Exhibit 3.1
ATTACHMENT 1
FIRST AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ADFORCE, INC.
ARTICLE I
The name of the corporation is AdForce, Inc.
ARTICLE II
The address of the registered office of the corporation in the State of
Delaware is 15 East North Street, City of Dover, County of Kent. The name of
its registered agent at that address is Incorporating Services, Ltd.
ARTICLE III
The purpose of the corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware.
ARTICLE IV
(A) CLASSES OF STOCK. The total number of shares of all classes of
stock which the corporation has authority to issue is 45,451,663 shares,
consisting of two classes: 40,000,000 shares of Common Stock, $0.001 par value
per share, and 5,451,663 shares of Preferred Stock, $0.001 par value per share.
Of the 5,451,663 shares of Preferred Stock, par value $0.001, authorized to be
issued by the corporation, 602,000 shares are hereby designated Series A
Preferred Stock, 1,100,000 shares are hereby designated Series B Preferred
Stock, 1,725,000 shares are hereby designated Series C Preferred Stock, 786,500
shares are hereby designated Series D Preferred Stock and 1,238,163 shares are
hereby designated Series E Preferred Stock. The rights, preferences, privileges
and restrictions granted to and imposed upon the respective classes and series
of the corporation's capital stock are set forth below:
(B) RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS OF PREFERRED
STOCK. The rights, preferences, privileges and restrictions granted to and
imposed on the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock and Series E Preferred Stock are as
set forth below.
1. DIVIDEND PROVISIONS. The holders of outstanding Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock and Series E
Preferred Stock shall be entitled to receive in any fiscal year, when and as
declared by the Board of Directors, out of any assets at the time legally
available therefor, dividends in cash at the rate of $0.20, $0.20, $0.38,
$1.10 and $1.10 per share per annum, respectively (appropriately adjusted to
reflect any subsequent stock dividends, combinations, splits,
recapitalizations and the like with respect to the affected series of
Preferred Stock), before any cash dividend is paid on Common Stock. Such
dividend or distribution may be payable annually or otherwise as the Board of
Directors may from time to time determine. Dividends or distributions (other
than dividends payable solely in shares of Common Stock) may be declared and
paid upon shares of Common Stock in any fiscal year of the corporation only
if dividends shall have been paid on or declared and set apart upon all
outstanding shares of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred
Stock at such annual rate; and no dividends shall be paid to holders of
shares of Common Stock unless at the same time equivalent dividends in the
same amount per share of Common Stock issuable upon conversion thereof are
paid to holders of outstanding shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and
Series E Preferred Stock in excess of such annual rate in any fiscal year.
No dividends shall be paid to holders of any series of Preferred Stock unless
at the same time equivalent dividends are paid to holders of all series of
Preferred Stock. The right to such dividends on outstanding shares of Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series
D Preferred Stock and Series E Preferred Stock shall not be cumulative and no
right shall accrue to holders of shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or Series
E Preferred Stock by reason of the fact that dividends on said shares are not
declared in any prior year, nor shall any undeclared or unpaid dividend bear
or accrue interest. The holders of the outstanding Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock can waive any dividend
preference that such holders may be entitled to receive under this Section 1
upon the affirmative vote or written consent of the holders of at least
seventy-five percent (75%) of the shares of Series A Preferred Stock, Series
B Preferred Stock and Series C Preferred Stock then outstanding, voting or
consenting as a single class on an as-if-converted basis. The holders of the
outstanding Series D Preferred Stock can waive any dividend preference that
such holders may be entitled to receive under this Section 1 upon the
affirmative vote or written consent of the holders of a majority of the
shares of Series D Preferred Stock then outstanding, voting or consenting as
a separate series. The holders of the outstanding Series E Preferred Stock
can waive any dividend preference that such holders may be entitled to
receive under this Section 1 upon the affirmative vote or written consent of
the holders of a majority of the shares of Series E Preferred Stock then
outstanding, voting or consenting as a separate series.
2. LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or
winding up of this corporation, either voluntary or involuntary, subject to
the rights of any series of Preferred Stock that may from time to time come
into existence, the holders of Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock and Series E Preferred Stock shall be
entitled to receive, prior and in preference to any distribution of any of
the assets and funds of this corporation to the holders of Series A Preferred
Stock or Common Stock by reason of their ownership thereof, an amount per
share equal to (i) $2.51 for each outstanding share of Series B
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Preferred Stock (the "Original Series B Issue Price") (such price per share
to be appropriately adjusted to reflect any subsequent stock dividends,
combinations, splits, recapitalizations and the like with respect to the
Series B Preferred Stock) plus any declared but unpaid dividends on such
share, (ii) $4.73 for each outstanding share of Series C Preferred Stock (the
"Original Series C Issue Price") (such price per share to be appropriately
adjusted to reflect any subsequent stock dividends, combinations, splits,
recapitalizations and the like with respect to the Series C Preferred Stock)
plus any declared but unpaid dividends on such share, (iii) $13.73 for each
outstanding share of Series D Preferred Stock (the "Original Series D Issue
Price") (such price per share to be appropriately adjusted to reflect any
subsequent stock dividends, combinations, splits, recapitalizations and the
like with respect to the Series D Preferred Stock) plus any declared but
unpaid dividends on such share, and (iv) $13.73 for each outstanding share of
Series E Preferred Stock (the "Original Series E Issue Price") (such price
per share to be appropriately adjusted to reflect any subsequent stock
dividends, combinations, splits, recapitalizations and the like with respect
to the Series E Preferred Stock) plus any declared but unpaid dividends on
such share. If upon the occurrence of such event, the assets nd funds thus
distributed among the holders of the Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock and Series E Preferred Stock shall
be insufficient to permit the payment to such holders of the full aforesaid
preferential amounts, then, subject to the rights of series of Preferred
Stock that may from time to time come into existence, the entire assets and
funds of this corporation legally available for distribution shall be
distributed ratably among the holders of the Series B Preferred Stock, Series
C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock in
proportion to the preferential amount each such holder is otherwise entitled
to receive.
