actually received by
the Company for the issue of all such Options, whether or not exercised, plus
the consideration deemed to have been received by the Company upon the issue of
the Convertible Securities with respect to which such Options were actually
exercised.
(iv) Adjustment of Series C Conversion Price Upon Issuance of
Additional Shares of Common Stock. In the event the Corporation shall at any
time after the Series C Original Issue Date issue Additional Shares of Common
Stock (including Additional Shares of Common Stock deemed to be issued pursuant
to subparagraph (iii) above, but excluding shares issued as a dividend or
distribution as provided in paragraph (h) below or upon a stock split or
combination as provided in paragraph (g) below), for a consideration per share
(determined pursuant to subparagraph (viii) below) less than the Series C
Conversion Price in effect on the date of and immediately prior to such
issuance, then and in each such case, such Series C Conversion Price shall be
reduced, concurrently with such issuance, to a Series C Conversion Price equal
to the price (calculated to the nearest cent) determined by multiplying such
Series C Conversion Price by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to such issuance
(together with the number of shares of Common Stock then issuable upon
conversion of the outstanding shares of Series C Preferred Stock, Series B
Preferred Stock and the Series A Preferred Stock and the conversion or exercise
of any Convertible Securities or Options), plus the number of shares of Common
Stock which the aggregate consideration received by the Corporation (as
determined pursuant to subparagraph (viii) below) for the total number of shares
of Common Stock so issued would purchase at the Series C Conversion Price in
effect immediately prior to such issuance, and the denominator of which shall be
the number of shares of Common Stock outstanding immediately prior to such
issuance (together with the number of shares of Common Stock then issuable upon
conversion of the outstanding shares of Series C Preferred Stock, Series B
Preferred Stock and the Series A Preferred Stock and the conversion or exercise
of any Convertible Securities or Options) plus the number of shares so issued.
No adjustment of the Series C Conversion Price,
however, shall be made in an amount less than $.01 per share, and any such
lesser adjustment shall be carried forward and shall be made at the time and
together with the next subsequent adjustment which together with any adjustments
so carried forward shall amount to $.01 per share or more. Any adjustments to
the Series C Conversion Price shall be rounded to the nearest $.01 per share.
(v) Adjustment of Series B-1 Conversion Price Upon Issuance of
Additional Shares of Common Stock. In the event the Corporation shall at any
time after the Series B-1 Original Issue Date issue Additional Shares of Common
Stock (including Additional Shares of Common Stock deemed to be issued pursuant
to subparagraph (iii) above, but excluding shares issued as a dividend or
distribution as provided in paragraph (h) below or upon a stock split or
combination as provided in paragraph (g) below), for a consideration per share
(determined pursuant to subparagraph (viii) below) less than the Series B-1
Conversion Price in effect on the date of and immediately prior to such
issuance, then and in each such case, such Series B-1 Conversion Price shall be
reduced, concurrently with such issuance, to a Series B-1 Conversion
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Price equal to the price (calculated to the nearest cent) determined by
multiplying such Series B-1 Conversion Price by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such issuance (together with the number of shares of Common Stock then
issuable upon conversion of the outstanding shares of Series C Preferred Stock,
Series B Preferred Stock and the Series A Preferred Stock and the conversion or
exercise of any Convertible Securities or Options), plus the number of shares of
Common Stock which the aggregate consideration received by the Corporation (as
determined pursuant to subparagraph (viii) below) for the total number of shares
of Common Stock so issued would purchase at the Series B-1 Conversion Price in
effect immediately prior to such issuance, and the denominator of which shall be
the number of shares of Common Stock outstanding immediately prior to such
issuance (together with the number of shares of Common Stock then issuable upon
conversion of the outstanding shares of Series C Preferred Stock, Series B
Preferred Stock and the Series A Preferred Stock and the conversion or exercise
of any Convertible Securities or Options) plus the number of shares so issued.
No adjustment of the Series B-1 Conversion Price,
however, shall be made in an amount less than $.01 per share, and any such
lesser adjustment shall be carried forward and shall be made at the time and
together with the next subsequent adjustment which together with any adjustments
so carried forward shall amount to $.01 per share or more. Any adjustments to
the Series B-1 Conversion Price shall be rounded to the nearest $.01 per share.
(vi) Adjustment of Series B-2 Conversion Price Upon Issuance
of Additional Shares of Common Stock. In the event the Corporation shall at any
time after the Series B-2 Original Issue Date issue Additional Shares of Common
Stock (including Additional Shares of Common Stock deemed to be issued pursuant
to subparagraph (iii) above, but excluding shares issued as a dividend or
distribution as provided in paragraph (h) below or upon a stock split or
combination as provided in paragraph (g) below), for a consideration per share
(determined pursuant to subparagraph (viii) below) less than the Series B-2
Conversion Price in effect on the date of and immediately prior to such
issuance, then and in each such case, such Series B-2 Conversion Price shall be
reduced, concurrently with such issuance, to a Series B-2 Conversion Price equal
to the price (calculated to the nearest cent) determined by multiplying such
Series B-2 Conversion Price by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to such issuance
(together with the number of shares of Common Stock then issuable upon
conversion of the outstanding shares of Series C Preferred Stock, Series B
Preferred Stock and the Series A Preferred Stock and the conversion or exercise
of any Convertible Securities or Options), plus the number of shares of Common
Stock which the aggregate consideration received by the Corporation (as
determined pursuant to subparagraph (viii) below) for the total number of shares
of Common Stock so issued would purchase at the Series B-2 Conversion Price in
effect immediately prior to such issuance, and the denominator of which shall be
the number of shares of Common Stock outstanding immediately prior to such
issuance (together with the number of shares of Common Stock then issuable upon
conversion of the outstanding shares of Series C Preferred Stock, Series B
Preferred Stock and the Series A Preferred Stock and the conversion or exercise
of any Convertible Securities or Options) plus the number of shares so issued.
