EXHIBIT 3.1
FIFTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
INTERTRUST TECHNOLOGIES CORPORATION
InterTrust Technologies Corporation, a corporation organized and
existing under the General Corporation Law of the State of Delaware, does hereby
certify as follows:
FIRST: The name of this Corporation is InterTrust Technologies
Corporation.
SECOND: This Corporation's original Certificate of Incorporation was
filed with the Delaware Secretary of State on January 2, 1990, under this
Corporation's original name, "Electronic Publishing Resources, Inc."
THIRD: This Fifth Amended and Restated Certificate of Incorporation
of July 27, 1999 (the "Restated Certificate") restates, integrates and amends
the Fourth Amended and Restated Certificate of Incorporation filed April 9,
1999. In accordance with the provisions of Sections 228, 242 and 245 of the
General Corporation Law of the State of Delaware, the Board of Directors and
stockholders of InterTrust Technologies Corporation have duly approved the
restatement, integration and amendment of the Restated Certificate to read in
its entirety as follows:
ARTICLE I
The name of this Corporation is InterTrust Technologies Corporation
("the Corporation").
ARTICLE II
The purpose of this Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
ARTICLE III
The address of this Corporation's registered office in the State of
Delaware is Corporation Service Company, 1013 Centre Road, in the City of
Wilmington, County of New Castle. The name of its registered agent at such
address is Corporation Service Company.
ARTICLE IV
A. Classes of Stock. This Corporation is authorized to issue two classes
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of stock to be designated, respectively, "Common Stock" and "Preferred Stock."
The total number of shares which this Corporation is authorized to issue is
Ninety Million (90,000,000) shares, of which Seventy Million (70,000,000) shares
shall be Common Stock and Twenty Million
(20,000,000) shares shall be Preferred Stock, each with a par value of $0.001
per share. There is hereby authorized a series of Common Stock which shall be
designated as "Class A Voting Common Stock," and a series of Common Stock which
shall be known as "Class B Non-Voting Common Stock." Fifty Million (50,000,000)
of the shares of Common Stock so authorized are designated "Class A Voting
Common Stock," and Twenty Million (20,000,000) of the shares of Common Stock so
authorized are designated "Class B Non-Voting Common Stock" (collectively, the
Class A Voting Common Stock and the Class B Non-Voting Common Stock are referred
to as the "Common Stock"). Upon conversion of all the outstanding Class B Non-
Voting Common Stock to Class A Voting Common Stock pursuant to the terms of this
Fifth Amended and Restated Certificate, the Class B Non-Voting Common Stock
shall cease to be authorized and the Class A Voting Common Stock shall be
designated as "Common Stock". There is hereby authorized a series of Preferred
Stock which shall be designated as "Series A Preferred Stock," which series
shall consist of Five Million (5,000,000) shares, a series of Preferred Stock
which shall be designated as "Series B Preferred Stock," which series shall
consist of Six Million Five Hundred Thirty-Three Thousand Seven Hundred Twenty
Two (6,533,722) shares, a series of Preferred Stock which shall be designated
as "Series C Preferred Stock," which series shall consist of Eight Hundred
Fifty Thousand (850,000) shares, a series of Preferred Stock which shall be
designated as "Series D Preferred Stock," which series shall consist of One
Million Two Hundred Ninety Four Thousand One Hundred Eighteen (1,294,118)
shares and a series of Preferred Stock which shall be designated as "Series E
Preferred Stock," which series shall consist of One Million Four Hundred
Thousand (1,400,000) shares (collectively, the Series A Preferred Stock, the
Series B Preferred Stock, the Series C Preferred Stock, the Series D Preferred
Stock and the Series E Preferred Stock are referred to as the "Preferred
Stock").
B. Rights, Preferences and Restrictions of Preferred Stock. The Board of
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Directors of this Corporation (the "Board of Directors") is expressly authorized
to provide for the issue of all or any of the remaining shares of the Preferred
Stock in one or more series, and to fix the number of shares and to determine or
alter for each such series, such voting powers, full or limited, or no voting
powers, and such designations, preferences, and relative, participating,
optional or other rights and such qualifications, limitations, or restrictions
thereof, as shall be stated and expressed in the resolution or resolutions
adopted by the Board of Directors providing for the issue of such shares and as
may be permitted by the Delaware General Corporation Law. The Board of Directors
is also expressly authorized to increase or decrease (but not below the number
of shares of such series then outstanding) the number of shares of any series,
other than the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock or Series E Preferred Stock subsequent
to the issue of shares of the series. In case the number of shares of any such
series shall be so decreased, the shares constituting such decrease shall resume
the status that they had prior to the adoption of the resolution originally
fixing the number of shares of such series. The rights, preferences, privileges
and restrictions granted to or imposed upon the Series A Preferred Stock, Series
B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series
E Preferred Stock are as follows:
1. Voting Rights. Except as otherwise expressly provided herein or as
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required by law, the holder of each share of Preferred Stock shall be entitled
to the number of votes equal to the number of shares of Class A Voting Common
Stock into which such share of Preferred Stock could then be converted, and with
respect to such, shall have full voting rights and powers equal to the voting
rights and powers of the holders of Class A Voting Common Stock (except as
otherwise expressly provided herein or as required by law), voting together with
the Class A Voting Common Stock as a single class, and shall be entitled to
notice of any stockholders' meeting in accordance with the Bylaws of this
Corporation. Fractional votes shall
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not, however, be permitted and any fractional voting rights resulting from the
above formula (after aggregating all shares into which shares of Preferred Stock
held by each holder could be converted) shall be rounded to the nearest whole
number (with one-half being rounded upward).
2. Dividends.
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(a) Subject to the rights of series of Preferred Stock that may
from time to time come into existence, the holders of outstanding Series A
Preferred Stock shall be entitled to receive in any fiscal year, when, as and if
declared by the Board of Directors, out of funds legally available therefor,
dividends in cash at the annual rate of nine percent (9%) of the Original
Purchase Price (as hereinafter defined), in preference and priority to any
payment of any dividend on shares of Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and shares
of Common Stock. Such dividend or distribution may be payable annually or
otherwise when, as and if the Board of Directors may from time to time
determine. Dividends shall not be cumulative and no right shall accrue to
holders of Series A Preferred Stock by reason of the fact that dividends on such
shares are not declared in any prior year, nor shall any undeclared or unpaid
dividend bear or accrue interest.
