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Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
KANBAY INTERNATIONAL, INC.
KANBAY INTERNATIONAL, INC. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Delaware Law"), does hereby certify:
I. The name of the Corporation is Kanbay International, Inc. The original
Certificate of Incorporation of the Corporation was filed with the Secretary of
State of the State of Delaware on August 1, 2000.
II. Pursuant to Sections 242 and 245 of the Delaware Law, this Amended and
Restated Certificate of Incorporation (the "Certificate") restates and further
amends the provisions of the Certificate of Incorporation of this Corporation.
Pursuant to and in accordance with the provisions of Section 228 of the Delaware
Law, written consent to this Certificate has been given in lieu of a vote of
stockholders at a meeting and written notice of such written consent has been
given to all stockholders who have not consented in writing to this Certificate.
III. The text of the original Certificate of Incorporation as heretofore
amended or supplemented is hereby restated and further amended to read in its
entirety as follows:
ARTICLE ONE
The name of the Corporation is: Kanbay International, Inc.
ARTICLE TWO
The address of the Corporation's registered office in the State of Delaware
is 1013 Centre Road, in the City of Wilmington, County of New Castle 19805. The
name of its registered agent at such address is Corporation Service Company.
ARTICLE THREE
The nature of the business or purposes to be conducted or promoted is:
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To engage in any lawful business act or activities for which
Corporations may be organized under the General Corporation Law of the
State of Delaware and as may be approved by the Board of Directors of the
Corporation from time to time.
The Corporation shall have all power necessary or convenient to the
conduct, promotion or attainment of such acts and activities.
ARTICLE FOUR
4.1. AUTHORIZED STOCK.
(a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue shall be 33,701,190 which are divided
as follows:
(i) 3,701,190 shares of Preferred Stock, par value $0.001 per
share (the "Preferred Stock"), 402,857 of which shall be designated Series A-1
Convertible Preferred Stock (the "Series A-1 Preferred Stock") and 3,298,333 of
which shall be designated Series A-2 Convertible Preferred Stock (the "Series
A-2 Preferred Stock");
(ii) 25,000,000 shares of Class A Common Stock, par value $0.001
per share (the "Class A Common Stock"); and
(iii) 5,000,000 shares of Class B Common Stock, par value $0.001
per share (the "Class B Common Stock" and together with the Class A Common
Stock, the "Common Stock") (the Common Stock and Preferred Stock may be
collectively referred to herein as the "Stock").
(b) Effective upon the filing of this Certificate, (i) each share of
common stock, $0.001 par value per share issued and outstanding immediately
prior to the filing of this Certificate (the "Original Common Stock") shall be
reclassified as one (1) share of fully paid and nonassessable Class A Common
Stock, (ii) each share of Series A Convertible Preferred Stock, $0.001 par value
per share issued and outstanding immediately prior to the filing of this
Certificate ("Original Series A Preferred Stock") and held by the stockholder
that is a party to that certain Exchange Agreement (the "Exchange Agreement")
with the Corporation, dated as of the date of the filing of this Certificate,
shall be exchanged for one (1) fully paid and nonassessable share of Series A-2
Convertible Preferred Stock, and (iii) each share of Original Series A Preferred
Stock issued and outstanding immediately prior to the filing of this Certificate
that is not held by the stockholder that is a party to the Exchange Agreement
shall be reclassified as one (1) fully paid and nonassessable share of Series
A-1 Convertible Preferred Stock (the events described in clauses (i) through
(iii) immediately preceding being referred to herein as the "Reclassification").
The certificate(s) representing shares of Original Common Stock shall upon the
filing of this Certificate and the simultaneous Reclassification represent the
right to receive a certificate representing Class A Common Stock into which such
share or shares of Original Common Stock has been reclassified. The
certificate(s) representing shares of Original Series A Preferred Stock being
exchanged for Series A-2 Preferred Stock shall upon the filing of this
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Certificate and the simultaneous Reclassification represent the right to receive
a certificate representing Series A-2 Preferred Stock into which such shares of
Original Series A Preferred Stock have been exchanged and the certificate(s)
representing the other shares of Original Series A Preferred Stock being
reclassified as Series A-1 Preferred Stock shall upon the filing of this
Certificate and the simultaneous Reclassification represent the right to receive
a certificate representing Series A-1 Preferred Stock into which such shares of
Original Series A Preferred Stock have been reclassified. Each stockholder
holding Original Common Stock or Original Series A Preferred Stock so exchanged
or reclassified shall deliver to the Corporation at its principal office (or
such other office or agency of the Corporation as the Corporation may designate
by notice in writing to stockholders) at any time during its usual business
hours, the certificate or certificates for the Original Common Stock or Original
Series A Preferred Stock, as the case may be. As promptly as practicable
thereafter, the Corporation shall issue and deliver to each such stockholder a
certificate or certificates for the number of shares of Class A Common Stock,
Series A-2 Preferred Stock, or Series A-1 Preferred Stock, as the case may be,
to which such stockholder is entitled. Until such time as a stockholder holding
Original Common Stock or Original Series A Preferred Stock shall surrender its
certificate or certificates therefor, as provided above, such certificate or
certificates shall be deemed to represent the Stock to which such stockholder
shall be entitled upon the surrender thereof.
4.2. TERMS APPLICABLE TO THE PREFERRED STOCK.
(a) VOTING. Holders of Preferred Stock shall have those voting rights set
forth for the Preferred Stock in Section 4.5 below.
(b) DIVIDENDS.
