EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
NVIDIA DELAWARE CORPORATION
The undersigned, a natural person (the "Sole Incorporator"), for the
purpose of organizing a corporation to conduct the business and promote the
purposes hereinafter stated, under the provisions and subject to the
requirements of the laws of the State of Delaware hereby certifies that:
I.
The name of this corporation is NVIDIA Delaware Corporation.
II.
The address of the registered office of the corporation in the State of
Delaware is 15 East North Street, City of Dover, County of Kent, and the name of
the registered agent of the corporation in the State of Delaware at such address
is the Incorporating Services.
III.
The purpose of this corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
the State of Delaware.
IV.
A. This corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total
number of shares which the corporation is authorized to issue is Two Hundred Ten
Million shares (210,000,000). Two Hundred Million (200,000,000) shares shall be
Common Stock, each having a par value of one-tenth of one cent ($.001). Ten
Million (10,000,000) shares shall be Preferred Stock, each having a par value of
one-tenth of one cent ($.001).
B. The Preferred Stock may be divided into such number of series as the
Board of Directors may determine. Subject to the provisions of paragraph 6, the
Board of Directors is authorized to determine and alter the rights, preferences,
privileges and restrictions granted to and imposed upon the Preferred Stock or
any series thereof with respect to any wholly unissued class or series of
Preferred Stock, and to fix the number of shares of any series of Preferred
Stock and the designation of any such series of Preferred Stock. The Board of
Directors, within the limits and restrictions stated in any resolution or
resolutions of the Board of Directors originally fixing the number of shares
constituting any series, may increase or decrease (but not below the number of
shares of such series then outstanding) the number of shares of any series
subsequent to the issue of shares of that series.
C. The Preferred Stock shall be divided into series and shall consist of
Series A Preferred Stock, of which the corporation is authorized to issue Four
Million Three Hundred
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Eighty-Three Thousand Shares (4,383,000), Series B Preferred Stock, of which the
corporation is authorized to issue Two Million Eight Hundred Seventy-Nine
Thousand Seven Hundred Nineteen (2,879,719) shares, Series C Preferred Stock, of
which the corporation is authorized to issue Seven Hundred Sixty Thousand
(760,000) shares, and Series D Preferred Stock, of which the corporation is
authorized to issue One Million Eight Hundred Thousand (1,800,000) shares.
D. The relative rights, preferences, privileges and restrictions of the
Common Stock, the Series B Preferred Stock, the Series C Preferred Stock, and
the Series D Preferred Stock shall be in all respects identical, except for and
subject to the following provisions:
1. DIVIDENDS. The holders of the then outstanding Preferred Stock
shall be entitled to receive on a pari passu basis, out of assets legally
available therefor, dividends at the rate of Four Cents ($0.04) per annum for
each share of Series A Preferred Stock (as adjusted for any stock dividends,
combinations or splits with respect to such shares), Fourteen and Four-Tenths
Cents ($0.144) per annum for each share of Series B Preferred Stock (as adjusted
for any stock dividends, combinations or splits with respect to such shares),
Fifty-Three and Three-Tenths Cents ($0.533) per annum for each share of Series C
Preferred Stock (as adjusted for any stock dividends, combinations or splits
with respect to such shares) and Forty-Two Cents ($0.42) per annum for each
share of Series D Preferred Stock (as adjusted for any stock dividends,
combinations or splits with respect to such shares) when, as and if declared by
the board of directors. The right to such dividends shall be noncumulative. No
dividends (other than those payable solely in the Common Stock of the
corporation) shall be paid on any Common Stock of the corporation during any
fiscal year of the corporation until dividends in the total amount of Four Cents
($0.04) per share on the Series A Preferred Stock, Fourteen and Four-Tenths
Cents ($0.144) per share on the Series B Preferred Stock, Fifty-Three and Three-
Tenths Cents ($0.533) per share on the Series C Preferred Stock and Forty-Two
Cents ($0.42) per share on the Series D Preferred Stock shall have been paid or
declared and set apart during that fiscal year. No right shall accrue to holders
of shares of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock or Series D Preferred Stock by reason of the fact that dividends
on said shares are not declared in any prior year, nor shall any undeclared or
unpaid dividend bear or accrue any interest.