(b) Subject to the rights of Series A Preferred Stock of this
Corporation, and any other series of Preferred Stock of this Corporation that
may from time to time come into existence, the holders of outstanding Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series E
Preferred Stock shall be entitled to receive the same per share dividend as
declared or paid on shares of Common Stock (other than dividends on Common Stock
payable solely in shares of Common Stock). Such dividends will be in the amount
determined by the Board of Directors of this Corporation and shall be payable,
when, as and if declared by the Board of Directors out of funds legally
available therefor. Dividends shall not be cumulative and no right shall accrue
to holders of Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock or Series E Preferred Stock by reason of the fact that dividends
on such shares are not declared in any prior year, nor shall any undeclared or
unpaid dividend bear or accrue interest.
(c) Subject to the rights of series of Preferred Stock that may
from time to time come into existence, dividends or distributions (other than
dividends payable solely in shares of Common Stock) may be declared and paid
upon shares of a series of Preferred Stock other than Series A Preferred Stock
or Common Stock in any fiscal year of this Corporation only if dividends shall
have been paid on or declared and set apart upon all shares of Series A
Preferred Stock as provided in Section 2(a) of this Article IV.
(d) In the event this Corporation shall declare a distribution to
the holders of Common Stock (other than distributions payable solely in shares
of Common Stock) payable in cash, securities of other persons, evidences of
indebtedness issued by this Corporation or other persons, assets or options or
rights to purchase any such securities or evidences of indebtedness, then, in
each such case the holders of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock and Series E Preferred
Stock shall be entitled to a proportionate share of any such distribution as
though the holders of the Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock
were the holders of the number of shares of Class A Voting
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Common Stock of this Corporation into which their respective shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock and Series E Preferred Stock are convertible as of the record
date fixed for the determination of the holders of Common Stock of this
Corporation entitled to receive such distribution.
3. Liquidation Preference.
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(a) For purposes hereof, the original purchase price of the
Series A Preferred Stock (the "Original Series A Purchase Price") is $2.555 per
share of Series A Preferred Stock, the original purchase price of the Series B
Preferred Stock (the "Original Series B Purchase Price") is $4.285 per share of
Series B Preferred Stock, the original purchase price of the Series C Preferred
Stock ("Original Series C Purchase Price") is $5.89 per share of Series C
Preferred Stock, the original purchase price of the Series D Preferred Stock
(the "Original Series D Purchase Price") is $8.50 per share of Series D
Preferred Stock and the original purchase price of the Series E Preferred Stock
(the "Original Series E Purchase Price") is $12.00 per share of Series E
Preferred Stock.
(b) In the event of the liquidation, dissolution or winding up of
this Corporation, either voluntary or involuntary (other than (i) an acquisition
of this Corporation by means of merger, consolidation or other form of corporate
reorganization, or (ii) a sale, lease or other transfer of all or substantially
all of the assets of this Corporation (unless such sale, lease or other transfer
of all or substantially all of the assets of this Corporation is in connection
with a plan of liquidation, dissolution or winding up of this Corporation) as
set forth below in subsection (c)):
(i) Subject to the rights of series of Preferred Stock that
may from time to time come into existence, the holders of the Series A Preferred
Stock will be entitled to receive out of the assets of this Corporation, prior
and in preference to any distribution of any of the assets or surplus funds of
this Corporation to the holders of Series B Preferred Stock, Series C Preferred
Stock, the Series D Preferred Stock, the Series E Preferred Stock or Common
Stock by reason of their ownership thereof, an amount per share equal to the
Original Series A Purchase Price, as appropriately adjusted for stock splits and
combinations, plus all declared and unpaid dividends with respect thereto. If
upon the occurrence of such event the assets and funds thus distributed among
the holders of the Series A Preferred Stock are insufficient to permit the
payment to such holders of the full amount of the first preference, then,
subject to the rights of series of Preferred Stock that may from time to time
come into existence, the entire assets and funds of this Corporation legally
available for distribution will be distributed ratably among the holders of the
Series A Preferred Stock (so that each holder receives for each share of Series
A Preferred Stock the same percentage of the applicable amount of the first
preference).