(i) To the extent permitted under the Delaware Law, the
Corporation shall pay preferential dividends to the holders of Preferred Stock.
Except as otherwise provided herein, dividends on each share of Preferred Stock
shall accrue on a daily basis at a rate of six percent (6%) of the per share
purchase price of $3.00 (the "Preferred Stock Purchase Price") per share, from
and including August 24, 1998. The date on which the Corporation initially
issues a share of Preferred Stock shall be deemed to be its "date of issuance"
regardless of the number of times transfer of such share is made on the stock
records maintained by or for the Corporation and regardless of the number of
certificates which may be issued to evidence such share. Such dividends shall
accrue whether or not they have been declared and whether or not there are
profits, surplus, or other funds of the Corporation legally available for the
payment of dividends. All accrued and unpaid dividends shall be fully paid or
declared with funds irrevocably set apart for payment before any dividend,
distribution or payment can be made with respect to any Common Stock.
(ii) All dividends which have accrued on each share of Preferred
Stock during the twelve-month period ending upon each December 31 shall be
accumulated and remain unpaid dividends with respect to such share of Preferred
Stock until paid.
(iii) Except as otherwise provided herein, if at any time the
Corporation pays less than the total amount of dividends then accrued with
respect to all outstanding shares of
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Preferred Stock, such payment shall be distributed ratably among the holders of
such shares based upon the number of such shares of such series held by each
such holder.
(iv) In the event any dividend or other distribution payable in
cash, stock or other property is declared on the Common Stock, each holder of
Preferred Stock on the record date for such dividend or distribution shall be
entitled to receive on the date of payment or distribution of such dividend or
distribution the same cash, stock or other property which such holder would have
received if on such record date such holder was the holder of record of the
number (including any fraction) of shares of Common Stock into which such
Preferred Stock then held by such holder are convertible.
(v) No accrued, undeclared dividends will be paid upon any
conversion of Preferred Stock to Common Stock and any such dividends shall
thereupon be forfeited.
(c) LIQUIDATION.
(i) PREFERENCE. Upon the liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary (a "Liquidation"), each
holder of the Preferred Stock shall be entitled to receive out of the assets of
the Corporation available for distribution to stockholders, prior and in
preference to any payment or distribution with respect to the Common Stock, an
amount in cash per share equal to the greater of (x) $3.00 per share (as
appropriately adjusted for any stock dividends, combinations, splits and the
like with respect to the Preferred Stock), plus any accrued but unpaid dividends
with respect to such share, and (y) the amount to which such share would
otherwise be entitled if such share was converted into Common Stock immediately
prior to such Liquidation; provided that, if, upon the occurrence of such event,
the assets and funds to be distributed among the holders of the Preferred Stock
shall be insufficient to permit the payment to such holders of the full
aforesaid preferential amounts, then the entire assets and funds of the
Corporation legally available for distribution shall be distributed ratably
among the holders of the Preferred Stock in proportion to the preferential
amount each such holder is otherwise entitled to receive.
(d) CONVERSIONS. The stockholders holding Preferred Stock shall have the
following conversion rights:
(i) RIGHT TO CONVERT. Subject to the terms and conditions of this
Section 4.2(d), any stockholder holding Preferred Stock shall have the right, at
its option at any time, in whole or in part, to convert any such Preferred Stock
into such number of fully paid and nonassessable shares of Common Stock as is
obtained by (a) multiplying the number of shares of Preferred Stock so to be
converted by $3.00; and (b) dividing the result by a conversion price of $3.00
(the "Conversion Price") or, in case an adjustment of such Conversion Price has
taken place pursuant to the further provisions of this Section 4.2(d), then by
the Conversion Price as last adjusted and in effect at the date such shares of
Preferred Stock are surrendered for conversion. Each share of Series A-1
Preferred Stock shall convert into fully paid and nonassessable shares of Class
A Common Stock and each share of Series A-2 Preferred Stock shall convert into
fully paid and nonassessable shares of Class B Common Stock; provided that, upon
a Full Transfer (as hereinafter defined) of such share of Series A-2 Preferred
Stock, other
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than a Full Transfer to an Affiliate (as hereinafter defined) of the Initial
Registered Holder (as hereinafter defined) of such Series A-2 Preferred Stock,
or at such time as the Initial Registered Holder and its Affiliates no longer
own shares of Common Stock and Preferred Stock together constituting or
convertible into at least twelve percent (12%) of the outstanding shares of
Common Stock (assuming for this purpose the conversion of all outstanding shares
of Preferred Stock and any other outstanding Convertible Securities (as defined
in Section 4.2(d)(iv)(A)) of the Corporation, such share of Series A-2 Preferred
Stock thereafter shall convert into fully paid and nonassessable shares of Class
A Common Stock. For purposes of this Certificate, (x) a "Full Transfer" with
respect to a share of Stock shall mean a sale, assignment or conveyance of all
right, title and interest in and to such share, but shall not include a bona
fide pledge or hypothecation of such share, (y) an "Affiliate" of a given person
or entity shall mean any person or entity controlled by, controlling, or under
common control with such given entity, where "control" shall be defined as the
ownership, directly or indirectly, of the power to vote greater than 50% of an
entity's voting securities, and (z) "Initial Registered Holder" shall mean, with
respect to a share of Series A-2 Preferred Stock, the initial holder of such
share, as registered in the stock transfer records of the Corporation and, with
respect to a share of Class B Common Stock, the initial holder of the share of
Series A-2 Preferred Stock that was converted into such share of Class B Common
Stock. Such rights of conversion shall be exercised by the stockholder by giving
written notice to the Corporation that such stockholder elects to convert a
stated number and series of shares of Preferred Stock into Common Stock and by
surrendering the certificate or certificates so to be converted to the
Corporation at its principal office (or such other office or agency of the
Corporation as the Corporation may designate by notice in writing to the
stockholder holding Preferred Stock) at any time during its usual business hours
on the date set forth in such notice, together with a statement of the name or
names (with address) in which the certificate or certificates for shares of
Common Stock shall be issued.