(b) After the distributions required by subsection 2(a)
above have been paid, if assets and funds remain in the corporation that are
legally available for distribution, the holders of the Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock
shall receive from the remaining assets of the corporation available for
distribution to shareholders that portion of such assets equal to their pro rata
share of such assets based on the number of shares of Common Stock held by all
shareholders of the corporation, assuming the conversion to Common Stock of all
shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock and Series E Preferred Stock.
(c) After the distributions required by subsections 2(a)
and 2(b) above have been paid, if assets and funds remain in the corporation
that are legally available for distribution to shareholders, the Series A
Preferred Stock shall receive an amount per share equal to the sum of (i) $2.51
for each outstanding share of Series A Preferred Stock (the "Original Series A
Issue Price") and (ii) an amount equal to any declared but unpaid dividends on
such share. If upon the occurrence of such event, the assets and funds thus
distributed among the holders of the Series A 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 Series A Preferred Stock in proportion to the amount of such
stock owned by each such holder.
(d) Thereafter, if assets and funds remain in the
corporation that are legally available for distribution to shareholders, the
holders of Series A Preferred Stock and
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Common Stock shall receive all of the remaining assets of the corporation pro
rata based on the number of shares of Common Stock held by each such holder
(assuming conversion to Common Stock of all such Series A Preferred Stock).
(e) For purposes of this Section 2, (i) any acquisition
of this corporation by means of merger or other form of corporate reorganization
in which the shareholders of this corporation immediately before the closing of
such transaction do not, by virtue of shares issued in the transaction, own a
majority of the outstanding shares of the surviving corporation or (ii) a sale
of all or substantially all of the assets of this corporation shall, unless the
holders of (A) seventy-five percent (75%) of the shares of Series A Preferred
Stock, Series B Preferred Stock and Series C Preferred Stock then outstanding,
voting or consenting in writing as a single class on an as-if-converted to
Common Stock basis, (B) a majority of the shares of Series D Preferred Stock
then outstanding, voting or consenting in writing as a separate series, and (C)
a majority of the shares of Series E Preferred Stock then outstanding, voting or
consenting in writing as a separate series, elect in writing otherwise, be
deemed to be treated as a liquidation, dissolution or winding up of this
corporation and shall entitle the holders of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock and Common Stock to receive at the closing cash, securities or
other property as specified in subsections 2(a), 2(b), 2(c) and 2(d) above.
(f) In any of such events, if the consideration received
by the corporation is other than cash, its value will be deemed its fair market
value. Any securities shall be valued as follows:
(i) Securities not subject to investment letter
or other similar restrictions on free marketability:
(A) If traded on a securities exchange or
the Nasdaq National Market, the value shall be deemed to be the average of the
closing prices of the securities on such exchange over the 30-day period ending
three (3) days prior to the closing;
(B) If actively traded over-the-counter
other than on the Nasdaq National Market, the value shall be deemed to be the
average of the closing bid prices over the 30-day period ending three (3) days
prior to the closing; and
(C) If there is no active public market,
the value shall be the fair market value thereof, as mutually determined by this
corporation and the holders of at least seventy-five percent (75%) of the voting
power of all then outstanding shares of Preferred Stock.
(ii) The method of valuation of securities
subject to investment letter or other restrictions on free marketability
(other than restrictions arising solely by virtue of a shareholder's status
as an affiliate or former affiliate) shall be to make an appropriate discount
from the market value as determined above in subsection 2(f)(i)(A), (B) or
(C) to reflect the approximate fair market value thereof, as mutually
determined by this corporation and the
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holders of at least a majority of the voting power of all then outstanding
shares of such Preferred Stock.
(g) In the event the requirements of subsection 2(e)
are not complied with, the corporation shall forthwith either:
(i) cause such closing to be postponed until such
time as the requirements of this Section 2 have been complied with, or
(ii) cancel such transaction, in which event the
rights, preferences, privileges, and restrictions of the holders of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock and Series E Preferred Stock shall revert to and be the same as
such rights, preferences, privileges and restrictions existing immediately prior
to the date of the first notice referred to in subsection 2(h) hereof.
(h) The corporation shall give each holder of record
of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock and Series E Preferred Stock written notice
of such a subsection 2(e) transaction not later than twenty (20) days prior
to the shareholders' meeting called to approve such transaction, or twenty
(20) days prior to the closing of such transaction, whichever is earlier.
The first of such notices shall describe the material terms and conditions of
the impending transaction and the provisions of subsection 2(e), and the
corporation shall thereafter give such holders prompt notice of any material
changes and shall provide such other information to such shareholders
regarding such transactions as they may reasonably request. If, in
connection with a subsection 2(e) transaction, the holders of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock or Series E Preferred Stock elect to convert their shares
into shares of Common Stock pursuant to subsection 3(a) below, such
conversion will be conditioned upon the closing of the subsection 2(e)
transaction, unless otherwise designated in writing by the holder of such
Preferred Stock, in which event the person(s) entitled to receive the Common
Stock issuable upon such conversion of the Preferred Stock shall not be
deemed to have converted such Preferred Stock until immediately prior to the
closing of such subsection 2(e) transaction. The transaction shall in no
event take place sooner than twenty (20) days after the corporation has given
the first notice provided for herein or sooner than ten (10) days after the
corporation has given notice of any material changes provided for herein;
provided, however, that such periods may be shortened upon the written
consent of the holders of a majority of the shares of Preferred Stock then
outstanding, voting or consenting as a single class on an as-if-converted to
Common Stock basis.