(ii) Upon completion of the first preference, distributions
required by subsection 3(b)(i) and any other distribution that may be required
with respect to any series of Preferred Stock that may from time to time come
into existence, the remaining assets of this Corporation available for
distribution to stockholders shall be distributed: (A) among the holders of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock and Common Stock pro rata
based on (1) in the case of
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the Series A Preferred Stock, the number of shares (the "Series A Conversion
Shares") of Class A Voting Common Stock into which the then outstanding shares
of Series A Preferred Stock may be converted, assuming conversion into Class A
Voting Common Stock of all such Series A Preferred Stock at the then effective
Conversion Price for the Series A Preferred Stock, (2) in the case of the Series
B Preferred Stock, three times the number of shares (the "Series B Conversion
Shares") of Class A Voting Common Stock into which the then outstanding shares
of Series B Preferred Stock may be converted, assuming conversion into Class A
Voting Common Stock of all such Series B Preferred Stock at the then effective
Conversion Price for the Series B Preferred Stock, (3) in the case of the Series
C Preferred Stock, three times the number of shares (the "Series C Conversion
Shares") of Class A Voting Common Stock into which the then outstanding shares
of Series C Preferred Stock may be converted, assuming conversion into Class A
Voting Common Stock of all such Series C Preferred Stock at the then effective
Conversion Price for the Series C Preferred Stock, (4) in the case of the Series
D Preferred Stock, three times the number of shares (the "Series D Conversion
Shares") of Class A Voting Common Stock into which the then outstanding shares
of Series D Preferred Stock may be converted, assuming conversion into Class A
Voting Common Stock of all such Series D Preferred Stock at the then effective
Conversion Price for the Series D Preferred Stock, (5) in the case of the Series
E Preferred Stock, three times the number of shares (the "Series E Conversion
Shares") of Class A Voting Common Stock into which the then outstanding shares
of Series E Preferred Stock may be converted, assuming conversion into Class A
Voting Common Stock of all such Series E Preferred Stock at the then effective
Conversion Price for the Series E Preferred Stock and (6) in the case of the
Common Stock, the number of the then outstanding shares of Common Stock;
provided, however, that (a) with respect to the holders of Series B Preferred
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Stock, Series C Preferred Stock, Series D Preferred Stock and Series E Preferred
Stock, such holders shall stop participating under subsection (A) when they have
received an aggregate amount per share equal to the Original Series B Purchase
Price, Original Series C Purchase Price, the Original Series D Purchase Price
and the Original Series E Purchase Price, respectively (all of the foregoing as
adjusted for any subdivisions or combinations), and (b) the holders of the
Series A Preferred Stock shall not be entitled to any further distribution of
the remaining assets of this Corporation available for distribution to
stockholders upon such holders receipt of an aggregate of $7.665 per share
(including any other amounts paid pursuant to subsection 3(b)(i)); and,
thereafter (B) (1) the holders of the Series A Preferred Stock and Common Stock
shall participate in the same manner as set forth in subsection (A) above, and
(2) (a) the holders of Series B Preferred Stock shall recommence participation,
pro rata based on the number of Series B Conversion Shares, when the holders of
Common Stock have received an aggregate amount per share equal to the Original
Series B Purchase Price (as adjusted for any subdivisions or combinations), (b)
the holders of Series C Preferred Stock shall recommence participation, pro rata
based on the number of Series C Conversion Shares, when the holders of Common
Stock have received an aggregate amount per share equal to the Original Series C
Purchase Price (as adjusted for any subdivisions or combinations), (c) the
holders of Series D Preferred Stock shall recommence participation, pro rata
based on the number of Series D Conversion Shares, when the holders of Common
Stock have received an aggregate amount per share equal to the Original Series D
Purchase Price (as adjusted for any subdivisions or combinations), and (d) the
holders of Series E Preferred Stock shall recommence participation, pro rata
based on the number of Series E Conversion Shares, when the holders of Common
Stock have received an aggregate
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amount per share equal to the Original Series E Purchase Price (as adjusted for
any subdivisions or combinations).
(iii) Upon completion of such second preference distributions
required by subsection 3(b)(ii) and subject to the rights of series of Preferred
Stock that may from time to time come into existence, if any assets or funds
remain in this Corporation, all such remaining assets or funds shall be
distributed as a third preference among the holders of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock and Common Stock pro rata based on (1) the number of
Series A Conversion Shares, (2) the number of Series B Conversion Shares, (3)
the number of Series C Conversion Shares, (4) the number of Series D Conversion
Shares, (5) the number of Series E Conversion Shares and (6) the number of the
then outstanding shares of Common Stock; provided, however, that the holders of
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Series A Preferred Stock shall not be entitled to any further distribution of
the remaining assets of this Corporation available for distribution to
stockholders upon such holders of Series A Preferred Stock receipt of an
aggregate of $7.665 per share (including any other amounts paid pursuant to
subsections 3(b)(i) and 3(b)(ii)).
(c) In the event of (i) an acquisition of this Corporation by means
of merger, consolidation or other form of corporate reorganization, or (ii) a
sale, lease or other transfer of all or substantially all of the assets of this
Corporation (a "Sale of this Corporation"):
(i) subject to the rights of series of Preferred Stock that may
from time to time come into existence, the holders of the Series A Preferred
Stock will be entitled to receive out of the assets of this Corporation, prior
and in preference to any distribution of any of the assets or surplus funds of
this Corporation to the holders of Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock, Series E Preferred Stock or Common Stock by
reason of their ownership thereof, an amount per share equal to the Original
Series A Purchase Price (as appropriately adjusted for stock splits and
combinations) plus all declared and unpaid dividends with respect thereto. If
upon the occurrence of such event the assets and funds thus distributed among
the holders of the Series A Preferred Stock are insufficient to permit the
payment to such holders of the full preferential amount, then, subject to the
rights of series of Preferred Stock that may from time to time come into
existence, the entire assets and funds of this Corporation legally available for
distribution will be distributed ratably among the holders of the Series A
Preferred Stock (so that each holder receives for each share of Series A
Preferred Stock the same percentage of the applicable preferential amount);
(ii) Upon completion of such distributions provided in subsection
(c)(i) immediately above in connection with the Sale of this Corporation and any
other distribution that may be required with respect to any series of Preferred
Stock that may from time to time come into existence, the remaining assets of
this Corporation available for distribution to stockholders shall be distributed
among the holders of Series A Preferred Stock, Series B Preferred Stock, Series
C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Common
Stock pro rata based on the number of shares of Common Stock held by each
(assuming conversion into Common Stock of all such Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and
Series E Preferred Stock at the then effective Conversion Prices) until the
holder of Series A Preferred Stock shall have received an aggregate of $7.665
per share (including any other amounts paid pursuant to this
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subsection (c)(i) of this Section 3); thereafter, if any assets or funds remain
in this Corporation, the holders of the Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Common
Stock shall receive all such remaining assets or funds pro rata based on the
number of share of Common Stock held by each (assuming conversion into Common
Stock of all such Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock and Series E Conversion Stock at its then effective Conversion
Price).
(d) Any securities to be delivered to the holders of the
Preferred Stock and/or Common Stock pursuant to this Section 3 of Part B shall
be valued as follows:
(i) Securities not subject to investment letter or other
similar restrictions on free marketability:
(A) If traded on a securities exchange or The Nasdaq
National Market or its successor or equivalent, the value shall be deemed to be
the average of the closing prices of the securities on such exchange over the
30-day period ending three (3) days prior to the closing;
(B) If actively traded over-the-counter, the value
shall be deemed to be the average of the closing bid prices over the 30-day
period ending three (3) days prior to the closing; and
(C) If there is no active public market, the value
shall be the fair market value thereof, as determined in good faith by the Board
of Directors of this Corporation.