2. LIQUIDATION PREFERENCE.
(A) In the event of any liquidation, dissolution, or winding up
of the corporation, whether voluntary or involuntary, the holders of the
Preferred Stock shall be entitled to receive on a pari passu basis, 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 by reason of their ownership
thereof, (i) an amount equal to the sum of Fifty Cents ($0.50) per share, One
Dollar Eighty Cents per share ($1.80), Six Dollars Sixty-Six and 6,667/10,000ths
Cents ($6.666667), Five Dollars and Twenty-Six Cents ($5.26) per share for each
share, respectively, of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock then held by them, and
(ii) an amount equal to any dividends declared but unpaid on the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock then held by them. If, upon the occurrence of such event, the
assets and funds thus distributed among the holders of the Preferred Stock shall
be insufficient to permit the payment to such holders of the full aforesaid
preferential amount, then the entire assets and funds of the
2.
corporation legally available for distribution shall be distributed ratably
among the holders of the Preferred Stock in proportion to the preferential
amount each such holder is otherwise entitled to receive.
(B) After payment to the holders of the Preferred Stock of the
amount set forth in Section 2(a) above, the entire remaining assets and funds of
the corporation legally available for distribution shall be distributed among
the holders of the Common Stock in proportion to the shares of Common Stock then
held by them.
(C) For purposes of Section 2(a), (i) any acquisition of the
corporation by means of a merger or other form of corporate reorganization in
which outstanding shares of the corporation are exchanged for securities or
other consideration issued, or caused to be issued, by the acquiring corporation
or its subsidiary (other than a mere reincorporation transaction) or (ii) a sale
of all or substantially all of the assets of the corporation or (iii) any
transaction or series of related transactions by the corporation in which in
excess of fifty percent (50%) of the corporation's voting power is transferred,
shall be treated as a liquidation, dissolution or winding up of the corporation
and shall entitle the holders of Preferred Stock to receive at the closing in
cash, securities or other property an amount as specified in Section 2(a).
3. CONVERSION. The holders of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock shall
have conversion rights as follows:
(A) RIGHT TO CONVERT.
(I) Each share of Series A Preferred Stock shall be
convertible, at the option of the holder thereof, at the office of the
corporation or any transfer agent for such stock, into such number of fully paid
and nonassessable shares of Common Stock as is determined by dividing Fifty
Cents ($0.50) by the Conversion Price applicable to such share, determined as
hereinafter provided, in effect on the date the certificate is surrendered for
conversion. The price at which shares of Common Stock shall be deliverable upon
conversion of shares of the Series A Preferred Stock (the "Series A Conversion
Price") shall initially be Fifty Cents ($0.50) per share of Common Stock. Such
initial Series A Conversion Price shall be adjusted as hereinafter provided.
(II) Each share of Series B Preferred Stock shall be
convertible, at the option of the holder thereof, at the office of the
corporation or any transfer agent for such stock, into such number of fully paid
and nonassessable shares of Common Stock as is determined by dividing One Dollar
Eighty Cents ($1.80) by the Conversion Price applicable to such share,
determined as hereinafter provided, in effect on the date the certificate is
surrendered for conversion. The price at which shares of Common Stock shall be
deliverable upon conversion of shares of the Series B Preferred Stock (the
"Series B Conversion Price") shall initially be One Dollar Eighty Cents ($1.80)
per share of Common Stock. Such initial Series B Conversion Price shall be
adjusted as hereinafter provided.
(III) Each share of Series C Preferred Stock shall be
convertible, at the option of the holder thereof, at the office of the
corporation or any transfer agent for such
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stock, into such number of fully paid and nonassessable shares of Common Stock
as is determined by dividing Six Dollars Sixty-Six and 6,667/10,000ths Cents
($6.666667) by the Conversion Price applicable to such share, determined as
hereinafter provided, in effect on the date the certificate is surrendered for
conversion. The price at which shares of Common Stock shall be deliverable upon
conversion of shares of the Series C Preferred Stock (the "Series C Conversion
Price") shall initially be Six Dollars Sixty-Six and 6,667/10,000ths Cents
($6.666667) per share of Common Stock. Such initial Series C Conversion Price
shall be adjusted as hereinafter provided.
(IV) Each share of Series D Preferred Stock shall be
convertible, at the option of the holder thereof, at the office of the
corporation or any transfer agent for such stock, into such number of fully paid
and nonassessable shares of Common Stock as is determined by dividing Five
Dollars and Twenty-Six Cents ($5.26) by the Conversion Price applicable to such
share, determined as hereinafter provided, in effect on the date the certificate
is surrendered for conversion. The price at which shares of Common Stock shall
be deliverable upon conversion of shares of the Series D Preferred Stock (the
"Series D Conversion Price") shall initially be Five Dollars and Twenty-Six
Cents ($5.26) per share of Common Stock. Such initial Series D Conversion Price
shall be adjusted as hereinafter provided.
