Exhibit 3
[COMPOSITE VERSION AS AMENDED
THROUGH AUGUST 1, 1997]
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
POINT WEST CAPITAL CORPORATION
(F/K/A DIGNITY PARTNERS, INC.)
Pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware, Point West Capital Corporation (f/k/a Dignity Partners,
Inc.), a Delaware corporation (the "Company"), does hereby certify as follows:
1. The original Certificate of the Company was filed in the
Office of the Secretary of State of the State of Delaware on September 8, 1992.
2. This Second Amended and Restated Certificate of Incorporation
Of the Company has been duly adopted in accordance with Sections 242 and 245
of the DGCL.
3. The text of the Certificate of Incorporation of the Company
is hereby amended and restated in its entirety to read as follows:
ARTICLE I
==========
The name of the corporation (the "Corporation") is Point West
Capital Corporation.
ARTICLE II
==========
The address of the Corporation's registered office in the
State of Delaware is Chemical Bank Plaza, Suite 1600, 1201 N. Market Street,
City of Wilmington, County of New Castle, 19801. The name of the Corporation's
registered agent at such address is Registered Agents, Ltd.
ARTICLE III
============
The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware (the "DGCL").
ARTICLE IV
============
The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is seventeen million
(17,000,000) shares of capital stock comprised of (i) fifteen million
(15,000,000) shares of Common Stock, par value $.01 per share (the
"Common Stock"), and (ii) two million (2,000,000) shares of Preferred Stock,
par value $.01 per share (the "Preferred Stock").
-1-
ARTICLE V
===========
The Preferred Stock may be issued in one or more series. The Board of
Directors of the Corporation is hereby authorized to issue the shares of
Preferred Stock in such series and to fix from time to time before issuance the
number of shares to be included in any such series and the designation, relative
powers, preferences, and rights and qualifications, limitations, or restrictions
of all shares of such series. The authority of the Board of Directors of the
Corporation with respect to each such series will include, without limiting the
generality of the foregoing, the determination of any or all of the following:
(a) the number of shares of any series and the designation to distinguish
the shares of such series from the shares of all other series;
(b) the voting powers, if any, of such series and whether such voting
powers are full or limited;
(c) the redemption provisions,if any,applicable to such series, including
the redemption price or prices to be paid;
(d) whether dividends, if any, will be cumulative or noncumulative, the
dividend rate (or the manner of determining the same) of such series,
the form and manner of, and conditions to, payment of dividends on
such series, and the dates and preferences of dividends on such
series;
(e) the rights of such series upon the voluntary or involuntary
dissolution of, or upon any distribution of the assets of, the
Corporation;
(f) the provisions, if any, pursuant to which the shares of such series
are convertible into, or exchangeable for, shares of any other class
or classes or of any other series of the same or any other class or
classes of stock, or any other security, of the Corporation or any
other corporation or other entity, and the price or prices or rates of
exchange (or the manner of determining the same) applicable thereto;
(g) the right, if any, to subscribe for or to purchase any securities of
the Corporation or any other corporation or other entity;
(h) the sinking fund provisions, if any, applicable to such series; and
(i) any other relative, participating, optional, or other special powers,
preferences, rights, qualifications, limitations, or restrictions
thereof;
all as may be determined from time to time by the Board of Directors of the
Corporation and stated in the resolution or resolutions providing for the
issuance of such series of Preferred Stock (each a "Preferred Stock
Designation").
Convertible Cumulative Pay-in-Kind Preferred Stock
--------------------------------------------------
The following is a statement of the powers, preferences, rights,
qualifications, limitations and restrictions of the series, consisting of
135,000 shares, $.01 par value, of the Convertible Cumulative Pay-in-Kind
Preferred Stock.
-2-
1. Designation and Amount. The shares of such series of Preferred Stock
------------------------
shall be designated as "Convertible Cumulative Pay-in-Kind Preferred Stock" (the
"Convertible Preferred Stock"), and the number of shares constituting such
series shall be 35,000, plus up to 100,000 additional shares of Convertible
Preferred Stock issued as dividends on the Convertible Preferred Stock pursuant
to Section 3 hereof. The initial liquidation preference of the Convertible
Preferred Stock and related Convertible Preferred Stock Rights shall be $100 per
share or right (the "Liquidation Value").
2. Rank. The Convertible Preferred Stock shall, with respect to dividend
-----
rights and rights on liquidation, winding up and dissolution, rank (i) senior to
both the Corporation's Common Stock, and to all classes and series of stock of
the Corporation now or hereafter authorized, issued or outstanding which by
their terms expressly provide that they are junior to the Convertible Preferred
Stock as to dividend distributions and distributions upon the liquidation,
winding up and dissolution of the Corporation or which do not specify their rank
(collectively with the Common Stock, the "Junior Securities"); (ii) on a parity
with each other class of capital stock or series of preferred stock issued by
the Corporation after the date hereof the terms of which specifically provide
that such class or series will rank on a parity with the Convertible Preferred
Stock as to dividend distributions and distributions upon the liquidation,
winding up and dissolution of the Corporation (collectively referred to as
"Parity Securities"), provided that any such Parity Securities that were not
--------
approved by the holders of Convertible Preferred Stock in accordance with
Section 7(b) hereof shall be deemed to be Junior Securities and not Parity
Securities; and (iii) junior to each other class of capital stock or other
series of Preferred Stock issued by the Corporation after the date hereof the
terms of which have been approved by the holders of the Convertible Preferred
Stock in accordance with Section 7(b) hereof and which specifically provide that
such class or series will rank senior to the Convertible Preferred Stock as to
dividend distributions or distributions upon the liquidation, winding up and
dissolution of the Corporation (collectively referred to as "Senior
Securities").
3. Dividends. (a) The holders of shares of the Convertible Preferred Stock
----------
shall be entitled to receive, out of funds legally available therefor, dividends
per share at the annual rate of eight percentum (8%) of the Liquidation Value.
Such dividends shall be cumulative and shall accrue and be payable in equal
quarterly amounts per share of two percentum (2%) of the Liquidation Value per
share on March 1, June 1, September 1 and December 1 in each year (each of such
dates being a "Dividend Payment Date"), to holders of record at the close of
business on the date specified by the Board of Directors at the time such
dividend is declared (the "Record Date"), in preference to dividends on the
Junior Securities, commencing on the Dividend Payment Date next succeeding the
Issue Date. Any such Record Date shall be not less than 10 days and not more
than 30 days prior to the relevant Dividend Payment Date. All dividends with
respect to shares of Convertible Preferred Stock shall be paid in additional
shares of Convertible Preferred Stock and not in cash. Dividend payments shall
be made by issuing shares (or fractions thereof) of Convertible Preferred Stock
with an aggregate Liquidation Preference equal to the amount of such dividends.