(ii) ISSUANCE OF CERTIFICATES; TIME CONVERSION EFFECTED. Promptly
after the receipt of the written notice referred to in Section 4.2(d)(i) and
surrender of the certificate or certificates for the Preferred Stock to be
converted, the Corporation shall issue and deliver, or cause to be issued and
delivered, to the stockholder, registered in the name of such stockholder, a
certificate or certificates for the number and class of shares of Common Stock
issuable upon the conversion of such Preferred Stock. To the extent permitted by
law, such conversion shall be deemed to have been effected and the Conversion
Price shall be determined as of the close of business on the date on which such
written notice shall have been received by the Corporation and the certificate
or certificates for such Preferred Stock shall have been surrendered as
aforesaid, and at such time the rights of the stockholder with respect to such
Preferred Stock shall cease and such stockholder shall be deemed to have become
the holder of record of the Common Stock represented thereby.
(iii) FRACTIONAL SHARES; DISTRIBUTIONS; PARTIAL CONVERSION. No
fractional shares of Common Stock shall be issued upon conversion of Preferred
Stock into Common Stock and no payment or adjustment shall be made upon any
conversion on account of any cash distributions on the Common Stock issued upon
such conversion. In case the number of shares of Preferred Stock represented by
the certificate or certificates surrendered pursuant to Section 4.2(d)(i)
exceeds the number of shares of Preferred Stock converted, the Corporation
shall, upon
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such conversion, execute and deliver to the holder, at the expense of the
Corporation, a new certificate for the number and class of shares of Preferred
Stock represented by the certificate or certificates surrendered that are not to
be converted. If any fractional shares of Common Stock would, except for the
provisions of the first sentence of this Section 4.2(d)(iii), be delivered upon
such conversion, the Corporation, in lieu of delivering such fractional share,
shall pay to the holder surrendering the Preferred Stock for conversion an
amount in cash equal to the fair market value of such fractional share as
determined in good faith by the Board of Directors of the Corporation.
(iv) ADJUSTMENT OF PRICE UPON ISSUANCE OF COMMON STOCK. Except as
provided in Section 4.2(d)(iv)(C) or Section 4.2(d)(v), if and whenever the
Corporation shall issue or sell, or is, in accordance with Sections
4.2(d)(iv)(A) through 4.2(d)(iv)(G) below, deemed to have issued or sold, any
Common Stock for a consideration per share less than the Conversion Price in
effect immediately prior to the time of such issue or sale, then, forthwith upon
such issue or sale, the Conversion Price shall be reduced to the price
determined by dividing (x) an amount equal to the sum of (A) the number of
shares of Common Stock outstanding immediately prior to such issue or sale
(including all Common Stock issuable upon exercise or conversion of all Options
and Convertible Securities (as defined below) issued and outstanding) multiplied
by the then-existing Conversion Price and (B) the consideration, if any,
received by the Corporation upon such issue or sale, by (y) the total number of
shares of Common Stock outstanding immediately after such issue or sale
(including all Common Stock issuable upon exercise or conversion of all Options
and Convertible Securities (as defined below) issued and outstanding). For
purposes of this Section 4.2(d)(iv), the following Sections 4.2(d)(iv)(A) to
4.2(d)(iv)(G) shall also be applicable:
(A) ISSUANCE OF RIGHTS OR OPTIONS. In case at any time the
Corporation shall in any manner grant (whether directly or by
assumption in a merger or otherwise) any warrants or other rights to
subscribe for or to purchase, or any options for the purchase of,
Common Stock or any capital stock or security convertible into or
exchangeable for Common Stock (such warrants, rights, or options being
called "Options" and such convertible or exchangeable stock or
securities being called "Convertible Securities") whether or not such
Options or the right to convert or exchange any such Convertible
Securities are immediately exercisable, and the price per share for
which shares of Common Stock are issuable upon the exercise of such
Options or upon the conversion or exchange of such Convertible
Securities (determined by dividing (i) the total amount, if any,
received or receivable by the Corporation as consideration for the
granting of such Options, plus the minimum aggregate amount of
additional consideration payable to the Corporation upon the exercise
of all such Options, plus, in the case of such Options which relate to
Convertible Securities, the minimum aggregate amount of additional
consideration, if any, payable upon the issue or sale of such
Convertible Securities and upon the conversion or exchange thereof, by
(ii) the total maximum number of shares of Common Stock issuable upon
the exercise of such Options or upon the conversion or exchange of all
such Convertible Securities issuable upon the exercise of such
Options) shall be less than the
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Conversion Price in effect immediately prior to the time of the
granting of such Options, then the total maximum number of shares of
Common Stock issuable upon the exercise of such Options or upon
conversion or exchange of the total maximum amount of such Convertible
Securities issuable upon the exercise of such Options shall be deemed
to have been issued for such price per share as of the date of
granting of such Options or the issuance of such Convertible
Securities and thereafter shall be deemed to be outstanding.