(ii) The method of valuation of securities subject to
investment letter or other restrictions on free marketability shall be to make
an appropriate discount from the market value determined as above in
subparagraph (d)(i) to reflect the approximately fair market value thereof, as
determined in good faith by the Board of Directors of this Corporation.
4. Conversion Rights.
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(a) Right to Convert.
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(i) Optional Conversion. Each share of Preferred Stock will
be convertible, at the option of the holder thereof, at the office of this
Corporation or any transfer agent for the Preferred Stock, into Class A Voting
Common Stock. The number of shares of Class A Voting Common Stock into which
each share of Preferred Stock will be converted will be equal to the Original
Purchase Price of such Preferred Stock divided by the Conversion Price (as
hereafter defined) then in effect for such Preferred Stock, such conversion
ratio being referred to as the "Conversion Rate" for such Preferred Stock. The
initial Conversion Price for the Series A Preferred Stock will be the Original
Series A Purchase Price of such Preferred Stock. The initial Conversion Price
for the Series B Preferred Stock will be the Original Series B Purchase Price of
such Preferred Stock. The initial Conversion Price for the Series C Preferred
Stock will be the Original Series C Purchase Price of such Preferred Stock. The
initial Conversion Price for the Series D Preferred Stock will be the Original
Series D Purchase Price of such Preferred Stock. The initial Conversion Price
for the Series E Preferred Stock will be the
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Original Series E Purchase Price of such Preferred Stock. The initial Conversion
Price for the Preferred Stock will be subject to adjustment as provided herein,
and the term "Conversion Price" shall mean, as of any date, the initial
Conversion Price as the same has been adjusted from time to time pursuant to the
provisions of Sections 4(c) and 4(d).
(ii) Automatic Conversion of Preferred Stock. Each share of
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Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock and Series E Preferred Stock, as the case may be, will
be converted automatically into shares of Class A Voting Common Stock at the
then effective Conversion Rate for such Preferred Stock (A) upon the written
approval of a majority of the holders of the shares of such series of Preferred
Stock then outstanding, each such series voting as a separate class or (B)
immediately prior to the closing of a public offering pursuant to a registration
statement (other than a registration statement relating either to the sale of
securities to employees of this Corporation pursuant to a stock option, stock
purchase or similar plan or a transaction pursuant to Rule 145 under the
Securities Act of 1933, as amended (the "Act")) under the Act covering the
Common Stock with a price per share in excess of $3.75 (as adjusted for stock
dividends, stock splits or recapitalizations) and aggregate proceeds to this
Corporation, net of underwriting discounts and commissions, in excess of
$10,000,000 (the "Initial Public Offering").
(iii) Fractional Shares upon Conversion. No fractional
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shares of Class A Voting Common Stock will be issued upon conversion of the
Preferred Stock and any fractional share which otherwise would result from
conversion by a holder of all of his or her shares of Preferred Stock (with all
the shares of a series taken together as a group) will be redeemed by payment in
an amount equal to the fair market value thereof as determined by this
Corporation's Board of Directors for such series as promptly as funds are
legally available therefor. If more than one share of Preferred Stock is
surrendered for conversion at any one time by the same holder, the number of
full shares of Class A Voting Common Stock to be issued upon conversion shall be
computed on the basis of the aggregate number of shares of Preferred Stock so
surrendered.
(b) Mechanics of Conversion. Before any holder of Preferred
Stock will be entitled to convert the same into shares of Class A Voting Common
Stock, such holder will surrender the certificate or certificates therefor, duly
endorsed, at the office of this Corporation or of any transfer agent for the
Preferred Stock, and such holder will give written notice to this Corporation
stating the name or names in which the certificate or certificates for shares of
Class A Voting Common Stock are to be issued. This Corporation, as soon as
reasonably practicable thereafter, will issue and deliver at such office to such
holder or to the nominee or nominees of such holder, a certificate or
certificates for the number of shares of Class A Voting Common Stock to which
such holder will be entitled as aforesaid. Such conversion will be deemed to
have been made immediately prior to the close of business on the date of notice
of conversion provided by the holder to this Corporation, and the person or
persons entitled to receive the shares of Class A Voting Common Stock issuable
upon conversion will be treated for all purposes as the record holder or holders
of such shares of Class A Voting Common Stock on such date. If the conversion is
in connection with the Initial Public Offering, the conversion will be
conditioned upon the closing with the underwriter of the sale of securities
pursuant to such offering in which event the persons entitled to receive the
Class A Voting Common Stock issuable upon such conversion of the Preferred Stock
shall not be deemed
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to have converted such Preferred Stock until immediately prior to the closing of
such sale of securities.
(c) Conversion Price Adjustments for Certain Dilutive Issuances.
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The Conversion Price of the Series A Preferred Stock shall be subject to
adjustment from time to time as follows:
(i) (A) If this Corporation shall issue, after the date
upon which any shares of Series A Preferred Stock were first issued (the "Series
A Purchase Date"), any Additional Stock (as defined below) without consideration
or for a consideration per share less than the Conversion Price for the Series A
Preferred Stock in effect immediately prior to the issuance of such Additional
Stock (a "Dilutive Issuance"), the Conversion Price for the Series A Preferred
Stock in effect immediately prior to each such issuance shall, subject to the
provisions of this subsection 4(c)(i), be adjusted to a price determined by
multiplying such Conversion Price by a fraction, the numerator of which shall be
the number of shares of Common Stock outstanding immediately prior to such
issuance plus the number of shares of Common Stock that the aggregate
consideration received by this Corporation for such issuance would purchase at
such Conversion Price, and the denominator of which shall be the number of
shares of Common Stock outstanding immediately prior to such issuance plus the
number of shares of such Additional Stock; provided that, for the purposes of
this subsection 4(c)(i), all shares of Common Stock issuable upon conversion of
any outstanding Preferred Stock, options, warrants or convertible securities
shall be deemed to be outstanding.
