AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
INTELIDATA TECHNOLOGIES CORPORATION,
a Delaware Corporation
InteliData Technologies Corporation is a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"). The name under which the Corporation was originally incorporated
is USOCDT Merger Corporation, and the original certificate of incorporation was
filed with the Secretary of State of Delaware on August 23, 1996. An amended and
restated certificate of incorporation was filed with the Secretary of State of
Delaware on October 8, 1996 (the "Certificate of Incorporation"). The
Corporation hereby certifies:
FIRST: That stockholder approval was required to approve the following
amendment (the "Amendment") to the Certificate of Incorporation, which Amendment
is included in this Amended and Restated Certificate of Incorporation of the
Corporation (the "Amended and Restated Certificate"):
The Amended and Restated Certificate of Incorporation of InteliData
Technologies Corporation is hereby amended by deleting, in its entirety,
the first sentence of Article IV and replacing it with the following:
The aggregate number of shares of capital stock which the Corporation
shall have authority to issue is one hundred five million
(105,000,000) shares, of which one hundred million (100,000,000) shall
be shares of Common Stock, par value ($.001) per share, and five
million (5,000,000) shall be shares of Preferred Stock, par value
($.001) per share.
SECOND: That the Board of Directors of the Corporation, at a meeting held
on February 18, 2002, adopted resolutions setting forth the Amendment, declaring
the Amendment to be advisable and calling a meeting of the stockholders of the
Corporation for consideration thereof;
THIRD: That the stockholders of the Corporation, at the Annual Meeting of
Stockholders held on May 30, 2002, adopted the Amendment;
FOURTH: That the Amendment was duly adopted in accordance with the provisions
of Sections 222 and 242 of the General Corporation Law of the State of Delaware;
FIFTH: That the Board of Directors of the Corporation, by unanimous written
consent effective as of May 30, 2002 in accordance with Section 141(f) of the
General Corporation Law of the State of Delaware, adopted the resolutions set
forth below in accordance with Section 151(g) of the General Corporation Law of
the State of Delaware:
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RESOLVED, that the Board of Directors hereby determines that none of
the authorized shares of the 4% Series B Convertible Preferred Stock
of the Corporation (the "Series B Preferred Stock") is outstanding as
of May 30, 2002;
Resolved, that the Board of Directors hereby determines that none of
the authorized shares of the Series B Preferred Stock will be issued
subject to the Certificate of Designations, Preferences and Rights of
4% Series B Convertible Preferred Stock (the "Certificate of
Designations");
SIXTH: That the Board of Directors of the Corporation, by unanimous written
consent effective as of May 30, 2002 in accordance with Section 245 of the
General Corporation Law of the State of Delaware, adopted by resolution the
Amended and Restated Certificate in so far as it restates and integrates and
does not further amend the provisions of the Certificate of Incorporation as
heretofore amended or supplemented, and there is no discrepancy between those
provisions and the provisions of the Amended and Restated Certificate other than
the addition of the Amendment, the elimination of the Certificate of
Designations and the integration into a single instrument of all the provisions
of the Certificate of Incorporation that have heretofore been filed with the
Secretary of State of Delaware and are now in effect; and
SEVENTH: That this Amended and Restated Certificate shall further read as
follows:
Article I
The name of the Corporation is InteliData Technologies Corporation.
Article II
The registered office of the Corporation in the State of Delaware is
located at Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, Delaware 19801. The name of its registered
agent at that address is The Corporation Trust Company.
Article III
The purpose of the Corporation is to engage, directly or indirectly, in any
lawful act or activity for which corporations may be organized under the
Delaware General Corporation Law.
Article IV
The aggregate number of shares of capital stock which the Corporation shall
have authority to issue is one hundred five million (105,000,000) shares, of
which one hundred million (100,000,000) shall be shares of Common Stock, par
value ($.001) per share, and five million (5,000,000) shall be shares of
Preferred Stock, par value ($.001) per share.
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A. Common Stock.
1. Voting Rights. The holders of each share of Common Stock
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shall have the right to one vote, and shall be entitled to notice of any
stockholders' meeting in accordance with the Bylaws of this Corporation, and
shall be entitled to vote upon such matters and in such manner as may be
provided by law on all matters submitted to a vote at any meeting of
shareholders.