(B) ISSUANCE OF CONVERTIBLE SECURITIES. In case the Corporation
shall in any manner issue (whether directly or by assumption in a
merger or otherwise) or sell any Convertible Securities, whether or
not the rights to exchange or convert any such Convertible Securities
are immediately exercisable, and the price per share for which shares
of Common Stock are issuable upon such conversion or exchange
(determined by dividing (i) the total amount received or receivable by
the Corporation as consideration for the issue or sale of such
Convertible Securities, plus the minimum aggregate amount of
additional consideration, if any, payable to the Corporation upon the
conversion or exchange thereof, by (ii) the total maximum number of
shares of Common Stock issuable upon the conversion or exchange of all
such Convertible Securities) shall be less than the Conversion Price
in effect immediately prior to the time of such issue or sale, then
the total maximum number of shares of Common Stock issuable upon
conversion or exchange of all such Convertible Securities shall be
deemed to have been issued for such price per share as of the date of
the issue or sale of such Convertible Securities and thereafter shall
be deemed to be outstanding, provided that (a) except as otherwise
provided in Section 4.2(a)(d)(iv)(D), no adjustment of the Conversion
Price shall be made upon the actual issue of such Common Stock upon
conversion or exchange of such Convertible Securities, and (b) if any
such issue or sale of such Convertible Securities is made upon
exercise of any Options to purchase any such Convertible Securities
for which adjustments of the Conversion Price have been or are to be
made pursuant to other provisions of this Section 4.2(a)(d)(iv) no
further adjustment of the Conversion Price shall be made by reason of
such issue or sale.
(C) EXCLUSIONS FROM ADJUSTMENTS. Anything herein to the contrary
notwithstanding, no adjustment will made to the Conversion Price by
reason of any of the following events: (i) the issuance of Class A
Common Stock, or options to purchase such shares granted to the
employees, consultants and directors of the Corporation pursuant to
any stock option plans adopted by the Corporation, (ii) the issuance
of shares of Common Stock upon conversion of shares of Preferred
Stock, (iii) the issuance of shares of Class A Common Stock upon the
conversion of shares of Class B Common Stock, (iv) the issuance of
shares of Common Stock upon a subdivision (whether by stock split,
stock dividend or otherwise) or combination (whether by reverse stock
split or otherwise) of the shares of Common Stock for which an
adjustment to the Conversion Price is made pursuant to Section 4.2(v),
(v) the issuance of shares of
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Class A Common Stock and warrants to purchase Class A Common Stock and
other securities of the Corporation solely for the purpose of
providing anti-dilution protection (consistent with the protection
being provided by this Section 4(d)(iv)) to certain holders of Class A
Common Stock of the Corporation; and (vi) the issuance of warrants to
purchase up to 200,000 shares of Class A Common Stock of the
Corporation to Household International, Inc.
(D) CHANGE IN OPTION PRICE OR CONVERSION RATE. Upon the happening
of any of the following events, namely, if the purchase price provided
for in any Option referred to in Section 4.2(d)(iv)(A), the additional
consideration, if any, payable upon the conversion or exchange of any
Convertible Securities referred to in Sections 4.2(d)(iv)(A) or
4.2(d)(iv)(B), or the rate at which Convertible Securities referred to
in Sections 4.2(d)(iv)(A) or 4.2(d)(iv)(B) are convertible into or
exchangeable for Common Stock shall change at any time (including, but
not limited to, changes under or by reason of provisions designed to
protect against dilution), the Conversion Price in effect at the time
of such event shall forthwith be readjusted to the Conversion Price
that would have been in effect at such time had such Options or
Convertible Securities still outstanding provided for such changed
purchase price, additional consideration, or conversion rate, as the
case may be, at the time initially granted, issued or sold, but only
if as a result of such adjustment the Conversion Price then in effect
hereunder is thereby reduced; and on the termination of any such
Option or any such right to convert or exchange such Convertible
Securities, the Conversion Price then in effect hereunder shall
forthwith be increased to the Conversion Price which would have been
in effect at the time of such termination had such Option or
Convertible Securities, to the extent outstanding immediately prior to
such termination, never been issued.
(E) ALLOCATIONS. In case the Corporation shall make any
allocation or other distribution upon any share of the Corporation
payable in Common Stock (except for allocations or distributions upon
the Common Stock), Options, or Convertible Securities, any Common
Stock, Options, or Convertible Securities, as the case may be,
issuable in payment of such allocation or distribution shall be deemed
to have been issued or sold without consideration.
(F) CONSIDERATION FOR STOCK. In case any Common Stock, Options,
or Convertible Securities shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount
received by the Corporation therefor, without deduction therefrom of
any expenses incurred or any underwriting commissions or concessions
paid or allowed by the Corporation in connection therewith. In case
any Common Stock, Options, or Convertible Securities shall be issued
or sold for a consideration other than cash, the amount of the
consideration other than cash received by the Corporation shall be
deemed to be the fair market value of such consideration as determined
in good faith by the Board of Directors of the Corporation, without
deduction of any expenses incurred or any underwriting commissions or
concessions paid or allowed by the
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Corporation in connection therewith. In case any Options shall be
issued in connection with the issue and sale of other securities of
the Corporation, together comprising one integral transaction in which
no specific consideration is allocated to such Options by the parties
thereto, such Options shall be deemed to have been issued for such
consideration as determined in good faith by the Directors.