3. CONVERSION. The holders of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and
Series E Preferred Stock shall have conversion rights as follows (the
"Conversion Rights"):
(a) RIGHT TO CONVERT. Each share of Series A, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series E
Preferred Stock shall be convertible, at the option of the holder thereof, at
any time after the date of issuance of such
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share at the office of this corporation or any transfer agent for such stock,
into such number of fully paid and nonassessable shares of Common Stock as is
determined by dividing the Original Series A Issue Price, the Original Series
B Issue Price, the Original Series C Issue Price, the Original Series D Issue
Price or the Original Series E Issue Price by the Conversion Price applicable
to such share, determined as hereafter provided, in effect on the date the
certificate is surrendered for conversion. The initial Conversion Price per
share for shares of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred
Stock shall be one-half of the Original Series A Issue Price, one-half of the
Original Series B Issue Price, one-half of the Original Series C Issue Price,
one-half of the Original Series D Issue Price and one-half of the Original
Series E Issue Price, respectively; provided, however, that the Conversion
Prices for Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock and Series E Preferred Stock shall
be subject to adjustment as set forth in subsection 3(d).
(b) AUTOMATIC CONVERSION.
(i) Each share of Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock shall automatically be
converted into shares of Common Stock at the Conversion Price at the time in
effect for such series of Preferred Stock immediately upon the earlier of (i)
this corporation's sale of its Common Stock pursuant to a registration statement
under the Securities Act of 1933, as amended, which results in aggregate gross
cash proceeds to this corporation in excess of $15,000,000 and the public
offering price of which is not less than $6.275 per share of Common Stock
(appropriately adjusted to reflect subsequent stock dividends, combinations,
splits, recapitalizations or the like) or (ii) the date specified by written
consent or agreement of the holders of at least seventy-five percent (75%) of
the shares of Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock then outstanding, voting or consenting as a single class on an
as-if-converted basis.
(ii) Each share of Series D Preferred Stock shall
automatically be converted into shares of Common Stock at the Conversion Price
at the time in effect for such series of Preferred Stock immediately upon the
earlier of (i) this corporation's sale, in a firm commitment underwritten public
offering, of its Common Stock pursuant to a registration statement under the
Securities Act of 1933, as amended, which results in aggregate gross cash
proceeds to this corporation of $20,000,000 or greater and the public offering
price of which is not less than the Qualifying Price Per Share, or (ii) the date
specified by written consent or agreement of the holders of at least a majority
of the shares of Series D Preferred Stock then outstanding, voting or consenting
as a separate series. As used herein, the "Qualifying Price Per Share" shall
mean the quotient of $125,000,000 divided by the number of shares of the
corporation's Common Stock outstanding immediately prior to such sale, assuming
conversion of all Preferred Stock and other convertible securities then
outstanding and the exercise of all warrants, options and other rights then
outstanding to purchase Common Stock or other securities convertible into Common
Stock of this corporation.
(iii) Each share of Series E Preferred Stock shall
automatically be converted into shares of Common Stock at the Conversion Price
at the time in effect for such
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series of Preferred Stock immediately upon the earlier of (i) this
corporation's sale, in a firm commitment underwritten public offering, of its
Common Stock pursuant to a registration statement under the Securities Act of
1933, as amended, which results in aggregate net cash proceeds to this
corporation of $20,000,000 or greater and the public offering price of which
is not less than the Qualifying Price Per Share, or (ii) the date specified
by written consent or agreement of the holders of at least a majority of the
shares of Series E Preferred Stock then outstanding, voting or consenting as
a separate series.
(c) MECHANICS OF CONVERSION. Before any holder of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock or Series E Preferred Stock shall be entitled to
convert the same into shares of Common Stock, such holder shall surrender the
certificate or certificates therefor, duly endorsed, at the office of this
corporation or of any transfer agent for the Preferred Stock, and shall give
written notice by mail, postage prepaid, to this corporation at its principal
corporate office, of the election to convert the same and shall state therein
the name or names in which the certificate or certificates for shares of Common
Stock are to be issued. This corporation shall, as soon as practicable
thereafter, issue and deliver at such office to such holder of Preferred Stock,
or to the nominee or nominees of such holder, a certificate or certificates for
the number of shares of Common Stock to which such holder shall be entitled as
aforesaid. Such conversion shall be deemed to have been made immediately prior
to the close of business on the date of such surrender of the shares of
Preferred Stock to be converted, and the person or persons entitled to receive
the shares of Common Stock issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such shares of Common Stock as
of such date. If the conversion is in connection with an underwritten offer of
securities registered pursuant to the Securities Act of 1933, as amended, the
conversion will be conditioned upon the closing with the underwriter of the sale
of securities pursuant to such offering, unless otherwise designated in writing
by the holders of such Preferred Stock, in which event the person(s) entitled to
receive the Common Stock issuable upon such conversion of the Preferred Stock
shall not be deemed to have converted such Preferred Stock until immediately
prior to the closing of such sale of securities.
(d) CONVERSION PRICE ADJUSTMENTS OF PREFERRED STOCK.
