Exhibit 3.3
TWI HOLDINGS, INC.
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
TWI Holdings, Inc. (the "Corporation"), a corporation organized and
existing under and by virtue of the Delaware General Corporation Law (the
"DGCL") does hereby certify, pursuant to Section 241 of the General Corporation
Law of the State of Delaware, that:
1. The Certificate of Incorporation of the Corporation is hereby amended
by striking out Article FOURTH thereof and substituting in lieu of said Article
the new Article FOURTH as set forth in Exhibit A attached hereto.
2. The Corporation has not received any payment for any of its stock.
3. The amendment of the Certificate of Incorporation herein certified has
been duly adopted in accordance with the provisions of Section 241 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, TWI Holdings, Inc. has caused this Certificate of
Amendment to its Certificate of Incorporation to be executed by Christopher A.
Masto, its President, this 31/st/ day of October, 2002.
TWI HOLDINGS, INC.
By: /s/ Christopher A. Masto
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Christopher A. Masto
President
EXHIBIT A
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AMENDMENT TO
CERTIFICATE OF INCORPORATION
OF
TWI HOLDINGS, INC.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 600,000, consisting solely of:
250,000 shares of Preferred Stock, $0.01 par value per share (the
"Preferred Stock"), of which 180,000 shares are further designated as Series A
Convertible Preferred Stock (the "Series A Preferred Stock");
25,000 shares of Class A Common Stock, $.01 par value per share (the "Class
A Common Stock");
300,000 shares of Class B-1 Voting Common Stock, $.01 par value per share
(the "Class B-1 Common Stock"); and
25,000 shares of Class B-2 Non-Voting Common Stock, $.01 par value per
share (the "Class B-2 Common Stock" and collectively with the Class B-1 Common
Stock, the "Class B Common Stock").
A. DEFINITIONS
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As used in this Article Fourth:
"Affiliate" means, with respect to the Corporation, any Person directly or
indirectly controlling, controlled by or under direct or indirect common control
with the Corporation. The term "control" means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of the Corporation, whether through ownership, by contract or
otherwise.
"Board of Directors" has the meaning set forth in Part B, Section 1 of this
Article Fourth.
"Class A Conversion Date" has the meaning set forth in Part D, Section
1.4(a)(ii) of this Article Fourth.
"Class A Conversion Notice" has the meaning set forth in Part D, Section
1.4(a)(ii) of this Article Fourth.
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"Class A Conversion Rate" has the meaning set forth in Part D, Section
1.4(c) of this Article Fourth.
"Class A Liquidation Value" means $1,000, provided that in the event of an
Extraordinary Stock Event with respect to the Class A Common Stock, the Class A
Liquidation Value shall be proportionately adjusted so that the aggregate Class
A Liquidation Value of all shares of Class A Common Stock outstanding
immediately prior to the Extraordinary Stock Event is the same as the aggregate
Class A Liquidation Value of all shares of Class A Common Stock outstanding
immediately after the Extraordinary Stock Event.
"Common Stock" means, collectively, the Class A Common Stock and the Class
B Common Stock.
"Contribution Agreement" means the Contribution Agreement, dated as of
October 4, 2002, among the Corporation and each of the investors named therein,
as the same may be amended, restated, modified or supplemented and in effect
from time to time.
"Disposition Event" means (i) any sale of all or substantially all of the
assets of the Corporation and its Subsidiaries taken as a whole, (ii) any merger
or consolidation of the Corporation, or any transaction as a result of which the
Corporation is acquired by the purchase of a majority of its outstanding Class B
Common Stock (determined on a fully-diluted basis), as a result of which, in
each such case, the holders of a majority of the outstanding Class B Common
Stock (determined on a fully-diluted basis) before such merger, consolidation or
sale cease to hold, directly or indirectly, a majority of the Class B Common
Stock (determined on a fully-diluted basis) of the Corporation or a majority of
the common stock (determined on a fully-diluted basis) of the successor to the
Corporation immediately following such merger, consolidation or sale, or (iii) a
Qualified Public Offering.
"Effective Date" means the closing date of the transactions contemplated by
the Contribution Agreement.
"Extraordinary Stock Event" means, as to any class or series of the
Corporation's capital stock, any stock dividend, stock split, combination of
shares, reorganization, reclassification or other similar event which has the
effect of altering the total number of outstanding shares of such class or
series of the Corporation's capital stock.