(G) RECORD DATE. In case the Corporation shall take a record of
the holders of its Common Stock for the purpose of entitling them (i)
to receive an allocation or other distribution payable in Common
Stock, Options, or Convertible Securities, or (ii) to subscribe for or
purchase Common Stock, Options, or Convertible Securities, then such
record date shall be deemed to be the date of the issue or sale of the
Common Stock deemed to have been issued or sold upon the declaration
of such dividend or the making of such other distribution or the date
of the granting of such right of subscription or purchase, as the case
may be.
(v) SUBDIVISION OR COMBINATION OF COMMON STOCK. In case the
Corporation shall at any time subdivide its outstanding shares of Common Stock
into a greater number of shares of Common Stock, the Conversion Price in effect
immediately prior to such subdivision shall be proportionately reduced, and,
conversely, in case the outstanding shares of Common Stock shall be combined
into a smaller number of shares of Common Stock, the Conversion Price in effect
immediately prior to such combination shall be proportionately increased. In the
case of any such subdivision, no further adjustment shall be made pursuant to
Section 4.2(d)(iv)(E) by reason thereof.
(vi) REORGANIZATION OR RECLASSIFICATION. If any capital
reorganization or reclassification of the stock of the Corporation shall be
effected in such a way that holders of Common Stock shall be entitled to receive
stock, securities, or assets with respect to or in exchange for Common Stock,
then, as a condition of such reorganization or reclassification, lawful and
adequate provisions shall be made whereby each holder of Preferred Stock shall
thereupon have the right to receive, upon the basis and upon the terms and
conditions specified herein and in lieu of the Common Stock immediately
theretofore receivable upon the conversion of such Preferred Stock, such stock,
securities, or assets as may be issued or payable with respect to or in exchange
for a number of outstanding shares of Common Stock equal to the number of shares
of Common Stock immediately theretofore receivable upon such conversion had such
reorganization or reclassification not taken place, and in any such case
appropriate provisions shall be made with respect to the rights and interests of
such holder to the end that the provisions hereof (including, without
limitation, provisions for adjustments of the Conversion Price) shall thereafter
be applicable, as nearly as may be, in relation to any stock, securities, or
assets thereafter deliverable upon the exercise of such conversion rights.
(vii) MINIMAL ADJUSTMENTS. All calculations under this Section
4.2(d) shall be made to the nearest cent or to the nearest one hundredth (1/100)
of a share, as the case may be. No adjustment in the Conversion Price need be
made if that adjustment would result in a change in the Conversion Price of less
than $0.01. Any adjustment of less than $0.01 that is not made shall be carried
forward and shall be made at the time of and together with any subsequent
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adjustment that, on a cumulative basis, amounts to an adjustment of $0.01 or
more in the Conversion Price.
(viii) NOTICE OF ADJUSTMENT. Upon any adjustment of the Conversion
Price, then and in each such case the Corporation shall give written notice
thereof, by delivery in person, certified or registered mail, return receipt
requested, telecopier, or telex, addressed to each stockholder holding
Preferred Stock at the address of such stockholder as shown on the books of the
Corporation, which notice shall state the Conversion Price resulting from such
adjustment, setting forth in reasonable detail the method upon which such
calculation is based.
(ix) NO REISSUANCE OF PREFERRED STOCK. Preferred Stock that is
converted into Common Stock as provided herein shall not be reissued.
(x) ISSUE TAX. The issuance of a certificate for Common Stock
upon conversion of Preferred Stock shall be made without charge to the holders
thereof for any issuance tax in respect thereof, provided that the Corporation
shall not be required to pay any tax that may be payable in respect of any
transfer involved in the issuance and delivery of any certificate in a name
other than that of the holder of the Preferred Stock which is being converted.
(xi) CLOSING OF BOOKS. The Corporation will at no time close its
transfer books against the transfer of any Preferred Stock or of any Common
Stock issued or issuable upon the conversion of any Preferred Stock in any
manner which interferes with the timely conversion of such Preferred Stock,
except as may otherwise be required to comply with applicable securities laws.
(xii) MANDATORY CONVERSION. All outstanding Preferred Stock shall
automatically convert into fully paid and nonassessable shares of Common Stock
on the basis set forth in this Section 4.2(d): (1) upon the affirmative vote of
the holders of at least two-thirds (2/3rds) of the issued and outstanding shares
of Preferred Stock; or (2) if, at any time, the Corporation shall effect, and
upon the consummation of a firm commitment underwritten public offering (a
"Qualified Public Offering") of capital stock in the Corporation in which (A)
the aggregate price paid for such stock by the public is not less than Fifteen
Million Dollars ($15,000,000), and (B) the public offering price per share
(prior to underwriter commissions and expenses) is not less than $12.00 (as
appropriately adjusted for any stock dividends, combinations, splits and the
like with respect to the Common Stock). Each share of Series A-1 Preferred Stock
shall automatically convert into shares of Class A Common Stock and each share
of Series A-2 Preferred Stock shall automatically convert into shares of Class B
Common Stock; provided that, upon a Full Transfer of any shares of Series A-2
Preferred Stock, other than a Full Transfer to an Affiliate of the Initial
Registered Holder of such Series A-2 Preferred Stock, or at such time as the
Initial Registered Holder and its Affiliates no longer own shares of Common
Stock and Preferred Stock together constituting or convertible into at least
twelve percent (12%) of the outstanding shares of Common Stock (assuming for
this purpose the conversion of all outstanding shares of Preferred Stock and any
other outstanding Convertible Securities of the Corporation), such shares of
Series A-2 Preferred Stock thereafter shall automatically convert into shares of
Class A Common Stock. For purposes of this section,
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"Investor" shall mean Safeguard 98 Capital L.P., its designated nominees, and
any subsequent holders of Series A-2 Preferred Stock. Each stockholder holding
Preferred Stock so converted shall deliver to the Corporation at its principal
office (or such other office or agency of the Corporation as the Corporation may
designate by notice in writing to such holders) during its usual business hours,
the certificate or certificates for the Preferred Stock so converted. As
promptly as practicable thereafter, the Corporation shall issue and deliver to
each such stockholder a certificate or certificates for the number and class of
shares of Common Stock to which such stockholder is entitled, together with any
cash dividends and payment in lieu of fractional shares to which such
stockholder may be entitled pursuant to Section 4.2(d)(iii). Until such time as
a stockholder holding Preferred Stock shall surrender its certificate or
certificates therefor as provided above, such certificate or certificates shall
be deemed to represent the Common Stock to which such stockholder shall be
entitled upon the surrender thereof.