The Conversion Price of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock
shall be subject to adjustment from time to time as follows:
(i) (A) If the corporation, at any time or
from time to time after the date that this Certificate of Incorporation is
filed with the Secretary of State of the State of Delaware (the "Filing
Date"), shall issue any Additional Stock (as defined below) without
consideration or for a consideration per Common Stock equivalent share less
than the Conversion Price for a given series in effect immediately prior to
the issuance of such Additional Stock, then, except as provided in subsection
3(d)(v) below, the Conversion Price for such series in effect immediately
prior to each such issuance shall forthwith be adjusted to a price determined
by multiplying such Conversion Price by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding immediately prior
to such issuance plus the number of shares of Common Stock that the aggregate
consideration received by the corporation
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for such issuance would purchase at such Conversion Price; and the
denominator of which shall be the number of shares of Common Stock
outstanding immediately prior to such issuance plus the number of shares of
such Additional Stock. For purposes of this subsection 3(d), the number of
shares of Common Stock outstanding at a given time shall be deemed to be the
number of shares of Common Stock that are then issued and outstanding plus
the number of shares of Common Stock then issuable upon exercise of all then
outstanding warrants and options to purchase Common Stock or securities
convertible into Common Stock plus the number of shares of Common Stock then
issuable upon conversion of such convertible securities and all other
convertible securities then outstanding.
(B) No adjustment of the Conversion Price
for any series of Preferred Stock shall be made in an amount less than one cent
per share, provided that any adjustments which are not required to be made by
reason of this sentence shall be carried forward and shall be either taken into
account in any subsequent adjustment made prior to 3 years from the date of the
event giving rise to the adjustment being carried forward, or shall be made at
the end of 3 years from the date of the event giving rise to the adjustment
being carried forward. Except to the limited extent provided for in subsections
3(d)(i)(E)(3) and 3(d)(i)(E)(4), no adjustment of such Conversion Price pursuant
to this subsection 3(d)(i)(B) shall have the effect of increasing the Conversion
Price above the Conversion Price in effect immediately prior to such adjustment.
(C) In the case of the issuance of Common
Stock for cash, the consideration shall be deemed to be the amount of cash paid
therefor before deducting any reasonable discounts, commissions or other
expenses allowed, paid or incurred by this corporation for any underwriting or
otherwise in connection with the issuance and sale thereof.
(D) In the case of the issuance of Common
Stock for a consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the fair value thereof as reasonably
determined by the Board of Directors in its good faith judgment irrespective of
any accounting treatment.
(E) In the case of the issuance, whether
before, on or after the Filing Date, of options to purchase or rights to
subscribe for Common Stock, securities by their terms convertible into or
exchangeable for Common Stock or options to purchase or rights to subscribe for
such convertible or exchangeable securities (which are not excluded from the
definition of Additional Stock), the following provisions shall apply:
1. The aggregate maximum number
of shares of Common Stock deliverable upon exercise of such options to
purchase or rights to subscribe for Common Stock shall be deemed to have been
issued at the time such options or rights were issued and for a consideration
equal to the consideration (determined in the manner provided in subsections
3(d)(i)(C) and 3(d)(i)(D)), if any, received by the corporation upon the
issuance of such options or rights plus the minimum purchase price provided
in such options or rights (without taking into account potential
anti-dilution adjustments) for the Common Stock covered thereby.
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2. The aggregate maximum number
of shares of Common Stock deliverable upon conversion of or in exchange for
any such convertible or exchangeable securities or upon the exercise of
options to purchase or rights to subscribe for such convertible or
exchangeable securities and subsequent conversion or exchange thereof shall
be deemed to have been issued at the time such securities were issued or such
options or rights were issued and for a consideration equal to the
consideration, if any, received by the corporation for any such securities
and related options or rights (excluding any cash received on account of
accrued interest or accrued dividends), plus the additional consideration, if
any, to be received by the corporation upon the conversion or exchange of
such securities or the exercise of any related options or rights (the
consideration in each case to be determined in the manner provided in
subsections 3(d)(i)(C) and 3(d)(i)(D)).
3. In the event of any change
in the number of shares of Common Stock deliverable or any increase in the
consideration payable to this corporation upon exercise of such options or
rights or upon conversion of or in exchange for such convertible or
exchangeable securities, including, but not limited to, a change resulting
from the antidilution provisions thereof, the Conversion Price of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock or Series E Preferred Stock obtained with respect to the
adjustment that was made upon the issuance of such options, rights or
securities, and any subsequent adjustments based thereon, shall be recomputed
to reflect such change, but no further adjustment shall be made for the
actual issuance of Common Stock or any payment of such consideration upon the
exercise of any such options or rights or the conversion or exchange of such
securities.
4. Upon the expiration of any
such options or rights, the termination of any such rights to convert or
exchange or the expiration of any options or rights related to such
convertible or exchangeable securities, the Conversion Price of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock or Series E Preferred Stock obtained with respect to the
adjustment which was made upon the issuance of such options, rights or
securities or options or rights related to such securities, and any
subsequent adjustments based thereon, shall be recomputed to reflect the
issuance of only the number of shares of Common Stock actually issued upon
the exercise of such options or rights, upon the conversion or exchange of
such securities or upon the exercise of the options or rights related to such
securities. Upon the expiration of any such options or rights, the
termination of any such rights to convert or exchange or the expiration of
any options or rights related to such convertible or exchangeable securities,
only the number of shares of Common Stock actually issued upon the exercise
of such options or rights, upon the conversion or exchange of such securities
or upon the exercise of the options or rights related to such securities
shall continue to be deemed to be issued.