(B) AUTOMATIC CONVERSION. Each share of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock shall automatically be converted into shares of Common Stock at the then-
Series A Conversion Price, Series B Conversion Price, Series C Conversion Price
or Series D Conversion Price, as applicable, upon the earlier of (i) the date
specified by vote or written consent or agreement of holders of at least two-
thirds of the shares of Preferred Stock then outstanding, or (ii) immediately
upon the closing of the sale of the corporation's Common Stock in a firm
commitment, underwritten public offering registered under the Securities Act of
1933, as amended (the "Securities Act") other than a registration relating
solely to a transaction under Rule 145 under such Act (or any successor thereto)
or to an employee benefit plan of the corporation; provided, that such shares of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock shall only be automatically converted if the public
offering price (prior to underwriters' discounts and expenses) of such offering
is equal to or exceeds Ten Dollars ($10.00) per share of Common Stock (as
adjusted for any stock dividends, combinations or splits with respect to such
shares) and the aggregate proceeds to the corporation and/or any selling
stockholders (after deduction for underwriting discounts, commissions and
expenses) exceed Fifteen Million Dollars ($15,000,000).
(C) MECHANICS OF CONVERSION. Before any holder of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D
Preferred Stock shall be entitled to convert the same into shares of Common
Stock, such holder shall surrender the certificate or certificates therefor,
duly endorsed, at the office of the corporation or any transfer agent for such
stock, and shall give written notice to the corporation at such office that such
holder elects to convert the same and shall state therein the name or names in
which he wishes the certificate or certificates for shares of Common Stock to be
issued (except that no such notice of intent to convert shall be necessary in
the event of an automatic conversion pursuant to Section 3(b) above). The
corporation shall, as soon as practicable thereafter, issue and deliver at such
office to such holder of Preferred Stock, a certificate or certificates for the
4.
number of shares of Common Stock to which he shall be entitled as aforesaid.
Such conversion shall be deemed to have been made immediately prior to the close
of business on the date of surrender of the shares of Preferred Stock to be
converted, and the person or persons entitled to receive the shares of Common
Stock issuable upon such 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 CONVERSION PRICES FOR COMMON STOCK DIVIDENDS
AND FOR COMBINATIONS OR SUBDIVISIONS OF COMMON STOCK. In the event that this
corporation shall declare or pay, without consideration, any dividend or other
distribution on the then outstanding shares of Common Stock payable in Common
Stock or in any right to acquire Common Stock for no consideration, or shall
effect a subdivision of the outstanding shares of Common Stock into a greater
number of shares of Common Stock (by stock split, reclassification or otherwise
than by payment of a dividend in Common Stock or in any right to acquire Common
Stock), or in the event that the then outstanding shares of Common Stock shall
be combined or consolidated, by reclassification or otherwise, into a lesser
number of shares of Common Stock, then the applicable Conversion Price for a
series of Preferred Stock in effect immediately prior to such event shall,
concurrently with the effectiveness of such event, be proportionately decreased
or increased, as appropriate. In the event that this corporation shall declare
or pay, without consideration, any dividend on the then outstanding shares of
Common Stock payable in any right to acquire Common Stock for no consideration,
then the corporation shall be deemed to have made a dividend payable in Common
Stock in an amount of shares equal to the maximum number of shares issuable upon
exercise of such rights to acquire Common Stock.
(E) DIVIDENDS AND DISTRIBUTIONS PAYABLE IN SECURITIES OTHER THAN
COMMON STOCK. In the event that this corporation shall declare or pay, without
consideration, any dividend or other distribution on the then outstanding shares
of Common Stock payable in securities of the corporation other than Common Stock
or in any right to acquire securities of the corporation other than Common Stock
for no consideration and other than as otherwise adjusted in this Section 3,
then in each such event provision shall be made so that the holders of each then
outstanding series of Preferred Stock shall be entitled to receive a
proportionate share of any such dividend or distribution as though they were the
holders of the number of shares of Common Stock of the corporation into which
their shares of Preferred Stock are convertible as of the record date fixed for
the determination of the holders of Common Stock of the corporation entitled to
receive such dividend or other distribution.