2. Dividend Rights. Subject to the 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 and as
declared by the Board of Directors, out of any funds of the Corporation legally
available therefor, such dividends as may be declared from time to time by the
Board of Directors.
B. Preferred Stock.
1. General. The Preferred Stock may be issued from time to time in
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one or more classes or series, as may be determined by the Board of Directors,
with such distinctive designations, rights and preferences as shall be stated
and expressed herein or in the resolution or resolutions providing for the issue
of shares of a particular series, and in such resolution or resolutions
providing for the issue of shares of such series the Board of Directors is
expressly authorized to fix:
a. The annual or other period dividend rate for such series,
the dividend payment dates, the date from which dividends on all shares of such
series issued shall be cumulative, and the extent of participation rights, if
any;
b. The redemption price or prices, if any, for such series and
other terms and conditions on which such series may be retired and redeemed;
c. The obligation, if any, of the Corporation to purchase and
etire or redeem shares as a sinking fund or otherwise, and the terms and
conditions of any such redemption;
d. The designation and maximum number of shares of such series
issuable;
e. The right to vote, if any, with holders of shares of any
other class or series and any right to vote as a separate voting group, either
generally or as a condition to specified corporate action;
f. The amount payable upon shares in event of involuntary
liquidation;
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g. The amount payable upon shares in event of voluntary
liquidation;
h. The rights, if any, of the holders of shares of such series
to convert such shares into other classes of stock of the Corporation and the
terms and conditions of any such conversion; and
i. Such other rights as may be specified by the Board of
Directors and not prohibited by law.
All shares of Preferred Stock of any one series shall be identical with
each other in all respects except, if so determined by the Board of Directors,
as to the dates from which dividends thereon shall be cumulative; and all shares
of Preferred Stock shall be of equal rank with each other, regardless of series,
and shall be identical with each other in all respects except as provided herein
or in the resolution or resolutions providing for the issue of a particular
series. In case dividends on all shares of Preferred Stock for any quarterly
dividend period are not paid in full, all such shares shall participate ratably
in any partial payment of dividends for such period in proportion to the full
amounts of dividends for such period to which they are respectively entitled.
The Board of Directors has established Series A Participating Cumulative
Preferred Stock of the Corporation, the designation and amount thereof and the
voting power, preferences and relative, participating, optional and other
special rights of such shares, and qualifications, limitations or restrictions
thereof, of such shares, in addition to those set forth in this Amended and
Restated Certificate, are set forth in Appendix I hereto.
Article V
The business of the Corporation shall be managed under the direction of the
Board of Directors except as otherwise provided by law. Upon the effective date
of the Certificate of Incorporation, the number of directors shall be divided
into three (3) classes, as nearly equal in number as may be possible. Directors
designated Class I shall serve in the first instance until the annual meeting of
the stockholders immediately following the effective date of the Certificate of
Incorporation (the "First Annual Meeting"), and until their successors shall
have been properly elected and shall qualify; and thereafter for a three-year
term. Directors designated Class II and Class III shall serve in the first
instance until the second and third meetings of the stockholders to be held
after the First Annual Meeting, respectively, and until their successors shall
have been properly elected and shall qualify; and thereafter for three-year
terms. The Board of Directors of the Corporation shall consist of five (5) to
fifteen (15) members as shall be fixed from time to time by, or in the manner
provided in, the Bylaws. Subject to the rights of the holders of any class or
series of Preferred Stock then outstanding, a Director may be removed with cause
at a meeting of stockholders called expressly for that purpose at which a quorum
is present by the vote of at least two-thirds (2/3) of the votes entitled to be
cast by each voting group entitled to vote in the election of Directors
generally.
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Article VI
The Board of Directors may make, alter or repeal the Bylaws of the
Corporation, provided, however, that any provisions of the Bylaws adopted or
required to be adopted pursuant to the Delaware General Corporation Law by the
stockholders of the Corporation may only be made, altered or repealed by the
stockholders of the Corporation.
Article VII
No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a meeting,
to the taking of any action is specifically denied.