5. The number of shares of
Common Stock deemed issued and the consideration deemed paid therefor
pursuant to subsections 3(d)(i)(E)(1) and 3(d)(i)(E)(2) shall be
appropriately adjusted to reflect any change, termination or expiration of
the type described in either subsection 3(d)(i)(E)(3) or 3(d)(i)(E)(4).
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(ii) "Additional Stock" shall mean any shares
of Common Stock issued (or deemed to have been issued pursuant to subsection
3(d)(i)(E)) by this corporation after the Filing Date other than shares of
Common Stock issued or issuable:
(A) pursuant to a transaction described in
subsection 3(d)(iii) hereof;
(B) to officers, directors, employees and
consultants of this corporation directly or pursuant to a stock option plan or
restricted stock plan approved by the Board of Directors of this corporation or
pursuant to the StarPoint Software, Inc. 1996 Stock Plan;
(C) upon conversion of the Preferred
Stock;
(D) pursuant to warrants issued to banks
or equipment lessors (provided, however, that this subsection 3(d)(ii)(D) shall
not be applicable to any calculation of a Conversion Price adjustment of the
Series D Preferred Stock or Series E Preferred Stock);
(E) in connection with business
combinations or corporate partnering agreements approved by the Board of
Directors, provided that at the time of any such issuance, the aggregate of
such issuance and similar issuances in the preceding twelve month period do
not exceed 2% of the then outstanding Common Stock of the corporation
(assuming full conversion and exercise of all convertible and exercisable
securities) (provided, however, that this subsection 3(d)(ii)(E) shall not be
applicable to any calculation of a Conversion Price adjustment of the Series
D Preferred Stock or Series E Preferred Stock); or
(F) in connection with the merger of
Imgis, Inc., a California corporation, with and into the corporation.
(iii) In the event the corporation should at any
time or from time to time after the Purchase Date fix a record date for the
effectuation of a split or subdivision of the outstanding shares of Common
Stock or the determination of holders of Common Stock entitled to receive a
dividend or other distribution to receive a distribution payable in
additional shares of Common Stock or other securities or rights convertible
into, or entitling the holder thereof to receive directly or indirectly,
additional shares of Common Stock (hereinafter referred to as "Common Stock
Equivalents") without payment of any consideration by such holder for the
additional shares of Common Stock or the Common Stock Equivalents (including
the additional shares of Common Stock issuable upon conversion or exercise
thereof), then, as of such record date (or the date of such dividend
distribution, split or subdivision if no record date is fixed), the
Conversion Price of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred
Stock shall be appropriately decreased so that the number of shares of Common
Stock issuable on conversion of each share of such series
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shall be increased in proportion to such increase of outstanding shares
determined in accordance with subsection 3(d)(i)(E).
(iv) If the number of shares of Common Stock
outstanding at any time after the Purchase Date is decreased by a combination
of the outstanding shares of Common Stock, then, following the record date of
such combination, the Conversion Price for Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and
Series E Preferred Stock shall be appropriately increased so that the number
of shares of Common Stock issuable on conversion of each share of such series
shall be decreased in proportion to such decrease of outstanding shares.
(e) OTHER DISTRIBUTIONS. In the event this
corporation shall declare a distribution payable in securities of other
persons, evidences of indebtedness issued by this corporation or other
persons, assets (excluding cash dividends) or options or rights not referred
to in subsection 3(d)(iii), then, in each such case for the purpose of this
subsection 3(e), the holders of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock and Series E
Preferred Stock shall be entitled to a proportionate share of any such
distribution as though they were the holders of the number of shares of
Common Stock of the corporation into which their shares of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock and Series E Preferred Stock are convertible as of the record date
fixed for the determination of the holders of Common Stock of the corporation
entitled to receive such distribution.
(f) RECAPITALIZATIONS. If at any time or from time
to time there shall be a recapitalization of the Common Stock (other than a
subdivision, combination or merger or sale of assets transaction provided for
elsewhere in this Section 3) provision shall be made so that the holders of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock and Series E Preferred Stock shall thereafter be
entitled to receive upon conversion of the Preferred Stock the number of
shares of stock or other securities or property of the corporation or
otherwise, to which a holder of Common Stock deliverable upon conversion
would have been entitled on such recapitalization. In any such case,
appropriate adjustment shall be made in the application of the provisions of
this Section 3 with respect to the rights of the holders of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock and Series E Preferred Stock after the recapitalization to
the end that the provisions of this Section 3 (including adjustment of the
Conversion Price then in effect and the number of shares purchasable upon
conversion of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock and Series E Preferred Stock) shall
be applicable after that event as nearly equivalent as may be practicable.
(g) NO IMPAIRMENT. This corporation will not, by
amendment of its Articles of Incorporation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution,
issue or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms to be observed or
performed hereunder by this corporation, but will at all times in good faith
assist in the carrying out of all the provisions of this Section 3 and in the
taking of all such action as may be necessary or
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appropriate in order to protect the Conversion Rights of the holders of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock and Series E Preferred Stock.
(h) NO FRACTIONAL SHARES AND CERTIFICATE AS TO
ADJUSTMENTS.
(i) No fractional shares shall be issued upon
conversion of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock or Series E Preferred Stock and the
number of shares of Common Stock to be issued shall be rounded down to the
nearest whole share. Whether or not fractional shares are issuable upon such
conversion shall be determined on the basis of the total number of shares of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock or Series E Preferred Stock the holder is at the time
converting into Common Stock and the number of shares of Common Stock issuable
upon such aggregate conversion.