(F) ADJUSTMENTS FOR RECLASSIFICATION AND REORGANIZATION. If the
Common Stock issuable upon conversion of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock or Series D Preferred Stock shall be
changed into the same or a different number of shares of any other class or
classes of stock, whether by capital reorganization, reclassification or
otherwise (other than a subdivision or combination of shares provided for in
Section 3(d) above or a merger or other reorganization referred to in Section
2(c) above), the Series A Conversion Price, Series B Conversion Price, Series C
Conversion Price and Series D Conversion Price then in effect shall,
concurrently with the effectiveness of such reorganization or reclassification,
be proportionately adjusted so that the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock shall be
convertible into, in lieu of the number of shares of Common Stock which the
holders would
5.
otherwise have been entitled to receive, a number of shares of such other class
or classes of stock equivalent to the number of shares of Common Stock that
would have been subject to receipt by the holders upon conversion of the Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series
D Preferred Stock immediately before that change. In any such case, appropriate
adjustment shall be made in the application of the provisions of this Section 3
with respect to the rights of the holders of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock after the
capital reorganization, reclassification or other action to the end that the
provisions of this Section 3 (including adjustment of the Series A Conversion
Price, Series B Conversion Price, Series C Conversion Price and Series D
Conversion Price then in effect and the number of shares issuable upon
conversion of the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock) shall be applicable after such
action and be as nearly equivalent as possible.
(G) ADJUSTMENTS TO CONVERSION PRICES FOR DILUTIVE ISSUANCES.
(I) If at any time or from time to time after the
effective date of this amended and restated certificate of incorporation, the
corporation issues or sells, or is deemed by the express provisions of this
subsection (g) to have issued or sold, Additional Shares of Common Stock (as
hereinafter defined), other than pursuant to an adjustment or dividend provided
for under Sections 3(d), 3(e) or 3(f) hereof, for an Effective Price (as
hereinafter defined) less than the then effective Series A Conversion Price,
Series B Conversion Price or Series D Conversion Price, then and in each such
case the then existing Series A Conversion Price, Series B Conversion Price
and/or Series D Conversion Price shall be reduced, as of the opening of business
on the date of such issue or sale, to a price determined by multiplying the
Series A Conversion Price, Series B Conversion Price or Series D Conversion
Price, as applicable, by a fraction, (x) the numerator of which shall be (A) the
number of shares of Common Stock deemed outstanding (as defined below)
immediately prior to such issue or sale, plus (B) the number of shares of Common
Stock which the aggregate consideration received (as defined in subsection
(g)(ii)) by the corporation for the total number of Additional Shares of Common
Stock so issued would purchase at such Series A Conversion Price, Series B
Conversion Price or Series D Conversion Price, and (y) the denominator of which
shall be the number of shares of Common Stock deemed outstanding (as defined
below) immediately prior to such issue or sale plus the total number of
Additional Shares of Common Stock so issued. For the purposes of the preceding
sentence, the number of shares of Common Stock deemed to be outstanding as of a
given date shall be the sum of (1) the number of shares of Common Stock actually
outstanding, (2) the number of shares of Common Stock into which the then
outstanding shares of Preferred Stock could be converted if fully converted on
the day immediately preceding the given date, and (3) the number of shares of
Common Stock which could be obtained through the exercise or conversion of all
other rights, options and convertible securities on the day immediately
preceding the given date.
(II) For the purpose of making any adjustment required
under this Section 3(g), the consideration received by the corporation for any
issue or sale of securities shall (A) to the extent it consists of cash, be
computed at the net amount of cash received by the corporation after deduction
of any underwriting or similar commissions, compensation or concessions paid or
allowed by the corporation in connection with such issue or sale but without
deduction of any expenses payable by the corporation, (B) to the extent it
consists of property
6.
other than cash, be computed at the fair value of that property as determined in
good faith by the board of directors, and (C) if Additional Shares of Common
Stock, Convertible Securities (as hereinafter defined) or rights or options to
purchase either Additional Shares of Common Stock or Convertible Securities are
issued or sold together with other stock or securities or other assets of the
corporation for a consideration which covers both, be computed as the portion of
the consideration so received that may be reasonably determined in good faith by
the board of directors to be allocable to such Additional Shares of Common
Stock, Convertible Securities or rights or options.