No adjustment of the Series B-2 Conversion Price, however, shall be
made in an amount less than $.01 per share, and any such lesser adjustment shall
be carried forward and shall be
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made at the time and together with the next subsequent adjustment which together
with any adjustments so carried forward shall amount to $.01 per share or more.
Any adjustments to the Series B-2 Conversion Price shall be rounded to the
nearest $.01 per share.
(vii) Adjustment of Series B-3 Conversion Price Upon Issuance
of Additional Shares of Common Stock. In the event the Corporation shall at any
time after the Series B-3 Original Issue Date issue Additional Shares of Common
Stock (including Additional Shares of Common Stock deemed to be issued pursuant
to subparagraph (iii) above, but excluding shares issued as a dividend or
distribution as provided in paragraph (h) below or upon a stock split or
combination as provided in paragraph (g) below), for a consideration per share
(determined pursuant to subparagraph (viii) below) less than the Series B-3
Conversion Price in effect on the date of and immediately prior to such
issuance, then and in each such case, such Series B-3 Conversion Price shall be
reduced, concurrently with such issuance, to a Series B-1 Conversion Price equal
to the price (calculated to the nearest cent) determined by multiplying such
Series B-3 Conversion Price by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to such issuance
(together with the number of shares of Common Stock then issuable upon
conversion of the outstanding shares of Series C Preferred Stock, Series B
Preferred Stock and the Series A Preferred Stock and the conversion or exercise
of any Convertible Securities or Options), plus the number of shares of Common
Stock which the aggregate consideration received by the Corporation (as
determined pursuant to subparagraph (viii) below) for the total number of shares
of Common Stock so issued would purchase at the Series B-3 Conversion Price in
effect immediately prior to such issuance, and the denominator of which shall be
the number of shares of Common Stock outstanding immediately prior to such
issuance (together with the number of shares of Common Stock then issuable upon
conversion of the outstanding shares of Series C Preferred Stock, Series B
Preferred Stock and the Series A Preferred Stock and the conversion or exercise
of any Convertible Securities or Options) plus the number of shares so issued.
No adjustment of the Series B-3 Conversion Price,
however, shall be made in an amount less than $.01 per share, and any such
lesser adjustment shall be carried forward and shall be made at the time and
together with the next subsequent adjustment which together with any adjustments
so carried forward shall amount to $.01 per share or more. Any adjustments to
the Series B-3 Conversion Price shall be rounded to the nearest $.01 per share.
(viii) Determination of Consideration. For purposes of this
Section 4(f), the consideration received by the Corporation for the issuance of
any Additional Shares of Common Stock shall be computed as follows:
(A) Cash and Property. Such consideration shall:
(I) insofar as it consists of cash,
be computed at the aggregate of cash received by the Corporation, excluding
amounts paid or payable for accrued interest or accrued dividends;
(II) insofar as it consists of
property other than cash, be computed at the fair market value thereof at the
time of such issuance, as is reasonably determined in good faith by the Board;
and
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(III) in the event Additional Shares
of Common Stock are issued together with other shares of 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 (I) and (II)
above, as is reasonably 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 Stock deemed to have been issued pursuant to subparagraph (iii) above,
relating to Options and Convertible Securities, shall be determined by dividing:
(I) the total amount, if any,
received or receivable by the Corporation as consideration for the issuance of
such Options or Convertible Securities, plus the minimum aggregate amount of
additional consideration (as set forth in the instruments relating thereto,
without regard to any provision contained therein for a subsequent adjustment of
such consideration) payable to the Corporation upon the exercise of such Options
or the 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
(II) the maximum number of shares of
Common Stock (as set forth in the instruments relating thereto, without regard
to any provision contained therein for a subsequent adjustment of such number)
issuable upon the exercise of such Options or the conversion or exchange of such
Convertible Securities.
(g) Adjustment for Stock Splits and Combinations.
(i) If the Corporation shall at any time or from time to time
after the Series C Original Issue Date for the Series C Preferred Stock effect a
subdivision of the outstanding Common Stock, the Series C Conversion Price then
in effect immediately before that subdivision shall be proportionately
decreased. If the Corporation shall at any time or from time to time after the
Series C Original Issue Date for the Series C Preferred Stock combine the
outstanding shares of Common Stock, the Series C Conversion Price then in effect
immediately before the combination shall be proportionately increased. Any
adjustment under this paragraph shall become effective at the close of business
on the date the subdivision or combination becomes effective.
(ii) If the Corporation shall at any time or from time to time
after the Series B-1 Original Issue Date for the Series B-1 Preferred Stock
effect a subdivision of the outstanding Common Stock, the Series B-1 Conversion
Price then in effect immediately before that subdivision shall be
proportionately decreased. If the Corporation shall at any time or from time to
time after the Series B-1 Original Issue Date for the Series B-1 Preferred Stock
combine the outstanding shares of Common Stock, the Series B-1 Conversion Price
then in effect immediately before the combination shall be proportionately
increased. Any adjustment under this paragraph shall become effective at the
close of business on the date the subdivision or combination becomes effective.
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(iii) If the Corporation shall at any time or from time to
time after the Series B-2 Original Issue Date for the Series B-2 Preferred Stock
effect a subdivision of the outstanding Common Stock, the Series B-2 Conversion
Price then in effect immediately before that subdivision shall be
proportionately decreased. If the Corporation shall at any time or from time to
time after the Series B-2 Original Issue Date for the Series B-2 Preferred Stock
combine the outstanding shares of Common Stock, the Series B-2 Conversion Price
then in effect immediately before the combination shall be proportionately
increased. Any adjustment under this paragraph shall become effective at the
close of business on the date the subdivision or combination becomes effective.