All dividends paid with respect to shares of Convertible Preferred Stock
pursuant to this Section 3 shall be paid pro rata to the holders entitled
thereto. All shares of Convertible Preferred Stock issued as a dividend with
respect to the Convertible Preferred Stock will thereupon be duly authorized,
validly issued, fully paid and nonassessable.
(a) In the case of shares of Convertible Preferred Stock issued on the
Issue Date, dividends shall accrue and be cumulative from such date. In the case
of shares of Convertible Preferred Stock issued subsequent to the Issue Date,
dividends shall accrue and be cumulative from the Specific Issue Date relating
thereto. In the case of shares of Convertible Preferred Stock issued as a
dividend on shares of Convertible Preferred Stock, dividends shall accrue and be
cumulative from the Dividend Payment Date (which shall be the Specific Issue
Date) in respect of which such shares were issued as a dividend.
(b) Each fractional share of Convertible Preferred Stock outstanding shall
be entitled to a ratably proportionate amount of all dividends accruing with
respect to each outstanding share of Convertible
-3-
Preferred Stock pursuant to paragraph (a) of this Section 3, and all such
dividends with respect to such outstanding fractional shares shall be cumulative
and shall accrue (whether or not declared), and shall be payable in the same
manner and at such times as provided for in paragraph (a) of this Section 3 with
respect to dividends on each outstanding share of Convertible Preferred Stock.
Each fractional share of Convertible Preferred Stock outstanding shall also be
entitled to a ratably proportionate amount of any other distributions made with
respect to each outstanding share of Convertible Preferred Stock, and all such
distributions shall be payable in the same manner and at the same time as
distributions on each outstanding share of Convertible Preferred Stock.
(c) (i) So long as any shares of the Convertible Preferred Stock are
outstanding, the Corporation shall not, without the prior consent of the holders
of at least two-thirds of the outstanding Convertible Preferred Stock, make any
payment on account of, or set apart for payment money for a sinking or other
similar fund for, the purchase, redemption or retirement of, any Junior
Securities or any warrants, rights, calls or options exercisable for or
convertible into any Junior Securities, whether directly or indirectly, and
whether in cash, obligations or shares of the Corporation or other property
(other than dividends or distributions payable in additional shares of Junior
Securities to holders of Junior Securities), and shall not permit any
corporation or other entity directly or indirectly controlled by the Company to
purchase or redeem any Junior Securities or any warrants, rights, calls or
options exercisable for or convertible into any Junior Securities.
(ii) So long as any shares of the Convertible Preferred Stock are
outstanding, the Corporation shall not, without the prior consent of the holders
of at least two-thirds of the outstanding Convertible Preferred Stock, declare,
pay or set apart for payment any dividend or make any distribution or payment on
any Junior Securities or Parity Securities, or make any payment on account of,
or set apart for payment money for a sinking or other similar fund for, the
purchase, redemption or retirement of, Parity Securities or any warrants,
rights, calls or options exercisable for or convertible into any Parity
Securities, whether directly or indirectly, and whether in cash, obligations or
shares of the Corporation or other property (other than dividends or
distributions payable in additional shares of Parity Securities to holders of
Parity Securities), and shall not permit any corporation or other entity
directly or indirectly controlled by the Corporation to purchase or redeem any
Parity Securities or any warrants, rights, calls or options exercisable for or
convertible into any Parity Securities, and thereafter, neither the Corporation
nor any Corporation or other entity directly or indirectly controlled by the
Corporation shall make any such declaration, payment, setting apart for payment,
purchase, redemption, retirement or distribution.
4. Liquidation Preference. (a) In the event of any voluntary or
-------------------------
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, each holder of shares of Convertible Preferred Stock then
outstanding shall be entitled to be paid out of the assets of the Corporation
available for distribution to its stockholders an amount in cash equal to 100%
of the Liquidation Value for each share of Convertible Preferred Stock then
outstanding held by such holder, plus an amount in cash equal to all accrued but
unpaid dividends (including all Convertible Preferred Stock Rights) thereon to
the date of liquidation, dissolution or winding up, before any payment shall be
made or any assets distributed to the holders of any of the Junior Securities.
If the assets of the Corporation are not sufficient to pay in full the
liquidation payments payable to the holders of outstanding shares of the
Convertible Preferred Stock and any Parity Securities, then the holders of all
such shares shall share ratably in such distribution of assets in accordance
with the amount which would be payable on such distribution if the amounts to
which the holders of outstanding shares of Convertible Preferred Stock and the
holders of outstanding shares of such Parity Securities are entitled were paid
in full.
(a) For the purposes of this Section 4, neither the voluntary sale,
conveyance, exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all of the property or assets of the
Corporation nor the consolidation or merger of the Corporation with any one or
more other corporations shall be deemed to be a voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, unless such voluntary
sale, conveyance, exchange or transfer shall be in connection with a plan of
liquidation, dissolution or winding up of the Corporation.
-4-
5. Redemption. (a) The Corporation may, at its option, redeem in whole at
-----------
any time or in part from time to time (and, if in part, by lot or pro rata from
--- ----
each holder as the Corporation shall elect), in the manner hereinafter provided,
shares of Convertible Preferred Stock, at a redemption price per share, payable
in cash, equal to 100% of the Liquidation Value thereof plus 100% of the sum of
accrued and unpaid dividends thereon (including an amount equal to a prorated
dividend from the last Dividend Payment Date immediately prior to the redemption
date).
(a) (i) In the event that the Corporation shall redeem shares of
Convertible Preferred Stock pursuant to Section 5 (a) hereof, notice of such
redemption shall be mailed by first-class mail, postage prepaid, not less than
30 days or more than 60 days prior to the redemption date to the holders of
record of the shares to be redeemed at their respective addresses as they shall
appear in the records of the Corporation; provided, however, that failure to
-------- -------
give such notice or any defect therein or in the mailing thereof shall not
affect the validity of the proceedings for the redemption of any shares so to be
redeemed except as to the holder to whom the Corporation has failed to give such
notice or except as to the holder to whom notice was defective. Each such notice
shall state: (i) the redemption date; (ii) the number of shares of Convertible
Preferred Stock to be redeemed and, if less than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed and the
manner in which such shares were selected for redemption; (iii) the redemption
price per share; (iv) the place or places where certificates for such shares are
to be surrendered for payment of the redemption price; (v) that dividends on the
shares to be redeemed will cease to accrue on such redemption date; and (vi)
that the holder's right to convert such shares into shares of Common Stock shall
terminate on the close of business on the third Business Day preceding such
redemption date.