(III) For the purpose of the adjustment required under this
Section 3(g), if the corporation issues or sells any rights or options for the
purchase of, or stock or other securities convertible into, Additional Shares of
Common Stock (such convertible stock or securities being herein referred to as
"Convertible Securities") and if the Effective Price of such Additional Shares
of Common Stock is less than the Series A Conversion Price, Series B Conversion
Price or Series D Conversion Price, then and in each such case the corporation
shall be deemed to have issued at the time of the issuance of such rights or
options or Convertible Securities the maximum number of Additional Shares of
Common Stock issuable upon exercise or conversion thereof and to have received
as consideration for the issuance of such shares an amount equal to the total
amount of the consideration, if any, received by the corporation for the
issuance of such rights or options or Convertible Securities, plus, in the case
of such rights or options, the minimum amounts of consideration, if any, payable
to the corporation upon the exercise of such rights or options, plus, in the
case of Convertible Securities, the minimum amounts of consideration, if any,
payable to the corporation (other than by cancellation of liabilities or
obligations evidenced by such Convertible Securities) upon the conversion
thereof; provided that if in the case of Convertible Securities the minimum
amounts of such consideration cannot be ascertained, but are a function of
antidilution or similar protective clauses, the corporation shall be deemed to
have received the minimum amounts of consideration without reference to such
clauses; provided further that if the minimum amount of consideration payable to
the corporation upon the exercise or conversion of rights, options or
Convertible Securities is reduced over time or on the occurrence or non-
occurrence of specified events other than by reason of antidilution adjustments,
the Effective Price shall be recalculated using the figure to which such minimum
amount of consideration is reduced; and provided further that if the minimum
amount of consideration payable to the corporation upon the exercise or
conversion of such rights, options or Convertible Securities is subsequently
increased, the Effective Price shall be again recalculated using the increased
minimum amount of consideration payable to the corporation upon the exercise or
conversion of such rights, options or Convertible Securities.
No further adjustment of the Series A Conversion Price, Series B Conversion
Price or Series D Conversion Price, as adjusted upon the issuance of such
rights, options or Convertible Securities, shall be made as a result of the
actual issuance of Additional Shares of Common Stock on the exercise of any such
rights or options or the conversion of any such Convertible Securities. If any
such rights or options or the conversion privilege represented by any such
Convertible Securities shall expire without having been exercised, the Series A
Conversion Price, Series B Conversion Price and/or Series D Conversion Price, as
adjusted upon the issuance of such rights, options or Convertible Securities,
shall be readjusted to the Series A Conversion Price, Series B Conversion Price
or Series D Conversion Price, as applicable, which would have been in effect had
an adjustment been made on the basis that the only Additional Shares of Common
Stock so issued were the Additional Shares of
7.
Common Stock, if any, actually issued or sold on the exercise of such rights or
options or rights of conversion of such Convertible Securities, and such
Additional Shares of Common Stock, if any, were issued or sold for the
consideration actually received by the corporation upon such exercise, plus the
consideration, if any, actually received by the corporation for the granting of
all such rights or options, whether or not exercised, plus the consideration
received for issuing or selling the Convertible Securities actually converted,
plus the consideration, if any, actually received by the corporation (other than
by cancellation of liabilities or obligations evidenced by such Convertible
Securities) on the conversion of such Convertible Securities, provided that such
readjustment shall not apply to prior conversions of Series A Preferred Stock,
Series B Preferred Stock or Series D Preferred Stock.
(IV) "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued by the corporation or deemed to be issued pursuant
to this Section 3(g), whether or not subsequently reacquired or retired by the
corporation other than:
(A) any shares of Common Stock issuable pursuant to
an adjustment or dividend provided for under Sections 3(d), 3(e) or 3(f) hereof;
(B) any shares of Common Stock issued upon conversion
of the Preferred Stock;
(C) any options or warrants to purchase Common Stock
or Preferred Stock and any shares of Common Stock or Preferred Stock issued or
issuable upon conversion or exercise of any options or warrants outstanding on
the effective date of this amended and restated certificate of incorporation;
(D) any shares of Common Stock issued pursuant to the
exchange, conversion or exercise of any options, warrants or other rights which
have previously been incorporated into computations hereunder on the date such
options, warrants or rights were issued; and
(E) any shares of Common Stock (and/or options,
warrants or other Common Stock purchase rights, and the Common Stock issued
pursuant to such options, warrants or purchase rights), as adjusted for splits,
stock dividends, reorganizations and the like, issued or issuable (but excluding
shares issued upon the exercise of options outstanding on the effective date of
this amended and certificate of incorporation) to employees, officers, directors
or consultants of the corporation with the approval of the board of directors of
the corporation pursuant to any stock option plan, stock incentive or purchase
plan or agreement of the corporation.
(V) The "Effective Price" of Additional Shares of Common
Stock shall mean the quotient determined by dividing the total number of
Additional Shares of Common Stock issued or sold, or deemed to have been issued
or sold by the corporation under this Section 3(g), into the aggregate
consideration received, or deemed to have been received by the corporation for
such issue under this Section 3(g), for such Additional Shares of Common Stock.
