CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
INTERNATIONAL TELECOMMUNICATION DATA SYSTEMS, INC.
Pursuant to Section 242 of the
------------------------------
General Corporation Law of the State of Delaware
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INTERNATIONAL TELECOMMUNICATION DATA SYSTEMS, INC. (hereinafter called
the "Corporation"), a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware, does hereby certify as
follows:
By unanimous written consent in lieu of a meeting of the Board of
Directors of the Corporation, resolutions were duly adopted, pursuant to Section
242 of the General Corporation Law of the State of Delaware, setting forth an
amendment to the Certificate of Incorporation of the Corporation, and declaring
said amendment to be advisable. The sole stockholder of the Corporation duly
approved said proposed amendment by written consent in accordance with Section
228 and 242 of the General Corporation Law of the State of Delaware. The
resolutions setting forth the amendment are as follows:
RESOLVED: That the Certificate of Incorporation of the Corporation be and
hereby is amended, by deleting paragraph 3(d)(ii) of Section C
of Article Fourth thereof in its entirety and inserting in lieu
thereof the following:
"(ii) No Adjustment of Applicable Conversion Price. Subject to
the provisions of Section IV.C.3(d)(iii)(2) and Section
IV.C.3(d)(vi) below, no adjustment in the number of shares of
Common Stock into which the Series C Convertible Preferred Stock
is convertible shall be made, by adjustment in the Applicable
Conversion Price of the Series C Convertible Preferred Stock in
respect of the issuance of Additional Shares of Common Stock or
otherwise, (a) unless the consideration per share for an
Additional Share of Common Stock issued or deemed to be issued by
the Corporation is less than the Applicable Conversion Price in
effect on the date of, and immediately before, the issue of such
Additional Share of Common Stock, or (b) if prior to such
issuance, the Corporation receives written notice from the
holders of at least 75% of the then outstanding shares of Series
C Preferred Stock agreeing that no such adjustment shall be made
as the result of the issuance of Additional Shares of Common
Stock.
FURTHER
RESOLVED: That the Certificate of Incorporation of the Corporation be
further amended by adding the following paragraph immediately
after paragraph 4 of Section C of Article Fourth thereof:
"5. Preemptive Rights.
The holders of the Series C Preferred Stock shall have
preemptive rights to purchase shares of Series C Preferred Stock
hereinafter issued or any securities exchangeable for or
convertible into shares of the same Series C Preferred Stock or
any warrants or other instruments evidencing rights or options to
subscribe for, purchase, or otherwise acquire shares of the same
Series C Preferred Stock."
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this Certificate of Amendment to be signed by its President
this 26th day of September, 1996.
INTERNATIONAL TELECOMMUNICATION
DATA SYSTEMS, INC.
By:/s/ Charles L. Bakes
---------------------
Charles L. Bakes
CERTIFICATE OF INCORPORATION
OF
INTERNATIONAL TELECOMMUNICATION DATA SYSTEMS, INC.
FIRST. The name of the Corporation is International Telecommunication
Data Systems, Inc.
SECOND. The address of its registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or
promoted by the Corporation is as follows:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 42,000,000 shares, consisting of
(i) 40,000,000 shares of Common Stock, $.01 par value per share ("Common
Stock"), and (ii) 2,000,000 shares of Preferred Stock, $.01 par value per share
("Preferred Stock"), of which 250 shares are designated Series C Convertible
Preferred Stock, $.01 par value (the "Series C Convertible Preferred Stock").
The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations or restrictions
thereof in respect of each class of capital stock of the Corporation.
A. COMMON STOCK.
1. General. The voting, dividend and liquidation rights of the holders
of the Common Stock are subject to and qualified by the rights of the holders of
the Preferred Stock of any series as may be designated by the Board of Directors
upon any issuance of the Preferred Stock of any series.
2. Voting. The holders of the Common Stock are entitled to one vote for
each share held at all meetings of stockholders (and written actions in lieu of
meetings). There shall be no cumulative voting.
The number of authorized shares of Common Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority of the stock of the Corporation
entitled to vote, irrespective of the provisions of Section 242(b)(2) of the
General Corporation Law of Delaware.
3. Dividends. Dividends may be declared and paid on the Common Stock
from funds lawfully available therefor as and when determined by the Board of
Directors and subject to any preferential dividend rights of any then
outstanding Preferred Stock.
4. Liquidation. Upon the dissolution or liquidation of the Corporation,
whether voluntary or involuntary, holders of Common Stock will be entitled to
receive all assets of the Corporation available for distribution to its
stockholders, subject to any preferential rights of any then outstanding
Preferred Stock.
B. PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series,
each of such series to have such terms as stated or expressed herein and in the
resolution or resolutions providing for the issue of such series adopted by the
Board of Directors of the Corporation as hereinafter provided. Any shares of
Preferred Stock which may be redeemed, purchased or acquired by the Corporation
may be reissued except as otherwise provided by law. Different series of
Preferred Stock shall not be construed to constitute different classes of shares
for the purposes of voting by classes unless expressly provided.
Authority is hereby expressly granted to the Board of Directors from
time to time to issue the Preferred Stock in one or more series, and in
connection with the creation of any such series, by resolution or resolutions
providing for the issue of the shares thereof, to determine and fix such voting
powers, full or limited, or no voting powers, and such designations, preferences
and relative participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, including without
limitation thereof, dividend rights, conversion rights, redemption privileges
and liquidation preferences, as shall be stated and expressed in such
resolutions, all to the full extent now or hereafter permitted by the General
Corporation Law of Delaware. Without limiting the generality of the foregoing,
the resolutions providing for issuance of any series of Preferred Stock may
provide that such series shall be superior or rank equally or be junior to the
Preferred Stock of any other series to
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the extent permitted by law. Except as otherwise provided in this Certificate
of Incorporation, no vote of the holders of the Preferred Stock or Common Stock
shall be a prerequisite to the designation or issuance of any shares of any
series of the Preferred Stock authorized by and complying with the conditions
of this Certificate of Incorporation, the right to have such vote being
expressly waived by all present and future holders of the capital stock of the
Corporation.