(iv) If the Corporation shall at any time or from time to time
after the Series B-3 Original Issue Date for the Series B-3 Preferred Stock
effect a subdivision of the outstanding Common Stock, the Series B-3 Conversion
Price then in effect immediately before that subdivision shall be
proportionately decreased. If the Corporation shall at any time or from time to
time after the Series B-3 Original Issue Date for the Series B-3 Preferred Stock
combine the outstanding shares of Common Stock, the Series B-3 Conversion Price
then in effect immediately before the combination shall be proportionately
increased. Any adjustment under this paragraph shall become effective at the
close of business on the date the subdivision or combination becomes effective.
(v) If the Corporation shall at any time or from time to time
after any Series A Original Issue Date for the Series A Preferred Stock effect a
subdivision of the outstanding Common Stock, the Series A Conversion Amount then
in effect immediately before that subdivision shall be proportionately
increased. If the Corporation shall at any time or from time to time after any
Series A Original Issue Date for the Series A Preferred Stock combine the
outstanding shares of Common Stock, the Series A Conversion Amount then in
effect immediately before the combination shall be proportionately decreased.
Any adjustment under this paragraph shall become effective at the close of
business on the date the subdivision or combination becomes effective.
(h) Adjustment for Certain Dividends and Distributions.
(i) In the event the Corporation at any time after the Series
C Original Issue Date for the Series C Preferred Stock, shall make or issue, or
fix a record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in additional shares of Common
Stock, then and in each such event the Series C Conversion Price for the Series
C Preferred Stock then in effect shall be decreased as of the time of such
issuance or, in the event such a record date shall have been fixed, as of the
close of business on such record date, by multiplying the Series C Conversion
Price for the Series C Preferred Stock then in effect by a fraction:
(A) the numerator of which shall be 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
(B) the denominator of which shall be the total
number of shares of Common Stock issued and outstanding immediately prior to the
time of such issuance or the
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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, if such
record date shall have been fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the Series C
Conversion Price for the Series C Preferred Stock shall be recomputed
accordingly as of the close of business on such record date and thereafter the
Series C Conversion Price for the Series C Preferred Stock shall be adjusted
pursuant to this paragraph as of the time of actual payment of such dividends or
distributions.
(ii) In the event the Corporation at any time after the Series
B-1 Original Issue Date for the Series B-1 Preferred Stock, shall make or issue,
or fix a record date for the determination of holders of Common Stock entitled
to receive, a dividend or other distribution payable in additional shares of
Common Stock, then and in each such event the Series B-1 Conversion Price for
the Series B-1 Preferred Stock then in effect shall be decreased as of the time
of such issuance or, in the event such a record date shall have been fixed, as
of the close of business on such record date, by multiplying the Series B-1
Conversion Price for the Series B-1 Preferred Stock then in effect by a
fraction:
(A) the numerator of which shall be 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
(B) the denominator of which shall be 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, if such record date shall have been fixed and
such dividend is not fully paid or if such distribution is not fully made on the
date fixed therefor, the Series B-1 Conversion Price for the Series B-1
Preferred Stock shall be recomputed accordingly as of the close of business on
such record date and thereafter the Series B-1 Conversion Price for the Series
B-1 Preferred Stock shall be adjusted pursuant to this paragraph as of the time
of actual payment of such dividends or distributions.
(iii) In the event the Corporation at any time after, the
Series B-2 Original Issue Date for the Series B-2 Preferred Stock, shall make or
issue, or fix a record date for the determination of holders of Common Stock
entitled to receive, a dividend or other distribution payable in additional
shares of Common Stock, then and in each such event the Series B-2 Conversion
Price for the Series B-2 Preferred Stock then in effect shall be decreased as of
the time of such issuance or, in the event such a record date shall have been
fixed, as of the close of business on such record date, by multiplying the
Series B-2 Conversion Price for the Series B-2 Preferred Stock then in effect by
a fraction:
(A) the numerator of which shall be 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
(B) the denominator of which shall be 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
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payment of such dividend or distribution; provided, however, if such record date
shall have been fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the Series B-2
Conversion Price for the Series B-2 Preferred Stock shall be recomputed
accordingly as of the close of business on such record date and thereafter the
Series B-2 Conversion Price for the Series B-2 Preferred Stock shall be adjusted
pursuant to this paragraph as of the time of actual payment of such dividends or
distributions.
(iv) In the event the Corporation at any time, or from time
after the Series B-3 Original Issue Date for the Series B-3 Preferred Stock,
shall make or issue, or fix a record date for the determination of holders of
Common Stock entitled to receive, a dividend or other distribution payable in
additional shares of Common Stock, then and in each such event the Series B-3
Conversion Price for the Series B-3 Preferred Stock then in effect shall be
decreased as of the time of such issuance or, in the event such a record date
shall have been fixed, as of the close of business on such record date, by
multiplying the Series B-3 Conversion Price for the Series B-3 Preferred Stock
then in effect by a fraction:
(A) the numerator of which shall be 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
(B) the denominator of which shall be 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, if such record date shall have been fixed and
such dividend is not fully paid or if such distribution is not fully made on the
date fixed therefor, the Series B-3 Conversion Price for the Series B-3
Preferred Stock shall be recomputed accordingly as of the close of business on
such record date and thereafter the Series B-3 Conversion Price for the Series
B-3 Preferred Stock shall be adjusted pursuant to this paragraph as of the time
of actual payment of such dividends or distributions.
(v) In the event the Corporation at any time, or from time
after any Series A Original Issue Date for the Series A Preferred Stock, shall
make or issue, or fix a record date for the determination of holders of Common
Stock entitled to receive, a dividend or other distribution payable in
additional shares of Common Stock, then and in each such event the Series A
Conversion Amount for the Series A Preferred Stock then in effect shall be
increased as of the time of such issuance or, in the event such a record date
shall have been fixed, as of the close of business on such record date, to the
amount equal to the fraction:
(A) the numerator of which shall be 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, if such record date shall have been 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 Amount for the Series A Preferred Stock shall
be recomputed accordingly as of the close of business on such record date and
thereafter the Series A Conversion Amount for the Series A Preferred Stock shall
be adjusted pursuant to this paragraph as of the time of actual payment of such
dividends or distributions, and
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(B) the denominator of which shall be 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.
