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EXHIBIT 3.1
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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NPRI, INC.
The undersigned, a natural person, for the purpose of amending and
restating the Certificate of Incorporation of NPRI, Inc., originally filed on
January 3, 1996, under the provisions and subject to the requirements of the
laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware
Code, as amended, and referred to as the "General Corporation Law of the State
of Delaware" and Section 245 thereof), hereby certifies that:
FIRST
The name of the corporation is:
NPRI, INC.
SECOND
The address of the registered office of the corporation in the State of
Delaware is 1013 Centre Road, City of Wilmington, County of New Castle, and the
name of the corporation's registered agent in the State of Delaware is The
Prentice-Hall Corporation System, Inc.
THIRD
The purpose of the corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware.
FOURTH
The total number of shares of stock which the corporation shall have
authority to issue is 20,000,000 shares of common stock having a par value of
$.01 per share and 992,061 shares of Series A preferred stock having a par value
of $.01 per share.
The board of directors of the Corporation is authorized, subject to the
limitations prescribed by law, to provide by resolution or resolutions for the
issuance of the shares of preferred stock as a class or in series, and, by
filing a certificate of designations, pursuant to the General Corporation Law of
the State of Delaware, setting forth a copy of such resolution or resolutions to
establish from time to time the number of shares to be included in each such
series and to fix the designation, powers, preferences and rights of the shares
of the class or of each such series and the qualifications,
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limitations, and restrictions thereof. The authority of the board of directors
with respect to the class or each series shall include, but not be limited to,
determination of the following:
a) the number of shares constituting any series and the distinctive
designation of that series;
b) the dividend rate of the shares of the class or of any series, whether
dividends shall be cumulative, and if so, from which date or dates, and the
relative rights of priority, if any of payment of dividends on shares of the
class or of that series;
c) whether the class or any series shall have voting rights, in addition to
the voting rights provided by law, and if so, the terms of such voting rights;
d) whether the class or any series shall have conversion privileges, and if
so, the terms and conditions of conversion, including provision for adjustment
of the conversion rate in such events as the board of directors shall determine;
e) whether or not the shares of the class or of any series shall be
redeemable, and if so, the terms and conditions of such redemption, including
the date or date upon or after which they shall be redeemable and the amount per
share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
f) whether the class or any series shall have a sinking fund for the
redemption or purchase of shares of the class or of that series, and if so, the
terms and amount of such sinking fund;
g) the rights of the shares of the class or of any series in the event of
voluntary or involuntary dissolution or winding up of the corporation, and the
relative rights of priority, if any, of payment of shares of the class or of
that series; and
h) any other powers, preferences, rights, qualifications, limitations and
restrictions of the class or of that series.
All rights accruing to the outstanding shares of the Corporation not
expressly provided for to the contrary herein or in any certificate of
designation shall be vested in the common stock.
Attached as Exhibit A hereto is a statement of designation, powers,
preferences, rights, qualifications and limitations in respect of the
Corporation's Series A preferred stock.
FIFTH
The Board of Directors and Shareholders have unanimously approved this
Amended and Restated Certificate of Incorporation.
SIXTH
The corporation is to have perpetual existence.
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SEVENTH
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors of the corporation is expressly authorized to make,
alter, or repeal the Bylaws of the corporation. Except as provided to the
contrary in the provisions establishing a class of stock, the number of
authorized shares of such class may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote of a majority
of the stock of the Corporation entitled to vote, voting as a single class.
EIGHTH
The corporation shall, to the fullest extent permitted by Section 145 of
the General Corporation Law of the State of Delaware, as the same may be amended
and supplemented, indemnify any and all persons who it shall have power to
indemnify under said section from and against any and all of the expenses,
liabilities, or other matters referred to in or covered by said section, 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 any other capacity while holding
such office, and shall continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
NINTH
From time to time any of the provisions of this Certificate of
Incorporation may be amended, altered, or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the corporation by this
Certificate of Incorporation are granted subject to the provisions of this
Article NINTH.
The effective date of this Certificate of Incorporation, and the date upon
which the existence of the corporation shall commence, shall be the date upon
which the Secretary of State of the State of Delaware endorses the word "Filed"
on the Certificate.
I, the undersigned, being the Vice President of the above mentioned
corporation, do make this Amended and Restated Certificate of Incorporation,
hereby declaring and certifying that this is my act and the facts stated herein
are true, and accordingly have hereunto set my hand upon this 15th day of
January, 1996.
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Vice President
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EXHIBIT A
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SERIES A CONVERTIBLE PREFERRED STOCK
1. NUMBER OF SHARES. The series of Preferred Stock designated and known as
"Series A Convertible Preferred Stock" shall consist of 992,061 shares.
2. Voting.
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2A. GENERAL. Except as may be otherwise provided in these terms of the
Series A Convertible Preferred Stock or by law, the Series A Convertible
Preferred Stock shall vote together with all other classes and series of stock
of the Corporation as a single class on all actions to be taken by the
stockholders of the Corporation. Each share of Series A Convertible Preferred
Stock shall entitle the holder thereof to such number of votes per share on each
such action as shall equal the number of shares of Common Stock (including
fractions of a share) into which each share of Series A Convertible Preferred
Stock is then convertible.
2B. BOARD SIZE. The Corporation shall not, without the written consent
or affirmative vote of the holders of at least two-thirds of the then
outstanding shares of Series A Convertible Preferred Stock, given in writing or
by vote at a meeting, consenting or voting (as the case may be) separately as a
series, increase the maximum number of directors constituting the Board of
Directors to a number in excess of six.