(B) If during the eighteen month period following a
Dilutive Issuance there shall occur another transaction which would be a
Dilutive Issuance, then the first such transaction shall be referred to for
purposes of subsections 4(c)(i)(A) and (B) hereof as the "Initial Dilutive
Issuance," and the next such transaction, as well as any subsequent such
transaction falling within such eighteen (18) month period (the "Provisional
Period"), shall be referred to as a "Subsequent Dilutive Issuance." An Initial
Dilutive Issuance, together with any and all Subsequent Dilutive Issuances
occurring during the same Provisional Period, are herein collectively referred
to as "Tied Issuances." The occurrence of a Subsequent Dilutive Issuance shall
not commence a new Provisional Period. A new Provisional Period can only be
commenced by a new Dilutive Issuance occurring at a time when no Provisional
Period is then in effect. No adjustment of the Conversion Price effected
pursuant to subsection 4(c)(i)(A) hereof in respect of any Tied Issuances shall
be given effect for purposes of Part B, Section 1 of this Article IV or for
purposes of subsection 4(d) hereof unless and until the Provisional Period
relating to those Tied Issuances shall have elapsed without there having
occurred a Curative Transaction (as defined below, in subsections 4(c)(i)(B)(i)
through (iv)); provided, however that in the case of adjustments for purposes of
subsection 4(d) hereof, such adjustments, once given effect, shall, for purposes
of computing the Conversion Price, be given effect retroactively (carried back)
to the time of the subsection 4(d) event in question. In addition, any
adjustment of the Conversion Price effected pursuant to subsection 4(c)(i)(A)
hereof shall be undone in the event of a Curative Transaction, but only as to
prospective applications in the case of any transaction specified in (i) through
(iii) below, or prospective or concurrent transactions in the case of a
transaction specified in (iv) below, with such undoing to be effected as of the
moment in time immediately preceding a Curative Transaction. The term "Curative
Transaction" means
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the first transaction or event, if any, occurring during the Provisional Period
relating to an initial Dilutive Issuance which falls into one of the following
categories:
(i) The consummation of an arms' length transaction
involving the sale by this Corporation, to one or more non-affiliates for an
aggregate purchase price of not less than $100,000, of (a) shares of Common
Stock, where the purchase price per share is greater than or equal to the
Conversion Price which was in effect immediately prior to the Initial Dilutive
Issuance which triggered the Provisional Period in question (the "Base Price"),
or (b) shares of convertible Preferred Stock, where the conversion price of such
shares is greater than or equal to the Base Price;
(ii) The consummation of a transaction described in
subsection 3(c) hereof pursuant to which the holders of Common Stock of this
Corporation receive per share consideration greater than or equal to the Base
Price;
(iii) The failure of the holders of the Series A
Preferred Stock to approve a transaction described in subsection 5(a)(2) hereof,
where such transaction is duly presented to them for a vote and where such
transaction contemplates the issuance of an aggregate of not less than $100,000
of convertible Preferred Stock to one or more non-affiliates in an arms' length
transaction, where the conversion price of such shares is greater than or equal
to the Base Price; or
(iv) Conversion pursuant to subsections 4(a)(i) or
4(a)(ii) hereof, except that in such event the adjustment shall be undone only
as to the actual shares converted.
(C) No adjustment of the Conversion Price for the Series A
Preferred Stock shall be made in an amount less than one cent per share,
provided that any adjustments which are not required to be made by reason of
this sentence shall be carried forward and shall be either taken into account in
any subsequent adjustment made prior to three (3) years from the date of the
event giving rise to the adjustment being carried forward, or shall be made at
the end of three (3) years from the date of the event giving rise to the
adjustment being carried forward. Except to the limited extent provided for in
subsections 4(c)(i)(F)(3) and (4), no adjustment of such Conversion Price
pursuant to this subsection 4(c)(i) shall have the effect of increasing the
Conversion Price above the Conversion Price in effect immediately prior to such
adjustment.
(D) In the case of the issuance of Common Stock for cash,
the consideration shall be deemed to be the amount of cash paid therefor before
deducting any reasonable discounts, commissions or other expenses allowed, paid
or incurred by this Corporation for any underwriting or otherwise in connection
with the issuance and sale thereof.
(E) In the case of the issuance of the Common Stock for a
consideration in whole or in part other than cash, the consideration other than
cash shall be deemed to be the fair value thereof as determined by the Board of
Directors in good faith irrespective of any accounting treatment.
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(F) In the case of the issuance (whether before, on or
after the Purchase Date) of options to purchase or rights to subscribe for
Common Stock, securities by their terms convertible into or exchangeable for
Common Stock or options to purchase or rights to subscribe for such convertible
or exchangeable securities, the following provisions shall apply for all
purposes of this subsection 4(c)(i) and subsection 4(c)(ii):
(1) The aggregate maximum number of shares of Common
Stock deliverable upon exercise of such options to purchase or rights to
subscribe for Common Stock shall be deemed to have been issued at the time such
options or rights were issued and for a consideration equal to the consideration
(determined in the manner provided in subsections 4(c)(i)(D) and (E)), if any,
received by this Corporation upon the issuance of such options or rights plus
the minimum exercise price provided in such options or rights for the Common
Stock covered thereby.
(2) The aggregate maximum number of shares of Common
Stock deliverable upon conversion of or in exchange for any such convertible or
exchangeable securities or upon the exercise of options to purchase or rights to
subscribe for such convertible or exchangeable securities and subsequent
conversion or exchange thereof shall be deemed to have been issued at the time
such securities were issued or such options or rights were issued and for a
consideration equal to the consideration, if any, received by this Corporation
for any such securities and related options or rights (excluding any cash
received on account of accrued interest or accrued dividends), plus the minimum
additional consideration, if any, to be received by this Corporation upon the
conversion or exchange of such securities or the exercise of any related options
or rights (the consideration in each case to be determined in the manner
provided in subsections 4(c)(i)(D) and 4(c)(i)(E)).
(3) In the event of any change in the number of
shares of Common Stock deliverable or in the consideration payable to this
Corporation upon exercise of such options or rights, upon conversion of or in
exchange for such convertible or exchangeable securities or upon exercise of
options or rights related to such securities, including, but not limited to, a
change resulting from the antidilution provisions thereof, the Conversion Price
of the Series A Preferred Stock, to the extent in any way affected by or
computed using such options, rights, securities or related options or rights,
shall be recomputed to reflect such change, but no further adjustment shall be
made for the actual issuance of Common Stock or any payment of such
consideration upon the exercise of any such options or rights, the conversion or
exchange of such securities or the exercise of options or rights related to such
securities.