(i) Adjustments for Other Dividends and Distributions. In the
event the Corporation at any time or from time to time after (i) the Series C
Original Issue Date for the Series C Preferred Stock (ii) the Series B-1
Original Issue Date for the Series B-1 Preferred Stock (iii) the Series B-2
Original Issue Date for the Series B-2 Preferred Stock (iv) the Series B-3
Original Issue Date for the Series B-3 Preferred Stock, or (v) any Series A
Original Issue Date for the Series A Preferred Stock, shall make or issue, or
fix a record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in securities of the
Corporation other than shares of Common Stock, then and in each such event
provision shall be made so that the holders of the Series C Preferred Stock,
Series B-1 Preferred Stock, Series B-2 Preferred Stock, Series B-3 Preferred
Stock, or Series A Preferred Stock, as the case may be, shall receive upon
conversion thereof in addition to the number of shares of Common Stock
receivable thereupon, the amount of securities of the Corporation that they
would have received had their Series C Preferred Stock, Series B-1 Preferred
Stock, Series B-2 Preferred Stock, Series B-3 Preferred Stock, or Series A
Preferred Stock, as the case may be, been converted into Common Stock on the
date of such event and had 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 giving application to all adjustments
called for during such period, under this paragraph with respect to the rights
of the holders of the Series C Preferred Stock, Series B-1 Preferred Stock,
Series B-2 Preferred Stock, Series B-3 Preferred Stock or Series A Preferred
Stock, as the case may be.
(j) Adjustment for Reclassification, Exchange, or
Substitution. If the Common Stock issuable upon the conversion of the Series C
Preferred Stock, Series B Preferred Stock or Series A Preferred Stock, as the
case may be, shall be changed into the same or a different number of shares of
any class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination of shares
of stock dividend provided for above, or a reorganization, merger,
consolidation, or sale of assets provided for below), then and in each such
event the holder of each such share of Series C Preferred Stock, Series B
Preferred Stock or Series A Preferred Stock, as the case may be, shall have the
right thereafter to convert such share into the kind and amount of shares of
stock and other securities and property receivable upon such reorganization,
reclassification, or other change, by holders of the number of shares of Common
Stock into which such shares of Series C Preferred Stock, Series B Preferred
Stock or Series A Preferred Stock, as the case may be, might have been converted
immediately prior to such reorganization, reclassification, or change, all
subject to further adjustment as provided herein.
(k) Adjustment for Merger or Reorganization. In case of any
consolidation or merger of the Corporation with or into another corporation,
each share of Series C Preferred Stock, Series B Preferred Stock or Series A
Preferred Stock, as the case may be, shall thereafter be convertible into the
kind and amount of shares of stock or other securities or property to which a
holder of the number of shares of Common Stock of the Corporation deliverable
upon conversion of such Series C Preferred Stock, Series B Preferred Stock or
Series A Preferred Stock, as the case may be, would have been entitled if it had
converted its shares immediately
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prior to such consolidation or merger; and, in such case, appropriate adjustment
(as determined in good faith by the Board) shall be made in the application of
the provisions in this Section 4 set forth with respect to the rights and
interest thereafter of the holders of the Series C Preferred Stock, Series B
Preferred Stock or Series A Preferred Stock, as the case may be, to the end that
the provisions set forth in this Section 4 (including provisions with respect to
changes in and other adjustments of the Series C Conversion Price, Series B
Conversion Price and the Series A Conversion Amount) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any shares of stock
or other property thereafter deliverable upon the conversion of the Series C
Preferred Stock, Series B Preferred Stock or Series A Preferred Stock, as the
case may be.
(l) Adjustment of Common Stock Issuable Upon Conversion of
Series C Preferred Stock Upon Public Offering. In connection with a firm
commitment underwritten public offering of Common Stock pursuant to an effective
registration statement under the Securities Act and in the event that sixty
percent (60%) of the holders of the Series C Preferred Stock vote or consent to
modify the definition of "Series C Qualified Public Offering" set forth in
paragraph (e) of Section 1 or waive the Series C Qualified Public Offering
requirement for mandatory conversion of Series C Preferred Stock set forth in
Section 5A herein and the per share offering price to the public is below
$17.94, subject to Recapitalization Events, then immediately prior to the
conversion required by Section 5A herein, the number of shares of Common Stock
otherwise issuable upon the conversion of the Series C Preferred Stock shall be
increased by multiplying such number of shares of Common Stock by a fraction,
the numerator of which shall be $17.94 and the denominator of which shall be the
per share offering price of the Common Stock sold to the public.
(m) 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 4 and in the taking of all such action as may be necessary or
appropriate in order to protect the respective Conversion Rights of the holders
of the Series C Preferred Stock, Series B Preferred Stock and Series A Preferred
Stock against impairment.
(n) Notice of Record Date. In the event:
(i) that the Corporation shall propose to declare a
dividend (or any other distribution) on its Common Stock, whether payable in
cash, property, Common Stock or other securities of the Corporation, whether or
not a regular cash dividend and whether or not out of earnings or earned
surplus;
(ii) that the Corporation shall propose to subdivide
or combine its outstanding shares of Common Stock;
(iii) that the Corporation shall propose to effect
any reclassification or recapitalization of the Common Stock of the Corporation
outstanding (other than a subdivision or combination of its outstanding shares
of Common Stock or a stock dividend or stock
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distribution thereon), or of any consolidation or merger of the Corporation into
or with another corporation; or
(iv) of the Liquidation of the Corporation;
then in connection with each such event, the Corporation shall cause to be filed
at its principal office or at the office of the transfer agent of the Series C
Preferred Stock, Series B Preferred Stock and the Series A Preferred Stock, and
shall cause to be mailed to each of the holders of the Series C Preferred Stock,
Series B Preferred Stock and Series A Preferred Stock at their last addresses as
shown on the records of the Corporation or such transfer agent, at least ten
(10) days prior to the record date specified in (A) below or at least twenty
(20) days before the date specified in (B) below, a notice stating:
(A) the record date of such dividend,
distribution, subdivision or combination, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution, subdivision or combination are to be determined, or
(B) the date on which such reclassification,
consolidation, merger, or Liquidation is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, or
Liquidation.