"Junior Stock" means the Class B Common Stock and any other shares of
capital stock of the Corporation ranking on liquidation junior to the Class A
Common Stock.
"Liquidation" means any voluntary or involuntary liquidation, dissolution,
or winding up of the Corporation.
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"Management Repurchase Agreement" means any agreement from time to time
entered into between the Corporation and any officer, employee or director of
the Corporation entitling or requiring the Corporation to repurchase any shares
of Preferred Stock or Common Stock, or options therefor, from such officer,
employee or director.
"Mandatory Series A Conversion Date" has the meaning set forth in Part C,
Section 1.4(b)(ii) of this Article Fourth.
"Mandatory Series A Conversion Event" has the meaning set forth in Part C,
Section 1.4(b)(i) of this Article Fourth.
"Mandatory Series A Conversion Notice" has the meaning set forth in Part C,
Section 1.4(b)(ii) of this Article Fourth.
"Mezzanine Debt Documents" means the Senior Subordinated Loan Agreement
among the Corporation, certain of its Subsidiaries, TA Subordinated Debt Fund,
L.P., TA Investors, LLC, Gleacher Mezzanine Fund I, L.P. and Gleacher Mezzanine
Fund P, L.P. and all agreements, instruments and documents entered into in
connection therewith, as the same may be amended, restated, modified or
supplemented and in effect from time to time.
"Person" means an individual, partnership, corporation, limited liability
company, association, trust, joint venture, unincorporated organization, or any
government, governmental department or agency or political subdivision thereof.
"Plan" means the 2002 Stock Option Plan of the Corporation, as the same may
be amended, restated, modified or supplemented and in effect from time to time.
"Qualified Public Offering" means a public offering of shares of Class B
Common Stock pursuant to an effective registration statement on Form S-1, or any
successor form, of the Securities and Exchange Commission, pursuant to which (a)
the per share price to the public is not less than the Series A Liquidation
Value (such amount to be subject to proportionate adjustment in the event of any
Extraordinary Stock Event with respect to the Class B Common Stock occurring
after the Effective Date) and (b) the gross proceeds to the Corporation are not
less than Twenty Five Million Dollars ($25,000,000).
"Series A Conversion Date" has the meaning set forth in Part C, Section
1.4(a)(ii) of this Article Fourth.
"Series A Conversion Notice" has the meaning set forth in Part C, Section
1.4(a)(ii) of this Article Fourth.
"Series A Conversion Rate" has the meaning set forth in Part C, Section
1.4(d) of this Article Fourth.
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"Series A Dividend Rate" has the meaning set forth in Part C, Section
1.1(a) of this Article Fourth.
"Series A Junior Stock" means the Common Stock and any other shares of
capital stock of the Corporation ranking on liquidation junior to the Series A
Preferred Stock.
"Series A Liquidation Value" means $1,000, provided that in the event of an
Extraordinary Stock Event with respect to the Series A Preferred Stock, the
Series A Liquidation Value shall be proportionately adjusted so that the
aggregate Series A Liquidation Value of all shares of Series A Preferred Stock
outstanding immediately prior to the Extraordinary Stock Event is the same as
the aggregate Series A Liquidation Value of all shares of Series A Preferred
Stock outstanding immediately after the Extraordinary Stock Event.
"Series A Redemption Date" has the meaning set forth in Part C, Section
1.5(a) of this Article Fourth.
"Series A Redemption Price" has the meaning set forth in Part C, Section
1.5(d) of this Article Fourth.
"Series A Stockholder Agreement" means the Series A Preferred Stock
Stockholder Agreement among the Corporation and certain of its stockholders, as
such agreement may be amended, restated, modified or supplemented and in effect
from time to time.
"Stockholder Agreement" means the Stockholder Agreement among the
Corporation and each of its stockholders, as such agreement may be amended,
restated, modified or supplemented and in effect from time to time.
"Subsidiary" means, with respect to the Corporation, any corporation a
majority (by number of votes) of the outstanding shares of any class or classes
of which shall at the time be owned by the Corporation or by a Subsidiary of the
Corporation, if the holders of the shares of such class or classes (a) are
ordinarily, in the absence of contingencies, entitled to vote for the election
of a majority of the directors (or persons performing similar functions) of the
issuer thereof, even though the right so to vote has been suspended by the
happening of such a contingency, or (b) are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the issuer thereof, whether or not the right so
to vote exists by reason of the happening of a contingency.