(4) Upon the expiration of any such options or
rights, the termination of any such rights to convert or exchange or the
expiration of any options or rights related to such convertible or exchangeable
securities, the Conversion Price of the Series A Preferred Stock, to the extent
in any way affected by or computed using such options, rights or securities or
options or rights related to such securities, shall be recomputed to reflect the
issuance of only the number of shares of Common Stock (and convertible or
exchangeable securities which remain in effect) actually issued upon the
exercise of such options or rights, upon the conversion or exchange of such
securities or upon the exercise of the options or rights related to such
securities.
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(5) The number of shares of Common Stock deemed
issued and the consideration deemed paid therefor pursuant to subsections
4(c)(i)(F)(1) and (2) shall be appropriately adjusted to reflect any change,
termination or expiration of the type described in either subsection
4(c)(i)(F)(3) or (4).
(ii) "Additional Stock" shall mean any shares of Common
Stock issued (or deemed to have been issued pursuant to subsection 4(c)(i)(F))
by this Corporation after the Purchase Date other than:
(A) Shares of Common Stock issued or deemed to have
been issued pursuant to a transaction described in subsections 4(d) and 4(e),
(B) Securities issued or deemed to have been issued
to employees, consultants, or directors of this Corporation directly or pursuant
to a stock option plan or stock purchase plan or other incentive stock
arrangement which has been or may hereafter be approved by the Board of
Directors of this Corporation, the number of which shares, exclusive of options
and securities issued or deemed to have been issued prior to the Purchase Date,
shall not exceed 6,790,000 under any such plan or plans or arrangement or
arrangements in the aggregate (such shares shall not be deemed issued when
issuing securities pursuant to subsection 4(c)(ii)(F)),
(C) Securities issued or deemed to have been issued
in connection with bona fide equipment lease or bank financings, or similar
transactions,
(D) Securities issued or deemed to have been issued
in exchange for the acquisition of assets, another business entity or business
segment of any such entity by this Corporation by merger, purchase of assets or
other reorganization, the terms of which are approved by the Board of Directors
of this Corporation, and
(E) Shares of Class A Voting Common Stock issued or
deemed issued upon conversion of Preferred Stock.
(d) Adjustment for Subdivisions or Combinations of Common
-----------------------------------------------------
Stock. In the event this Corporation at any time or from time to time after
- -----
the effective date of the initial sale of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or Series E
Preferred Stock as applicable (in each case, the "Original Issue Date" for such
series), effects a subdivision or combination of its outstanding Common Stock
into a greater or lesser number of shares without a proportionate and
corresponding subdivision or combination of its outstanding shares of such
series of Preferred Stock, then the existing Conversion Price for such series of
Preferred Stock will be decreased or increased proportionately.
(e) Adjustment for Dividends, Distributions and Common Stock
--------------------------------------------------------
Equivalents. In the event this Corporation at any time or from time to time
- -----------
after the Original Issue Date for the Preferred Stock, as applicable, makes or
issues, or fixes a record date for the determination of holders of Common Stock
(but not holders of such Preferred Stock) entitled to receive a dividend or
other distribution payable in additional shares of Common Stock or other
securities or rights (hereinafter referred to as "Common Stock Equivalents")
convertible into or
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entitling the holder thereof to receive additional shares of Common Stock
without payment of any consideration by such holder for such Common Stock
Equivalents or the additional shares of Common Stock, for the purpose of
protecting the holders of Preferred Stock from any dilution in connection
therewith, then and in each such event the maximum number of shares (as set
forth in the instrument relating thereto without regard to any provisions
contained therein for a subsequent adjustment of such number) of Common Stock
issuable in payment of such dividend or distribution or upon conversion or
exercise of such Common Stock Equivalents will be deemed to be issued and
outstanding as of the time of such issuance or, in the event such a record date
has been fixed, as of the close of business on such record date. In each such
event the then existing Conversion Rate for Preferred Stock will be increased as
of the time of such issuance or, in the event such a record date has been fixed,
as of the close of business on such record date, by multiplying the Conversion
Rate for such Preferred Stock by a fraction,
(1) the numerator of which will be the total number of
shares of Common Stock and outstanding immediately prior to the time of such
issuance or the close of business on such record date plus the number of shares
of Common Stock issuable in payment of such dividend or distribution or upon
conversion or exercise of such Common Stock Equivalents; and
(2) the denominator of which will be the total number of
shares of Common Stock issued and outstanding immediately prior to the time of
such issuance or the close of business on such record date; provided, however,
(i) if such record date has been fixed and such dividend is not fully paid or if
such distribution is not fully made on the date fixed therefor, the Conversion
Rate for the Preferred Stock will be recomputed accordingly as of the close of
business on such record date and thereafter the Conversion Rate for the
Preferred Stock will be adjusted pursuant to this Section as of the time of
actual payment of such dividends or distribution; (ii) if such Common Stock
Equivalents provide, with the passage of time or otherwise, for any decrease in
the number of shares of Common Stock issuable upon conversion or exercise
thereof, the Conversion Rate for the Preferred Stock shall, upon any such
decrease becoming effective, be recomputed to reflect such decrease insofar as
it affects the rights of conversion or exercise of the Common Stock Equivalents
then outstanding, and (iii) upon the expiration of any conversion rights or
exercise under any unexercised Common Stock Equivalents, the Conversion Rate for
the Preferred Stock computed upon the original issue thereof shall, upon such
expiration, be recomputed as if the only additional shares of Common Stock
issued were the shares of such stock, if any, actually issued upon the
conversion or exercise of such Common Stock Equivalents.
(f) No Impairment. This Corporation, whether by amendment of
--------------
its Certificate of Incorporation or through any reorganization, transfer of
assets, merger, dissolution, issue or sale of securities or any other voluntary
action, will not avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by this Corporation, but at all
times in good faith will assist in the carrying out of all of such action as may
be necessary or appropriate in order to protect the conversion rights pursuant
to this subsection 4(f) of Part B of the holders of the Preferred Stock against
impairment.