Article VIII
The Directors of the Corporation shall be protected from personal
liability, through indemnification or otherwise, to the fullest extent permitted
under the Delaware General Corporation Law as from time to time in effect. A
Director of this Corporation shall under no circumstances have any personal
liability to the Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a Director except for those specific breaches and acts or
omissions with respect to which the Delaware General Corporation Law expressly
provides that this provision shall not eliminate or limit such personal
liability of Directors. The modification or repeal of this Article VIII shall
not affect the restriction hereunder of a Director's personal liability for any
act or omission occurring prior to such modification or repeal.
Article IX
The Corporation shall, to the fullest extent permitted by Section 145 of
the Delaware General Corporation Law, as the same may be amended and
supplemented, indemnify any and all persons whom it shall have power to
indemnify under said section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any Bylaw, agreement,
vote of stockholders or disinterested Directors or otherwise, both as to action
in his official capacity while holding such office and to action while serving
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, and
shall continue as to a person who has ceased to be a Director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person; provided, however, that the Corporation shall
indemnify any such indemnitee in connection with a proceeding initiated by such
indemnitee only if such proceeding was authorized by the Board of Directors of
the Corporation. In connection with the indemnification provided by Section 145
of the Delaware General Corporation Law and under any Bylaw, agreement, vote of
stockholders or disinterested Directors or otherwise, expenses incurred by a
Director or officer in defending or investigating a threatened or pending
action, suit or proceeding shall be paid by the Corporation
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in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Director or officer to repay
such amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the Corporation in accordance with Section 145 of
the Delaware General Corporation Law or as authorized in the Bylaws of the
Corporation.
Article X
The Corporation reserves the right to amend, alter, change or repeal any
provisions contained in this Amended and Restated Certificate, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation. This Amended and Restated
Certificate may be amended by a resolution adopted by the Board of Directors
and, if required by the Delaware General Corporation Law, the approval at a
meeting of the stockholders of the Corporation by the affirmative vote of a
majority of the votes entitled to be cast by each voting group entitled to vote
on the matter; provided, however, that any amendment or repeal of Article V of
this Amended and Restated Certificate shall be approved at such meeting by the
affirmative vote of at least two-thirds (2/3) of the votes entitled to be cast
by each voting group entitled to vote on the matter.
APPENDIX I
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DESIGNATIONS, PREFERENCES AND RIGHTS OF SERIES A
------------------------------------------------
PARTICIPATING CUMULATIVE PREFERRED STOCK
----------------------------------------
OF
INTELIDATA TECHNOLOGIES CORPORATION
-----------------------------------
The Corporation has created a series of Series A Cumulative Preferred
Stock of the Corporation, and the designation and amount thereof and the voting
power, preferences and relative, participating, optional and other special
rights of the shares of such series, and the qualifications, limitations or
restrictions thereof, of such shares, in addition to those set forth in the
Amended and Restated Certificate, shall be as follows:
Section 1. Designation and Amount.
----------------------
The shares of such series shall be designated as Series A Participating
Cumulative Preferred Stock, par value $.001 per share (the "Series A Preferred
Stock"), and the number of shares constituting such series shall be 100,000 (one
hundred thousand).
Section 2. Dividends and Distributions.
---------------------------
(a) The holders of shares of Series A Preferred Stock, in preference
to the holders of shares of Common Stock, par value $.001 per share, of the
Corporation (the "Common Stock") and of any other junior stock of the
Corporation that may be outstanding, shall be entitled to receive, when, as and
if declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the tenth day of January, April,
July and October in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (i) $25 per share ($1.00 per annum), or (ii) subject to
the provision for adjustment hereinafter set forth, 1000 times the aggregate per
share amount of all cash dividends, and 1000 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions, other
than a dividend payable in shares of Common Stock, or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), declared
on the Common Stock since the immediately preceding Quarterly Dividend Payment
Date or, with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series A Preferred Stock.
In the event that the corporation shall at any time declare or pay any dividend
on Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise) into a greater or lesser number of shares of
Common Stock, then and in each such event, the amount to which the holder of
each share of Series A Preferred Stock was entitled immediately prior to such
event under clause (ii) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event, and the
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denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (a) of this Section 2
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided however,
that in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $.25 per
share ($1.00 per annum) on the Series A Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Preferred Stock, unless
the date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A Preferred Stock entitled
to receive a quarterly dividend and before such Quarterly Dividend Payment Date,
in either of which cases such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
cumulate but shall not bear interest Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more than 60 days
prior to the date fixed for the payment thereof.