(xiii) All calculations under this section 4.2(d) shall be made to
the nearest cent or to the nearest one hundredth (1/100) of a share, as the case
may be.
(e) SUBDIVISIONS AND COMBINATIONS. If the Corporation shall in any manner
subdivide or combine the outstanding shares of Series A-1 Preferred Stock or
Series A-2 Preferred Stock, the outstanding shares of the other such series of
Preferred Stock shall be proportionately subdivided or combined in the same
manner and on the same basis as the outstanding shares of Series A-1 Preferred
Stock or Series A-2 Preferred Stock, as the case may be, which have been
subdivided or combined.
4.3. TERMS APPLICABLE TO THE COMMON STOCK.
(a) DIVIDENDS. Subject to the provisions of law and of this Certificate,
the holders of Common Stock shall be entitled to receive dividends at such times
and in such amounts as may be determined by the Board of Directors of the
Corporation, provided that the holders of shares of Class A Common Stock and
shares of Class B Common Stock shall be entitled to share equally, on a per
share basis, in such dividends, subject to the limitations described below, and
provided further that in no event shall the Board of Directors of the
Corporation declare any dividend (except dividends payable in Common Stock) on
the Common Stock while any shares of the Preferred Stock remain outstanding. If
dividends or other distributions are declared that are payable in shares of
Class A Common Stock or Class B Common Stock, including distributions pursuant
to stock subdivisions or combinations of Class A Common Stock or Class B Common
Stock, only shares of Class A Common Stock shall be distributed with respect to
Class A Common Stock and only shares of Class B Common Stock shall be
distributed with respect to Class B Common Stock. If the Corporation shall in
any manner subdivide or combine the outstanding shares of Class A Common Stock
or Class B Common Stock, the outstanding shares of the other such class of
Common Stock shall be proportionately subdivided or combined in the same manner
and on the same basis as the outstanding shares of Class A Common Stock or Class
B Common Stock, as the case may be, which have been subdivided or combined.
(b) LIQUIDATION. In the event of any Liquidation and after the payment of
any preferential amounts to be distributed to the holders of the Preferred
Stock, the remaining assets of the Corporation available for distribution to the
stockholders shall be distributed to the holders
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of Common Stock ratably in proportion to the number of shares of Common Stock
that each such holder holds.
(c) VOTING RIGHTS. The Common Stock shall have those voting rights set
forth for the Common Stock in Section 4.5 below.
(d) CONVERSION.
(i) RIGHT TO CONVERT. Each share of Class B Common Stock shall be
convertible into one fully paid and nonassessable share of Class A Common Stock
at the option of the holder thereof at any time. Such rights of conversion shall
be exercised by the stockholder by giving written notice to the Corporation that
such stockholder elects to convert a stated number of shares of Class B Common
Stock into Class A Common Stock and by surrendering the certificate or
certificates so to be converted to the Corporation at its principal office (or
such other office or agency of the Corporation as the Corporation may designate
by notice in writing to the stockholder holding Class B Common Stock) at any
time during its usual business hours on the date set forth in such notice,
together with a statement of the name or names (with address) in which the
certificate or certificates for shares of Class A Common Stock shall be issued.
(ii) ISSUANCE OF CERTIFICATES; TIME CONVERSION EFFECTED. Promptly
after the receipt of the written notice referred to in Section 4.3(d)(i) and
surrender of the certificate or certificates for the Class B Common Stock to be
converted, the Corporation shall issue and deliver, or cause to be issued and
delivered, to the stockholder, registered in the name of such stockholder, a
certificate or certificates for the number of shares of Class A Common Stock
issuable upon the conversion of such Class B Common Stock. To the extent
permitted by law, such conversion shall be deemed to have been effected as of
the close of business on the date on which such written notice shall have been
received by the Corporation and the certificate or certificates for such Class B
Common Stock shall have been surrendered as aforesaid, and at such time the
rights of the stockholder with respect to such Class B Common Stock shall cease
and such stockholder shall be deemed to have become the holder of record of the
Common Stock represented thereby.