C. SERIES C CONVERTIBLE PREFERRED STOCK.
Two hundred and fifty (250) shares of the authorized and unissued
Preferred Stock of the Corporation are hereby designated "Series C Convertible
Preferred Stock", with the following rights, preferences, powers, privileges,
restrictions, qualifications and limitations:
1. Voting Rights. The holders of Series C Convertible Preferred Stock
shall be entitled to notice of any shareholders' meetings and any directors'
meetings but shall not be entitled to vote upon the election of directors or
officers or upon any question affecting the management or affairs' of the
Corporation, except where such notice or vote is required by law.
2. Dividend Rights. Holders of outstanding Series C Convertible
Preferred Stock shall receive cumulative cash dividends at a rate equal to
$396.90 per share per annum (computed on the basis of a 360-day year of 12
30-day months). All dividends due under this Section IV.C.2 shall be declared at
the discretion of the Board of Directors provided, however, that subject to the
provisions of this Section IV.C.2, the Board of Directors shall declare a
dividend on the Series C Convertible Preferred to the extent of funds legally
available therefor. Declared dividends shall be paid by the Corporation not more
than seventy-five (75) days, nor fewer than sixty (60) days, after the end of
each fiscal year with respect to which such dividend is due, and shall be paid
to the holders of record of the Series C Convertible Preferred Stock outstanding
ratably, in accordance with the number of shares of Series C Convertible
Preferred Stock held by each such holder on the record date. If less than the
full preferential dividend on the Series C Convertible Preferred Stock is
declared or paid in any calendar year, such amount of the preferential dividend
not declared or paid (the "Unpaid Dividend" for purposes of this paragraph)
shall not lapse, but except to the extent paid or converted into Series C
Convertible Preferred Stock as described below, shall cumulate and be dividends
that are preferential to all other dividends until paid. Subject to the
provisions of this Section IV.C.2, such cumulative and unpaid
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dividends shall be paid to the holders of the Series C Convertible Preferred
Stock before any dividends may be paid to the holders of any class of stock
ranking on liquidation junior to the Series C Convertible Preferred Stock. If
there is an Unpaid Dividend in respect of the Corporation's fiscal years ending
December 31, 1996 or December 31, 1997 (or both), then on or before February 28,
1998 the Corporation can elect to pay all, any part or none of the Unpaid
Dividend in which event the holder(s) of Series C Convertible Preferred Stock
shall elect either to (i) have such Unpaid Dividends cumulate and be added to
the preferential dividend in the subsequent year or years or (ii) convert the
entire amount of the Unpaid Dividend into Series C Convertible Preferred Stock
at a price per share equal to the Applicable Conversion Price (as hereinafter
defined); provided, however, that if the Corporation elects to pay the Unpaid
Dividend in respect of the Corporation's fiscal year(s) ending December 31,
1996, December 31, 1997 (or both) the holder(s) of Series C Convertible
Preferred Stock shall have the option, exercisable upon written notice sent to
the Corporation not later than sixty (60) days after the Corporation notifies
such holder(s) that it shall be paying the Unpaid Dividends either to (x)
receive the Unpaid Dividend in cash or (y) receive two-thirds in cash and
one-third in Series C Preferred Stock at a price per share equal to the
Applicable Conversion Price (as hereinafter defined). From and after the
Corporation's fiscal year ending December 31, 1998, to the extent there are
Unpaid Dividends in respect of any fiscal year, the holder(s) of Series C
Convertible Preferred Stock shall, not more than one hundred twenty (120) days
nor less than ninety (90) days after the end of each fiscal year with respect to
which such Unpaid Dividend is due, elect in writing to either (xx) have such
entire Unpaid Dividends cumulate and be added to the preferential dividends in
the subsequent year or years or (yy) convert the entire Unpaid Dividend into
Series C Convertible Preferred Stock at a price per share equal to the
Applicable Conversion Price (as hereinafter defined).
3. Conversion
The holders of the Series C Convertible Preferred Stock shall have
conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series C Convertible Preferred
Stock shall be convertible, without the payment of any additional consideration
by the holder thereof, at the option of the holder thereof, and at the office of
the Corporation or any
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transfer agent for the Series C Convertible Preferred Stock, into such number of
fully paid and nonassessable shares of Common Stock as is determined by dividing
$4,961.24 by the Applicable Conversion Price (as hereinafter defined).
If more than one share of Series C Convertible Preferred Stock
shall be surrendered for conversion at the same time by the same holder of
record, the number of full shares that shall be issuable upon conversion thereof
shall be computed on the basis of the total number of shares so surrendered by
such holder. Each share of Series C Convertible Preferred Stock shall be so
convertible at any time after the date of issuance of such share. The price at
which shares of Common Stock shall be deliverable upon conversion of Series C
Convertible Preferred Stock without the payment of any additional consideration
by the holder thereof (the "Applicable Conversion Price") shall initially be
$6.20155 per share of Common Stock. Such initial Applicable Conversion Price
shall be subject to adjustment, in order to adjust the number of shares of
Common Stock into which the Series C Convertible Preferred Stock is convertible,
as hereinafter provided.