B. PREFERRED STOCK
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1. Issue in Series. Preferred Stock may be issued from time to time in or
one or more series, each such series to have the terms stated herein and, if
applicable, in the resolution of the Board of Directors of the Corporation (the
"Board of Directors") providing for its creation under Section 2 below. All
shares of any one series of
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Preferred Stock will be identical, but shares of different series of Preferred
Stock need not be identical or rank equally except insofar as provided by law or
herein.
2. Creation of Series. The Board of Directors shall have the authority by
resolution to cause to be created one or more series of Preferred Stock and,
prior to the issuance of any shares of any such series, to determine and fix the
powers, designations, preferences, qualifications, privileges, options and other
relative, participating, optional, or special rights and limitations of each
such series, subject to any limitation provided by law or herein.
C. SERIES A PREFERRED STOCK.
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1. Terms Applicable to Series A Preferred Stock.
1.1 Dividends.
(a) The Corporation shall accrue and pay preferential dividends to the
holders of the Series A Preferred Stock as provided in this Section 1.1.
Dividends on each outstanding share of Series A Preferred Stock shall accrue
cumulatively on a daily basis during each fiscal year of the Corporation at the
rate of 8% per annum (the "Series A Dividend Rate") on the Series A Liquidation
Value thereof, until such amount is actually paid. Such dividends shall be
compounded quarterly on the last day of each fiscal quarter of the Corporation
with the effect that an additional dividend shall accrue on each outstanding
share of Series A Preferred Stock at a rate per annum equal to the Series A
Dividend Rate on the amount so compounded until such amount is actually paid.
Dividends on each outstanding share of Series A Preferred Stock shall be payable
in cash only (i) upon Liquidation as provided in Section 1.2 below and (ii) upon
redemption as provided in Section 1.5 below.
(b) Dividends on each share of Series A Preferred Stock shall accrue under
paragraph (a) above from and including the date of issuance of such share to and
including the date on which the Series A Liquidation Value of such share is
paid, whether or not such dividends have been declared and whether or not there
are profits, surplus or other funds of the Corporation legally available for the
payment of dividends at the time of such accrual. The date on which the
Corporation initially issues any share of Series A 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. Except for (i) any repurchases of Common Stock pursuant to any
Management Repurchase Agreement which are made in accordance with the terms
thereof and (ii) any repurchases of Common Stock or warrants therefor pursuant
to the Mezzanine Debt Documents which are made in accordance with the terms
thereof, no dividend of cash or other property or other distribution shall be
paid, declared or set apart (A) with respect to any share of Class B Common
Stock unless a dividend is paid or declared and set apart for payment with
respect to each outstanding share of Series A Preferred Stock in an amount at
least equal to the product of (x) the amount of such
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dividends or other distributions so paid, declared, or set apart for each share
of Class B Common Stock, multiplied by (y) the number of shares of Class B-1
Common Stock into which such share of Series A Preferred Stock is then
convertible pursuant to Section 1.4 below, and (B) with respect to any share of
Class A Common Stock unless a dividend is paid or declared and set apart for
payment with respect to each outstanding share of Series A Preferred Stock in an
amount at least equal to the product of (x) the amount of such dividends or
other distributions so paid, declared, or set apart for each share of Class A
Common Stock, divided by the number of shares of Class B-1 Common Stock into
which such share of Class A Common Stock is convertible multiplied by (y) the
number of shares of Class B-1 Common Stock into which such share of Series A
Preferred Stock is then convertible pursuant to Section 1.4 below. Any dividend
of cash or other property or other distribution that is paid with respect to the
Series A Preferred Stock pursuant to the immediately preceding sentence shall be
in addition to and separate from, and shall not affect the dividends accruing
on, each share of Series A Preferred Stock pursuant to paragraph (a) above. In
the event of a conversion of any share of Series A Preferred Stock pursuant to
Section 1.4 below, all accrued and unpaid dividends on such share of Series A
Preferred Stock pursuant to paragraph (a) above shall be canceled, and no
dividends shall be deemed to have accrued or be payable in respect of such share
of Series A Preferred Stock pursuant to paragraph (a) above.