(i) Notice by the Corporation having been mailed as provided in Section
5(b)(i) hereof, and provided that on or before the applicable redemption date
funds, if any, necessary for such redemption shall have been set aside by the
Corporation, separate and apart from its other funds, in trust for the pro rata
benefit of the holders of the shares so called for or entitled to redemption, so
as to be and to continue to be available therefor, then, from and after the
redemption date (unless the Corporation defaults in the payment of the
redemption price, in which case such rights shall continue until the redemption
price is paid), dividends on the shares of Convertible Preferred Stock so called
for or entitled to redemption shall cease to accrue, and said shares shall no
longer be deemed to be outstanding and shall not have the status of shares of
Convertible Preferred Stock, and all rights of the holders thereof as
stockholders of the Corporation (except the right to receive the applicable
redemption price and any accrued and unpaid dividends from the Corporation to
the date of redemption, and the right to convert such shares into shares of
Common Stock which shall continue until the close of business on the third
Business Day preceding the date of redemption) shall cease. Upon surrender of
the certificates for any shares so redeemed (properly endorsed or assigned for
transfer, if the Board of Directors of the Corporation shall so require and a
notice by the Corporation shall so state), such shares shall be redeemed by the
Corporation at the applicable redemption price as aforesaid. In case fewer than
all the shares represented by any such certificate are redeemed, a new
certificate or certificates shall be issued representing the unredeemed shares
without cost to the holder thereof.
6. Reacquired Shares. Shares of Convertible Preferred Stock that have been
-----------------
issued and reacquired in any manner, including shares reacquired by purchase,
redemption or conversion pursuant to Section 8 hereof, shall (upon compliance
with any applicable provisions of the laws of the State of Delaware) have the
status of authorized and unissued shares of the class of Preferred Stock
undesignated as to series and may be redesignated and reissued as part of any
series of Preferred Stock other than the Convertible Preferred Stock.
7. Voting Rights. In addition to any voting rights provided by law, the
--------------
holders of Convertible Preferred Stock shall have the following voting rights:
-5-
(a) General. Except as required in this Article V and as otherwise required
-------
by law, shares of Convertible Preferred Stock (including shares received as
dividends thereon) shall have no voting rights.
(b) Voting Rights On Extraordinary Matters. In addition to any vote or
-----------------------------------------
consent of stockholders required by law, the approval of holders of two-thirds
of the outstanding shares of Convertible Preferred Stock, voting as a class,
shall be required (i) to amend the Certificate of Incorporation of the
Corporation to increase the authorized number of shares of Preferred Stock or to
authorize the creation or issuance, or the increase in the authorized amount, of
any Parity Securities or Senior Securities, or to authorize the creation or
issuance of securities convertible into or exchangeable for, or options,
warrants or other rights to acquire, any Parity Securities or Senior Securities,
(ii) to reclassify any series of Junior Securities to Senior Securities or
Parity Securities, (iii) to amend, repeal or change any of the provisions of the
Certificate of Incorporation of the Corporation or the provisions of this
Article V in any manner that would alter or change the powers, preferences or
special rights of the shares of Convertible Preferred Stock so as to affect them
adversely, including without limitation changing the voting percentage required
for approval by the holders of Convertible Preferred Stock of the foregoing
matters, (iv) otherwise to restrict the rights, preferences or privileges of the
Convertible Preferred Stock, or (v) to authorize the consolidation or merger of
the Corporation with or into another Person (whether or not the Corporation is
the Surviving Person), or the sale, assignment, transfer, lease, conveyance or
other disposal of all or substantially all of its properties or assets in one or
more related transactions to another Person unless: (A) the Corporation is the
Surviving Person or the Surviving Person is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia, (B) the Convertible Preferred Stock is converted into or exchanged for
and becomes shares of the Surviving Person (if other than the Corporation),
having in respect of the Surviving Person substantially the same powers,
preferences and relative participating, optional or other special rights, and
the qualifications, limitations or restrictions thereon, that the Convertible
Preferred Stock had immediately prior to such transaction and such corporation
will have no class of shares either authorized or outstanding ranking prior to
or on a parity with the Convertible Preferred Stock except the same number of
shares ranking prior to or on a parity with the Convertible Preferred Stock and
having the same rights and preferences as the shares of the Corporation
authorized and outstanding immediately preceding any such transaction.
8. Conversion. (a) Upon the IPO Date, as and to the extent provided in the
----------
next sentence of this Section 8(a), shares of Convertible Preferred Stock,
including shares issued as dividends and each related Convertible Preferred
Stock Right, held by the Initial Purchaser or a Designated Transferee shall be
automatically converted, at the Conversion Price (as hereinafter defined), into
fully paid and non-assessable shares of Common Stock on the terms and conditions
set forth in this Section~8(a), but only to the extent the shares of Common
Stock into which such shares of Convertible Preferred Stock or related
Convertible Preferred Stock Rights have been converted are being offered for
sale in the Initial Public Offering; provided, however, that if the sale of the
related IPO Stock is not consummated within 45 Business Days following the IPO
Date, conversion of the shares of Convertible Preferred Stock or Convertible
Preferred Stock Rights pursuant to this Section 8(a) shall be ineffective nunc
----
pro tunc as to the number of shares of Common Stock which are not actually sold
- --- ----
in the Initial Public Offering, without further action by the Corporation, the
holders of Convertible Preferred Stock or the holders of Common Stock into which
such Convertible Preferred Stock or Convertible Preferred Stock Rights were
originally converted. The number of shares of Convertible Preferred Stock,
including shares issued as dividends and each related Convertible Preferred
Stock Right, required to be converted shall be equal to such number as will
yield, giving effect to conversion as provided in Section 8(b) at the Conversion
Price, a number of shares of Common Stock equal to the number of shares of IPO
Stock which are sold in the Initial Public Offering giving rise to the
conversion. The conversion of the shares of Convertible Preferred Stock,
including shares issued as dividends and each related Convertible Preferred
Stock Right, pursuant to this Section 8(a) shall occur without any further
action being taken by the Corporation or the holders of Convertible Preferred
Stock. Promptly after the occurrence of the IPO Date, the Corporation shall
deliver to
-6-
the holders of the shares of Convertible Preferred Stock written
notice of such occurrence (which shall specify the number of such shares
required to be converted ("Conversion Shares")), and the holders of the
Conversion Shares shall promptly deliver the certificates representing the
Conversion Shares in exchange for the certificates representing the IPO Stock.
(a) At any time following the IPO Date, each share of Convertible Preferred
Stock, including additional shares issued as dividends and each related
Convertible Preferred Stock Right, shall be convertible at the option of the
holder thereof into fully paid and nonassessable shares of Common Stock on the
terms and conditions set forth in this Section 8(b), upon surrender to the
Corporation of the certificates for the shares to be converted, into a number of
fully paid and nonassessable shares of Common Stock equal to the aggregate
Liquidation Value of the Convertible Preferred Stock and Convertible Preferred
Stock Rights to be converted divided by a conversion price (the "Conversion
Price") which initially shall be the Initial Public Offering Price and which
shall be subject to adjustment for certain events as hereinafter provided.