(o) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 4, the Corporation at its
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each holder of Series C Preferred Stock,
Series B Preferred Stock or Series A Preferred Stock, as the case may be, a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based. The Corporation
shall, upon the written request at any time of any holder of Series C Preferred
Stock, Series B Preferred Stock or Series A Preferred Stock, as the case may be,
furnish or cause to be furnished to such holder a similar certificate setting
forth (i) such adjustments and readjustments; (ii) Series C Conversion Price,
the Series B-1 Conversion Price, the Series B-2 Conversion Price, Series B-3
Conversion Price, or Series A Conversion Amount, as the case may be, then in
effect; and (iii) the number of shares of Common Stock and the amount, if any,
of other property which then would be received upon the conversion of Series C
Preferred Stock, Series B-1 Preferred Stock, Series B-2 Preferred Stock, Series
B-3 Preferred Stock or Series A Preferred Stock, as the case may be.
(p) Stock to be Reserved. The Corporation will at all times
reserve and keep available out of its authorized Common Stock, solely for the
purpose of issuance upon the conversion of Series C Preferred Stock, Series B
Preferred Stock and Series A Preferred Stock as herein provided, such number of
shares of Common Stock as shall then be issuable upon the conversion of all
outstanding shares of Series C Preferred Stock, Series B Preferred Stock and
Series A Preferred Stock. The Corporation covenants that all shares of Common
Stock which shall be so issued shall be duly and validly issued and fully paid
and nonassessable and free from all taxes, liens and charges with respect to the
issue thereof, and, without limiting the generality
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of the foregoing, the Corporation covenants that it will from time to time take
all such action as may be requisite to assure that the par value per share of
the Common Stock is at all times equal to or less than the Series C Conversion
Price, Series B-1 Conversion Price, the Series B-2 Conversion Price or the
Series B-3 Conversion Price, respectively, in effect at the time. The
Corporation will take all such action as may be necessary to assure that all
such shares of Common Stock may be so issued without violation of any applicable
law or regulation, or of any requirement of any national securities exchange
upon which the Common Stock may be listed. The Corporation will not take any
action which results in any adjustment of the Series C Conversion Price, Series
B-1 Conversion Price, the Series B-2 Conversion Price or the Series B-3
Conversion Price, or the Series A Conversion Amount if the total number of
shares of Common Stock issued and issuable after such action upon conversion of
the Series C Preferred Stock, Series B-1 Preferred Stock, Series B-2 Preferred
Stock, Series B-3 Preferred Stock or Series A Preferred Stock, as the case may
be, would exceed the total number of shares of Common Stock then authorized by
this Restated Certificate of Incorporation.
(q) Issue Tax. The issuance of certificates for shares of
Common Stock upon conversion of the Series C Preferred Stock, Series B-1
Preferred Stock, Series B-2 Preferred Stock, Series B-3 Preferred Stock, Series
A Preferred Stock, or Series A-2 Preferred Stock, as the case may be, shall be
made without charge to the holders thereof for any issuance tax in respect
thereof, provided that the Corporation shall not be required to pay any tax
which may be payable in respect of any transfer involved in the issuance and
delivery of any certificate in a name other than that of the holder of the
Series C Preferred Stock, Series B Preferred Stock or Series A Preferred Stock
which is being converted.
Section 5A. Conversion at a Series C Qualified Public Offering.
(a) Upon the Closing of a Series C Qualified Public Offering,
all of the Series C Preferred Stock then outstanding shall automatically be
converted into shares of Common Stock in accordance with Section 4.
(b) On the date fixed for conversion in accordance with
paragraph (a) of this Section 5A, all rights with respect to the Series C
Preferred Stock so converted will terminate. If so required by the Corporation,
certificates surrendered for conversion shall be endorsed or accompanied by
written instrument or instruments of transfer, in form satisfactory to the
Corporation, duly executed by the registered holder or by his or its attorney
duly authorized in writing. As soon as practicable after the date of such
conversion and the surrender of the certificate or certificates for Series C
Preferred Stock, the Corporation shall cause to be issued and delivered to such
holder, or on his or its written order, a certificate or certificates for the
number of full shares of Common Stock issuable on such conversion in accordance
with the provisions hereof and cash as provided in Section 4(d) in respect of
any fraction of a share of Common Stock otherwise issuable upon such conversion.
Upon any such conversion, no adjustment to the Conversion Price shall be made
for any accrued and unpaid dividends on the Series C Preferred Stock converted.
(c) All certificates evidencing shares of Series C Preferred
Stock which are required to be surrendered for conversion in accordance with the
provisions hereof shall, from and after the date such certificates are so
required to be surrendered, be deemed to have been
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retired and canceled and the shares of Series C Preferred Stock represented
thereby converted into Common Stock for all purposes as of the date of
conversion set forth in paragraph (a) above, notwithstanding the failure of the
holder or holders thereof to surrender such certificates.
Section 5B. Conversion Upon Failure to Obtain Certain Share Thresholds.
(a) In the event that less than twenty percent of the Series C
Preferred Stock outstanding on the Series C Original Issue Date remains
outstanding at a subsequent date, then upon such subsequent date, each share of
Series C Preferred Stock outstanding on such subsequent date shall automatically
be converted into shares of Common Stock in accordance with Section 4 and all
rights with respect to the Series C Preferred Stock so converted shall
terminate.
(b) In the event that all of the holders of Series B-2 Preferred Stock
shall elect to convert their shares into shares of Common Stock in accordance
with Section 4 herein, then all shares of Series B-3 Preferred Stock shall
convert into shares of Common Stock in accordance with Section 4 herein and all
rights with respect to the Series B-2 Preferred Stock and Series B-3 Preferred
Stock shall terminate.