2C. BOARD SEATS. The holders of the Series A Convertible Preferred
Stock, voting as a separate series, shall be entitled to elect two (2) directors
of the Corporation. The holders of the Common Stock, voting as a separate class,
shall be entitled to elect three (3) directors of the Corporation. A sixth
director (the "Sixth Director") of the Corporation shall be such person, if any,
who is a non-employee of the Corporation and who has received a plurality vote
of the holders of the Series A Convertible Preferred Stock, voting as a separate
series, and a plurality vote of the holders of the Common Stock, voting as a
separate class. Notwithstanding the foregoing or anything else to the contrary
provided elsewhere in the Certificate of Incorporation, if the Corporation
incurs an Underperfomance Event, as defined in that certain Voting Agreement
between the Corporation, the several Purchasers and the Management Shareholders
as defined therein, the holders of the Series A Convertible Preferred Stock,
voting as a separate series, shall be entitled to elect a majority of the
directors of the Corporation. At any meeting (or in a written consent in lieu
thereof) held for the purpose of electing directors, the presence in person or
by proxy (or the written consent) of the holders of a majority of the shares of
Series A Convertible Preferred Stock then outstanding shall constitute a quorum
of the Series A Convertible Preferred Stock for the election of directors to be
elected solely by the holders of the Series A Convertible Preferred Stock or
jointly by the holders of the Series A Convertible Preferred Stock and the
Common Stock. A vacancy in any directorship elected by the holders of the Series
A Convertible Preferred Stock shall be filled only by vote or written consent of
the holders of the Series A Convertible Preferred Stock, a vacancy in any
directorship elected by the holders of the Common Stock shall be filled only by
vote or written consent of the holders of the Common Stock and a vacancy in the
directorship elected jointly by the holders of the Series A Convertible
Preferred Stock and the Common Stock shall be filled only by vote or written
consent of the Series A Convertible Preferred Stock and the Common Stock as
provided above.
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3. DIVIDENDS. The holders of the Series A Convertible Preferred Stock shall
be entitled to receive, out of funds legally available therefor the following:
3A. ACCRUING DIVIDENDS. When and if declared by the Board of
Directors, quarterly dividends at the rate per annum of $0.352784 per share (the
"Accruing Dividends"). Accruing Dividends shall accrue on the annual anniversary
date of the initial purchase, whether or not earned or declared, and shall be
cumulative. Such dividend will be payable only (i) if, as and when determined by
the Board of Directors; or (ii) upon the liquidation, dissolution or winding up
of the Corporation as described in Section 4 below; or (iii) upon redemption of
the Series A Convertible Preferred Stock as described in Section 8 below. Any
accrued but unpaid Accrued Dividends on any shares of Series A Preferred Stock
shall expire upon any conversion of such share of Series A Convertible Preferred
Stock as described in Section 7 below.
3B. DIVIDENDS ON COMMON. In addition to any Accruing Dividends
pursuant to Section 3A, when and if declared by the Board of Directors,
dividends at the same rate as dividends (other than dividends paid in additional
shares of Common Stock) are paid with respect to the Common Stock (treating each
share of Series A Convertible Preferred Stock as being equal to the number of
shares of Common Stock (including fractions of a share) into which each share of
Series A Convertible Preferred Stock is then convertible) (the "Common
Dividends").
4. LIQUIDATION. Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of the shares of
Series A Convertible Preferred Stock shall first be entitled, before any
distribution or payment is made upon any stock ranking on liquidation junior to
the Series A Convertible Preferred Stock, to be paid an amount equal to $3.52784
per share plus, in the case of each share, an amount equal to all Accruing
Dividends thereon (whether or not declared) and any other dividends declared but
unpaid thereon (including, but not limited to, Common Dividends), computed to
the date payment thereof is made available, such amount payable with respect to
one share of Series A Convertible Preferred Stock being sometimes referred to as
the "Liquidation Preference Payment" and with respect to all shares of Series A
Convertible Preferred Stock being sometimes referred to as the "Liquidation
Preference Payments". If upon such liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the assets to be distributed
among the holders of Series A Convertible Preferred Stock shall be insufficient
to permit payment in full to the holders of Series A Convertible Preferred Stock
of the Liquidation Preference Payments, then the entire assets of the
Corporation to be so distributed shall be distributed ratably among the holders
of Series A Convertible Preferred Stock. Upon any such liquidation, dissolution
or winding up of the Corporation, immediately after the holders of Series A
Convertible Preferred Stock shall have been paid in full the Liquidation
Preference Payments, the remaining net assets of the Corporation available for
distribution shall be distributed ratably among the holders of Series A
Convertible Preferred Stock and Common Stock (with each share of Series A
Convertible Preferred Stock being deemed, for such purpose, to be equal to the
number of shares of Common Stock (including fractions of a share) into which
such share of Series A Convertible Preferred Stock is convertible immediately
prior to the close of business on the business day fixed for such distribution).
Written notice of such liquidation, dissolution or winding up, stating a payment
date, the amount of the Liquidation Preference Payments and the place where said
Liquidation Preference Payments shall be made, shall be delivered in person,
mailed by certified or registered mail, return receipt requested, or sent by
telecopier or telex, not less than 20 days prior to the payment date stated
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therein, to the holders of record of Series A Convertible Preferred Stock, such
notice to be addressed to each such holder at its address as shown by the
records of the Corporation.
5. MERGER. Subject to the provisions set forth in subparagraph 7P below,
any consolidation or merger involving the Corporation and any other entity or
entities (other than a merger to reincorporate the Corporation in a different
jurisdiction) in which the shares of Common Stock and Series A Convertible
Preferred Stock of the Corporation outstanding immediately prior to the close of
the transaction represent, or are converted into or exchanged for equity
securities that represent, less than a majority of the combined voting power of
the equity securities of the surviving or resulting entity immediately following
the close of the transaction, or the sale, lease, abandonment, transfer or other
disposition by the Corporation of all or substantially all its assets, in a
single transaction or a series of transactions, shall be deemed to be a
liquidation, dissolution or winding up of the Corporation within the meaning of
the provisions of paragraph 4. For purposes hereof, the Common Stock shall rank
on liquidation junior to the Series A Convertible Preferred Stock.