Conversion of the Convertible Preferred Stock and Convertible Preferred Stock
Rights as permitted by Section 8(b) hereof may be effected by any holder thereof
upon the surrender to the Corporation at its principal office or at such other
office or agency maintained by the Corporation for that purpose of the
certificate for the Convertible Preferred Stock to be converted accompanied by a
written notice stating that such holder elects to convert all or a specified
whole number of such shares and related rights in accordance with the provisions
of this Section 8(b) and specifying the name or names in which such holder
wishes the certificate or certificates for shares of Common Stock to be issued.
In case such notice shall specify a name or names other than that of such
holder, such notice shall be accompanied by payment of all transfer taxes
payable upon the issuance of shares of Common Stock in such name or names.
(b) The holder of shares of Convertible Preferred Stock will pay any and
all issue and other taxes that may be payable in respect of any issue or
delivery of shares of Common Stock on conversion of Convertible Preferred Stock
and Convertible Preferred Stock Rights pursuant hereto. As promptly as
practicable, and in any event within ten Business Days after the surrender of
the certificate or certificates subject to conversion and, if applicable, the
receipt of such notice relating thereto and payment of all transfer taxes (or
the demonstration to the reasonable satisfaction of the Corporation that such
taxes have been paid), the Corporation shall deliver or cause to be delivered
(i) certificates representing the number of validly issued, fully paid and
nonassessable shares of Common Stock to which the holder of shares of
Convertible Preferred Stock and Convertible Preferred Stock Rights being
converted shall be entitled, (ii) if less than the full number of shares of
Convertible Preferred Stock evidenced by the surrendered certificate or
certificates is being converted, a new certificate or certificates, of like
tenor, for the number of shares evidenced by such surrendered certificate or
certificates less the number of shares and rights being converted, and (iii)
payment of all amounts to which a holder is entitled pursuant to Sections 8(d)
and 8(f) hereof. Such conversion shall be deemed to have been made (i) in the
case of conversion pursuant to Section 8(a), as of the IPO Date, and (ii) in the
case of conversion pursuant to Section 8(b), at the close of business on the
date of giving of the notice to convert specified in such Section and of such
surrender of the certificate or certificates representing the shares of
Convertible Preferred Stock to be converted (each, an "Effective Date") so that
the rights of the holder thereof as to the shares being converted shall cease as
of the Effective Date except for the right to receive shares of Common Stock in
accordance herewith, and the Person entitled to receive the shares of Common
Stock shall be treated for all purposes as having become the record holder of
such shares of Common Stock at the Effective Date.
(c) Upon conversion of any shares of Convertible Preferred Stock or related
Convertible Preferred Stock Rights, the holder thereof shall be entitled to
receive in additional shares of Convertible Preferred Stock all accrued
dividends payable up to and including the date fixed for conversion (including
an amount equal to a prorated dividend from the last Dividend Payment Date
immediately prior to the date of conversion). The holder of shares of
Convertible Preferred Stock at the close of business on a Record Date shall
-7-
be entitled to receive the dividend payable on such shares on the corresponding
Dividend Payment Date notwithstanding the conversion thereof.
(d) The Corporation shall at all times reserve and keep available, free
from liens, charges and security interests and not subject to any preemptive
rights, for issuance upon conversion of the Convertible Preferred Stock and
related Convertible Preferred Stock Rights such number of its authorized but
unissued shares of Common Stock as will from time to time be sufficient to
permit the conversion of all outstanding shares of Convertible Preferred Stock
and Convertible Preferred Stock Rights, and shall take all action required to
increase the authorized number of shares of Common Stock if necessary to permit
the conversion of all outstanding shares of Convertible Preferred Stock and
Convertible Preferred Stock Rights.
(e) No fractional shares or scrip representing fractional shares of Common
Stock shall be issued upon the conversion of any shares of Convertible Preferred
Stock or related Convertible Preferred Stock Rights. Instead of any fractional
interest in a share of Common Stock which would otherwise be deliverable upon
the conversion of a share of Convertible Preferred Stock or Convertible
Preferred Stock Right, the Corporation shall pay to the holder of such share an
amount in cash equal to such fractional interest multiplied by the Current
Market Price of the Common Stock on the day of conversion. If more than one
share or right shall be surrendered for conversion at one time by the same
holder, the number of full shares of Common Stock issuable upon conversion
thereof shall be computed on the basis of the aggregate Liquidation Value of the
shares of Convertible Preferred Stock and Convertible Preferred Stock Rights so
surrendered.
(f) The Conversion Price shall be subject to adjustment as follows:
(i) In case the Corporation shall at any time or from time to time after
the IPO Date (A) pay a dividend or make a distribution in shares of Common Stock
or securities convertible into Common Stock, (B) subdivide or reclassify the
outstanding shares of Common Stock into a greater number of shares of Common
Stock, (C) combine or reclassify the outstanding shares of Common Stock into a
smaller number of shares, or (D) otherwise issue by reclassification of the
shares of Common Stock any shares of capital stock of the Corporation, then, and
in each such case, the Conversion Price shall be adjusted so that the holder of
any shares of Convertible Preferred Stock and related Convertible Preferred
Stock Rights thereafter surrendered for conversion shall be entitled to receive
the number of shares of Common Stock or other securities of the Corporation
which such holder would have owned or have been entitled to receive after the
happening of any of the events described above had such shares of Convertible
Preferred Stock and related Convertible Preferred Stock Rights been surrendered
for conversion immediately prior to the happening of such event or the record
date therefor, whichever is earlier. An adjustment made pursuant to this Section
8(g)(i) shall become applicable (x) 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 shares of Common Stock entitled to receive such
dividend or distribution and (y) in the case of any such subdivision,
reclassification or combination, at the close of business on the day upon which
such corporate action becomes effective. Such adjustment shall be made
successively.
(ii) In case the Corporation shall after the IPO Date (1) issue securities
convertible into or exchangeable for, or warrants, rights or options exercisable
for, shares of Common Stock, to all holders of its Common Stock or (2) sell and
issue any shares of Common Stock or securities convertible into or exchangeable
for, or warrants, rights or options exercisable for, shares of Common Stock
(except in a Public Offering), in either case at a price per share (determined,
for purposes of the immediately preceding clause (2), in the case of warrants,
rights options and convertible and exchangeable securities, by dividing (x) the
total amount received or receivable by the Corporation in consideration of the
sale and issuance of such warrants, rights, options or convertible or
exchangeable securities plus the total
-8-
consideration payable to the Corporation upon exercise, conversion or
exchange thereof by (y) the total number of shares of Common Stock covered by
such warrants, rights, options or convertible or exchangeable securities) which
is less than 90% of the Current Market Price for the period comprising the 20
consecutive Trading Days commencing on the 30th Trading Day prior to the record
date or date of issuance referred to in Section 8(g)(iv)(A) hereof, then, and in
each such case, the Conversion Price shall be reduced in accordance with the
following formula:
(N x P)
------
AC = C x O +( M )
--------
O + N
where
AC = the adjusted Conversion Price.