Section 5C. Conversion at a Series B Qualified Public Offering.
(a) Upon the Closing of a Series B Qualified Public Offering,
all of the Series B Preferred Stock then outstanding shall automatically be
converted into shares of Common Stock in accordance with Section 4.
(b) On the date fixed for conversion in accordance with
paragraph (a) of this Section 5C, all rights with respect to the Series B
Preferred Stock so converted will terminate. If so required by the Corporation,
certificates surrendered for conversion shall be endorsed or accompanied by
written instrument or instruments of transfer, in form satisfactory to the
Corporation, duly executed by the registered holder or by his or its attorney
duly authorized in writing. As soon as practicable after the date of such
conversion and the surrender of the certificate or certificates for Series B
Preferred Stock, the Corporation shall cause to be issued and delivered to such
holder, or on his or its written order, a certificate or certificates for the
number of full shares of Common Stock issuable on such conversion in accordance
with the provisions hereof and cash as provided in Section 4(d) in respect of
any fraction of a share of Common Stock otherwise issuable upon such conversion.
Upon any such conversion, no adjustment to the Conversion Price shall be made
for any accrued and unpaid dividends on the Series B Preferred Stock converted.
(c) All certificates evidencing shares of Series B Preferred
Stock which are required to be surrendered for conversion in accordance with the
provisions hereof shall, from and after the date such certificates are so
required to be surrendered, be deemed to have been retired and canceled and the
shares of Series B Preferred Stock represented thereby converted into Common
Stock for all purposes as of the date of conversion set forth in paragraph (a)
above, notwithstanding the failure of the holder or holders thereof to surrender
such certificates.
Section 6. Conversion at a Series A Required Conversion Event.
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Each share of Series A Preferred Stock shall be converted
automatically into one (1) share of Common Stock upon the earlier to occur of
each of the following events (each, a "Series A Required Conversion Event"):
(i) immediately upon the closing of a Series A Qualified
Public Offering; and
(ii) immediately upon the closing of the acquisition of a
majority of the then outstanding shares of the Common Stock by the holders of a
majority of the then outstanding shares of the Series A Preferred Stock.
Section 7A. Mandatory Redemption of Series C Preferred Stock and Series
B Preferred Stock.
(a) The Corporation's redemption of the shares of Series B-1
Preferred Stock, the shares of Series B-2 Preferred Stock, the shares of Series
B-3 Preferred Stock and the shares of Series C Preferred Stock shall be pari
passu and the Series B-1 Preferred Stock, Series B-2 Preferred Stock, Series B-3
Preferred Stock and Series C Preferred Stock shall be equal in priority.
(b) At any time on or after the fifth anniversary of the
Series C Original Issue Date, the Corporation shall be required to redeem all of
the shares of Series C Preferred Stock out of funds legally available therefor
upon the request of the majority of the holders of the Series C Preferred Stock.
(c) The redemption price shall be paid by the Corporation in
cash and shall be in an amount equal to (i) $10.25 per share of Series C
Preferred Stock (subject to appropriate adjustment for any Recapitalization
Events), plus (ii) an amount equal to all declared and unpaid dividends on such
share since the Series C Original Issue Date thereof as of such time of
determination, whether or not there are any unrestricted funds of the
Corporation legally available for the payment of dividends (the "Redemption
Price for the Series C Preferred Stock").
(d) The Corporation shall provide each holder of Series C
Preferred Stock with a written notice of redemption (addressed to the holder at
its address as it appears on the stock transfer books of the Corporation), not
earlier than sixty (60) nor later than twenty (20) days before the date fixed
for redemption. The notice of redemption shall specify (i) the class or part of
the class of shares to be redeemed; (ii) the date fixed for redemption; (iii)
the Redemption Price for the Series C Preferred Stock; and (iv) the place the
holders of Series C Preferred Stock may obtain payment of the Redemption Price
for the Series C Preferred Stock upon surrender of their certificates. If funds
are available on the date fixed for redemption, then whether or not shares are
surrendered for payment of the Redemption Price for the Series C Preferred
Stock, the shares shall no longer be outstanding and the holders thereof shall
cease to be shareholders of the Corporation with respect to the shares redeemed
on and after the date fixed for redemption and shall be entitled to receive the
Redemption Price for the Series C Preferred Stock without interest upon the
surrender of the share certificate. If less than all the shares represented by a
share certificate are to be redeemed, the Corporation shall issue a new share
certificate for the shares not redeemed.
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(e) If on the date fixed for redemption, funds of the
Corporation legally available therefor shall be insufficient to redeem all the
shares of Series C Preferred Stock required to be redeemed as provided herein,
funds to the extent legally available shall be used for such purpose and the
Corporation shall effect such redemption pro rata according to the number of
shares of Series C Preferred Stock held by each holder subject to the redemption
(a "Partial Redemption for the Series C Preferred Stock"). The Corporation shall
make additional Partial Redemptions for the Series C Preferred Stock to the
extent that funds are legally available therefor beginning thirty (30) days
after the Redemption Date and each thirty (30) days thereafter until all
outstanding shares of Series C Preferred Stock have been redeemed.
(f) The Corporation shall be required to redeem all of the
shares of Series B Preferred Stock upon the occurrence of and simultaneously
with the redemption of all outstanding shares of Series C Preferred Stock.
(g) The redemption price for the Series B-1 Preferred Stock
shall be paid by the Corporation in cash and shall be in an amount equal to (i)
$6.20 per share of Series B-1 Preferred Stock (subject to appropriate adjustment
for any Recapitalization Events), plus (ii) an amount equal to all declared and
unpaid dividends on such share since the Series B-1 Original Issue Date thereof
as of such time of determination, whether or not there are any unrestricted
funds of the Corporation legally available for the payment of dividends (the
"Redemption Price for the Series B-1 Preferred Stock").