6. RESTRICTIONS. At any time when shares of Series A Convertible Preferred
Stock are outstanding, except where the vote or written consent of the holders
of a greater number of shares of the Corporation is required by law or by the
Certificate of Incorporation, and in addition to any other vote required by law
or the Certificate of Incorporation, without the approval of the holders of at
least 66-2/3% of the then outstanding shares of Series A Convertible Preferred
Stock, given in writing or by vote at a meeting, consenting or voting (as the
case may be) separately as a series, the Corporation will not:
6A. Create or authorize the creation of any additional class or series
of shares of stock unless the same ranks junior to the Series A Convertible
Preferred Stock as to the distribution of assets on the liquidation, dissolution
or winding up of the Corporation, or increase the authorized amount of the
Series A Convertible Preferred Stock or increase the authorized amount of any
additional class or series of shares of stock unless the same ranks junior to
the Series A Convertible Preferred Stock as to the distribution of assets on the
liquidation, dissolution or winding up of the Corporation, or create or
authorize any obligation or security convertible into shares of Series A
Convertible Preferred Stock or into shares of any other class or series of stock
unless the same ranks junior to the Series A Convertible Preferred Stock as to
the distribution of assets on the liquidation, dissolution or winding up of the
Corporation, whether any such creation, authorization or increase shall be by
means of amendment to the Certificate of Incorporation or by merger,
consolidation or otherwise;
6B. Consent to any liquidation, dissolution or winding up of the
Corporation or consolidate or merge into or with any other entity or entities or
sell, lease, abandon, transfer or otherwise dispose of all or substantially all
its assets;
6C. Amend, alter or repeal its Certificate of Incorporation or
By-laws.
6D. Purchase or set aside any sums for the purchase of, or pay any
dividend or make any distribution on, any shares of stock other than the Series
A Convertible Preferred Stock, except for dividends or other distributions
payable on the Common Stock solely in the form of additional shares of Common
Stock and except for the purchase of shares of Common Stock from former
employees of the Corporation who acquired such shares directly from the
Corporation, if each such purchase is made pursuant to contractual rights held
by the Corporation relating to the
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termination of employment of such former employee and the purchase price does
not exceed the original issue price paid by such former employee to the
Corporation for such shares; or
6E. Redeem or otherwise acquire any shares of Series A Convertible
Preferred Stock except as expressly authorized in paragraph 8 hereof or pursuant
to a purchase offer made pro rata to all holders of the shares of Series A
Convertible Preferred Stock on the basis of the aggregate number of outstanding
shares of Series A Convertible Preferred Stock then held by each such holder.
7. CONVERSIONS. The holders of shares of Series A Convertible Preferred
Stock shall have the following conversion rights:
7A. RIGHT TO CONVERT. Subject to the terms and conditions of this
paragraph 7, the holder of any share or shares of Series A Convertible Preferred
Stock shall have the right, at its option at any time, to convert any such
shares of Series A Convertible Preferred Stock (except that upon any liquidation
of the Corporation the right of conversion shall terminate at the close of
business on the business day fixed for payment of the amount distributable on
the Series A Convertible Preferred Stock) into such number of fully paid and
nonassessable shares of Common Stock as is obtained by (i) multiplying the
number of shares of Series A Convertible Preferred Stock so to be converted by
$3.52784 and (ii) dividing the result by the conversion price of $3.52784 per
share or, in case an adjustment of such price has taken place pursuant to the
further provisions of this paragraph 7, then by the conversion price as last
adjusted and in effect at the date any share or shares of Series A Convertible
Preferred Stock are surrendered for conversion (such price, or such price as
last adjusted, being referred to as the "Conversion Price"). Such rights of
conversion shall be exercised by the holder thereof by giving written notice
that the holder elects to convert a stated number of shares of Series A
Convertible Preferred Stock into Common Stock and by surrender of a certificate
or certificates for the shares so to be converted to the Corporation at its
principal office (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to the holders of the Series A
Convertible Preferred Stock) at any time during its usual business hours on the
date set forth in such notice, together with a statement of the name or names
(with address) in which the certificate or certificates for shares of Common
Stock shall be issued.
7B. ISSUANCE OF CERTIFICATES; TIME CONVERSION EFFECTED. Promptly after
the receipt of the written notice referred to in subparagraph 7A and surrender
of the certificate or certificates for the share or shares of Series A
Convertible Preferred Stock to be converted, the Corporation shall issue and
deliver, or cause to be issued and delivered, to the holder, registered in such
name or names as such holder may direct, a certificate or certificates for the
number of whole shares of Common Stock issuable upon the conversion of such
share or shares of Series A Convertible Preferred Stock. To the extent permitted
by law, such conversion shall be deemed to have been effected and the Conversion
Price shall be determined as of the close of business on the date on which such
written notice shall have been received by the Corporation and the certificate
or certificates for such share or shares shall have been surrendered as
aforesaid, and at such time the rights of the holder of such share or shares of
Series A Convertible Preferred Stock shall cease, and the person or persons in
whose name or names any certificate or certificates for shares of Common Stock
shall be issuable upon such conversion shall be deemed to have become the holder
or holders of record of the shares represented thereby.
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7C. FRACTIONAL SHARES; DIVIDENDS; PARTIAL CONVERSION. No fractional
shares shall be issued upon conversion of Series A Convertible Preferred Stock
into Common Stock and no payment or adjustment shall be made upon any conversion
on account of any cash dividends on the Common Stock issued upon such
conversion. At the time of each conversion, the Corporation shall pay in cash an
amount equal to all dividends, excluding Accruing Dividends, accrued and unpaid
on the shares of Series A Convertible Preferred Stock surrendered for conversion
to the date upon which such conversion is deemed to take place as provided in
subparagraph 7B. In case the number of shares of Series A Convertible Preferred
Stock represented by the certificate or certificates surrendered pursuant to
subparagraph 7A exceeds the number of shares converted, the Corporation shall,
upon such conversion, execute and deliver to the holder, at the expense of the
Corporation, a new certificate or certificates for the number of shares of
Series A Convertible Preferred Stock represented by the certificate or
certificates surrendered which are not to be converted. If any fractional share
of Common Stock would, except for the provisions of the first sentence of this
subparagraph 7C, be delivered upon such conversion, the Corporation, in lieu of
delivering such fractional share, shall pay to the holder surrendering the
Series A Convertible Preferred Stock for conversion an amount in cash equal to
the current market price of such fractional share as determined in good faith by
the Board of Directors of the Corporation.
7D. ADJUSTMENT OF PRICE UPON ISSUANCE OF COMMON STOCK. Except as
provided in subparagraph 7E, if and whenever the Corporation shall issue or
sell, or is, in accordance with subparagraphs 7D(1) through 7D(7), deemed to
have issued or sold, any shares of Common Stock for a consideration per share
less than the Conversion Price in effect immediately prior to the time of such
issue or sale, then, forthwith upon such issue or sale, the Conversion Price
shall be reduced to the price determined by dividing (i) an amount equal to the
sum of (a) the number of shares of Common Stock outstanding immediately prior to
such issue or sale multiplied by the then existing Conversion Price and (b) the
consideration, if any, received by the Corporation upon such issue or sale, by
(ii) the total number of shares of Common Stock outstanding immediately after
such issue or sale.