C = the current Conversion Price.
O = the number of shares of Common Stock outstanding on the record
date or the issue date,as the case may be.
N = the number of additional shares of Common Stock
offered.
P = the offering price per share of the additional shares.
M = the Current Market Price of Common Stock for the period
described above ending on the record date or the issue
date, as the case may be.
Notwithstanding the foregoing, adjustments resulting from securities
convertible into or exchangeable for, or warrants, rights or options
exchangeable for, shares of Common Stock which are also subject to Section
8(g)(iii) hereof shall be calculated in accordance with the provisions of such
section.
(iii) In case the Corporation shall after the IPO Date (1) issue securities
convertible into or exchangeable for, or warrants, rights or options exercisable
for shares of Common Stock, to all holders of its Common Stock or (2) sell and
issue any shares of Common Stock or securities convertible into or exchangeable
for, or warrants, rights, or options exercisable for, shares of Common Stock
(except in a Public Offering) in either case at a price per share (determined,
for purposes of the immediately preceding clause (2), in the case of warrants,
rights, options and Convertible and exchangeable securities, by dividing (x) the
total amount received or receivable by the Corporation in consideration of the
sale and issuance of such warrants, rights, options or convertible or
exchangeable securities plus the total consideration payable to the Corporation
upon exercise, conversion or exchange thereof by (y) the total number of shares
of Common Stock covered by such warrants, rights, options or convertible or
exchangeable securities) which is less than the Conversion Price then in effect,
such Conversion Price shall be reduced to equal the price determined by
multiplying the Conversion Price then in effect by a fraction, the numerator of
which shall be the sum of (x) the number of shares of Common Stock outstanding
at the close of business on the record date or date of issuance referred to in
Section 8(g)(iv)(A) hereof (without giving effect to any such issuance) and (y)
the number of shares of Common Stock which the aggregate consideration received
by the Corporation for the total number of shares of Common Stock (or
convertible or exchangeable securities or warrants, rights or options) issued
would purchase at the Conversion Price then in effect and the denominator of
which shall be the sum of (A) the number of shares of Common Stock outstanding
at the close of business on such record date or date of issuance and (B) the
number of shares of Common Stock issued (or into which such convertible or
exchangeable securities or warrants, rights or options may be converted,
exchanged or exercised).
-9-
(iv) (A) For the purposes of adjustments required as a result of Sections
8(g)(ii)(2) and 8(g)(iii)(2) hereof, the shares of Common Stock which the holder
of any such warrants, rights, options or convertible or exchangeable securities
shall be entitled to subscribe for or purchase shall be deemed to be issued and
outstanding as of the date of such sale and issuance, and the consideration
received or receivable by the Corporation therefor shall be deemed to be the
consideration received or receivable by the Corporation (plus any discounts or
commissions in connection therewith) for such rights, options, warrants or
convertible or exchangeable securities, plus the consideration or premiums
stated in such rights, options, warrants or convertible or exchangeable
securities to be paid for the shares of Common Stock purchasable thereby. In
case the Corporation shall sell and issue shares of Common Stock for a
consideration consisting, in whole or in part, of property other than cash or
its equivalent, then in determining the "price per share," "consideration
payable to the Corporation" and the "consideration received or receivable by the
Corporation" for purposes of the first sentence of Section 8(g)(ii) and
8(g)(iii) hereof and the immediately preceding sentence of this Section
8(g)(iv)(A), the Board of Directors shall determine, in its discretion, the fair
value of said property, and such determination, if made in good faith, shall be
binding. The adjustments set forth in Sections 8(g)(ii) and 8(g)(iii) shall be
made successively whenever any such Common Stock, rights, option, warrants or
convertible or exchangeable securities are issued, and shall become effective
(i) in the case of Sections 8(g)(ii)(1) and 8(g)(iii)(1), hereof, immediately
after the record date for the determination of stockholders entitled to receive
the rights, options, warrants or convertible or exchangeable securities and (ii)
in the case of Sections 8(g)(ii)(2) and 8(g)(iii)(2) hereof on the date of
issuance thereof.
(B) Upon the expiration of any rights, options, warrants or convertible or
exchangeable securities issued by the Corporation which caused a reduction to
the Conversion Price pursuant to Sections 8(g)(ii)(1) and 8(g)(iii)(1) hereof,
if any thereof shall not have been exercised, then the Conversion Price shall be
increased by the amount of the initial reduction of the Conversion Price
pursuant to such Sections in respect of such expired rights, options, warrants
or convertible or exchangeable securities.
(C) Neither (1) the issuance of any shares of Common Stock (whether
treasury shares or newly issued shares) pursuant to (x) a dividend or
distribution on, or subdivision, combination or reclassification of, the
outstanding shares of Common Stock requiring an adjustment in the Conversion
Price pursuant to Section 8(g)(i) hereof or (y) the exercise of any convertible
security, warrant, right or option outstanding as of the IPO Date (including the
Convertible Preferred Stock), (2) the issuance of shares of Convertible
Preferred Stock in payment of dividends on shares of such stock or the issuance
of shares of Common Stock upon conversion of such shares, nor (3) the issuance
of options, warrants or restricted shares of Common Stock to directors or
members of the management of the Corporation or its subsidiaries pursuant to
management incentive plans or stock option plans or other similar plans in
effect from time to time, nor (4) shares of Common Stock, warrants, rights,
options or convertible or exchangeable securities containing the right to
subscribe for or purchase shares of Common Stock issued in any of the
transactions described in Sections 8(g)(ii)(1) or 8(g)(iii)(1) hereof, shall be
deemed to constitute an issuance of Common Stock, convertible or exchange
securities, warrants, rights or options by the Corporation for purposes of
Sections 8(g)(ii)(2) and 8(g)(iii)(2). All shares of Common Stock issued and all
shares of Common Stock reserved for issuance pursuant to any outstanding
convertible securities (including the Convertible Preferred Stock), warrants,
rights or options deemed not to constitute an issuance pursuant to the previous
sentence shall nevertheless be deemed to be outstanding for all computations
pursuant to this Section 8(g) until such shares are no longer outstanding or
such convertible securities warrants, rights or options shall expire.