(iii) AUTOMATIC CONVERSION. Each share of Class B Common Stock
shall automatically be converted, without any further action by the holder of
such share and whether or not the certificate representing such share is
surrendered to the Corporation, into one fully paid and nonassessable share of
Class A Common Stock as follows:
(A) immediately upon the Full Transfer of such share of Class B
Common Stock, other than a Full Transfer to an Affiliate of the
Initial Registered Holder of such share; or
(B) at such time as the Initial Registered Holder and its
Affiliates no longer own shares of Common Stock and Preferred Stock
together constituting or convertible into at least twelve percent
(12%) of the outstanding shares of Common Stock (assuming for this
purpose the conversion of all outstanding
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shares of Preferred Stock and any other outstanding Convertible
Securities of the Corporation). Each stockholder holding Class B
Common Stock so converted shall deliver to the Corporation at its
principal office (or such other office or agency of the Corporation as
the Corporation may designate by notice in writing to such holders) at
any time during its usual business hours, the certificate or
certificates for the Class B Common Stock so converted. As promptly as
practicable thereafter, the Corporation shall issue and deliver to
each such stockholder a certificate or certificates for the number of
shares of Class A Common Stock to which such stockholder is entitled.
Until such time as a stockholder holding Class B Common Stock shall
surrender a certificate or certificates therefore as provided above,
such certificate or certificates shall be deemed to represent the
Class A Common Stock to which such stockholder shall be entitled upon
the surrender thereof.
(iv) RESERVATION OF SHARES. The Corporation shall at all times
reserve and keep available out of its authorized but unissued shares of Class A
Common Stock, solely for the purpose of effecting the conversion of the shares
of Class B Common Stock, such number of its shares of Class A Common Stock as
shall from time to time be sufficient to effect the conversion of all shares of
Class B Common Stock.
(v) NO REISSUANCE OF CLASS B COMMON STOCK. If any shares of
Class B Common Stock shall be converted pursuant to this Section 4.3(d), the
shares so converted shall be cancelled and shall not thereafter be issuable. The
Certificate shall be amended at such time or times as the Corporation deems it
reasonably practicable to effect the corresponding reduction in the Class B
Common Stock.
4.4. BOARD OF DIRECTORS.
The authorized number of directors of the Corporation shall be seven (7).
At each election of directors: (a) for so long as not less than two hundred
thousand (200,000) shares of the Series A-2 Preferred Stock remain issued and
outstanding (as appropriately adjusted for any stock dividends, combinations,
splits and the like with respect to the Preferred Stock), the holders of the
Preferred Stock, voting together as a single class, shall be entitled to
nominate and elect two (2) of the seven (7) directors, and (b) the holders of
the Common Stock, voting as a separate class, shall be entitled to nominate and
elect the remaining directors of the Corporation. Directors elected by the
holders of Preferred Stock may only be removed by the holders of a majority of
the votes entitled to be cast by holders of such shares and directors elected by
the holders of Common Stock may only be removed by the holders of a majority of
the votes entitled to be cast by holders of such shares. At any meeting (or in a
written consent in lieu thereof) held for the purpose of electing directors,
filing vacancies in any directorship caused by the removal, resignation or death
of any director, or removing any director, the presence in person or by proxy
(or the written consent) of the holders of a majority of the votes entitled to
be cast by holders of shares of the specified group of stockholders then
outstanding shall constitute a quorum of such specified group of stockholders
for the election of the director to be elected by such group. A vacancy in the
directorship caused by the removal, resignation or death of any such director
who
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shall have been elected: (i) by the holders of the Preferred Stock, shall be
filled only by the vote of such holders and (ii) solely by the holders of the
Common Stock, shall be filled only by the vote of such holders.
4.5. VOTING.
(a) VOTING. Except as otherwise provided by the Delaware Law or by this
Certificate, on all matters submitted to a vote of the stockholders of the
Corporation, the holders of the Common Stock and the holders of the Preferred
Stock shall vote together as a single class. At every meeting of the
stockholders of the Corporation,
(i) every holder of Class A Common Stock shall be entitled to
one (1) vote in person or by proxy for each share of Class A Common Stock
standing in such holder's name on the transfer books of the Corporation,
(ii) every holder of Class B Common Stock shall be entitled to the
greater of (A) one vote per share of Class B Common Stock standing in such
holder's name on the transfer books of the Corporation or (B) a number of votes
per share such that the holders of all shares of Class B Common Stock (including
each holder of Series A-2 Preferred Stock convertible into Class B Common Stock)
shall be entitled to cast collectively thirty percent (30%) of all votes
entitled to be cast by all stockholders, and
(iii) every holder of Preferred Stock shall be entitled to the
number of votes equal to the number of votes such holder would be entitled to
cast if such holder converted all of its shares of Preferred Stock into shares
of Common Stock on the date as of which the holders of Common Stock of record
entitled to vote were determined (assuming for this purpose only that shares of
Preferred Stock are convertible into fractional shares).
(b) SPECIAL VOTING RIGHTS. Neither the number of authorized shares of
capital stock nor the number of directors on the Board of Directors of the
Corporation may be increased or decreased without the affirmative vote of the
holders of (i) greater than fifty percent (50%) of the shares of Common Stock
then issued and outstanding and (ii) greater than fifty percent (50%) of the
shares of Preferred Stock then issued and outstanding. Any transaction involving
the merger or consolidation of the Corporation with or into another entity, or
any sale of all or substantially all of the assets of the Corporation, shall
require not less than two-thirds (2/3) of the votes of the issued and
outstanding Stock, voting together as a single class.
(c) CUMULATIVE VOTING. The right of a holder of shares of the Corporation
to cumulate its votes in elections of directors is hereby denied.