For purposes of this subparagraph 7D, the following subparagraphs 7D(1) to
7D(7) shall also be applicable:
7D(1) ISSUANCE OF RIGHTS OR OPTIONS. In case at any time the
Corporation shall in any manner grant (whether directly or by assumption in a
merger or otherwise) any warrants or other rights to subscribe for or to
purchase, or any options for the purchase of, Common Stock or any stock or
security convertible into or exchangeable for Common Stock (such warrants,
rights or options being called "Options" and such convertible or exchangeable
stock or securities being called "Convertible Securities") whether or not such
Options or the right to convert or exchange any such Convertible Securities are
immediately exercisable, and the price per share for which Common Stock is
issuable upon the exercise of such Options or upon the conversion or exchange of
such Convertible Securities (determined by dividing (i) the total amount, if
any, received or receivable by the Corporation as consideration for the granting
of such Options, plus the minimum aggregate amount of additional consideration
payable to the Corporation upon the exercise of all such Options, plus, in the
case of such Options which relate to Convertible Securities, the minimum
aggregate amount of additional consideration, if any, payable upon the issue or
sale of such Convertible Securities and upon the conversion or exchange thereof,
by (ii) the total maximum number of shares of Common Stock issuable upon the
exercise of such Options or upon the conversion or exchange of all such
Convertible Securities issuable upon the exercise of such Options) shall be less
than the Conversion Price in effect immediately prior to the time of the
granting of such Options, then the total maximum number of shares of Common
Stock issuable upon the exercise of such Options or upon conversion or exchange
of the total maximum amount of such Convertible
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Securities issuable upon the exercise of such Options shall be deemed to have
been issued for such price per share as of the date of granting of such Options
or the issuance of such Convertible Securities and thereafter shall be deemed to
be outstanding. Except as otherwise provided in subparagraph 7D(3), no
adjustment of the Conversion Price shall be made upon the actual issue of such
Common Stock or of such Convertible Securities upon exercise of such Options or
upon the actual issue of such Common Stock upon conversion or exchange of such
Convertible Securities.
7D(2) ISSUANCE OF CONVERTIBLE SECURITIES. In case the Corporation
shall in any manner issue (whether directly or by assumption in a merger or
otherwise) or sell any Convertible Securities, whether or not the rights to
exchange or convert any such Convertible Securities are immediately exercisable,
and the price per share for which Common Stock is issuable upon such conversion
or exchange (determined by dividing (i) the total amount received or receivable
by the Corporation as consideration for the issue or sale of such Convertible
Securities, plus the minimum aggregate amount of additional consideration, if
any, payable to the Corporation upon the conversion or exchange thereof, by (ii)
the total maximum number of shares of Common Stock issuable upon the conversion
or exchange of all such Convertible Securities) shall be less than the
Conversion Price in effect immediately prior to the time of such issue or sale,
then the total maximum number of shares of Common Stock issuable upon conversion
or exchange of all such Convertible Securities shall be deemed to have been
issued for such price per share as of the date of the issue or sale of such
Convertible Securities and thereafter shall be deemed to be outstanding,
provided that (a) except as otherwise provided in subparagraph 7D(3), no
adjustment of the Conversion Price shall be made upon the actual issue of such
Common Stock upon conversion or exchange of such Convertible Securities and (b)
if any such issue or sale of such Convertible Securities is made upon exercise
of any Options to purchase any such Convertible Securities for which adjustments
of the Conversion Price have been or are to be made pursuant to other provisions
of this subparagraph 7D, no further adjustment of the Conversion Price shall be
made by reason of such issue or sale.
7D(3) CHANGE IN OPTION PRICE OR CONVERSION RATE. Upon the
happening of any of the following events, namely, if the purchase price provided
for in any Option referred to in subparagraph 7D(1), the additional
consideration, if any, payable upon the conversion or exchange of any
Convertible Securities referred to in subparagraph 7D(1) or 7D(2), or the rate
at which Convertible Securities referred to in subparagraph 7D(1) or 7D(2) are
convertible into or exchangeable for Common Stock shall change at any time
(including, but not limited to, changes under or by reason of provisions
designed to protect against dilution), the Conversion Price in effect at the
time of such event shall forthwith be readjusted to the Conversion Price which
would have been in effect at such time had such Options or Convertible
Securities still outstanding provided for such changed purchase price,
additional consideration or conversion rate, as the case may be, at the time
initially granted, issued or sold, but only if as a result of such adjustment
the Conversion Price then in effect hereunder is thereby reduced; and on the
termination of any such Option or any such right to convert or exchange such
Convertible Securities, the Conversion Price then in effect hereunder shall
forthwith be increased to the Conversion Price which would have been in effect
at the time of such termination had such Option or Convertible Securities, to
the extent outstanding immediately prior to such termination, never been issued.
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7D(4) STOCK DIVIDENDS. In case the Corporation shall declare a
dividend or make any other distribution upon any stock of the Corporation
payable in Common Stock (except for dividends or distributions upon the Common
Stock), Options or Convertible Securities, any Common Stock, Options or
Convertible Securities, as the case may be, issuable in payment of such dividend
or distribution shall be deemed to have been issued or sold without
consideration.
7D(5) CONSIDERATION FOR STOCK. In case any shares of Common
Stock, Options or Convertible Securities shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount received by the
Corporation therefor, without deduction therefrom of any expenses incurred or
any underwriting commissions or concessions paid or allowed by the Corporation
in connection therewith. In case any shares of Common Stock, Options or
Convertible Securities shall be issued or sold for a consideration other than
cash, the amount of the consideration other than cash received by the
Corporation shall be deemed to be the fair value of such consideration as
determined in good faith by the Board of Directors of the Corporation, without
deduction of any expenses incurred or any underwriting commissions or
concessions paid or allowed by the Corporation in connection therewith. In case
any Options shall be issued in connection with the issue and sale of other
securities of the Corporation, together comprising one integral transaction in
which no specific consideration is allocated to such Options by the parties
thereto, such Options shall be deemed to have been issued for such consideration
as determined in good faith by the Board of Directors of the Corporation.