-10-
(v) In case the Corporation shall at any time or from time to time after
the IPO Date declare, order, pay or make a dividend or other distribution
(including without limitation any distribution of stock or other securities,
evidences of indebtedness, property or assets or rights or warrants to subscribe
for securities of the Corporation or any of its Subsidiaries) on its Common
Stock (other than (A) regular quarterly dividends payable in cash, (B) dividends
or distributions of shares of Common Stock referred to in Section 8(g)(i)
hereof, or (C) dividends and distributions, referred to in Section 8(g)(ii)(1)
and 8(g)(iii)(1) hereof) (any of the foregoing other than the items specified in
clauses (A), (B) and (C) referred to as "Securities or Assets"), then and in
each such case, unless the Corporation elects to reserve shares or other units
of such Securities or Assets for distribution to the holders of the Convertible
Preferred Stock upon the conversion of the shares of Convertible Preferred Stock
and related Convertible Preferred Stock Rights so that any such holder
converting shares of Convertible Preferred Stock and related Convertible
Preferred Stock Rights will receive upon such conversion, in addition to the
shares of the Common Stock to which such holder is entitled, the amount and kind
of such Securities or Assets which such holder would have received if such
holder had, immediately prior to the record date for the distribution of the
Securities or Assets, converted its shares of Convertible Preferred Stock and
related Convertible Preferred Stock Rights into Common Stock, the Conversion
Price shall be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the date of such
distribution by a fraction of which the numerator shall be the Current Market
Price for the period comprising the 20 consecutive Trading Days commencing on
the 30th Trading Day prior to the record date fixed for the determination of
stockholders entitled to receive such dividend or distribution less the then
fair market value (as determined by the Board in good faith) of the portion of
the capital stock or assets or evidences of indebtedness so distributed or of
such rights or warrants applicable to one share of Common Stock, and of which
the denominator shall be the Current Market Price of the Common Stock on such
record date; provided, however, that if the then fair market value (as so
-------- -------
determined) of the portion of the Securities or Assets so distributed applicable
to one share of Common Stock is equal to or greater than the Current Market
Price of the Common Stock on the record date mentioned above, in lieu of the
foregoing adjustment, adequate provision shall be made so that each holder of
shares of the Convertible Preferred Stock and related Convertible Preferred
Stock Right shall have the right to receive the amount and kind of Securities or
Assets which such holder would have received had such holder converted each such
share of the Convertible Preferred Stock and related Convertible Preferred Stock
Right immediately prior to the record date for the distribution of the
Securities or Assets. Such adjustment shall become effective immediately after
the record date for the determination of shareholders entitled to receive such
distribution.
(vi) For purposes of this Section 8(g), the number of shares of Common
Stock at any time outstanding shall not include any shares of Common Stock then
owned or held by or for the account of the Corporation.
(vii) All calculations of the Conversion Price pursuant to this Section
8(g) shall be made to the nearest cent. Anything in this Section 8(g) to the
contrary notwithstanding, (A) the Corporation shall not be required to give
effect to any adjustment in the Conversion Price unless and until the net effect
of one or more adjustments (each of which shall be carried forward), determined
as above provided, shall have resulted in a reduction of the Conversion Price of
at least 1%, and when the cumulative net effect of more than one adjustment so
determined shall be to reduce the Conversion Price by at least 1%, such
reduction in Conversion Price shall thereupon be given effect and (B) except as
set forth in Section 8(g)(iv)(B) hereof, in no event shall the then current
Conversion Price be increased as a result of any calculation made at any time
pursuant to this Section 8(g).
-11-
(g) In case of any capital reorganization or reclassification of
outstanding shares of Common Stock (other than a reclassification to which
Section 8(g)(i) hereof shall apply), or in case of any merger or consolidation
of the Corporation with or into another Person, or in case of any sale or
conveyance to another Person of all or substantially all of the assets of the
Corporation (each of the foregoing being referred to as a "Transaction"), each
share of Convertible Preferred Stock and related Convertible Preferred Stock
Right then outstanding shall thereafter be convertible into, in lieu of the
Common Stock issuable upon such conversion prior to consummation of such
Transaction, the kind and amount of shares of stock and other securities and
property receivable (including cash) upon the consummation of such Transaction
by a holder of that number of shares of Common Stock into which one share of
Convertible Preferred Stock was convertible immediately prior to such
Transaction (including, on a pro rata basis, the cash, securities or property
received by holders of Common Stock in any tender or exchange offer that is a
step in such Transaction).
Notwithstanding anything contained herein to the contrary, the Corporation
will not effect any Transaction unless, prior to the consummation thereof, (i)
the Surviving Person shall agree that the shares of Convertible Preferred Stock
shall be treated as provided in the first paragraph of this Section 8(h) and the
agreements governing such Transaction shall so provide, and (ii) the Surviving
Person thereof shall assume, by written instrument mailed, by first-class mail,
postage prepaid, to each holder of shares of Convertible Preferred Stock at such
holder's address as it appears in the records of the Corporation, the obligation
to deliver to such holder such cash or other securities to which, in accordance
with the foregoing provisions, such holder is entitled and such Surviving Person
shall have mailed, by first-class mail, postage prepaid, to each holder of
shares of Convertible Preferred Stock at such holder's address as it appears in
the records of the Corporation, an opinion of independent counsel for such
Person stating that such assumption agreement is a valid, binding and
enforceable agreement of the Surviving Person.
(h) In any case, if necessary, appropriate adjustment (as determined in
good faith by the Board of Directors) shall be made in the application of the
provisions set forth in this Section~8 with respect to rights and interests
thereafter of the holders of shares of Convertible Preferred Stock to the end
that the provisions set forth herein for the protection of the conversion rights
of Convertible Preferred Stock shall thereafter be applicable, as nearly as
reasonably may be, to any such other shares of stock and other securities (other
than the Common Stock) and property deliverable upon conversion of the shares of
Convertible Preferred Stock remaining outstanding with such adjustments in the
Conversion Price and such other adjustments in the provisions hereof as the
Board of Directors shall in good faith determine to be appropriate. In case
securities or property other than Common Stock shall be issuable or deliverable
upon conversion as aforesaid, then all references in this Section~8 shall be
deemed to apply, so far as appropriate and as nearly as may be, to such other
securities or property.