(b) Automatic Conversion. Each share of Series C Convertible Preferred
Stock shall automatically be converted into such number of fully paid and
nonassessable shares of Common Stock as is determined by dividing $4,961.24 by
the then effective Applicable Conversion Price, upon the closing of an
underwritten public offering resulting in gross proceeds to the Corporation of
not less than $10,000,000 pursuant to an effective registration statement under
the Securities Act of 1933, as amended, covering the offer and sale of Common
Stock of the Corporation to the public. In the event of such an offering, the
party or parties entitled to receive the Common Stock issuable upon such
conversion of the Series C Convertible Preferred Stock shall be deemed to have
converted such Series C Convertible Preferred Stock immediately before the
closing of such offering, at which time the certificates evidencing Series C
Convertible Preferred Stock shall be deemed to be retired and cancelled and the
shares of Series C Convertible Preferred Stock represented thereby converted
into Common Stock. The Corporation may thereafter take such appropriate action
(without the need for stockholder action) as may be necessary to reduce the
authorized shares accordingly. Each person holding of record Series C
Convertible Preferred Stock at the time of any automatic conversion shall be
entitled to (i) any dividends which, pursuant to Section IV.C.2 hereof have
cumulated but remain unpaid at such time and (ii) any registration rights
granted to such person. Such dividends shall be paid to all such holders within
thirty (30) days of the automatic conversion.
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(c) Mechanics of Conversion. No fractional shares of Common Stock shall
be issued upon conversion of the Series C Convertible Preferred Stock. In lieu
of any fractional shares to which the holder would otherwise be entitled, the
Corporation shall pay cash equal to such fraction multiplied by the Applicable
Conversion Price. Except in the case of an automatic conversion pursuant to
Section IV.C.3(b), before any holder of Series C Convertible Preferred Stock
shall be entitled to convert the same into full shares of Common Stock, he shall
surrender the certificate or certificates therefor, duly endorsed, at the office
of the Corporation or of any transfer agent for the Series C Convertible
Preferred Stock, and shall give written notice to the Corporation at such office
that he elects to convert the same. Upon the date of an automatic conversion
pursuant to Section IV.C.3(b), any person entitled to receive the shares of
Common Stock issuable upon such conversion shall be treated for all purposes as
the record holder of such shares of Common Stock on such date, whether or not
such holder has surrendered the certificate or certificates for such holder's
shares of Series C Convertible Preferred Stock. A holder surrendering his
certificate or certificates shall notify the Corporation of his name or the name
or names of his nominees in which he wishes the certificate or certificates for
shares of Common Stock to be issued. The Corporation shall, as soon as
practicable thereafter (and, in any event, within ten (10) days of such
surrender), issue and deliver at such office to such holder of Series C
Convertible Preferred Stock, or to his nominee or nominees, a certificate or
certificates for the number of shares of Common Stock to which he shall be
entitled, together with cash in lieu of any fraction of a share. Except in the
case of an automatic conversion pursuant to Section IV.C.3(b), such conversion
shall be deemed to have been made immediately before the close of business on
the date of such surrender of the shares of Series C Convertible Preferred Stock
to be converted, and the person or persons entitled to receive the shares of
Common Stock issuable upon conversion shall be treated for all purposes as the
record holder or holders of such shares of Common Stock on such date.
(d) Adjustments to Applicable Conversion Price for Diluting Issues:
(i) Special Definitions. For purposes of this Section IV.C.3(d),
the following definitions shall apply:
(1) "Option" shall mean options, warrants or other rights to
subscribe for, purchase or otherwise acquire either Common Stock or Convertible
Securities.
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(2) "Original Issue Date" shall mean the date of the
effectiveness of the merger of International Telecommunication Data Systems,
Inc., a Connecticut corporation, with and into the Corporation.
(3) "Convertible Securities" shall mean any evidences of
indebtedness, shares (other than Common Stock and Series C Convertible Preferred
Stock) of capital stock or other securities directly or indirectly convertible
into or exchangeable for Common Stock.
(4) "Additional Shares of Common Stock" shall mean any or all
shares of Common Stock issued (or, pursuant to Section IV.C.3(d)(iii), deemed to
be issued) by the Corporation after the Original Issue Date, other than shares
of Common Stock issuable upon exercise, conversion or exchange of any Options or
Convertible Securities outstanding as of the Original Issue or issued or
issuable upon conversion of shares of Series C Convertible Preferred Stock or
upon the exercise of the option(s) to convert Unpaid Dividends into shares of
Series C Convertible Preferred Stock as set forth in Section IV.C.2.
(ii) No Adjustment of Applicable Conversion Price. Subject to the
provisions of Section IV.C.3(d)(iii)(2) and Section IV.C.3(d)(vi) below, no
adjustment in the number of shares of Common Stock into which the Series C
Convertible Preferred Stock is convertible shall be made, by adjustment in the
Applicable Conversion Price of the Series C Convertible Preferred Stock in
respect of the issuance of Additional Shares of Common Stock or otherwise,
unless the consideration per share for an Additional Share of Common Stock
issued or deemed to be issued by the Corporation is less than the Applicable
Conversion Price in effect on the date of, and immediately before, the issue of
such Additional Share of Common Stock.
(iii) Issue of Securities Deemed Issue of Additional Shares of
Common Stock.