(d) Dividends in full shall not be declared or paid or set apart for
payment on the Series A for a dividend period terminating on the Quarterly
Dividend Payment Date unless dividends in full have been declared or paid or set
apart for payment on the Preferred Stock of all series (other than series with
respect to which dividends are not cumulative from a date prior to such dividend
date) for the respective dividend periods terminating on such dividend date.
Section 3. Voting Rights.
--------------
The holders of shares of Series A Preferred Stock shall have the following
voting rights:
(a) Each share of Series A Preferred Stock shall entitle the holder
thereof to 1000 votes (and each one one-thousandth of a share of Series A
Preferred Stock shall entitle the holder thereof to one vote) on all matters
submitted to a vote of the stockholders of the Corporation. In the event that
the Corporation shall at any time declare or pay any dividend on Common Stock
payable in shares of Common Stock or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then and in each such event,
the number of votes per share to which holders of shares of
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Series A Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event, and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided in the Amended and Restated
Certificate, Bylaws or herein or by law, the holders of shares of Series A
Preferred Stock and the holders of shares of Common Stock shall vote together as
one class on all matters submitted to a vote of stockholders of the Corporation.
(c) In addition, the holders of shares of Series A Preferred Stock
shall have the following special voting rights:
(i) In the event that at any time or from time to time while
any shares Series A Preferred Stock are outstanding, dividends on
Series A Preferred Stock, whenever accrued and whether or not
consecutive, shall not have been paid or declared and a sum sufficient
for the payment thereof set aside, in an amount equivalent to six
quarterly dividends on all shares of Series A Preferred Stock at the
time outstanding, then and in each such event, the holders of shares
of Series A Preferred Stock and each other series of preferred stock
now or hereafter issued that shall be accorded such class voting right
by the Board of Directors and that shall have the right to elect at
least one director (or in the event any such other series is entitled
to a greater number of directors, such number of directors, which
shall be cumulative with and not in addition to the director provided
for herein, such director or directors being hereinafter referred to
as "Special Directors") as the result of a prior or subsequent default
in payment of dividends on such series (each such other series being
hereinafter called "Other Series of Preferred Stock"), voting
separately as a class without regard to series, shall be entitled to
elect the Special Director at the next annual meeting of stockholders
of the Corporation, in addition to the directors to be elected by the
holders of all shares of the Corporation entitled to vote for the
election of directors, and the holders of all shares (including the
Series A Preferred Stock) otherwise entitled to vote for directors,
voting separately as a class, shall be entitled to elect the remaining
members of the Board of Directors, provided that the Series A
Preferred Stock and each Other Series of Preferred Stock, voting as a
class, shall not have the right to elect more than one Special
Director (in addition to any Special Director to which the holders of
any Other Series of Preferred Stock are then entitled). Such special
voting right of the holders of shares of Series A Preferred Stock may
be exercised until all dividends in default on the Series A Preferred
Stock shall have been paid in full or declared and funds sufficient
therefor set aside, and when, so paid or provided for, such special
voting right of the holders of (shares of Series A Preferred Stock
shall cease, but subject always to the same provisions for the vesting
of such special voting rights in the event of any such future dividend
default or defaults.