(i) If the Corporation shall pay any dividend or make any other
distribution to the holders of its Common Stock (other than regular quarterly
dividends payable in cash) or shall offer for subscription pro rata to the
holders of its Common Stock any additional shares of stock of any class or any
other right, or there shall be any Transaction, or 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 at least 10 days, prior
written notice to the holders of Convertible Preferred Stock by first-class
mail, postage prepaid, to each holder at its address as it appears in the
records of the Corporation of the earlier of the dates on which (i) the books of
the Corporation shall close or a record shall be taken for such stock dividend,
distribution or subscription rights or (ii) such Transaction, dissolution,
liquidation or winding up shall take place; provided, that in the case of any
--------
Transaction to which Section 8(h) hereof apply, the Corporation shall give at
least 30 days, and no more than 60 days, prior written notice as aforesaid. Such
notice shall also specify the date as of which the holders of the Common Stock
of record shall participate in said dividend, distribution or subscription
rights or shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such reorganization,
-12-
reclassification, consolidation, merger, sale or conveyance or participate
in such dissolution, liquidation or winding up, as the case may be. Failure to
give such notice shall not invalidate any action so taken.
9. Reports as to Adjustments Upon the occurrence of any event specified in
-------------------------
Section 8(g) hereof that would result in any adjustment of the Conversion Price,
then, and in each such case, the Corporation shall promptly deliver by
first-class mail, postage prepaid to each holder at its address as it appears in
the records of the Corporation, a certificate signed by the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Corporation setting forth in reasonable detail the
event requiring the adjustment and the method by which such adjustment was
calculated and specifying the conversion rate then in effect following such
adjustment. Where appropriate, such notice to the holders of Convertible
Preferred Stock may be given in advance and included as part of the notice
required pursuant to Section 8(j) hereof.
10. Certain Covenants. Any holder of Convertible Preferred Stock may
------------------
proceed to protect and enforce its rights and the rights of such holders by any
available remedy by proceeding at law or in equity to protect and enforce any
such rights, whether for the specific enforcement of any provision herein or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
11. Definitions. For the purposes of this Article V, the following terms
-----------
shall have the meanings indicated:
"Business Day" shall mean any day other than a Saturday, Sunday or a day on
which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
"Convertible Preferred Stock Right" shall mean with respect to any shares
of Convertible Preferred Stock, at any time, each share, or fraction thereof, of
Convertible Preferred Stock representing an amount equal to any unpaid dividends
on a share of such Convertible Preferred Stock accrued beginning on the Specific
Issue Date relating to such shares.
"Current Market Price," when used with reference to shares of Common Stock
or other securities on any date, shall mean the closing price per share of
Common Stock or such other securities on such date and, when used with reference
to shares of Common Stock or other securities for any period, shall mean the
average of the daily closing prices per share of Common Stock or such other
securities for such period. The closing price for each day shall be the last
sale price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Common Stock or such other securities are not listed or admitted to
trading on the New York Stock Exchange, as reported, in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Common Stock or such
other securities are listed or admitted to trading or, if the Common Stock or
such other securities are not listed or admitted to trading on any national
securities exchange, the last quoted sale price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc. Automated
Quotation System or such other system then in use, or, if on any such date the
Common Stock or such other securities are not quoted by any such organization,
the average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Common Stock or such other securities
selected by the Board of Directors of the Corporation. If the Common Stock or
such other securities are not publicly held or so listed or publicly traded,
"Current Market Price" shall mean (a)the Initial Public Offering Price for
purposes of any determination made in connection with a transaction contemplated
by Section 8(a), or (b) the fair market value per share of Common Stock or of
such other securities
-13-
as determined by an independent investment banking firm with an established
national reputation as a valuer of equity securities selected by the
Corporation.
"Designated Transferee" shall mean any Person to whom the Initial
Purchasers or any Designated Transferee shall have sold or otherwise transferred
shares of Convertible Preferred Stock.
"Effective Date" shall have the meaning set forth in Section 8(c) hereof.
"Initial Public Offering" shall mean the first registration of Common Stock
under the Securities Act (other than any such registration (a) on Form S-4 or
S-8 or any successor or similar forms, or (b) filed in connection with an
exchange offer or any offering of Common Stock solely to the Corporation's
existing stockholders) which becomes effective and under which shares of Common
Stock are sold to the public and for which a closing occurs.
"Initial Public Offering Price" shall mean the price per share at which
shares of Common Stock are sold to the public in the Initial Public Offering,
less underwriting discounts and commissions.
"Initial Purchaser" shall mean Bradley N. Rotter.
"IPO Date" shall mean the date on which the Securities and Exchange
Commission shall have declared effective the registration statement filed with
respect to the Initial Public Offering in which the Corporation is offering
shares of Common Stock and the Initial Purchaser or a Designated Transferee is
offering shares of Common Stock owned beneficially or of record by the Initial
Purchaser or a Designated Transferee.
"IPO Stock" shall mean the shares of Common Stock issued upon conversion of
Convertible Preferred Stock or Convertible Preferred Stock Rights which are
offered by the Initial Purchaser or a Designated Transferee in the Initial
Public Offering.
"Issue Date" shall mean the first date on which shares of Convertible
Preferred Stock are issued.
"Junior Securities" shall have the meaning set forth in Section 2 hereof.
"Parity Securities" shall have the meaning set forth in Section 2 hereof.
"Person" shall mean any individual, firm, corporation or other entity, and
shall include any successor (by merger or otherwise) of such entity.
"Public Offering" shall mean a registration of Common Stock under the
Securities Act (other than any such registration (a) on Form S-4 or S-8 or any
successor or similar forms, or (b) filed in connection with an exchange offer or
any offering of Common Stock solely to the Corporation's existing security
holders) which becomes effective and under which shares of Common Stock are sold
to the public and shall include an Initial Public Offering.
"Securities Act" shall mean the Securities Act of 1933, or any similar
Federal statute, and the rules and regulations of the Securities and Exchange
Commission thereunder, all as the same shall be in effect at the time.
"Specific Issue Date" shall mean, with respect to any shares of Convertible
Preferred Stock, the date on which such shares of Convertible Preferred Stock
are issued.
-14-
"Surviving Person" shall mean the continuing or surviving Person of a
merger, consolidation or other corporate combination, the Person receiving a
transfer of all or a substantial part of the properties and assets of the
Corporation, or the Person consolidating with or merging into the Corporation in
a merger, consolidation or other corporate combination in which the Corporation
is the continuing or surviving Person, but in connection with which the
Convertible Preferred Stock or Common Stock of the Corporation is exchanged or
converted into the securities of any other Person or the right to receive cash
or any other property.
"Trading Day" shall mean a day on which the principal national securities
exchange on which the Common Stock is listed or admitted to trading is open for
the transaction of business or, if the Common Stock is not listed or admitted to
trading on any national securities exchange, a Business Day.
"Transaction" shall have the meaning set forth in Section~8(h).
ARTICLE VI
==========
12. Number of Directors. Subject to the rights, if any, of the holders of
-------------------
any series of the Preferred Stock to elect additional directors under
circumstances specified in a Preferred Stock Designation, the number of
directors of the Corporation shall be fixed from time to time by or in the
manner provided in the By-Laws of the Corporation (the "By-Laws").