(1) Options and Convertible Securities. If the Corporation, at
any time or from time to time after the Original Issue Date, shall issue any
Options or Convertible Securities or shall fix a record date for the
determination of holders of any class of securities entitled to receive any such
Options or Convertible Securities, then the maximum number of shares (as set
forth in the instrument relating thereto without regard to any provisions
contained therein for a subsequent adjustment of such number) of Common Stock
issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor,
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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 issue or, in
case such a record date shall have been fixed, as of the close of business on
such record date, provided that such Additional Shares of Common Stock shall not
be deemed to have been issued unless the consideration per share (determined
pursuant to Section IV.C.3(d)(v) hereof) of such Additional Shares of Common
Stock would be less than the Applicable Conversion Price in effect on the date
of and immediately before such issue, or such record date, as the case may be,
and provided further that in any such case in which Additional Shares of Common
Stock are deemed to be issued:
(A) no further adjustment in the Applicable Conversion
Price shall be made upon the subsequent issue of Convertible Securities or
shares of Common Stock upon the exercise of such Options or conversion or
exchange of such Convertible Securities;
(B) if such Options or Convertible Securities by their
terms provide, with the passage of time, pursuant to any provisions designed to
protect against dilution, or otherwise, for any increase or decrease in the
consideration payable to the Corporation, or increase or decrease in the number
of shares of Common Stock issuable, upon the exercise, conversion or exchange
thereof, the Applicable Conversion Price computed upon the original issue
thereof (or upon the occurrence of a record date with respect thereto), and any
subsequent adjustments based thereon, shall, upon any such increase's or
decrease's 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) 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 Applicable Conversion Price computed upon the original issue
thereof (or upon the occurrence of a record date with respect thereto), and any
subsequent adjustments based thereon, shall, upon such expiration, be recomputed
as if such Options or Convertible Securities, as the case may be, were never
issued;
(D) no readjustment pursuant to clause (B) or (C) above
shall have the effect of increasing the Applicable Conversion Price to an amount
which exceeds the lower of (i) the Applicable Conversion Price on the original
date on which an
8
adjustment was made pursuant to this Section IV.C.3(d)(iii)(1), or (ii) the
Applicable Conversion Price that would have resulted from any issuance of
Additional Shares of Common Stock between such original adjustment date and the
date on which a readjustment is made pursuant to clause (B) or (C) above;
(E) in the case of any Options which expire by their terms
not more than 30 days after the date of issue thereof no adjustment of the
Applicable Conversion Price shall be made until the expiration or exercise of
all such Options, whereupon such adjustment shall be made in the same manner
provided in clause (C) above; and
(F) if such record date shall have been fixed and such
Options or Convertible Securities are not issued on the date fixed therefor, the
adjustment previously made in the Applicable Conversion Price which became
effective on such record date shall be cancelled as of the close of business on
such record date, and thereafter the Applicable Conversion Price shall be
adjusted pursuant to this Section IV.C.3(d)(iii) as of the actual date of their
issuance.
(2) Stock Dividends. Stock Distributions and Subdivisions. If
the Corporation at any time or from time to time after the Original Issue Date
shall declare or pay any dividend or make any other distribution on the Common
Stock payable in Common Stock, or effect a subdivision of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a dividend
in Common Stock), then and in any such event, Additional Shares of Common Stock
shall be deemed to have been issued:
(A) in the case of any such dividend or distribution,
immediately after the close of business on the record date for the determination
of holders of any class of securities entitled to receive such dividend or
distribution, or
(B) in the case of any such subdivision, at the close of
business on the date immediately before the date upon which such corporate
action becomes effective.
If such record date shall have been fixed and such dividend shall not
have been fully paid on the date fixed for the payment thereof, the adjustment
previously made in the Applicable Conversion Price that became effective on such
record date shall be cancelled as of the close of business on such record date,
and thereafter the Applicable Conversion Price shall be adjusted pursuant to
this Section IV.C.3(d)(iii) as of the time of actual payment of such dividend.
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(iv) Adjustment of Applicable Conversion Price of Additional Shares
of Common Stock. If the Corporation shall issue Additional Shares of Common
Stock (including Additional Shares of Common Stock deemed to be issued pursuant
to Section IV.C.3(d)(iii)(1), but excluding Additional Shares of Common Stock
deemed to be issued pursuant to Section IV.C.3(d)(iii)(2), which is dealt with
in Section IV.C.3(d)(vi) hereof) without consideration or for a consideration
per share less than the Applicable Conversion Price in effect on the date of and
immediately before such issue, then such Applicable Conversion Price shall be
reduced, concurrently with such issue, to a price equal to the price at which
such Additional Shares of Common Stock are so issued.
(v) Determination of Consideration. For purposes of this Section
IV.C.3(d)(v), the consideration received by the Corporation for the issue of any
Additional Shares of Common Stock shall be computed as follows:
(1) Cash and Property: Such consideration shall:
(A) insofar as it consists of cash, be the aggregate amount
of cash received by the Corporation excluding amounts paid or payable for
accrued interest or accrued dividends;
(B) insofar as it consists of property other than cash, be
computed at the fair value thereof at the time of such issue, as determined in
good faith by the Board of Directors; and
(C) if the event Additional Shares of Common Stock are
issued together with other shares of securities or other assets of the
Corporation for a single undivided consideration, be the proportion of such
consideration so received allocable to such Additional Shares of Common Stock,
computed as provided in clauses (A) and (B) above, as determined in good faith
by the Board of Directors.
(2) 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 Section IV.C.3(d)(iii)(1) shall be determined by
dividing
(x) the total amount, if any, received or receivable by the
Corporation as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration (as
set forth in the instruments relating thereto, without regard to any provision
10
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
(y) 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.
(vi) Adjustment for Stock Dividends. Stock Distributions.
Subdivision Combinations or Consolidations of Common Stock.
(1) Stock Dividends. Stock Distributions or Subdivisions. In
the event the Corporation shall issue additional shares of Common Stock (or any
options or rights therefor or any securities convertible or exchangeable
therefor) in a stock dividend, other stock distribution or subdivision, the
Applicable Conversion Price in effect immediately before such stock dividend,
stock distribution or subdivision shall, concurrently with the effectiveness of
such stock dividend, stock distribution or subdivision, be proportionately
decreased to adjust equitably for such dividend, distribution or subdivision so
that each share of Series C Convertible Preferred Stock shall thereafter be
convertible into the number of shares of Common Stock that the holder of such
share of Series C Convertible Preferred Stock would have owned and to which the
holder would be entitled had the holder converted such share of Series C
Convertible Preferred Stock immediately before such stock dividend, stock
distribution or subdivision.