8.
(H) 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 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 A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock against impairment.
(I) CERTIFICATES AS TO ADJUSTMENTS. Upon the occurrence of
each adjustment or readjustment of any Conversion Price pursuant to this Section
3, the corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and prepare and furnish to each
holder of Series A Preferred Stock, each holder of Series B Preferred Stock,
each holder of Series C Preferred Stock and each holder of Series D Preferred
Stock a certificate executed by the corporation's chief financial officer
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 A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock,
furnish or cause to be furnished to such holder a like certificate setting forth
(i) such adjustments and readjustments, (ii) the applicable Conversion Prices
for the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock at the time in effect, and (iii) the number
of shares of Common Stock and the amount, if any, of other property which at the
time would be received upon the conversion of the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock.
(J) NOTICES OF RECORD DATE. In the event that the
corporation shall propose at any time: (i) to declare any dividend or
distribution upon its Common Stock, whether in cash, property, stock or other
securities, whether or not a regular cash dividend and whether or not out of
earnings or earned surplus; (ii) to offer for subscription pro rata to the
holders of any class or series of its stock any additional shares of stock of
any class or series or other rights; (iii) to effect any reclassification or
recapitalization of its capital stock outstanding involving a change in the
capital stock; or (iv) to merge or consolidate with or into any other
corporation, or sell, lease or convey all or substantially all of its assets, or
to voluntarily or involuntarily liquidate, dissolve or wind up; then, in
connection with each such event, the corporation shall send to the holders of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock:
(A) at least twenty (20) days' prior written notice of
the date on which a record shall be taken for such dividend, distribution or
subscription rights (and specifying the date on which the holders of Common
Stock (or other securities) shall be entitled thereto) or for determining rights
to vote, if any, in respect of the matters referred to in (iii) and (iv) above;
and
(B) in the case of the matters referred to in (iii)
and (iv) above, at least twenty (20) days' prior written notice of the date when
the same shall take place (and specifying the date on which the holders of
Common Stock (or other securities) shall be
9.
entitled to exchange their Common Stock (or other securities) for securities or
other property deliverable upon the occurrence of such event).
(K) ISSUE TAXES. The corporation shall 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 Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock or Series D Preferred Stock pursuant
hereto; provided, however, that the corporation shall not be obligated to pay
any transfer taxes resulting from any transfer requested by any holder in
connection with any such conversion.
(L) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The
corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock, solely for the purpose of effecting the
conversion of the shares of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock and Series D Preferred Stock, such number of its
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock; and if
at any time the number of authorized but unissued shares of Common Stock shall
not be sufficient to effect the conversion of all then outstanding shares of the
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock, the corporation will take such corporate action as
may, in the opinion of its counsel, be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient
for such purpose, including, without limitation, engaging in best efforts to
obtain the requisite stockholder approval of any necessary amendment to this
certificate of incorporation.
(M) FRACTIONAL SHARES. No fractional share shall be issued
upon the conversion of any share or shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock or Series D Preferred Stock. All
shares of Common Stock (including fractions thereof) issuable upon conversion of
more than one share of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock or Series D Preferred Stock by a holder thereof shall
be aggregated for purposes of determining whether the conversion would result in
the issuance of any fractional share. If, after the aforementioned aggregation,
the conversion would result in the issuance of a fraction of a share of Common
Stock, the corporation shall, in lieu of issuing any fractional share, pay the
holder otherwise entitled to such fraction a sum in cash equal to the fair
market value of such fraction on the date of conversion (as determined in good
faith by the Board of Directors).
(N) NOTICES. Any notice required by the provisions of this
Section 3 to be given to the holder of shares of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock
shall be deemed given if deposited in the United States mail, postage prepaid,
and addressed to each holder of record at his address appearing on the books of
the corporation.
4. VOTING RIGHTS. Each holder of issued and outstanding shares
of Series A Preferred Stock, each holder of issued and outstanding shares of
Series B Preferred Stock, each holder of issued and outstanding shares of Series
C Preferred Stock and each holder of issued and outstanding shares of Series D
Preferred Stock shall be entitled to the number of votes equal
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to the number of shares of Common Stock into which such shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D
Preferred Stock could be converted pursuant to Section 3 hereof and shall have
voting rights and powers equal to the voting rights and powers of the Common
Stock (except as otherwise expressly provided herein or as required by law,
voting together with the Common Stock as a single class) and shall be entitled
to notice of any stockholders' meeting in accordance with the Bylaws of the
corporation. Fractional votes shall not, however, be permitted and any
fractional voting rights resulting from the above formula (after aggregating all
shares into which shares of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock held by each holder could
be converted) shall be rounded to the nearest whole number (with one-half being
rounded upward). Each holder of Common Stock shall be entitled to one (1) vote
for each share of Common Stock held.