7D(6) RECORD DATE. In case the Corporation shall take a record of
the holders of its Common Stock for the purpose of entitling them (i) to receive
a dividend or other distribution payable in Common Stock, Options or Convertible
Securities or (ii) to subscribe for or purchase Common Stock, Options or
Convertible Securities, then such record date shall be deemed to be the date of
the issue or sale of the shares of Common Stock deemed to have been issued or
sold upon the declaration of such dividend or the making of such other
distribution or the date of the granting of such right of subscription or
purchase, as the case may be.
7D(7) TREASURY SHARES. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by or for
the account of the Corporation, and the disposition of any such shares shall be
considered an issue or sale of Common Stock for the purpose of this subparagraph
7D.
7E. CERTAIN ISSUES OF COMMON STOCK EXCEPTED. Anything herein to the
contrary notwithstanding, the Corporation shall not be required to make any
adjustment of the Conversion Price in the case of the issuance from and after
the date of filing of these terms of the Series A Convertible Preferred Stock of
(i) up to 320,000 shares of Common Stock issuable upon the exercise of those
certain options granted to Louis A. Venezia on or about January 16, 1996 and
(ii) up to 430,708 shares of Common Stock issuable upon the exercise of options
granted by the Corporation (appropriately adjusted in each case to reflect the
occurrence of any event described in subparagraph 7F) of Common Stock to
directors, officers, employees or consultants of the Corporation in connection
with their service as directors of the Corporation, their employment by the
Corporation or their retention as consultants by the Corporation, plus such
number of shares of Common Stock which are repurchased by the Corporation from
such persons after such date pursuant to contractual rights held by the
Corporation and at repurchase prices not exceeding the respective original
purchase prices paid by such persons to the Corporation therefor.
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7F. SUBDIVISION OR COMBINATION OF COMMON STOCK. In case the
Corporation shall at any time subdivide (by any stock split, stock dividend or
otherwise) its outstanding shares of Common Stock into a greater number of
shares, the Conversion Price in effect immediately prior to such subdivision
shall be proportionately reduced, and, conversely, in case the outstanding
shares of Common Stock shall be combined into a smaller number of shares, the
Conversion Price in effect immediately prior to such combination shall be
proportionately increased. In the case of any such subdivision, no further
adjustment shall be made pursuant to subparagraph 7D(4) by reason thereof.
7G. REORGANIZATION OR RECLASSIFICATION. If any capital reorganization
or reclassification of the capital stock of the Corporation shall be effected in
such a way that holders of Common Stock shall be entitled to receive stock,
securities or assets with respect to or in exchange for Common Stock, then, as a
condition of such reorganization or reclassification, lawful and adequate
provisions shall be made whereby each holder of a share or shares of Series A
Convertible Preferred Stock shall thereupon have the right to receive, upon the
basis and upon the terms and conditions specified herein and in lieu of the
shares of Common Stock immediately theretofore receivable upon the conversion of
such share or shares of Series A Convertible Preferred Stock, such shares of
stock, securities or assets as may be issued or payable with respect to or in
exchange for a number of outstanding shares of such Common Stock equal to the
number of shares of such Common Stock immediately theretofore receivable upon
such conversion had such reorganization or reclassification not taken place, and
in any such case appropriate provisions shall be made with respect to the rights
and interests of such holder to the end that the provisions hereof (including
without limitation provisions for adjustments of the Conversion Price) shall
thereafter be applicable, as nearly as may be, in relation to any shares of
stock, securities or assets thereafter deliverable upon the exercise of such
conversion rights.
7H. FAILURE TO REDEEM. If the Corporation fails, for any reason or for
no reason, to redeem on any Redemption Date (as defined in paragraph 8) all of
the shares of Series A Convertible Preferred Stock required to be redeemed on
such Redemption Date in accordance with the terms and conditions of paragraph 8,
the Conversion Price then in effect shall be immediately reduced to an amount
equal to 95% thereof. Thereafter, until such redemption has been made in full in
accordance with such terms and conditions, the Conversion Price shall be further
reduced on the 90th day following such Redemption Date and at the end of each
90-day period thereafter to an amount equal to 95% of the Conversion Price in
effect immediately prior to each such reduction.
7I. NOTICE OF ADJUSTMENT. Upon any adjustment of the Conversion Price,
then and in each such case the Corporation shall give written notice thereof, by
delivery in person, certified or registered mail, return receipt requested,
telecopier or telex, addressed to each holder of shares of Series A Convertible
Preferred Stock at the address of such holder as shown on the books of the
Corporation, which notice shall state the Conversion Price resulting from such
adjustment, setting forth in reasonable detail the method upon which such
calculation is based.
7J. OTHER NOTICES. In case at any time:
(1) the Corporation shall declare any dividend upon its Common
Stock payable in cash or stock or make any other distribution to the holders of
its Common Stock;
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(2) the Corporation shall offer for subscription PRO RATA to the
holders of its Common Stock any additional shares of stock of any class or other
rights;
(3) there shall be any capital reorganization or reclassification
of the capital stock of the Corporation, or a consolidation or merger of the
Corporation with or into another entity or entities, or a sale, lease,
abandonment, transfer or other disposition of all or substantially all its
assets; or
(4) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then, in any one or more of said cases, the Corporation shall give, by delivery
in person, certified or registered mail, return receipt requested, telecopier or
telex, addressed to each holder of any shares of Series A Convertible Preferred
Stock at the address of such holder as shown on the books of the Corporation,
(a) at least 20 days' prior written notice of the date on which the books of the
Corporation shall close or a record shall be taken for such dividend,
distribution or subscription rights or for determining rights to vote in respect
of any such reorganization, reclassification, consolidation, merger,
disposition, dissolution, liquidation or winding up and (b) in the case of any
such reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding up, at least 20 days' prior written notice
of the date when the same shall take place. Such notice in accordance with the
foregoing clause (a) shall also specify, in the case of any such dividend,
distribution or subscription rights, the date on which the holders of Common
Stock shall be entitled thereto and such notice in accordance with the foregoing
clause (b) shall also specify the date on which the holders of Common Stock
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, disposition, dissolution, liquidation or winding up, as the case may be.