(2) Combinations or Consolidations. If the outstanding shares
of Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Common Stock, the Applicable
Conversion Price in effect immediately before such combination or consolidation
shall, concurrently with the effectiveness of such combination or consolidation,
be proportionately increased to adjust equitably for such combination or
consolidation so that each share of Series C Convertible Preferred Stock shall
thereafter be convertible into the number of shares of Common Stock which the
holder of such share of Series C Convertible Preferred Stock would have owned
and
11
to which the holder would have been entitled had the holder converted such
share of Series C Convertible Preferred Stock immediately before such
combination or consolidation.
(vii) Adjustment for Merger or Reorganization. etc. In case of any
consolidation or merger of the Corporation with or into another corporation or
the conveyance of all or substantially all of the assets of the Corporation to
another corporation, or any proposed reorganization or reclassification of the
Corporation (except a transaction for which provision for adjustment is
otherwise made in this Section IV.C.3), each share of Series C Convertible
Preferred Stock shall thereafter be convertible into the number 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
Convertible Preferred Stock would have been entitled upon such consolidation,
merger, conveyance, reorganization or reclassification; and, in any such case,
appropriate adjustment (as reasonably and in good faith determined by the Board
of Directors) shall be made in the application of the provisions herein set
forth with respect to the rights and interest thereafter of the holders of the
Series C Convertible Preferred Stock, to the end that the provisions set forth
herein (including provisions with respect to changes in and other adjustments of
the Applicable Conversion Price) 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 Convertible Preferred
Stock. The Corporation shall not effect any such consolidation, merger or sale,
unless before or simultaneously with the consummation thereof, the successor
corporation or purchaser, as the case may be, shall assume by written instrument
the obligation to deliver to the holders of the Series C Convertible Preferred
Stock such shares of stock, securities or assets as, in accordance with the
foregoing provisions, such holders are entitled to receive.
(e) No Impairment. The Corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Corporation but will at
all times in good faith assist in the carrying out of all the provisions of this
Section IV.C.3 and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the holders of the
Series C Convertible Preferred Stock against impairment. Without limiting the
generality of the foregoing, before taking any action that would
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result in any adjustment to the Applicable Conversion Price then in effect below
the par value of the Common Stock, the Corporation will take or cause to be
taken any and all necessary corporate or other action which may be necessary in
order that the Corporation may validly and legally issue fully paid and
nonassessable shares of such Common Stock upon conversion. The taking of such
corporate or other action shall be a condition precedent to the Corporation's
taking the action which would result in such adjustment.
(f) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Applicable Conversion Price pursuant to this
Section IV.C.3, 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 Convertible Preferred Stock 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 Convertible Preferred Stock,
furnish or cause to be furnished to such holder a like certificate setting forth
(i) all such adjustments and readjustments theretofore made, (ii) the Applicable
Conversion Price at the time in effect, and (iii) the number of shares of Common
Stock and the amount, if any, of other property that at such time would be
received upon the conversion of Series C Convertible Preferred Stock.
(g) Notices of Record Date. In the event of any taking by the
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend that is in the same amount per share as
cash dividends paid in previous quarters) or other distribution, the Corporation
shall mail to each holder of Series C Convertible Preferred Stock at least ten
(10) days before the date thereof a notice specifying the date on which any such
record is to be taken for the purpose of such dividend or distribution.
(h) Common Stock Reserved. The Corporation shall reserve and at all
times keep available out of its authorized but unissued Common Stock, free from
preemptive or other preferential rights, restrictions, reservations,
dedications, allocations, options, other warrants and other rights under any
stock option, conversion option or similar agreement, such number of shares of
Common Stock as shall from time to time be sufficient to effect conversion of
the Series C Convertible Preferred Stock.
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4. Liquidation Rights.
(a) Rights on Dissolution Liquidation and Winding Up. In the event of
any liquidation, dissolution or winding up of the affairs of the Corporation,
each holder of shares of Series C Convertible Preferred Stock shall be entitled
to receive any declared and unpaid dividends on the Series C Convertible
Preferred Stock and prior and in preference to any distribution of any of the
assets or surplus funds of the Corporation to the holders of the Common Stock or
any other class of preferred stock that is junior to the Series C Convertible
Preferred Stock, an amount per share of the Series C Convertible Preferred Stock
equal to $4,961.24 per share.
(b) Pro Rata Distribution. If the assets or surplus funds to be
distributed to the holders of Series C Convertible Preferred Stock under
subparagraph (a) of this Section IV.C.4 are insufficient to permit the payment
to such holders of their full preferential amount, the assets and surplus funds
legally available for distribution shall be distributed ratably among the
holders of the Series C Convertible Preferred Stock.
(c) Priority. Except as otherwise set forth in Section IV.C.4(a), all
of the preferential amounts to be paid to (x) the holders of the Series C
Convertible Preferred Stock under this Section IV.C.4 and (y) the holders of any
other class of preferred stock ranking on a parity with the Series C Convertible
Preferred Stock shall be paid or set apart for payment before the payment or
setting apart for payment of any amount for, or the distribution of any assets
of the Corporation to, the holders of the Common Stock or any other class of
preferred stock that is junior to the Series C Convertible Preferred Stock in
connection with such liquidation, dissolution or winding up. After the payment
or the setting apart of payment of cumulative and unpaid dividends due to the
holders of Series C Convertible Preferred Stock pursuant to this Section IV.C
and the preferential amounts payable to the holders of the Series C Convertible
Preferred Stock and the holders of such other class of preferred stock ranking
on a parity with, or superior to, the Series C Convertible Preferred Stock, the
holders of Common Stock shall be entitled to receive all remaining assets of
this Corporation.