(ii) Upon the occurrence of each adjustment or
readjustment of any Conversion Price of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or Series
E Preferred Stock pursuant to this Section 3, this corporation, at its
expense, shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and prepare and furnish to each holder of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock or Series E Preferred Stock, respectively, a certificate
setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. This corporation shall,
upon the written request at any time of any holder of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock or Series E Preferred Stock, furnish or cause to be furnished to such
holder a like certificate setting forth (A) such adjustment and readjustment,
(B) the Conversion Price at the time in effect, and (C) the number of shares
of Common Stock and the amount, if any, of other property which at the time
would be received upon the conversion of a share of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock
or Series E Preferred Stock, respectively.
(i) NOTICES OF RECORD DATE. In the event of any
taking by this corporation of a record of the holders of any class of
securities for the purpose of determining the holders thereof who are
entitled to receive any dividend (other than a cash dividend) or other
distribution, any right to subscribe for, purchase or otherwise acquire any
shares of stock of any class or any other securities or property, or to
receive any other right, this corporation shall mail to each holder of Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series
D Preferred Stock and Series E Preferred Stock at least 10 days prior to the
date specified therein, a notice specifying the date on which any such record
is to be taken for the purpose of such dividend, distribution or right, and
the amount and character of such dividend, distribution or right.
(j) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. This
corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common
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Stock solely for the purpose of effecting the conversion of the shares of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock and Series E Preferred Stock such number of its
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and
Series E Preferred Stock; and if at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the
conversion of all the then outstanding shares of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock
and Series E Preferred Stock, in addition to such other remedies as remedies
as shall be available to the holder of such Preferred Stock, this corporation
will take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Common Stock to
such number of shares as shall be sufficient for such purposes.
(k) NOTICES. Any notice required by the provisions
of this Section 3 to be given to the holders of shares of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock and Series E Preferred Stock shall be deemed effectively given upon
personal delivery to the holder to be notified, or upon deposit with the
United States Post Office, or with a nationally recognized overnight courier
specifying next day delivery with written verification of receipt, postage
prepaid, and addressed to each holder of record at his address appearing on
the books of this corporation.
4. VOTING RIGHTS.
(a) The authorized number of directors of the
corporation shall be seven (7). At each election of directors of this
corporation, the holders of Series B Preferred Stock shall be entitled,
voting as a separate series, to elect two (2) directors of the corporation.
The holders of the outstanding Series C Preferred Stock shall be entitled,
voting as a separate series, to elect two (2) directors of the corporation.
For so long as AOL and its affiliates collectively hold at least 364,166
shares of Series E Preferred Stock (appropriately adjusted to reflect any
subsequent stock dividends, combinations, splits, recapitalizations and the
like with respect to the Series E Preferred Stock), the holders of the
outstanding Series E Preferred Stock, at their option, shall be entitled,
voting as a separate series, to elect one (1) director of the corporation.
The holders of outstanding Common Stock, and the holders of outstanding
Series D Preferred Stock, voting on an as-if converted to Common Stock basis,
shall be entitled, voting together as a class, to elect the remaining number
of directors of this corporation that are not elected by the holders of
Series B Preferred Stock, Series C Preferred Stock and Series E Preferred
Stock at each annual election of directors. In the case of any vacancy
(other than a vacancy caused by removal) in the office of a director
occurring among the directors elected by the holders of a class or series of
stock pursuant to this Section, the remaining directors so elected by that
class or series may by affirmative vote of a majority thereof (or the
remaining director so elected if there be but one, or if there are no such
directors remaining, by the affirmative vote of the holders of a majority of
the shares of that class or series), elect a successor or successors to hold
office for the unexpired term of the director or directors whose place or
places shall be vacant. Any director who shall have been elected by the
holders of a class or series of stock or by any directors so elected as
provided in the immediately preceding sentence
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hereof may be removed during the aforesaid term of office, either with or
without cause, by, and only by, the affirmative vote of the holders of the
shares of the class or series of stock entitled to elect such director or
directors, given either at a special meeting of such shareholders duly called
for that purpose or pursuant to a written consent of shareholders, and any
vacancy thereby created may be filled by the holders of that class or series
of stock represented at the meeting or pursuant to unanimous written consent.
(b) Except as explicitly provided for in Section 4(a)
above, the holder of each share of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock and Series E Preferred
Stock shall have the right to one vote for each share of Common Stock into which
such Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock or Series E Preferred Stock, respectively, could
then be converted (with any fractional share determined on an aggregate
conversion basis being rounded to the nearest whole share), and with respect to
such vote, such holder shall have full voting rights and powers equal to the
voting rights and powers of the holders of Common Stock, and shall be entitled,
notwithstanding any provision hereof, to notice of any shareholders' meeting in
accordance with the by-laws of this corporation, and shall be entitled to vote,
together with holders of Common Stock, with respect to any question upon which
holders of Common Stock have the right to vote.