(h) The Corporation shall provide each holder of Series B-1
Preferred Stock with a written notice of redemption (addressed to the holder at
its address as it appears on the stock transfer books of the Corporation), not
earlier than sixty (60) nor later than twenty (20) days before the date fixed
for redemption. The notice of redemption shall specify (i) the class or part of
the class of shares to be redeemed; (ii) the date fixed for redemption; (iii)
the Redemption Price for the Series B-1 Preferred Stock; and (iv) the place the
holders of Series B-1 Preferred Stock may obtain payment of the Redemption Price
for the Series B-1 Preferred Stock upon surrender of their certificates. If
funds are available on the date fixed for redemption, then whether or not shares
are surrendered for payment of the Redemption Price for the Series B-1 Preferred
Stock, the shares shall no longer be outstanding and the holders thereof shall
cease to be shareholders of the Corporation with respect to the shares redeemed
on and after the date fixed for redemption and shall be entitled to receive the
Redemption Price for the Series B-1 Preferred Stock without interest upon the
surrender of the share certificate. If less than all the shares represented by a
share certificate are to be redeemed, the Corporation shall issue a new share
certificate for the shares not redeemed.
(i) If on the date fixed for redemption funds of the
Corporation legally available therefor shall be insufficient to redeem all the
shares of Series B-1 Preferred Stock required to be redeemed as provided herein,
funds to the extent legally available shall be used for such purpose and the
Corporation shall effect such redemption pro rata according to the number of
shares of Series B-1 Preferred Stock held by each holder subject to the
redemption (a "Partial Redemption for the Series B-1 Preferred Stock"). The
Corporation shall make additional Partial Redemptions for the Series B-1
Preferred Stock to the extent that funds are legally available therefor
beginning thirty (30) days after the Redemption Date and each thirty (30) days
thereafter until all outstanding shares of Series B-1 Preferred Stock have been
redeemed.
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(j) The redemption price for the Series B-2 Preferred Stock
shall be paid by the Corporation in cash and shall be in an amount equal to (i)
$7.44 per share of Series B-2 Preferred Stock (subject to appropriate adjustment
for any Recapitalization Events), plus (ii) an amount equal to all declared and
unpaid dividends on such share since the Series B-2 Original Issue Date thereof
as of such time of determination, whether or not there are any unrestricted
funds of the Corporation legally available for the payment of dividends (the
"Redemption Price for the Series B-2 Preferred Stock for the Series B-2
Preferred Stock").
(k) The Corporation shall provide each holder of Series B-2
Preferred Stock with a written notice of redemption (addressed to the holder at
its address as it appears on the stock transfer books of the Corporation), not
earlier than sixty (60) nor later than twenty (20) days before the date fixed
for redemption. The notice of redemption shall specify (i) the class or part of
the class of shares to be redeemed; (ii) the date fixed for redemption; (iii)
the Redemption Price for the Series B-2 Preferred Stock; and (iv) the place the
holders of Series B-2 Preferred Stock may obtain payment of the Redemption Price
for the Series B-2 Preferred Stock upon surrender of their certificates. If
funds are available on the date fixed for redemption, then whether or not shares
are surrendered for payment of the Redemption Price for the Series B-2 Preferred
Stock, the shares shall no longer be outstanding and the holders thereof shall
cease to be shareholders of the Corporation with respect to the shares redeemed
on and after the date fixed for redemption and shall be entitled to receive the
Redemption Price for the Series B-2 Preferred Stock without interest upon the
surrender of the share certificate. If less than all the shares represented by a
share certificate are to be redeemed, the Corporation shall issue a new share
certificate for the shares not redeemed.
(l) If on the date fixed for redemption funds of the
Corporation legally available therefor shall be insufficient to redeem all the
shares of Series B-2 Preferred Stock required to be redeemed as provided herein,
funds to the extent legally available shall be used for such purpose and the
Corporation shall effect such redemption pro rata according to the number of
shares of Series B-2 Preferred Stock held by each holder subject to the
redemption (a "Partial Redemption for the Series B-2 Preferred Stock"). The
Corporation shall make additional Partial Redemptions for the Series B-2
Preferred Stock to the extent that funds are legally available therefor
beginning thirty (30) days after the Redemption Date and each thirty (30) days
thereafter until all outstanding shares of Series B-2 Preferred Stock have been
redeemed.
(m) The redemption price for the Series B-3 Preferred Stock
shall be paid by the Corporation in cash and shall be in an amount equal to (i)
$30.37 per share of Series B-3 Preferred Stock (subject to appropriate
adjustment for any Recapitalization Events), plus (ii) an amount equal to all
declared and unpaid dividends on such share since the Series B-3 Original Issue
Date thereof as of such time of determination, whether or not there are any
unrestricted funds of the Corporation legally available for the payment of
dividends (the "Redemption Price for the Series B-3 Preferred Stock").
(n) The Corporation shall provide each holder of Series B-3
Preferred Stock with a written notice of redemption (addressed to the holder at
its address as it appears on the stock transfer books of the Corporation), not
earlier than sixty (60) nor later than twenty (20) days before the date fixed
for redemption. The notice of redemption shall specify (i) the class or part of
the class of shares to be redeemed; (ii) the date fixed for redemption; (iii)
the Redemption
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Price for the Series B-3 Preferred Stock; and (iv) the place the holders of
Series B-3 Preferred Stock may obtain payment of the Redemption Price for the
Series B-3 Preferred Stock upon surrender of their certificates. If funds are
available on the date fixed for redemption, then whether or not shares are
surrendered for payment of the Redemption Price for the Series B-3 Preferred
Stock, the shares shall no longer be outstanding and the holders thereof shall
cease to be shareholders of the Corporation with respect to the shares redeemed
on and after the date fixed for redemption and shall be entitled to receive the
Redemption Price for the Series B-3 Preferred Stock without interest upon the
surrender of the share certificate. If less than all the shares represented by a
share certificate are to be redeemed, the Corporation shall issue a new share
certificate for the shares not redeemed.