(ii) At any time after such special voting rights shall have
so vested in the holders of shares of Series A Preferred Stock, the
President or the Secretary of the Corporation may, and upon the
written request of the holders of record of 10% or more in number of
the shares of Series A Preferred Stock and each Other Series of
Preferred Stock then outstanding addressed to the Secretary at the
principal executive office of the
<page>
Corporation shall, call a special meeting of the holders of shares of
Preferred Stock so entitled to vote, for the election of the Special
Directors to be elected by them as herein provided, to be held within
60 days after such call and at the place and upon the notice provided
by law and in the Bylaws for the holding of meetings of stockholders;
provided, however, that the President or the Secretary shall not be
required to call such special meeting in the case of any such request
received less than 60 days before the date fixed for any annual
meeting of stockholders, and if in such case such special meeting is
not called or held, the holders of shares of Preferred Stock so
entitled to vote shall be entitled to exercise the special voting
rights provided in this paragraph at such annual meeting. If any such
special meeting required to be called as above provided shall not be
called by the President or the Secretary within 30 days after receipt
of any such request, then the holders of record of 10% or more in
number of the shares of Series A Preferred Stock and each Other Series
of Preferred Stock then outstanding may designate in writing one of
their number to call such meeting, and the person so designated may,
at the expense of the Corporation, call such meeting to be held at the
place and upon the notice given by such person, and for that sole
purpose shall have access to the stock books of the Corporation. No
such special meeting and no adjournment thereof shall be held on a
date later than 60 days before the annual meeting of stockholders. If,
at any meeting so called or at any annual meeting held while the
holders of shares of Series A Preferred Stock have the special voting
rights provided for in this paragraph, the holders of not less than
40% of the aggregate voting power of Series A Preferred Stock and each
Other Series of Preferred Stock then outstanding are present in person
or by proxy, which percentage shall be sufficient to constitute a
quorum for the election of additional directors as herein provided,
the then authorized number of directors of the Corporation shall be
increased by the number of Special Directors to be elected, as of the
time of such special meeting or the time of the first such annual
meeting held while such holders have special voting rights and such
quorum is present and the holders of shares of Series A Preferred
Stock and each Other Series of Preferred Stock, voting as a class,
shall be entitled to elect the Special Director or Directors so
provided for. If the directors of the Corporation are then divided
into classes under provisions of the Amended and Restated Certificate
or the Bylaws, the Special Director or Directors shall belong to each
class of directors in which a vacancy is created as a result of such
increase in the authorized number of directors. If the foregoing
expansion of the size of the Board of Directors shall not be valid
under applicable law, then the holders of shares of Series A Preferred
Stock and of each Other Series of Preferred Stock, voting as a class,
shall be entitled, at the meeting of stockholders at which they would
otherwise have voted, to elect a Special Director or Directors to fill
any then existing vacancies on the Board of Directors, and shall
additionally be entitled, at such meeting and each subsequent meeting
of stockholders at which directors are elected, to elect all of the
directors then being elected until by such class vote the appropriate
number of Special Directors has been so elected.
(iii) Upon the election at such meeting by the holders of shares
of Series A Preferred Stock and each Other Series of Preferred Stock,
voting as a class, of the Special Director or Directors they are
entitled so to elect, the persons so elected, together with such
persons as may be directors or as may have been elected as directors
by the holders of all shares (including Series A Preferred Stock)
otherwise entitled to vote for directors, shall constitute the duly
elected directors of the Corporation. Each Special Director so
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elected by holders of shares of Series A Preferred Stock and each
Other Series of Preferred Stock, voting as a class, shall serve until
the next annual meeting or until their respective successors shall be
elected and qualified, or if any such Special Director is a member of
a class of directors under provisions dividing the directors into
classes, each such Special Director shall serve until the annual
meeting at which the term of office of such Special Director's class
shall expire or until such Special Director's successor shall be
elected and shall qualify, and at each subsequent meeting of
stockholders at which the directorship of any Special Director is up
for election, said special class voting rights shall apply in the
reelection of such Special Director or in the election of such Special
Director's successor; provided, however, that whenever the holders of
shares of Series A Preferred Stock and each Other Series of Preferred
Stock shall be divested of the special rights to elect one or more
Special Directors as above provided, the terms of office of all
persons elected as Special Directors, or elected to fill any vacancies
resulting from the death, resignation, or removal of Special Directors
shall forthwith terminate (and the number of directors shall be
reduced accordingly).