13. No Cumulative Voting. Cumulative voting by the stockholders of the
---------------------
Corporation at any election for directors of the Corporation is hereby
prohibited.
14. Classified Board of Directors. The directors of the Corporation, other
-----------------------------
than those who may be elected by the holders of any series of the Preferred
Stock, will be classified with respect to the time for which they hold office
into three classes designated, respectively, Class 1, Class 2 and Class 3. The
number of directors from time to time in office shall be divided as nearly as
possible equally among the three classes. The directors first appointed to Class
1, Class 2 and Class 3 will hold office for a term expiring at the annual
meeting of stockholders to be held in 1996, 1997 and 1998, respectively, with
the members of each class to hold office until their successors are elected and
qualified. Directors may be elected by stockholders only at a meeting of
stockholders. At each annual meeting of stockholders of the Corporation, the
successors of the class of directors whose terms expire at such meeting will be
elected to hold office for a term expiring at the annual meeting of stockholders
held in the third year following the year of their election.
15. Nomination of Director Candidates. Advance notice of stockholder
------------------------------------
nominations for the election of directors must be given in the manner provided
in the By-Laws of the Corporation.
16. Newly Created Directorships and Vacancies. Subject to the rights, if
-------------------------------------------
any, of the holders of any series of Preferred Stock to elect additional
Directors under circumstances specified in a Preferred Stock Designation, newly
created directorships resulting from any increase in the number of directors and
any vacancies on the Board of Directors resulting from any cause will be filled
solely by the affirmative vote of a majority of the remaining directors then in
office, even though less than a quorum, or by a sole remaining director. Any
director elected in accordance with the preceding sentence will hold office for
the remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until such director's
successor has been elected and qualified. No decrease in the number of directors
constituting the Board of Directors may shorten the term of any incumbent
director.
-15-
17. Removal. Subject to the rights, if any, of the holders of any series of
-------
Preferred Stock in respect of the election of additional directors under
circumstances specified in a Preferred Stock Designation, any director may be
removed from office (a) by the Board as provided in the By-Laws and (b) by the
stockholders only for cause and only in the manner provided in this Section 6.
At any annual meeting or special meeting of the stockholders, the notice of
which states that the removal of a director or directors is among the purposes
of the meeting, the affirmative vote of the holders of at least 66_% of the
outstanding Voting Stock, voting together as a single class, may remove such
director or directors for cause. For the purposes of this Certificate of
Incorporation, "Voting Stock" means stock of the Company of any class or series
entitled to vote generally in the election of directors.
18. Election of Directors Without Written Ballot. Elections of directors
----------------------------------------------
need not be by written ballot except and to the extent provided by the By-laws.
19. Amendments. Notwithstanding any other provision of this Certificate of
----------
Incorporation, the affirmative vote of the holders of at least 66_% of the
outstanding Voting Stock, voting together as a single class, shall be required
to amend, alter or repeal, or to adopt any provision inconsistent with, this
Article VI.
ARTICLE VII
============
Each person who is or was or had agreed to become a director or officer of
the Corporation, and each such person who is or was serving or who had agreed to
serve at the request of the Board of Directors or an officer of the Corporation,
as an employee or agent of the Corporation or as a director, officer, employee,
or agent of another corporation, partnership, joint venture, trust, or other
entity, whether for profit or not for profit (including the heirs, executors,
administrators, or estate of such person), shall be indemnified by the
Corporation to the full extent permitted by the DGCL or any other applicable law
as currently or hereafter in effect. The right of indemnification provided in
this Article VII (a) will not be exclusive of any other rights to which any
person seeking indemnification may otherwise be entitled, including without
limitation pursuant to any contract approved by a majority of the Board of
Directors of the Corporation (whether or not the directors approving such
contract are or are to be parties to such contract or similar contracts), and
(b) will be applicable to matters otherwise within its scope whether or not such
matters arose or arise before or after the adoption of this Article VII. Without
limiting the generality or the effect of the foregoing, the Corporation may
adopt By-Laws, or enter into one or more agreements with any person, which
provide for indemnification greater or different than that provided in this
Article VII or the DGCL. Notwithstanding anything to the contrary in this
Article VII, in the event that the Corporation enters into a contract with any
person providing for indemnification of such person, the provisions of such
contract will exclusively govern the Company's obligations in respect of
indemnification for or advancement of fees or disbursements of such person's
counsel or any other professional engaged by such person. Any amendment or
repeal of, or adoption of any provisions inconsistent with, this Article VII
will not adversely affect any right or protection existing hereunder, or arising
out of events occurring or circumstances existing, prior to such amendment,
repeal, or adoption and no such amendment, repeal, or adoption, will affect the
legality, validity, or enforceability of any contract entered into or right
granted prior to the effective date of such amendment, repeal, or adoption.
ARTICLE VIII
=============
To the fullest extent permitted by the DGCL or any other applicable law
currently or hereinafter in effect, no director shall be personally liable to
the Corporation or any stockholder for monetary damages for or with respect to
any acts or omissions in the performance of his or her duties as a director of
the
-16-
Corporation. Any repeal or modification of this Article VIII will not
adversely affect any right or protection of a director of the Corporation
existing prior to such repeal or modification.
ARTICLE IX
===========
In furtherance and not in limitation of the rights, powers, privileges, and
discretionary authority granted or conferred by the DGCL or other statute or
laws of the State of Delaware, the Board of Directors is expressly authorized to
make, amend and repeal any one or more provisions of the By-Laws of the
Corporation without any action on the part of the stockholders, but the
stockholders may make additional By-Laws and may later amend or repeal any one
or more provisions of the By-Laws, whether adopted by them or otherwise.
Notwithstanding the foregoing and anything contained in this Certificate of
Incorporation to the contrary, Sections 1.1, 1.3, 1.9, 2.1, 2.2, 2.3, 2.4 and
5.5 of the By-Laws may not be amended or repealed by the stockholders, and no
provision inconsistent therewith may be adopted by the stockholders, except upon
the affirmative vote of the holders of at least 66_% of the outstanding Voting
Stock, voting together as a single class. Notwithstanding anything contained in
this Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 66_% of the outstanding Voting Stock, voting together as a
single class, is required to amend or repeal, or adopt any provision
inconsistent with, this Article IX.
IN WITNESS WHEREOF, the Corporation has caused this Second Amended and
Restated Certificate of Incorporation to be signed in its name and on its behalf
by a duly authorized officer.
POINT WEST CAPITAL CORPORATION
(F/K/A DIGNITY PARTNERS, INC.)
By: /s/Alan B. Perper
--------------------------------
Alan B. Perper
President
ATTEST:
/s/John Ward Rotter
- --------------------------------
John Ward Rotter
Secretary
-17-