FIFTH. The name and mailing address of the sole incorporator are as
follows:
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NAME MAILING ADDRESS
Lewis D. Bakes 969 High Ridge Road
Suite 205
Stamford, Connecticut 06905
SIXTH. In furtherance of and not in limitation of powers conferred by
statute, it is further provided:
1. Election of directors need not be by written ballot.
2. The Board of Directors is expressly authorized to adopt, amend or
repeal the By-Laws of the Corporation.
SEVENTH. Except to the extent that the General Corporation Law of
Delaware prohibits the elimination or limitation of liability of directors for
breaches of fiduciary duty, no director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for any
breach of fiduciary duty as a director, notwithstanding any provision of law
imposing such liability. No amendment to or repeal of this provision shall apply
to or have any effect on the liability or alleged liability of any director of
the Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment.
EIGHTH. 1. Actions, Suits and Proceedings Other than by or in the Right
of the Corporation. The Corporation shall indemnify each person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by
reason of the fact that he is or was, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to serve, at the
request of the Corporation, as a director, officer or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust or
other enterprise (including any employee benefit plan) (all such persons being
referred to hereafter as an "Indemnitee"), or by reason of any action alleged to
have been taken or omitted in such capacity, against all expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such action, suit
or proceeding and any appeal therefrom, if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the Corporation, and,
15
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful. Notwithstanding anything to the contrary
in this Article, except as set forth in Section VIII.7 below, the Corporation
shall not indemnify an Indemnitee seeking indemnification in connection with a
proceeding (or part thereof) initiated by the Indemnitee unless the initiation
thereof was approved by the Board of Directors of the Corporation.
Notwithstanding anything to the contrary in this Article, the Corporation shall
not indemnify an Indemnitee to the extent such Indemnitee is reimbursed from the
proceeds of insurance, and in the event the Corporation makes any
indemnification payments to an Indemnitee and such Indemnitee is subsequently
reimbursed from the proceeds of insurance, such Indemnitee shall promptly refund
such indemnification payments to the Corporation to the extent of such insurance
reimbursement.
2. Actions or Suits by or in the Right of the Corporation. The
Corporation shall indemnify any Indemnitee who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to serve, at the
request of the Corporation, as a director, officer or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust or
other enterprise (including any employee benefit plan), or by reason of any
action alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys' fees) and, to the extent permitted by law,
amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and any appeal
therefrom, if he acted in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of Delaware shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
16
reasonably entitled to indemnity for such expenses (including attorneys' fees)
which the Court of Chancery of Delaware shall deem proper.
3. Indemnification for Expenses of Successful Party. Notwithstanding
the other provisions of this Article, to the extent that an Indemnitee has been
successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Sections 1 and 2 of this Article, or in defense of any
claim, issue or matter therein, or on appeal from any such action, suit or
proceeding, he shall be indemnified against all expenses (including attorneys'
fees) actually and reasonably incurred by him or on his behalf in connection
therewith. Without limiting the foregoing, if any action, suit or proceeding is
disposed of, on the merits or otherwise (including a disposition without
prejudice), without (i) the disposition being adverse to the Indemnitee, (ii) an
adjudication that the Indemnitee was liable to the Corporation, (iii) a plea of
guilty or nolo contendere by the Indemnitee, (iv) an adjudication that the
Indemnitee did not act in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and (v) with
respect to any criminal proceeding, an adjudication that the Indemnitee had
reasonable cause to believe his conduct was unlawful, the Indemnitee shall be
considered for the purposes hereof to have been wholly successful with respect
thereto.
4. Notification and Defense of Claim. As a condition precedent to his
right to be indemnified, the Indemnitee must notify the Corporation in writing
as soon as practicable of any action, suit, proceeding or investigation
involving him for which indemnity will or could be sought. With respect to any
action, suit, proceeding or investigation of which the Corporation is so
notified, the Corporation will be entitled to participate therein at its own
expense and/or to assume the defense thereof at its own expense, with legal
counsel reasonably acceptable to the Indemnitee. After notice from the
Corporation to the Indemnitee of its election so to assume such defense, the
Corporation shall not be liable to the Indemnitee for any legal or other
expenses subsequently incurred by the Indemnitee in connection with such claim,
other than as provided below in this Section VIII.4. The Indemnitee shall have
the right to employ his own counsel in connection with such claim, but the fees
and expenses of such counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expense of the Indemnitee
unless (i) the employment of counsel by the Indemnitee has been authorized by
the Corporation, (ii) counsel to the Indemnitee shall have reasonably concluded
that there may be a conflict of interest or position on any significant issue
between
17
the Corporation and the Indemnitee in the conduct of the defense of such
action or (iii) the Corporation shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the fees and expenses
of counsel for the Indemnitee shall be at the expense of the Corporation, except
as otherwise expressly provided by this Article. The Corporation shall not be
entitled, without the consent of the Indemnitee, to assume the defense of any
claim brought by or in the right of the Corporation or as to which counsel for
the Indemnitee shall have reasonably made the conclusion provided for in clause
(ii) above.
5. Advance of Expenses. Subject to the provisions of Section VIII.6
below, in the event that the Corporation does not assume the defense pursuant to
Section VIII.4 of any action, suit, proceeding or investigation of which the
Corporation receives notice under this Article, any expenses (including
attorneys' fees) incurred by an Indemnitee in defending a civil or criminal
action, suit, proceeding or investigation or any appeal therefrom shall be paid
by the Corporation in advance of the final disposition of such matter; provided,
however, that the payment of such expenses incurred by an Indemnitee in advance
of the final disposition of such matter shall be made only upon receipt of an
undertaking by or on behalf of the Indemnitee to repay all amounts so advanced
in the event that it shall ultimately be determined that the Indemnitee is not
entitled to be indemnified by the Corporation as authorized in this Article.