5. PROTECTIVE PROVISIONS.
(A) PREFERRED STOCK. So long as shares of Preferred Stock
are outstanding, the corporation shall not, without first obtaining the approval
(by vote or written approval, as provided by law) of the holders of more that
fifty percent (50%) of the outstanding shares of Preferred Stock voting as a
single class on an as-converted basis:
(I) effect the issuance or create any new class of
shares senior to the Preferred Stock with respect to dividends or other
distributions or liquidations;
(II) effect any merger of the corporation with or into
another entity (other than a wholly owned subsidiary corporation) or sale of all
or substantially all of the corporation's assets; or
(III) effect any dividend or other distribution on the
corporation's capital stock.
(B) SERIES B PREFERRED STOCK. So long as shares of Series B
Preferred Stock are outstanding, the corporation shall not, without first
obtaining the approval (by vote or written approval, as provided by law) of the
holders of more that fifty percent (50%) of the outstanding shares of Series B
Preferred Stock voting as a series:
(I) alter or change the rights, preferences or
privileges of the Series B Preferred Stock materially and adversely;
(II) increase the number of shares of Series B
Preferred Stock designated pursuant to the certificate of of incorporation; or
(III) amend the corporation's certificate of
incorporation or bylaws materially and adversely to the Series B Preferred
Stock.
(C) SERIES C PREFERRED STOCK. So long as shares of Series C
Preferred Stock are outstanding, the corporation shall not, without first
obtaining the approval (by vote or written approval, as provided by law) of the
holders of more that fifty percent (50%) of the outstanding shares of Series C
Preferred Stock voting as a series:
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(I) alter or change the rights, preferences or
privileges of the Series C Preferred Stock materially and adversely;
(II) increase the number of shares of Series C
Preferred Stock designated pursuant to the certificate of incorporation; or
(III) amend the corporation's certficiate of
incorporation or bylaws materially and adversely to the Series C Preferred
Stock.
(D) SERIES D PREFERRED STOCK. So long as shares of Series D
Preferred Stock are outstanding, the corporation shall not, without first
obtaining the approval (by vote or written approval, as provided by law) of the
holders of more that fifty percent (50%) of the outstanding shares of Series D
Preferred Stock voting as a series:
(I) alter or change the rights, preferences or
privileges of the Series D Preferred Stock materially and adversely;
(II) increase the number of shares of Series D
Preferred Stock designated pursuant to the certificate of incorporation; or
(III) amend the corporation's certificate of
incorporation or bylaws materially and adversely to the Series D Preferred
Stock.
6. NO REISSUANCE OF PREFERRED STOCK.
(A) No share or shares of Series A Preferred Stock acquired
by the corporation by reason of redemption, purchase, conversion or otherwise
shall be reissued, and all such shares shall be canceled, retired and eliminated
from the shares which the corporation shall be authorized to issue.
(B) No share or shares of Series B Preferred Stock acquired
by the corporation by reason of redemption, purchase, conversion or otherwise
shall be reissued, and all such shares shall be canceled, retired and eliminated
from the shares which the corporation shall be authorized to issue.
(C) No share or shares of Series C Preferred Stock acquired
by the corporation by reason of redemption, purchase, conversion or otherwise
shall be reissued, and all such shares shall be canceled, retired and eliminated
from the shares which the corporation shall be authorized to issue.
(D) No share or shares of Series D Preferred Stock acquired
by the corporation by reason of redemption, purchase, conversion or otherwise
shall be reissued, and all such shares shall be canceled, retired and eliminated
from the shares which the corporation shall be authorized to issue.
V.
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For the management of the business and for the conduct of the affairs of
the corporation, and in further definition, limitation and regulation of the
powers of the corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
A. 1. The management of the business and the conduct of the affairs of
the corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be fixed
exclusively by one or more resolutions adopted by the Board of Directors.
2. Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, following the
closing of the initial public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended (the "1933 Act"),
covering the offer and sale of Common Stock to the public (the "Initial Public
Offering"), the directors shall be divided into two classes designated as Class
I and Class II, respectively. Directors shall be assigned to each class in
accordance with a resolution or resolutions adopted by the Board of Directors.