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KANBAY INTERNATIONAL, INC. -14- CERTIFICATE OF INCORPORATION
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ARTICLE FIVE
The name and mailing address of the Sole Incorporator are as follows:
Raymond J. Spencer
Mailing Address
c/o Gordon & Glickson LLC
444 N. Michigan Avenue, Suite 3600
Chicago, IL 60611-3903
ARTICLE SIX
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors of the Corporation is expressly authorized to make, alter
or repeal the By-Laws of the Corporation.
ARTICLE SEVEN
Meetings of stockholders may be held within or without the State of
Delaware, as the By-Laws of the Corporation may provide. The books of the
Corporation may be kept outside the State of Delaware at such place or places as
may be designated from time to time by the Board of Directors of the Corporation
or in the By-Laws of the Corporation. Election of directors need not be by
written ballot unless the By-Laws of the Corporation so provide.
ARTICLE EIGHT
To the fullest extent permitted by the General Corporation Law of the State
of Delaware, no director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that this provision shall not eliminate or limit the
liability of a director (a) for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (b) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (c) under
SECTION 174 of the Delaware General Corporation Law, or (d) for any transaction
from which the director derived an improper personal benefit. Any repeal or
modification of this ARTICLE EIGHT, unless otherwise required by law, shall be
prospective only and shall not adversely affect any right or protection of, or
any limitation on the liability of, a director of the Corporation existing at,
or arising out of facts or incidents occurring prior to, the effective date of
such repeal or modification.
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ARTICLE NINE
Intentionally Omitted.
ARTICLE TEN
Unless this Certificate is amended or repealed with respect to this ARTICLE
TEN or unless the By-Laws of the Corporation designate otherwise, the
Corporation expressly elects not to be governed by SECTION 203 of the General
Corporation Law of the State of Delaware.
ARTICLE ELEVEN
The Corporation reserves the right at any time, and from time to time, to
amend, alter, change or repeal any provision contained in this Certificate, and
other provisions authorized by the laws of the State of Delaware at the time in
force may be added or inserted, in the in the manner now or hereafter prescribed
by the General Corporation Law of the State of Delaware, and all rights,
preferences, and privileges of any nature conferred upon stockholders,
directors, or any other persons by and pursuant to this Certificate in its
present form or as hereafter amended are granted subject to the rights reserved
in this ARTICLE ELEVEN.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation of Kanbay International, Inc. to be signed on
August 30, 2000.
KANBAY INTERNATIONAL, INC.
s/ Raymond J. Spencer
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Raymond J. Spencer
Chief Executive Officer
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KANBAY INTERNATIONAL, INC. -16- CERTIFICATE OF INCORPORATION
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KANBAY INTERNATIONAL, INC.
CERTIFICATE OF AMENDMENT NO. 1
OF
CERTIFICATE OF INCORPORATION
(Adopted in Accordance with the Provisions of Section 242
of the General Corporation Law of the State of Delaware)
Raymond J. Spencer, being the Chief Executive Officer of Kanbay
International, Inc., a corporation organized and existing under and by virtue of
the laws of the State of Delaware (the "Corporation"), DOES HEREBY CERTIFY as
follows:
FIRST: That the Corporation's Amended and Restated Certificate of
Incorporation, as filed with the Delaware Secretary of State on August 31,
2000 (the "Certificate of Incorporation") be, and hereby is, amended by
deleting Paragraph 4.4 of Article Four in its entirety, and substituting in
lieu thereof, the following:
The authorized number of directors of the Corporation shall be eight
(8). At each election of directors: (a) for so long as not less than
two hundred thousand (200,000) shares of the Series A-2 Preferred
Stock remain issued and outstanding (as appropriately adjusted for any
stock dividends, combinations, splits and the like with respect to the
Preferred Stock), the holders of the Preferred Stock, voting together
as a single class, shall be entitled to nominate and elect two (2) of
the eight (8) directors, and (b) the holders of the Common Stock,
voting as a separate class, shall be entitled to nominate and elect
the remaining directors of the Corporation. Directors elected by the
holders of Preferred Stock may only be removed by the holders of a
majority of the votes entitled to be cast by holders of such shares
and directors elected by the holders of Common Stock may only be
removed by the holders of a majority of the votes entitled to be cast
by holders of such shares. At any meeting (or in a written consent in
lieu thereof) held for the purpose of electing directors, filing
vacancies in any directorship caused by the removal, resignation or
death of any director, or removing any director, the presence in
person or by proxy (or the written consent) of the holders of a
majority of the votes entitled to be cast by holders of shares of the
specified group of stockholders then outstanding shall constitute a
quorum of such
CERTIFICATE OF AMENDMENT TO
KANBAY INTERNATIONAL, INC. -1- CERTIFICATE OF INCORPORATION
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specified group of stockholders for the election of the director to be
elected by such group. A vacancy in the directorship caused by the
removal, resignation or death of any such director who shall have been
elected: (i) by the holders of the Preferred Stock, shall be filled
only by the vote of such holders and (ii) solely by the holders of the
Common Stock, shall be filled only by the vote of such holders.
SECOND: This amendment of the Certificate of Incorporation herein
certified has been duly adopted and written consent has been given in
accordance with the provisions of Sections 228 and 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, has signed this Certificate of
Amendment No. 1 to the Certificate of Incorporation as of December 19,
2003.
Kanbay International, Inc.
By: s/ Raymond J. Spencer
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Raymond J. Spencer, Chief
Executive Officer
CERTIFICATE OF AMENDMENT TO
KANBAY INTERNATIONAL, INC. -2- CERTIFICATE OF INCORPORATION