7K. 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 A Convertible 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 A Convertible 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 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 Conversion Price 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 Conversion Price if the total number of shares of Common
Stock issued and issuable after such action upon conversion of the Series A
Convertible Preferred Stock would exceed the total number of shares of Common
Stock then authorized by the Certificate of Incorporation.
7L. NO REISSUANCE OF SERIES A CONVERTIBLE PREFERRED STOCK. Shares of
Series A Convertible Preferred Stock which are converted into shares of Common
Stock as provided herein shall not be reissued.
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7M. ISSUE TAX. The issuance of certificates for shares of Common Stock
upon conversion of Series A Convertible Preferred Stock 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 A Convertible
Preferred Stock which is being converted.
7N. CLOSING OF BOOKS. The Corporation will at no time close its
transfer books against the transfer of any Series A Convertible Preferred Stock
or of any shares of Common Stock issued or issuable upon the conversion of any
shares of Series A Convertible Preferred Stock in any manner which interferes
with the timely conversion of such Series A Convertible Preferred Stock, except
as may otherwise be required to comply with applicable securities laws.
7O. DEFINITION OF COMMON STOCK. As used in this paragraph 7, the term
"Common Stock" shall mean and include the Corporation's authorized Common Stock,
par value $.01 per share, as constituted on the date of filing of these terms of
the Series A Convertible Preferred Stock, and shall also include any capital
stock of any class of the Corporation thereafter authorized which shall neither
be limited to a fixed sum or percentage in respect of the rights of the holders
thereof to participate in dividends nor entitled to a preference in the
distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation; provided that the shares of Common
Stock receivable upon conversion of shares of Series A Convertible Preferred
Stock shall include only shares designated as Common Stock of the Corporation on
the date of filing of this instrument, or in case of any reorganization or
reclassification of the outstanding shares thereof, the stock, securities or
assets provided for in subparagraph 7G.
7P. MANDATORY CONVERSION. If at any time the Corporation shall effect
a firm commitment underwritten public offering of shares of Common Stock in
which (i) the aggregate price paid for such shares by the public shall be at
least $15,000,000 and (ii) the price paid by the public for such shares shall be
at least $14.11136 per share (appropriately adjusted to reflect the occurrence
of any event described in subparagraph 7F), then effective upon the closing of
the sale of such shares by the Corporation pursuant to such public offering, all
outstanding shares of Series A Convertible Preferred Stock shall automatically
convert to shares of Common Stock on the basis set forth in this paragraph 7. If
at any time the Corporation is a party to a merger with or into one or more
public corporations which (i) would otherwise be treated as a liquidation,
dissolution or winding up of the Corporation pursuant to paragraph 5 above, (ii)
is being accounted for under Generally Accepted Accounting Principles as a
pooling of interest, and (iii) the value of shares to be distributed to holders
of the Corporation's Common Stock, based on the market price of the class of
shares to be distributed immediately prior to closing the merger, per share of
Common Stock (after giving effect to the conversion of the Series A Convertible
Preferred Stock) is at least equal to $3.52784 per share plus, in the case of
each share, an amount equal to all Accruing Dividends (whether or not declared)
computed as of the closing date of the merger, then effective immediately prior
to the closing of such merger of the Corporation, all outstanding shares of
Series A Convertible Preferred Stock shall automatically convert to shares of
Common Stock on the basis set forth in this paragraph 7; PROVIDED, HOWEVER, that
such conversion shall be conditioned on the receipt of a representation by the
Chief Financial Officer of the acquiring public corporation representing that
the merger will be treated as a pooling of interests in accordance with
Generally Accepted Accounting Principles as consistently applied. In
14
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addition, any agreement of merger must include a provision whereby the holders
of the then converted Series A Convertible Preferred Stock will be compensated
by the acquiring corporation for any Liquidation Preference Payments computed as
of the closing date of the merger, if, subsequent to the merger, the transaction
is deemed ineligible for treatment as a pooling of interest. Holders of shares
of Series A Convertible Preferred Stock converted pursuant to this subparagraph
7P may deliver to the Corporation at its principal office (or such other office
or agency of the Corporation as the Corporation may designate by notice in
writing to such holders) during its usual business hours, the certificate or
certificates for the shares so converted. As promptly as practicable thereafter,
the Corporation shall issue and deliver to such holder a certificate or
certificates for the number of whole shares of Common Stock to which such holder
is entitled, together with any cash dividends and payment in lieu of fractional
shares to which such holder may be entitled pursuant to subparagraph 7C. Until
such time as a holder of shares of Series A Convertible Preferred Stock shall
surrender his or its certificates therefor as provided above, such certificates
shall be deemed to represent the shares of Common Stock to which such holder
shall be entitled upon the surrender thereof.
8. REDEMPTION. The shares of Series A Convertible Preferred Stock shall be
redeemed as follows:
8A. OPTIONAL REDEMPTION. The Corporation shall not have the right to
call or redeem at any time all or any shares of Series A Convertible Preferred
Stock. With the approval of the holders of 66-2/3% of the then outstanding
shares of Series A Convertible Preferred Stock, one or more holders of shares of
Series A Convertible Preferred Stock may, by giving notice (the "Notice") to the
Corporation at any time and from time to time after January 16, 1999, require
the Corporation to redeem 33-1/3% of the shares of the then outstanding shares
of the Series A Convertible Preferred Stock redeemed on the Original Redemption
Date (as defined below). With the approval of the holders of a majority of the
then outstanding shares of Series A Convertible Preferred Stock, one or more
holders of shares of Series A Convertible Preferred Stock may, by giving notice
to the Corporation on or after the second anniversary date from the Original
Redemption Date redeem 50% of the remainder of the shares of Series A
Convertible Preferred Stock then outstanding. With the approval of the holders
of a majority of the then outstanding shares of Series A Convertible Preferred
Stock, one or more holders of shares of Series A Convertible Preferred Stock
may, by giving notice to the Corporation on or after the third anniversary date
from the Original Redemption Date redeem 100% of the then outstanding shares.