Such undertaking shall be accepted without reference to the financial ability of
the Indemnitee to make such repayment.
6. Procedure for Indemnification. In order to obtain indemnification or
advancement of expenses pursuant to Section 1, 2, 3 or 5 of this Article, the
Indemnitee shall submit to the Corporation a written request, including in such
request such documentation and information as is reasonably available to the
Indemnitee and is reasonably necessary to determine whether and to what extent
the Indemnitee is entitled to indemnification or advancement of expenses. Any
such indemnification or advancement of expenses shall be made promptly, and in
any event within 60 days after receipt by the Corporation of the written request
of the Indemnitee, unless with respect to requests under Section 1, 2 or 5 the
Corporation determines within such 60-day period that the Indemnitee did not
meet the applicable standard of conduct set forth in Section 1 or 2 of this
Article, as the case may be. Such determination shall be made in each instance
by (a) a majority vote of the directors of the Corporation consisting of persons
who are not at that time parties to the action, suit or proceeding in question
("disinterested directors"), whether or not a quorum, (b) a majority vote of a
quorum of the outstanding shares of stock
18
of all classes entitled to vote for directors, voting as a single class, which
quorum shall consist of stockholders who are not at that time parties to the
action, suit or proceeding in question, (c) independent legal counsel (who may,
to the extent permitted by law, be regular legal counsel to the Corporation), or
(d) a court of competent jurisdiction.
7. Remedies. The right to indemnification or advances as granted by
this Article shall be enforceable by the Indemnitee in any court of competent
jurisdiction if the Corporation denies such request, in whole or in part, or if
no disposition thereof is made within the 60-day period referred to above in
Section VIII.6. Unless otherwise required by law, the burden of proving that the
Indemnitee is not entitled to indemnification or advancement of expenses under
this Article shall be on the Corporation. Neither the failure of the Corporation
to have made a determination prior to the commencement of such action that
indemnification is proper in the circumstances because the Indemnitee has met
the applicable standard of conduct, nor an actual determination by the
Corporation pursuant to Section VIII.6 that the Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the Indemnitee has not met the applicable standard of conduct.
The Indemnitee's expenses (including attorneys' fees) incurred in connection
with successfully establishing his right to indemnification, in whole or in
part, in any such proceeding shall also be indemnified by the Corporation.
8. Subsequent Amendment. No amendment, termination or repeal of this
Article or of the relevant provisions of the General Corporation Law of Delaware
or any other applicable laws shall affect or diminish in any way the rights of
any Indemnitee to indemnification under the provisions hereof with respect to
any action, suit, proceeding or investigation arising out of or relating to any
actions, transactions or facts occurring prior to the final adoption of such
amendment, termination or repeal.
9. Other Rights. The indemnification and advancement of expenses
provided by this Article shall not be deemed exclusive of any other rights to
which an Indemnitee seeking indemnification or advancement of expenses may be
entitled under any law (common or statutory), agreement or 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 office for the
Corporation, and shall continue as to an Indemnitee who has ceased to be a
director or officer, and shall inure to the benefit of the estate, heirs,
executors and administrators of the Indemnitee. Nothing contained in this
Article shall be deemed to
19
prohibit, and the Corporation is specifically authorized to enter into,
agreements with officers and directors providing indemnification rights and
procedures different from those set forth in this Article. In addition, the
Corporation may, to the extent authorized from time to time by its Board of
Directors, grant indemnification rights to other employees or agents of the
Corporation or other persons serving the Corporation and such rights may be
equivalent to, or greater or less than, those set forth in this Article.
10. Partial Indemnification. If an Indemnitee is entitled under any
provision of this Article to indemnification by the Corporation for some or a
portion of the expenses (including attorneys' fees), judgments, fines or amounts
paid in settlement actually and reasonably incurred by him or on his behalf in
connection with any action, suit, proceeding or investigation and any appeal
therefrom but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify the Indemnitee for the portion of such expenses
(including attorneys' fees), judgments, fines or amounts paid in settlement to
which the Indemnitee is entitled.
11. Insurance. The Corporation may purchase and 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 (including any employee benefit plan) against any expense,
liability or loss incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power to indemnify
such person against such expense, liability or loss under the General
Corporation Law of Delaware.
12. Merger or Consolidation. If the Corporation is merged into or
consolidated with another corporation and the Corporation is not the surviving
corporation, the surviving corporation shall assume the obligations of the
Corporation under this Article with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or facts
occurring prior to the date of such merger or consolidation.
13. Savings Clause. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Indemnitee as to any expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with any action, suit, proceeding or investigation, whether civil,
20
criminal or administrative, including an action by or in the right of the
Corporation, to the fullest extent permitted by any applicable portion of this
Article that shall not have been invalidated and to the fullest extent permitted
by applicable law.
14. Definitions. Terms used herein and defined in Section 145(h) and
Section 145(i) of the General Corporation Law of Delaware shall have the
respective meanings assigned to such terms in such Section 145(h) and Section
145(i).
15. Subsequent Legislation. If the General Corporation Law of Delaware
is amended after adoption of this Article to expand further the indemnification
permitted to Indemnities, then the Corporation shall indemnify such persons to
the fullest extent permitted by the General Corporation Law of Delaware, as so
amended.
NINTH. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute and this Certificate of
Incorporation, and all rights conferred upon stockholders herein are granted
subject to this reservation.