(g) Certificate as to Adjustments. Upon the occurrence of each
-----------------------------
adjustment or readjustment of the Conversion Rate for the Preferred Stock
pursuant to this
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Section 4, this Corporation at its expense promptly will compute such adjustment
or readjustment in accordance with the terms hereof and prepare and furnish to
each holder of such Preferred Stock a certificate setting forth such adjustment
or readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. This Corporation, upon the written request at any time of
any holder of Preferred Stock, will furnish or cause to be furnished to such
holder a like certificate setting forth (i) such adjustments and readjustments,
(ii) the Conversion Rate for the Preferred Stock at the time in effect, and
(iii) the number of shares of Class A Voting Common Stock and the amount, if
any, of other property which at the time would be received upon the conversion
of the Preferred Stock held by such holder.
(h) Notices of Record Date. In the event of any taking by this
----------------------
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any Common Stock
Equivalents or any right to subscribe for, purchase or otherwise acquire any
shares of stock of any class or any other securities or property, or to receive
any other right, this Corporation will mail to each holder of Preferred Stock at
least ten (10) days prior to the date specified therein, a notice specifying the
date on which any such record is to be taken for the purpose of such dividend,
distribution or rights, and the amount and character of such dividend,
distribution or right.
(i) Reservation of Stock Issuable Upon Conversion. This
---------------------------------------------
Corporation at all times will reserve and keep available out of its authorized
but unissued shares of Class A Voting Common Stock solely for the purpose of
effecting the conversion of the shares of Preferred Stock such number of its
shares of Class A Voting Common Stock as from time to time will be sufficient to
effect the conversion of all then outstanding shares of Preferred Stock; and if
at any time the number of authorized but unissued shares of Class A Voting
Common Stock is not sufficient to effect the conversion of all then outstanding
shares of Preferred Stock, in addition to such other remedies as may be
available to the holders of Preferred Stock for such failure, this Corporation
will take such corporate action as, in the opinion of its counsel, may be
necessary to increase its authorized but unissued shares of Class A Voting
Common Stock to such number of shares as will be sufficient for such purpose.
(j) Notices. Any notices required by the provisions of this
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Section 4 to Part B to be given to the holders of shares of Preferred Stock
shall be given in writing and shall be conclusively deemed effectively given to
persons located in the United States five (5) days after deposit in the United
States mail, by registered or certified mail postage prepaid, or upon actual
receipt if given by any other method or to persons located outside of the United
States, addressed to such holder at his address appearing on the books of this
Corporation. To persons located outside of the United States, such notice will
be sent by telex or facsimile in cases where this Corporation has notice of a
telex or facsimile number for such person.
(k) Recapitalizations. If at any time or from time to time
-----------------
there shall be a recapitalization of the Common Stock (other than a subdivision
or combination provided for in subsection 4(d)), provision shall be made so that
the holders of the Preferred Stock shall thereafter be entitled to receive upon
conversion of such shares of such Preferred Stock the number of shares of stock
or other securities or property of this Corporation or otherwise, to
14
which a holder of Common Stock deliverable upon conversion of such Preferred
Stock would have been entitled on such recapitalization.
5. Protective Provisions.
---------------------
(a) So long as any shares of Series A Preferred Stock are
outstanding, this Corporation shall not without first obtaining the approval (by
vote or written consent, as provided by law) of the holders of a majority of the
then outstanding shares of Series A Preferred Stock:
(1) take any action that reclassifies any outstanding
shares of this Corporation's capital stock into shares of capital stock having
preferences or priority as to dividends or assets senior to or in parity with
the preferences and priority of the Series A Preferred Stock;
(2) authorize or issue, or obligate itself to issue, any
equity security, including any other security convertible into or exercisable
for any equity security, having a preference or priority as to dividends or
assets senior to or in parity with the preferences and priorities of the Series
A Preferred Stock, or obligate itself to issue Series A Preferred Stock other
than as contemplated in the Series A Preferred Stock Purchase Agreement dated
March 15, 1996;
(3) make any declaration or payment of any dividend with
respect to the Common Stock or the Preferred Stock which, when aggregated with
any other dividends declared or paid within the twelve (12) month period
preceding such declaration or payment, exceeds ten percent (10%) of this
Corporation's net after taxes income for the twelve (12) month period preceding
such declaration or payment;
(4) amend or repeal this Corporation's Certificate of
Incorporation in any manner adversely affecting the voting rights granted to the
Series A Preferred Stock in Section 1 of Part B of this Article IV;
(5) increase or decrease, other than by redemption or
conversion, the total number of authorized number of shares of Common Stock or
Preferred Stock; or
(6) amend this Section 5(a).
(b) So long as any shares of Series B Preferred Stock are
outstanding, this Corporation shall not without first obtaining the approval (by
vote or written consent, as provided by law) of the holders of a majority of the
then outstanding shares of Series B Preferred Stock:
(1) take any action that reclassifies any outstanding
shares of this Corporation's capital stock into shares of capital stock having
preferences or priority as to assets senior to the preferences and priority of
the Series B Preferred Stock;
15
(2) authorize or issue, or obligate itself to issue, any
equity security other than Series B Preferred Stock, including any other
security convertible into or exercisable for any equity security, having a
preference or priority as to assets senior to the preferences and priorities of
the Series B Preferred Stock;
(3) amend or repeal this Corporation's Certificate of
Incorporation in any manner adversely affecting the voting rights granted to the
Series B Preferred Stock in Section 1 of Part B of this Article IV; or
(4) amend this Section 5(b).
(c) So long as any shares of Series C Preferred Stock are
outstanding, this Corporation shall not without first obtaining the approval (by
vote or written consent, as provided by law) of the holders of a majority of the
then outstanding shares of Series C Preferred Stock:
(1) take any action that reclassifies any outstanding
shares of this Corporation's capital stock into shares of capital stock having
preferences or priority as to assets senior to the preferences and priority of
the Series C Preferred Stock;
(2) authorize or issue, or obligate itself to issue, any
equity security other than Series C Preferred Stock, including any other
security convertible into or exercisable for any equity security, having a
preference or priority as to assets senior to the preferences and priorities of
the Series C Preferred Stock;
(3) amend or repeal this Corporation's Certificate of
Incorporation in any manner adversely affecting the voting rights granted to the
Series C Preferred Stock in Section 1 of Part B of this Article IV; or
(4) amend this Section 5(c).