Upon receipt of the Notice, the Corporation will so notify all other persons
holding Series A Convertible Preferred Stock. After receipt of any such notice
described above, the Corporation shall fix the first date for redemption (the
"Original Redemption Date"), provided that such Original Redemption Date shall
occur no later than the earlier to occur of (i) one hundred and eighty (180)
days after receipt of the Notice, or (ii) sixty (60) days after receipt of the
appraisal pursuant to Section 7B. All holders of Series A Convertible Preferred
Stock shall deliver to the Corporation during regular business hours, at the
office of any transfer agent of the Corporation for the Series A Convertible
Preferred Stock, or at the principal office of the Corporation or at such other
place as may be designated by the Corporation, the certificate or certificates
for the Series A Convertible Preferred Stock, duly endorsed for transfer to the
Corporation (if required by it) on or before the Original Redemption Date. The
Original Redemption Date and each Anniversary Redemption Date are collectively
referred to as the "Redemption Dates" and each individually a "Redemption Date".
15
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8B. REDEMPTION PRICE AND PAYMENT. The shares of Series A Convertible
Preferred Stock to be redeemed on any Redemption Date shall be redeemed by
paying for each share in cash an amount equal to the greater of: (i) the
Liquidation Preference Payment; or (ii) the fair market value of the Series A
Convertible Preferred Stock (based on the fair market value of the entire
corporation as a going concern, without deduction for minority interest,
marketability discounts or the effect of any redemption of the Series A
Convertible Preferred Stock required to be made hereunder, and without any
premium for control of the Board of Directors) as determined by a qualified
appraiser selected by the holders of at least 66-2/3% of the then outstanding
shares of Series A Convertible Preferred Stock and approved by the Board of
Directors computed as of such Redemption Date, such amount being referred to as
the "Redemption Price". The fees and expenses of any such organization shall be
paid by the Corporation. Such payment shall be made in full on the applicable
Redemption Date to the holders entitled thereto. Notwithstanding the foregoing,
upon delivery of a written notice to the Company (a "Tax Notice"), holders of a
majority of the Series A Convertible Preferred Stock shall have the right, on
any of the Redemption Dates set forth above, to sell additional shares of Series
A Convertible Preferred Stock to the Company so that such redemption will be
treated as an "exchange" under Sections 302(a) and (b) of the Internal Revenue
Code of 1986, as amended. If holders of a majority of the Series A Convertible
Preferred Stock deliver a Tax Notice to the Company as provided above, the
Company shall redeem each share set forth in the Tax Notice by paying the
Redemption Price for each such share. At its election, the Company may satisfy
its obligation to redeem the shares set forth in the Tax Notice by delivering to
the holders of the Series A Convertible Preferred Stock a promissory note of the
Company, bearing interest at 10%, for the full amount of the Redemption Price of
the shares set forth in the Tax Notice, and due and payable on such Redemption
Dates as the shares set forth in the Tax Notice could have been redeemed
pursuant to paragraph 8A; PROVIDED, HOWEVER, that the ability of the Company to
issue a promissory note to cover the redeemed shares set forth in the Tax Notice
will be subject to compliance by the Company with the General Corporation Law of
the State of Delaware.
8C. REDEMPTION MECHANICS. At least 20 but not more than 30 days prior
to each Redemption Date, written notice (the "Redemption Notice") shall be given
by the Corporation by delivery in person, certified or registered mail, return
receipt requested, telecopier or telex, to each holder of record (at the close
of business on the business day next preceding the day on which the Redemption
Notice is given) of shares of Series A Convertible Preferred Stock notifying
such holder of the redemption and specifying the Redemption Price, such
Redemption Date, the number of shares of Series A Convertible Preferred Stock to
be redeemed from such holder (computed on a pro rata basis in accordance with
the number of such shares held by all holders thereof) and the place where said
Redemption Price shall be payable. The Redemption Notice shall be addressed to
each holder at his address as shown by the records of the Corporation. From and
after the close of business on a Redemption Date, unless there shall have been a
default in the payment of the Redemption Price, all rights of holders of shares
of Series A Convertible Preferred Stock (except the right to receive the
Redemption Price) shall cease with respect to the shares to be redeemed on such
Redemption Date, and such shares shall not thereafter be transferred on the
books of the Corporation or be deemed to be outstanding for any purpose
whatsoever. If the funds of the Corporation legally available for redemption of
shares of Series A Convertible Preferred Stock on a Redemption Date are
insufficient to redeem the total number of shares of Series A Convertible
Preferred Stock to be redeemed on such Redemption Date, the holders of such
shares shall share ratably in any funds legally available for redemption of such
shares according to the respective amounts which would be payable to them if the
full number of shares to be redeemed on such Redemption Date were actually
redeemed. The shares
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of Series A Convertible Preferred Stock required to be redeemed but not so
redeemed shall remain outstanding and entitled to all rights and preferences
provided herein. At any time thereafter when additional funds of the Corporation
are legally available for the redemption of such shares of Series A Convertible
Preferred Stock, such funds will be used, at the end of the next succeeding
fiscal quarter, to redeem the balance of such shares, or such portion thereof
for which funds are then legally available, on the basis set forth above.
8D. REDEEMED OR OTHERWISE ACQUIRED SHARES TO BE RETIRED. Any shares of
Series A Convertible Preferred Stock redeemed pursuant to this paragraph 8 or
otherwise acquired by the Corporation in any manner whatsoever shall be canceled
and shall not under any circumstances be reissued; and the Corporation may from
time to time take such appropriate corporate action as may be necessary to
reduce accordingly the number of authorized shares of Series A Convertible
Preferred Stock.
9. AMENDMENTS. No provision of these terms of the Series A Convertible
Preferred Stock may be amended, modified or waived without the written consent
or affirmative vote of the holders of at least two-thirds of the then
outstanding shares of Series A Convertible Preferred Stock.
17
------------------------------
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
VERSATILITY INC.
(INCORPORATED JANUARY 3, 1996)
------------------------------
(Pursuant to Section 242 of the General Corporation Law of the State of
Delaware)
I, Ronald R. Charnock, President of Versatility Inc. (the "Corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, hereby certify:
FIRST. That on September 30, 1996, at a meeting of the Board of Directors
of the Corporation, the Board of Directors adopted resolutions setting forth a
proposed amendment to the Amended and Restated Certificate of Incorporation of
the Corporation, declaring said amendment to be advisable and directing that
said amendment be considered by the stockholders of the Corporation entitled to
vote in respect thereof.