At the first annual meeting of stockholders following the closing of the Initial
Public Offering, the term of office of the Class I directors shall expire and
Class I directors shall be elected for a full term of two years. At the second
annual meeting of stockholders following the Closing of the Initial Public
Offering, the term of office of the Class II directors shall expire and Class II
directors shall be elected for a full term of two years. At each succeeding
annual meeting of stockholders, directors shall be elected for a full term of
two years to succeed the directors of the class whose terms expire at such
annual meeting.
Notwithstanding the foregoing provisions of this Article, each director
shall serve until his successor is duly elected and qualified or until his
death, resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
3. Subject to the rights of the holders of any series of Preferred
Stock, the Board of Directors or any individual director may be removed from
office at any time (i) with cause by the affirmative vote of the holders of a
majority of the voting power of all of the then outstanding stock of voting
stock of the Corporation, entitled to vote at an election of directors (the
"Voting Stock") or (ii) without cause by the affirmative vote of the holders of
at least sixty-six and two thirds (66-2/3%) of the voting power of all the then
outstanding shares of Voting Stock.
4. Subject to the rights of the holders of any series of Preferred
Stock, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes and any newly created
directorships resulting from any increase in the number of directors, shall,
unless the Board of Directors determines by resolution that any such vacancies
or newly created directorships shall be filled by the stockholders, except as
otherwise provided by law, be filled only by the affirmative vote of a majority
of the directors then in office, even though less than a quorum of the Board of
Directors, and not by the stockholders. Any director elected in accordance with
the preceding sentence shall hold office for the remainder of the full
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term of the director for which the vacancy was created or occurred and until
such director's successor shall have been elected and qualified.
5. In the event that Section 2115(a) of the California Corporations
Code is applicable to this corporation, then the following shall apply:
(A) Every stockholder entitled to vote in any election of
directors of this corporation may cumulate such stockholder's votes and give one
candidate a number of votes equal to the number of directors to be elected
multiplied by the number of votes to which the stockholder's shares are
otherwise entitled, or distribute the stockholder's votes on the same principle
among as many candidates as such stockholder thinks fit;
(B) No stockholder, however, may cumulate such stockholder's votes
for one or more candidates unless (i) the names of such candidates have been
properly placed in nomination, in accordance with the Bylaws of the corporation,
prior to the voting, (ii) the stockholder has given advance notice to the
corporation of the intention to cumulative votes pursuant to the Bylaws, and
(iii) the stockholder has given proper notice to the other stockholders at the
meeting, prior to voting, of such stockholder's intention to cumulate such
stockholder's votes; and
(C) If any stockholder has given proper notice, all stockholders
may cumulate their votes for any candidates who have been properly placed in
nomination. The candidates receiving the highest number of votes of the shares
entitled to be voted for them up to the number of directors to be elected by
such shares shall be declared elected.
B. 1. Subject to paragraph (h) of Section 43 of the Bylaws, the Bylaws
may be altered or amended or new Bylaws adopted by the affirmative vote of at
least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of
the then-outstanding shares of the Voting Stock. The Board of Directors shall
also have the power to adopt, amend or repeal Bylaws.
2. The directors of the corporation need not be elected by written
ballot unless the Bylaws so provide.
3. No action shall be taken by the stockholders of the corporation
except at an annual or special meeting of stockholders called in accordance with
the Bylaws.
4. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the corporation shall be given in the manner provided in the
Bylaws of the corporation.
VI.
A. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for any breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. If the Delaware
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General Corporation Law is amended after approval by the stockholders of this
Article to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director shall be
eliminated or limited to the fullest extent permitted by the Delaware General
corporation Law, as so amended.
B. Any repeal or modification of this Article VI shall be prospective and
shall not affect the rights under this Article VI in effect at the time of the
alleged occurrence of any act or omission to act giving rise to liability or
indemnification.
VII.
A. 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, except as provided in paragraph B. of this
Article VII, and all rights conferred upon the stockholders herein are granted
subject to this reservation.
B. Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the Voting Stock required by law, this Certificate
of Incorporation or any Preferred Stock Designation, the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting
power of all of the then-outstanding shares of the Voting Stock, voting together
as a single class, shall be required to alter, amend or repeal Articles V, VI
and VII.
VIII.
The name and the mailing address of the Sole Incorporator is as follows:
NAME MAILING ADDRESS
Mitchell R. Truelock Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, CA 94111-3580
IN WITNESS WHEREOF, this Certificate has been subscribed this 23rd day of
February, 1998 by the undersigned who affirms that the statements made herein
are true and correct.
____________________________________
Mitchell R. Truelock
Sole Incorporator
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