TENTH. This Article is inserted for the management of the business and
for the conduct of the affairs of the Corporation and shall become effective
only upon the closing of an underwritten public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
covering the offer and sale of Common Stock for the account of the Corporation.
1. Number of Directors. The number of directors of the Corporation
shall not be less than three. The exact number of directors within the
limitations specified in the preceding sentence shall be fixed from time to time
by, or in the manner provided in, the Corporation's By-Laws.
2. Classes of Directors. The Board of Directors shall be and is divided
into three classes: Class I, Class II and Class III. No one class shall have
more than one director more than any other class. If a fraction is contained in
the quotient arrived at by dividing the designated number of directors by three,
then, if such fraction is one-third, the extra director shall be a member of
Class I, and if such fraction is two-thirds, one of the extra directors shall be
a member of Class I and one of the extra directors shall be a member of Class
II, unless otherwise provided from time to time by resolution adopted by the
Board of Directors.
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3. Election of Directors. Elections of directors need not be by written
ballot except as and to the extent provided in the By-Laws of the Corporation.
4. Terms of Office. Each director shall serve for a term ending on the
date of the third annual meeting following the annual meeting at which such
director was elected; provided, that each initial director in Class I shall
serve for a term ending on the date of the annual meeting in 1997; each initial
director in Class II shall serve for a term ending on the date of the annual
meeting in 1998; and each initial director in Class III shall serve for a term
ending on the date of the annual meeting in 1999; and provided further, that the
term of each director shall be subject to the election and qualification of his
successor and to his earlier death, resignation or removal.
5. Allocation of Directors Among Classes in the Event of Increases or
Decreases in the Number of Directors. In the event of any increase or decrease
in the authorized number of directors, (i) each director then serving as such
shall nevertheless continue as a director of the class of which he is a member
and (ii) the newly created or eliminated directorships resulting from such
increase or decrease shall be apportioned by the Board of Directors among the
three classes of directors so as to ensure that no one class has more than one
director more than any other class. To the extent possible, consistent with the
foregoing rule, any newly created directorships shall be added to those classes
whose terms of office are to expire at the latest dates following such
allocation, and any newly eliminated directorships shall be subtracted from
those classes whose terms of offices are to expire at the earliest dates
following such allocation, unless otherwise provided from time to time by
resolution adopted by the Board of Directors.
6. Quorum; Action at Meeting. A majority of the directors at any time
in office shall constitute a quorum for the transaction of business. In the
event one or more of the directors shall be disqualified to vote at any meeting,
then the required quorum shall be reduced by one for each director so
disqualified, provided that in no case shall less than one-third of the number
of directors fixed pursuant to Section VIII.1 above constitute a quorum. If at
any meeting of the Board of Directors there shall be less than such a quorum, a
majority of those present may adjourn the meeting from time to time. Every act
or decision done or made by a majority of the directors present at a meeting
duly held at which a quorum is present shall be regarded as the act of the Board
of Directors unless a greater number is
22
required by law, by the By-Laws of the Corporation or by this Certificate of
Incorporation.
7. Removal. Directors of the Corporation may be removed only for cause
by the affirmative vote of the holders of at least two-thirds of the shares of
the capital stock of the Corporation issued and outstanding and entitled to
vote.
8. Vacancies. Any vacancy in the Board of Directors, however occurring,
including a vacancy resulting from an enlargement of the board, shall be filled
only by a vote of a majority of the directors then in office, although less than
a quorum, or by a sole remaining director. A director elected to fill a vacancy
shall be elected to hold office until the next election of the class for which
such director shall have been chosen, subject to the election and qualification
of his successor and to his earlier death, resignation or removal.
9. Stockholder Nominations and Introduction of Business, Etc. Advance
notice of stockholder nominations for election of directors and other business
to be brought by stockholders before a meeting of stockholders shall be given in
the manner provided by the By-Laws of the Corporation.
10. Amendments to Article. Notwithstanding any other provisions of law,
this Certificate of Incorporation or the By-Laws of the Corporation, each as
amended, and notwithstanding the fact that a lesser percentage may be specified
by law, the affirmative vote of the holders of at least seventy-five percent
(75%) of the shares of capital stock of the Corporation issued and outstanding
and entitled to vote shall be required to amend or repeal, or to adopt any
provision inconsistent with, this Article TENTH.
ELEVENTH. Effective upon a public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended, covering
the offer and sale of Common Stock for the account of the Corporation, (i) the
stockholders of the Corporation may not take any action by written consent in
lieu of a meeting and (ii) notwithstanding any other provisions of law, this
Certificate of Incorporation or the By-Laws of the Corporation, each as amended,
and notwithstanding the fact that a lesser percentage may be specified by law,
the affirmative vote of the holders of at least seventy-five percent (75%) of
the shares of capital stock of the Corporation issued and outstanding and
entitled to vote shall be required to amend or repeal, or to adopt any provision
inconsistent with, this Article ELEVENTH.
23
TWELFTH. Special meetings of stockholders may be called at any time by
only the Chairman of the Board of Directors, the Chief Executive Officer (or if
there is no Chief Executive Officer, the President) or the Board of Directors.
Business transacted at any special meeting of stockholders shall be limited to
matters relating to the purpose or purposes stated in the notice of meeting.
Notwithstanding any other provision of law, this Certificate of Incorporation or
the By-Laws of the Corporation, each as amended, and notwithstanding the fact
that a lesser percentage may be specified by law, the affirmative vote of the
holders of at least seventy-five percent (75%) of the shares of capital stock of
the Corporation issued and outstanding and entitled to vote shall be required to
amend or repeal, or to adopt any provision inconsistent with, this Article
TWELFTH.
EXECUTED at Stamford, Connecticut, on August 28, 1996.
/s/ Lewis D. Bakes
----------------------------
Lewis D. Bakes
Incorporator
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