(o) If on the date fixed for redemption, funds of the
Corporation legally available therefor shall be insufficient to redeem all the
shares of Series B-3 Preferred Stock required to be redeemed as provided herein,
funds to the extent legally available shall be used for such purpose and the
Corporation shall effect such redemption pro rata according to the number of
shares of Series B-3 Preferred Stock held by each holder subject to the
redemption (a "Partial Redemption for the Series B-3 Preferred Stock"). The
Corporation shall make additional Partial Redemptions for the Series B-3
Preferred Stock to the extent that funds are legally available therefor
beginning thirty (30) days after the Redemption Date and each thirty (30) days
thereafter until all outstanding shares of Series B-3 Preferred Stock have been
redeemed.
Section 7B. Pro Rata Redemption of Series C Preferred Stock and Series
B Preferred Stock.
Notwithstanding the provisions contained in Section 7A, if on the date
fixed for redemption, funds of the Corporation legally available therefor shall
be insufficient to redeem all of the Series C Preferred Stock, the Series B-1
Preferred Stock, the Series B-2 Preferred Stock, and the Series B-3 Preferred
Stock, as the case may be, as provided herein, funds to the extent legally
available shall be used for such purpose and the Corporation shall effect such
redemption pro rata according to the aggregate number of shares of Series C
Preferred Stock, Series B-1 Preferred Stock, Series B-2 Preferred Stock and
Series B-3 Preferred Stock, as the case may be, held by such holders. The
Corporation shall make additional redemptions pursuant to this Section 7B to the
extent that funds are legally available therefor beginning thirty (30) days
after the Redemption Date for the Series C Preferred Stock, the Series B-1
Preferred Stock, the Series B-2 Preferred Stock, and the Series B-3 Preferred
Stock, as the case may be, and each thirty (30) days thereafter until all
outstanding shares of Series C Preferred Stock, Series B-1 Preferred Stock,
Series B-2 Preferred Stock, Series B-3 Preferred Stock have been redeemed.
C. Upon the effectiveness of this Restated Certificate of
Incorporation, every share of Common Stock outstanding or held by the
Corporation in its treasury shall be changed and reclassified into four shares
of Common Stock, $0.001 par value per share, which shares shall be fully paid
and nonassessable shares of Common Stock of the Corporation.
FIFTH. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors of the Corporation shall have the power to
adopt, alter, amend or repeal the Bylaws of the Corporation and to fix the
amount to be reserved as working capital of the Corporation.
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SIXTH. The stockholders and directors shall have the power to hold
their respective meetings and keep the books, documents and papers of the
Corporation within or outside the State of Delaware and at such place or places
as may be from time to time designated by the Bylaws or by resolution of the
stockholders or directors, except as otherwise required by the laws of the State
of Delaware. Elections of directors need not be by written ballot except and to
the extent provided in the Bylaws of the Corporation.
SEVENTH. The objects, purposes and powers specified in any clause or
paragraph of this Amended and Restated Certificate of Incorporation shall be in
no way limited or restricted by reference to or inference from the terms of any
other clause or paragraph of this Amended and Restated Certificate of
Incorporation. The objects, purposes and powers in each of the clauses and
paragraphs of this Amended and Restated Certificate of Incorporation shall be
regarded as independent objects, purposes and powers. The objects, purposes and
powers specified in this Amended and Restated Certificate of Incorporation are
in furtherance and not in limitation of the objects, purposes and powers
conferred by statute.
EIGHTH. The Corporation shall have the power to indemnify its officers,
directors, employees and agents, and such other persons as may be designated as
set forth in the Bylaws (the "Indemnitee"), to the full extent permitted by the
Delaware General Corporation Law ("DGCL") from and against any and all of the
expenses, liabilities or other matters referred to in or covered by the Bylaws
or the DGCL, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any Bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person. The
Corporation shall pay in advance of the final disposition of such Indemnitee
upon the receipt of an undertaking by or on behalf of such Indemnitee to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this ARTICLE EIGHTH. A director
shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duties as a director, provided that the
liability of a director (i) for any breach of the director's loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit shall not be eliminated or limited hereby.
Any repeal or modification of this ARTICLE EIGHTH by the stockholders of the
Corporation shall not adversely affect any right or protection of a director of
the Corporation existing at the time of such repeal or modification with respect
to acts or omissions occurring prior to such repeal or modification.
NINTH. The Corporation shall have perpetual existence.
TENTH. The Corporation reserves the right at any time and from time to
time to amend, alter, change or repeal any provision contained in this Amended
and Restated Certificate of Incorporation (including provisions as may hereafter
be added or inserted in this Amended and Restated Certificate of Incorporation
as authorized by the laws of the State of Delaware) in the manner now or
hereafter prescribed by law; and all rights, preferences and privileges of
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whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Amended and Restated Certificate of
Incorporation in its present form or as hereafter amended are granted subject to
the right reserved in this ARTICLE TENTH.
ELEVENTH. Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or stockholder thereof or on the application of any
receiver or receivers appointed for the Corporation under the provisions of
Section 291 of Title 8 of the DGCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation under
the provisions of Section 279 of Title I of the DGCL order a meeting of the
creditors or class of stockholders of the Corporation, as the case may be, to be
summoned in such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
the Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all of the
creditors or class of creditors, and/or on all of the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
TWELFTH. 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 or other enterprise
against such 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.
THIRTEENTH. The Amended and Restated Certificate of Incorporation of
the Corporation as herein amended shall constitute a restatement of and shall
supersede the Restated Certificate of Incorporation, as amended, of the
Corporation as previously filed.
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IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be signed by its President this 17th day of
November, 1999.
BOLT MEDIA, INC.
By:/s/ Daniel Pelson
-----------------
Name: Daniel Pelson
Title: President