5. PROTECTIVE PROVISIONS.
(a) So long as at least 625,000 shares of Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and/or
Series E Preferred Stock (appropriately adjusted to reflect any subsequent
stock dividends, combinations, splits, recapitalizations and the like with
respect to such series of Preferred Stock) remain outstanding, this
corporation shall not without first obtaining the approval (by vote or
written consent, as provided by law) of the holders of a majority of the
voting power of the then outstanding shares of Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred
Stock, voting together as a single class on an as-if-converted to Common
Stock basis:
(i) sell, convey, or otherwise dispose of or
encumber all or substantially all of its property or business or merge into
or consolidate with any other corporation (other than a wholly owned
subsidiary corporation) or effect any transaction or series of related
transactions in which more than 50% of the voting power of the corporation is
disposed of;
(ii) authorize the payment of dividends on or
the repurchase of Common Stock; provided, however, that this restriction
shall not apply to the repurchase of shares of Common Stock from employees,
officers, directors, consultants or other persons performing services for
this corporation or any subsidiary pursuant to agreements under which this
corporation has the option to repurchase such shares at cost or at cost upon
the occurrence of certain events, such as the termination of employment;
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(iii) change the authorized number of directors
of the corporation; or
(iv) authorize the issuance of any stock, or
any other securities convertible into or exercisable or exchangeable for
equity securities, of the corporation to any person or group of affiliated
persons if, immediately following such issuance, such person or group of
affiliated persons would hold a greater Pro Rata Share (as defined below) of
the corporation's then outstanding Common Stock than would then be held
collectively by AOL and its affiliates. For purposes hereof, "Pro Rata
Share" means a fraction, the numerator of which is the number of shares of
Common Stock of the corporation issued and held, or issuable upon conversion
of Preferred Stock of the corporation then held, by the holder and the
denominator of which is the total number of shares of Common Stock of the
corporation then outstanding assuming full conversion and exercise of all
convertible or exercisable securities then outstanding.
(b) So long as at least 625,000 shares of Series B
Preferred Stock and/or Series C Preferred Stock (appropriately adjusted to
reflect any subsequent stock dividends, combinations, splits,
recapitalizations and the like with respect to such series of Preferred
Stock) remain outstanding, this corporation shall not without first obtaining
the approval (by vote or written consent, as provided by law) of the holders
of at least seventy-five percent (75%) of the voting power of the then
outstanding shares of Series B Preferred Stock and Series C Preferred Stock,
voting together as a single class on an as-if-converted to Common Stock basis:
(i) create any new class or series of stock or
any other securities convertible into equity securities of the corporation
(A) having a preference over, or being on a parity with, Series B Preferred
Stock or Series C Preferred Stock with respect to voting, dividends or
distributions upon liquidation, or (B) having rights similar to any of the
rights of Series B Preferred Stock or Series C Preferred Stock under this
Section 5;
(ii) amend, waive or repeal any provision of,
or add any provision to, these Articles of Incorporation if such action would
adversely alter or change the preferences, rights, privileges or powers of,
or the restrictions provided for the benefit of, Series B Preferred Stock or
Series C Preferred Stock;
(iii) increase or decrease (other than by
conversion) the authorized number of shares of Series B Preferred Stock or
Series C Preferred Stock; or
(iv) merge with or consolidate with any other
corporation where such merger would result in an adverse change in the
rights, preferences or privileges of Series B Preferred Stock or Series C
Preferred Stock that would otherwise require consent under subsection
5(b)(ii) above.
(c) So long as any shares of Series D Preferred Stock
remain outstanding, this corporation shall not, without first obtaining the
approval (by vote or written
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consent, as provided by law) of the holders of a majority of the then
outstanding shares of Series D Preferred Stock, voting as a separate series:
(i) create any new class or series of stock or
any other securities convertible into or exercisable or exchangeable for
equity securities of the corporation (A) having a preference over Series D
Preferred Stock with respect to voting, dividends or distributions upon
liquidation, or (B) having rights similar to any of the rights of Series D
Preferred Stock under this Section 5;
(ii) amend, waive or repeal any provision of,
or add any provision to, these Articles of Incorporation if such action would
(A) adversely alter or change the preferences, rights, privileges or powers
of, or the restrictions provided for the benefit of, Series D Preferred
Stock, or (B) alter or change the provisions governing automatic conversion
of the Series D Preferred Stock set forth in subsection 3(b) above;
(iii) increase or decrease (other than by
conversion) the authorized number of shares of Series D Preferred Stock, or
authorize the issuance of any shares of Series D Preferred Stock, or any
other securities convertible into or exercisable or exchangeable for Series D
Preferred Stock, to any person who, as of the Filing Date, does not hold of
record any shares of Series D Preferred Stock; or
(iv) redeem or repurchase any of this
corporation's Common Stock or Preferred Stock, other than repurchases of
securities held by directors, employees or consultants of the corporation not
to exceed $100,000 per transaction and $400,000 in the aggregate, and other
than redemptions or repurchases at the original purchase price of such
securities.
(d) So long as any shares of Series E Preferred Stock
remain outstanding, this corporation shall not, without first obtaining the
approval (by vote or written consent, as provided by law) of the holders of a
majority of the then outstanding shares of Series E Preferred Stock, voting
as a separate series:
(i) create any new class or series of stock,
or any other securities convertible into or exercisable or exchangeable for
equity securities, of the corporation (A) having a preference over Series E
Preferred Stock with respect to voting, dividends or distributions upon
liquidation, or (B) having rights similar to any of the rights of Series E
Preferred Stock under this Section 5;
(ii) amend, waive or repeal any provision of,
or add any provision to, these Articles of Incorporation if such action would
(A) adversely alter or change the preferences, rights, privileges or powers
of, or the restrictions provided for the benefit of, Series E Preferred
Stock, or (B) alter or change the provisions governing automatic conversion
of the Series E Preferred Stock set forth in subsection 3(b) above;
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(iii) increase or decrease (other than by
conversion) the authorized number of shares of Series E Preferred Stock, or
authorize the issuance of any shares of Series E Preferred Stock, or any
other securities convertible into or exercisable or exchangeable for Series E
Preferred Stock, to any person other than AOL; or
(iv) redeem or repurchase any of this
corporation's Common Stock or Preferred Stock, other than repurchases of
securities held by directors, employees or consultants of the corporation not
to exceed $100,000 per transaction and $400,000 in the aggregate, and other
than redemptions or repurchases at the original purchase price of such
securities.