(iv) If, at any time after a special meeting of stockholders
or an annual meeting of stockholders at which the holders of shares of
Series A Preferred Stock and each Other Series of Preferred Stock,
voting as a class, have elected one or more Special Directors as
provided above, and while the holders of shares of Series A Preferred
Stock and each Other Series of Preferred Stock shall be entitled so to
elect one or more Special Directors, the number of Special Directors
who have been so elected (or who by reason of one or more
resignations, deaths or removals have succeeded any Special Directors
so elected) shall by reason of resignation, death or removal be
reduced the vacancy in the Special Directors may be filled by any one
or more remaining Special Director or Special Directors. In the event
that such election shall not occur within 30 days after such vacancy
arises, or in the event that there shall not be incumbent at least one
Special Director, the President or the Secretary of the Corporation
may, and upon the written request of the holders of record of 10% or
more in number of the shares of Series A Preferred Stock and each
Other Series of Preferred Stock then outstanding addressed to the
Secretary at the principal office of the Corporation shall, call a
special meeting of the holders of shares of Series A Preferred Stock
and each Other Series of Preferred Stock so entitled to vote, for an
election to fill such vacancy or vacancies, to be held within 60 days
after such call and at the place and upon the notice provided by law
and in the Bylaws for the holding of meetings of stockholders:
provided, however, that the President or the Secretary shall not be
required to call such special meeting in the case of any such request
received less than 90 days before the date fixed for any annual
meeting of stockholders, and if in such case such special meeting is
not called, the holders of shares of Preferred Stock so entitled to
vote shall be entitled to fill such vacancy or vacancies at such
annual meeting. If any such special meeting required to be called as
above provided shall not be called by the President or the Secretary
within 30 days after receipt of any such request, then the holders of
record of 10% or more in number of the shares of Series A Preferred
Stock and each Other Series of Preferred Stock then outstanding may
designate in writing one of their number to call such meeting, and the
person so designated may, at the expense of the Corporation, call such
meeting to be held at the place and upon the notice above provided,
and for that purpose shall have access to
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the stock books of the Corporation; no such special meeting and no
adjournment thereof shall be held on a date later than 60 days before
the annual meeting of stockholders.
(d) Nothing herein shall prevent the directors or stockholders from
taking any action to increase the number of authorized shares of Series A
Preferred Stock, or increasing the number of authorized shares of Preferred
Stock of the same class as the Series A Preferred Stock or the number of
authorized shares of Common Stock, or changing the par value of the Common Stock
or Preferred Stock, or issuing options, warrants or rights to any class of stock
of the Corporation as authorized by the Amended and Restated Certificate, as it
may hereafter be amended.
(e) Except as set forth herein, holders of shares of Series A
Preferred Stock shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote as set forth in the
Amended and Restated Certificate or herein or by law) for taking any corporate
action.
Section 4. Certain Restrictions.
--------------------
(a) Whenever any dividends or other distributions payable on the
Series A Preferred Stock as provided in Section 2 hereof are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the Corporation shall not, directly or indirectly:
(i) declare or pay dividends on, or make any other
distributions with respect to, any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions with respect to, any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, except dividends paid ratably on shares
of the Series A Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to
which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock,
provided that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares
of Series A Preferred Stock, or any shares of stock ranking on a parity
with the Series A Preferred Stock, except in accordance with a purchase
offer made in writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes,
shall determine
<page>
in good faith will result in fair and equitable treatment among the
respective series or classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration, directly or
indirectly, any shares of stock of the Corporation unless the Corporation could,
under paragraph (a) of this Section 4, purchase or otherwise acquire such shares
at such time and in such manner.
Section 5. Reacquired Shares.
-----------------
Any shares of Series A Preferred Stock purchased or otherwise acquired by
the Corporation in any manner whatsoever shall be retired and canceled promptly
after the acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of preferred stock, without designation as
to series, and may be reissued as part of any series of preferred stock created
by resolution or resolutions of the Board of Directors (including Series A
Preferred Stock), subject to the conditions and restrictions on issuance set
forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
--------------------------------------
Upon any liquidation, dissolution or winding up of the Corporation. no
distribution shall be made to:
(a) the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received the greater of (i) $1.00 per share ($.00l
per one one-thousandth of a share), plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, or (ii) an aggregate amount per share, subject to the provision
for adjustment hereinafter set forth, equal to 1000 times the aggregate amount
to be distributed per share to holders of shares of Common Stock (the
"Adjustment Number"); or
(b) the holders of shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock except distributions made ratably on the Series A Preferred
Stock and all other such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up.
In the event that the Corporation shall at any time declare or pay any
dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then and in each such event, the aggregate amount to
which the holder of each share of Series A Preferred Stock was entitled
immediately prior to such event under the proviso in clause (a) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event, and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc.