SECOND. That thereafter, in accordance with Section 228 of the General
Corporation Law of the State of Delaware, stockholders of the Corporation
holding the necessary number of shares as required by statute and the Amended
and Restated Certificate of Incorporation approved said amendment by written
consent dated September 30, 1996, and prompt written notice of the taking of
such corporate action without a meeting by less than unanimous written consent
was given to those stockholders who did not consent thereto in writing.
THIRD. That said amendment amends the Amended and Restated Certificate of
Incorporation of the Corporation by striking out paragraph 7P of Exhibit A of
Article FOURTH thereof and substituting in lieu thereof the following:
"7P. Mandatory Conversion. If the Corporation shall effect a firm
commitment underwritten public offering (a "Public Offering") of shares of
Common Stock in which (i) the aggregate price paid for such shares by the public
shall be at least $15,000,000 and (ii) the price paid by the public for such
shares shall be at least (A) $11.00 per share if such Public Offering occurs on
or prior to April 30, 1997 or (B) $14.11136 if such Public Offering occurs
subsequent to April 30, 1997 (appropriately adjusted to reflect the occurrence
of any event described in subparagraph 7F), then effective upon the closing of
the sale of such shares by the Corporation pursuant to such public offering, all
outstanding shares of Series A Convertible Preferred Stock shall automatically
convert to shares of Common Stock on the basis set forth in this
18
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paragraph 7. If at any time the Corporation is a party to a merger with or into
one or more public corporations which (i) would otherwise be treated as a
liquidation, dissolution or winding up of the Corporation pursuant to paragraph
5 above, (ii) is being accounted for under Generally Accepted Accounting
Principles as a pooling of interest, and (iii) the value of shares to be
distributed to holders of the Corporation's Common Stock, based on the market
price of the class of shares to be distributed immediately prior to closing the
merger, per share of Common Stock (after giving effect to the conversion of the
Series A Convertible Preferred Stock) is at least equal to $3.52784 per share
plus, in the case of each share, an amount equal to all Accruing Dividends
(whether or not declared) computed as of the closing date of the merger, then
effective immediately prior to the closing of such merger of the Corporation,
all outstanding shares of Series A Convertible Preferred Stock shall
automatically convert to shares of Common Stock on the basis set forth in this
paragraph 7; provided, however, that such conversion shall be conditioned on the
receipt of a representation by the Chief Financial Officer of the acquiring
public corporation representing that the merger will be treated as a pooling of
interests in accordance with Generally Accepted Accounting Principles as
consistently applied. In addition, any agreement of merger must include a
provision whereby the holders of the then converted Series A Convertible
Preferred Stock will be compensated by the acquiring corporation for any
Liquidation Preference Payments computed as of the closing date of the merger,
if, subsequent to the merger, the transaction is deemed ineligible for treatment
as a pooling of interest. Holders of shares of Series A Convertible Preferred
Stock converted pursuant to this subparagraph 7P may deliver to the Corporation
at its principal office (or such other office or agency of the Corporation as
the Corporation may designate by notice in writing to such holders) during its
usual business hours, the certificate or certificates for the shares so
converted. As promptly as practicable thereafter, the Corporation shall issue
and deliver to such holder a certificate or certificates for the number of whole
shares of Common Stock to which such holder is entitled, together with any cash
dividends and payment in lieu of fractional shares to which such holder may be
entitled pursuant to subparagraph 7C. Until such time as a holder of shares of
Series A Convertible Preferred Stock shall surrender his or its certificates
therefor as provided above, such certificates shall be deemed to represent the
shares of Common Stock to which such holder shall be entitled upon the surrender
thereof."
FOURTH. That said amendment amends the Amended and Restated Certificate of
Incorporation by striking out Article EIGHTH and by substituting in lieu of said
Article the following new Article EIGHTH:
"EIGHTH. No director (including any advisory director) of the Corporation
shall be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director notwithstanding any provision
of law imposing such liability; provided, however, that, to the extent provided
by applicable law, this provision shall not eliminate the liability of a
director (i) for any breach of the director's duty of loyalty to the Corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the General Corporation Law of the State of Delaware, or (iv) for
any
19
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transaction from which the director derived an improper personal benefit. If
the General Corporation Law of the State of Delaware is amended hereafter to
authorize corporation action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the General
Corporation Law of the State of Delaware, as so amended. No amendment to or
repeal of this provision shall apply to or have any effect on the liability or
alleged liability of any director for or with respect to any acts or omissions
of such director occurring prior to such amendment or repeal."
FIFTH. That said amendment amends the Amended and Restated Certificate of
Incorporation of the Corporation by inserting the following new Article TENTH:
"TENTH. The Corporation shall, to the maximum extent permitted from time to
time under the laws of the State of Delaware, indemnify and upon request shall
advance expenses to any person who is or was a party or is threatened to be made
a party to any threatened, pending or completed action, suit, proceeding or
claim, whether civil, criminal, administrative or investigative, by reason of
the fact that he is or was or has agreed to be a director or officer of the
Corporation or while a director or officer is or was serving at the request of
the Corporation as a director, officer, partner, trustee, employee or agent of
any corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against any and all
expenses (including attorney's fees and expenses), judgments, fines, penalties
and amounts paid in settlement or incurred in connection with the investigation,
preparation to defend or defense of such action, suit, proceeding or claim;
provided, however, that the foregoing shall not require the Corporation to
indemnify or advance expenses to any person in connection with any action, suit,
proceeding, claim or counterclaim initiated by or on behalf of such person. Such
indemnification shall not be exclusive of other indemnification rights arising
under any By-law, agreement, vote of directors or stockholders or otherwise and
shall inure to the benefit of the heirs and legal representatives of such
person. Any repeal or modification of the foregoing provisions of this Article
TENTH shall not adversely affect any right of protection of a director or
officer of this Corporation existing at the time of such repeal or
modification."
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IN WITNESS WHEREOF, the undersigned has hereunto signed his name and
affirms that the statements made in this Certificate of Amendment to Amended and
Restated Certificate of Incorporation are true under the penalties of perjury
this 30th day of September, 1996.
--------------------------------------------
Ronald R. Charnock
President
Attest:
- --------------------------------
Marcus W. Heth
Secretary