6. REDEMPTION. The Preferred Stock is not redeemable.
7. STATUS OF CONVERTED STOCK. In the event any shares of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock or Series E Preferred Stock shall be converted
pursuant to Section 3 hereof, the shares so converted shall be canceled and
shall not be issuable by the corporation, and the Articles of Incorporation
of this corporation shall be appropriately amended to effect the
corresponding reduction in the corporation's authorized capital stock.
8. REPURCHASE OF SHARES. In connection with repurchases by
this corporation of its Common Stock pursuant to its agreements with certain
of the holders thereof providing for such repurchases in the event of the
termination of the status of such holder as an employee, director or
consultant to the corporation, each holder of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock
and Series E Preferred Stock shall be deemed to have consented to
distributions made by the corporation with respect to such repurchases.
(C) COMMON STOCK.
1. DIVIDEND RIGHTS. Subject to the prior rights of holders
of all classes of stock at the time outstanding having prior rights as to
dividends, the holders of the Common Stock shall be entitled to receive, when
and as declared by the Board of Directors, out of any assets of the
corporation legally available therefor, such dividends as may be declared
from time to time by the Board of Directors.
2. LIQUIDATION RIGHTS. Upon the liquidation, dissolution
or winding up of the corporation, the assets of the corporation shall be
distributed as provided in Article III(B)(2).
3. REDEMPTION. The Common Stock is not redeemable.
4. VOTING RIGHTS. The holder of each share of Common Stock
shall have the right to one vote, and shall be entitled to notice of any
shareholders 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.
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ARTICLE V
The Board of Directors of the corporation shall have the power to
adopt, amend or repeal the Bylaws of the corporation.
ARTICLE VI
For the management of the business and for the conduct of the affairs
of the corporation, and in further definition, limitation and regulation of
the powers of the corporation, of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided that:
(A) The conduct of the affairs of the corporation shall be managed
under the direction of its Board of Directors. The number of directors shall
be fixed from time to time exclusively by resolution of the Board of
Directors.
(B) Notwithstanding the foregoing provision of this Article VI,
each director shall hold office until such director's successor is elected
and qualified, or until such director's earlier death, resignation or
removal. No decrease in the authorized number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
(C) Subject to the rights of the holders of any series of Preferred
Stock, any vacancy occurring in the Board of Directors for any cause, and any
newly created directorship resulting from any increase in the authorized
number of directors, shall, unless (i) the Board of Directors determines by
resolution that any such vacancies or newly created directorships shall be
filled by the stockholders, or (ii) as otherwise provided by law, be filled
only by the affirmative vote of a majority of the directors then in office,
although less than a quorum, or by a sole remaining director, and not by the
stockholders. Any director elected in accordance with the preceding sentence
shall hold office for the remainder of the full term of the director for
which the vacancy was created or occurred.
(D) Subject to the rights of the holders of any series of Preferred
Stock, any director or the entire Board of Directors may be removed, only
with cause, by the holders of at least a majority of the shares then entitled
to vote at an election of directors.
(E) Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, following
the closing of the corporation's initial public offering pursuant to an
effective registration statement under the Securities Act of 1933, as
amended, covering the offer and sale of Common Stock to the public (the
"INITIAL PUBLIC OFFERING"), the directors shall be divided, with respect to
the time for which they severally hold office, into three classes designated
as Class I, Class II and Class III, respectively. Directors shall be
assigned to each class in accordance with a resolution or resolutions adopted
by the Board of Directors, with the number of directors in each class to be
divided as equally as possible. The term of office of the Class I directors
shall expire at the corporation's first annual
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meeting of stockholders following the closing of the Initial Public Offering,
the term of office of the Class II directors shall expire at the
corporation's second annual meeting of stockholders following the closing of
the Initial Public Offering, and the term of office of the Class III
directors shall expire at the corporation's third annual meeting of
stockholders following the closing of the Initial Public Offering. At each
annual meeting of stockholders commencing with the first annual meeting of
stockholders following the closing of the Initial Public Offering, directors
elected to succeed those directors of the class whose terms then expire shall
be elected for a term of office to expire at the third succeeding annual
meeting of stockholders after their election.
(F) Election of directors need not be by written ballot unless the
Bylaws of the corporation shall so provide.
(G) Following the closing of the Initial Public Offering, no action
shall be taken by the stockholders of the corporation except at an annual or
special meeting of stockholders called in accordance with the Bylaws of the
corporation, and no action shall be taken by the stockholders by written
consent.
(H) Advance notice of stockholder nominations for the election of
directors of the corporation and of business to be brought by stockholders
before any meeting of stockholders of the corporation shall be given in the
manner provided in the Bylaws of the corporation. Business transacted at
special meetings of stockholders shall be confined to the purpose or purposes
stated in the notice of meeting.
ARTICLE VII
To the fullest extent permitted by law, no director of the corporation
shall be personally liable for monetary damages for breach of fiduciary duty
as a director. Without limiting the effect of the preceding sentence, if the
Delaware General Corporation Law is hereafter amended to authorize the
further elimination or limitation of the liability of a director, then the
liability of a director of the corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended.
Neither any amendment nor repeal of this Article VII, nor the adoption
of any provision of this Certificate of Incorporation inconsistent with this
Article VII, shall eliminate, reduce or otherwise adversely affect any
limitation on the personal liability of a director of the corporation
existing at the time of such amendment, repeal or adoption of such an
inconsistent provision.
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