(d) So long as any shares of Series D Preferred Stock are
outstanding, this Corporation shall not without first obtaining the approval (by
vote or written consent, as provided by law) of the holders of a majority of the
then outstanding shares of Series D Preferred Stock:
(1) take any action that reclassifies any outstanding
shares of this Corporation's capital stock into shares of capital stock having
preferences or priority as to assets senior to the preferences and priority of
the Series D Preferred Stock;
(2) authorize or issue, or obligate itself to issue, any
equity security other than Series D Preferred Stock, including any other
security convertible into or exercisable for any equity security, having a
preference or priority as to assets senior to the preferences and priorities of
the Series D Preferred Stock;
(3) amend or repeal this Corporation's Certificate of
Incorporation in any manner adversely affecting the voting rights granted to the
Series D Preferred Stock in Section 1 of Part B of this Article IV; or
16
(4) amend this Section 5(d).
(e) So long as any shares of Series E Preferred Stock are
outstanding, this Corporation shall not without first obtaining the approval (by
vote or written consent, as provided by law) of the holders of a majority of the
then outstanding shares of Series E Preferred Stock:
(1) take any action that reclassifies any outstanding
shares of this Corporation's capital stock into shares of capital stock having
preferences or priority as to assets senior to the preferences and priority of
the Series E Preferred Stock;
(2) authorize or issue, or obligate itself to issue, any
equity security other than Series E Preferred Stock, including any other
security convertible into or exercisable for any equity security, having a
preference or priority as to assets senior to the preferences and priorities of
the Series E Preferred Stock;
(3) amend or repeal this Corporation's Certificate of
Incorporation in any manner adversely affecting the voting rights granted to the
Series E Preferred Stock in Section 1 of Part B of this Article IV; or
(4) amend this Section 5(e).
6. Covenants. In addition to any other rights provided by law, so
---------
long as any Preferred Stock is outstanding, this Corporation, without first
obtaining the affirmative vote or written consent of the holders of not less
than a majority of the outstanding shares of Preferred Stock (with all series
voting together as a single class), will not alter or change the rights,
preferences or privileges of the shares of Preferred Stock so as to affect such
shares materially and adversely.
C. Common Stock. The rights, preferences, privileges, and restrictions of
------------
Class A Voting Common Stock and Class B Non-Voting Common Stock shall be
identical in all respects, except with regard to voting, as set forth in Section
3 to Part C below.
1. Dividend Rights. Subject to the prior rights of holders of all
---------------
classes of stock at the time outstanding having prior rights as to dividends,
the holders of the Common Stock shall be entitled to receive, when, as and if
declared by the Board of Directors, out of any assets of this Corporation
legally available therefor, such dividends as may be declared from time to time
by the Board of Directors.
2. Liquidation Rights. Upon the liquidation, dissolution or
------------------
winding up of this Corporation, the assets of this Corporation shall be
distributed as provided under Section 3 to Part B of Article IV.
3. Voting Rights. The holders of Class A Voting Common Stock shall
-------------
have one vote for each share of Class A Voting Common Stock on all matters
submitted to a vote of the holders of this Corporation's Common Stock; and
except as otherwise required by law, the holders of Class B Non-Voting Common
Stock shall not be entitled to notice of any
17
stockholders' meetings, to vote upon the election of directors, or to vote on
any other matters submitted to a vote of the holders of this Corporation's
Common Stock.
4. Automatic Conversion. Each share of Class B Non-Voting Common
--------------------
Stock shall be converted automatically into one share of Class A Voting Common
Stock (as appropriately adjusted for subdivisions or combinations) upon the
closing of an Initial Public Offering or at the discretion of the Company.
ARTICLE V
A. A director of this Corporation shall not be personally liable to
this Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to this 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 any
improper personal benefit. If the Delaware 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 of this Corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended.
B. To the fullest extent permitted by applicable law, this
Corporation is also authorized to provide indemnification of (and advancement of
expenses to) its agents (including its officers and any other persons to which
Delaware law permits this Corporation to provide indemnification) through bylaw
provisions, agreements with such agents or other persons, vote of stockholders
or disinterested directors or otherwise, in excess of the indemnification and
advancement otherwise permitted by Section 145 of the Delaware General
Corporation Law, subject only to limits created by applicable Delaware law
(statutory or non-statutory), with respect to actions for breach of duty to this
Corporation, its stockholders, and others.
C. Any repeal or modification of this Article V shall be
prospective and shall not affect the rights under this Article V in effect at
the time of the alleged occurrence of any act or omission to act giving rise to
liability or indemnification.
ARTICLE VI
Subject to the provisions of this Restated Certificate, this
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Restated Certificate in the manner now or hereafter prescribed
by the Delaware General Corporation Law, and all rights conferred upon
stockholders herein are granted subject to this reservation.
ARTICLE VII
Subject to the provisions of this Restated Certificate, the Board of
Directors may from time to time make, amend, supplement or repeal the Bylaws;
provided, however, that the stockholders may change or repeal any Bylaw adopted
by the Board of Directors; and provided, further, that no amendment or
supplement to the Bylaws adopted by the Board of Directors shall vary or
conflict with any amendment or supplement adopted by the stockholders.
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IN WITNESS WHEREOF, InterTrust Technologies Corporation has caused this Fifth
Amended and Restated Certificate of Incorporation to be signed by Victor Shear,
its Chief Executive Officer and attested by Erwin N. Lenowitz, its Secretary,
this 27 day of July, 1999.
INTERTRUST TECHNOLOGIES CORPORATION
By: /s/ Victor Shear
--------------------------------------------------
Victor Shear, Chairman and Chief Executive Officer
By: /s/ Erwin N. Lenowitz
--------------------------------------------------
Erwin N. Lenowitz, Secretary
19