---------------------------
In the event that the Corporation shall enter into any consolidation,
merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other
property, or otherwise changed, then and in each such event, the shares of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 1000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event that the Corporation shall at any time declare or pay any dividend
on Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise) into a greater or lesser number of shares of
Common Stock, then and in each such event, the amount set forth in the preceding
sentence with respect to the exchange or change of shares of Series A Preferred
Stock shall be adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately after
such event. and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
Section 8. Redemption.
----------
The outstanding shares of Series A Preferred Stock may be redeemed at the
option of the Board of Directors, at any time, at a cash price per share equal
to (i) 100% of the product of the Adjustment Number (as set forth in Section
6(a)) times the Average Market Value (as such term is hereinafter defined) of
the Common Stock, plus (ii) all dividends which on the redemption date have
accrued on the shares to be redeemed and have not been paid or declared and a
sum sufficient for the payment thereof set apart, without interest, provided
however, that if and whenever any quarterly dividend shall have accrued on the
Series A that has not been paid or declared and a sum sufficient for the payment
thereof set apart, the Corporation may not purchase or otherwise acquire any
shares of Series A unless all shares of such stock at the time outstanding are
so purchased or otherwise acquired. The "Average Market Value" is the average of
the closing sale prices of a share of the Common Stock during the 30 day period
immediately preceding the date before the redemption date on the Composite Tape
for New York Stock Exchange Listed Stocks, or, if such stock is not quoted on
the Composite Tape, on the New York Stock Exchange, or, if such stock is not
listed on such Exchange, on the principal United States securities exchange
registered on which such stock is listed, or, if such stock is not bid
quotations with respect to a share of Common Stock during such 30-day period on
the National Association of Securities Dealers, Inc. Automated Quotations System
or any system then in use, or if no such quotations are available, the fair
market value of a share of the Common Stock as determined by the Board of
Directors in good faith.
Section 9. Rank.
----
Unless otherwise provided in the Amended and Restated Certificate or a
Certificate of Designations relating to a subsequent series of preferred stock
of the Corporation, the Series A Preferred Stock shall rank junior to all other
series of the Corporation's preferred stock as to the
payment of dividends and the distribution of assets on liquidation, dissolution
or winding up, and senior to the Common Stock of the Corporation.
Section 10. Amendment.
---------
The Amended and Restated Certificate shall not be amended in any manner
that would materially and adversely alter or change the powers, preferences or
special rights of the Series A Preferred Stock without the affirmative vote of
the holders of at least a majority of the outstanding shares of Series A
Preferred Stock, voting together as a single series.
Section 11. Fractional Shares.
-----------------
Series A Preferred Stock may be issued in fractions of a share (in one
one-thousandths (1/1000) of a share and integral multiples thereof) that shall
entitle the holder thereof, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distributions and have
the benefit of all other rights of holders of shares of Series A Preferred
Stock.
[Signatures on following page]
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
hereunto affixed and this Certificate to be signed by Alfred S. Dominick, Jr.,
President and Chief Executive Officer, and attested by Albert N. Wergley, Vice
President, General Counsel and Secretary, this 30th day of May, 2002.
/s/ Alfred S. Dominick, Jr.
--------------------------------
Alfred S. Dominick, Jr.
President and Chief Executive Officer
ATTEST:
/s/ Albert N. Wergley
- ----------------------------
Albert N. Wergley
Vice President, General Counsel
and Secretary
(Corporate Seal)
COMMONWEALTH OF VIRGINIA )
) SS
COUNTY OF FAIRFAX )
BE IT REMEMBERED that on this 30th day of May, 2002, personally came before
me, a Notary Public, in and for the County and State aforesaid, Alfred S.
Dominick, Jr., President and Chief Executive Officer of InteliData Technologies
Corporation, a Delaware corporation, and he duly executed the foregoing
Certificate before me and acknowledged the said Certificate to be his act and
deed and the act and deed of said corporation and the facts stated therein are
true; and that the seal affixed to said Certificate and attested by the
Secretary of said corporation is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal the day
and year aforesaid.
/s/ Kelly A. Thompson-Vogel
--------------------------------
Kelly A. Thompson-Vogel
Notary Public