(c) Except as set forth in paragraph (a) or (b) above, the Corporation
shall not pay any dividends (including, without limitation, any stock dividends)
on the outstanding shares of Series A Preferred Stock.
1.2 Liquidation.
(a) Upon any Liquidation, the holders of shares of Series A Preferred
Stock shall be entitled to be paid, before any payment shall be made to the
holders of Series A Junior Stock, with respect to each share of Series A
Preferred Stock then held by such holder, the Series A Liquidation Value plus
all then accrued and unpaid dividends thereon up to the date of payment, and the
holder of such shares of Series A Preferred Stock shall not be entitled to any
further payment with respect thereto. If, upon any Liquidation, the
Corporation's assets to be distributed among the holders of Series A Preferred
Stock are insufficient to permit payment to such holders of the full amount to
which they are entitled pursuant to the immediately preceding sentence, then the
entire assets to be distributed shall be distributed ratably among such holders
and any other class or series of stock of the Corporation ranking on liquidation
on a parity with the Series A Preferred Stock, based upon the respective amounts
which would otherwise be payable in respect of such stock, which in the case of
Series A Preferred Stock, shall equal the then aggregate Series A Liquidation
Value (plus all then accrued but unpaid dividends thereon) of the shares of
Series A Preferred Stock held by each such holder. Upon and after any
Liquidation, unless and until the holder of each share of Series A Preferred
Stock receives payment in full of the full amount to which they are entitled
hereunder, the Corporation shall not redeem, repurchase or otherwise acquire for
value, or declare or pay any dividend or other distribution on or with respect
to, any shares of any class or series of Series A Junior Stock.
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(b) Upon and after any Liquidation, after the payment of all preferential
amounts required to be paid to the holders of the Series A Preferred Stock and
any other class or series of stock of the Corporation ranking on liquidation on
a parity with the Series A Preferred Stock, the holders of Series A Junior Stock
then outstanding shall be entitled to receive the remaining assets of the
Corporation available for distribution to its stockholders.
(c) In the event of a Liquidation resulting in the availability of assets
other than cash for distribution to the holders of shares of Series A Preferred
Stock, such holders shall be entitled to a distribution of cash and/or other
assets equal in value to the full amount to which they are entitled hereunder
stated in Section 1.2(a) above. In the event that such distribution to the
holders of shares of Series A Preferred Stock shall include any assets other
than cash, the Board of Directors shall determine in good faith and with due
care the value of such assets for such purpose, and shall notify all holders of
shares of Series A Preferred Stock and Common Stock of such determination.
1.3 Voting Rights.
(a) General. Except as otherwise expressly provided herein or in the
Stockholder Agreement or the Series A Stockholder Agreement or as required by
applicable law, the holder of each share of Series A Preferred Stock shall be
entitled to vote on all matters on which holders of shares of Class B-1 Common
Stock are entitled to vote. Each share of Series A Preferred Stock shall entitle
the holder thereof to such number of votes per share as shall equal the number
of shares of Class B-1 Common Stock into which such share of Series A Preferred
Stock is convertible pursuant to Section 1.4 of this Article Fourth, Part C, as
of the record date for the determination of stockholders entitled to vote on
such matter, or if no record date is established, at the date such vote is taken
or any written consent of stockholders is solicited. Except as otherwise
provided herein, in the Stockholder Agreement, the Series A Stockholder
Agreement or as otherwise required by applicable law, the holders of the shares
of Series A Preferred Stock, the holders of shares of Class A Common Stock and
the holders of shares of Class B-1 Common Stock shall vote together as a single
class on all matters submitted to a vote or consent of stockholders.
(b) Action by Written Consent. Whenever holders of a class or series of
capital stock are required or permitted to take any action by vote, such action
may be taken without a meeting by written consent only after the Corporation has
notified each holder of Series A Preferred Stock in writing of any actions
required to be taken by written consent. The written consent shall set forth the
action so taken and shall be signed by the holders of at least such number of
shares of such class(es) and/or series of capital stock as would be sufficient
to take such action at a meeting of stockholders, except as otherwise expressly
provided in this Article Fourth, the Stockholder Agreement or the Series A
Stockholder Agreement.
(c) Amendments; Waivers. So long as any shares of Series A Preferred Stock
are outstanding, the Corporation shall not, without the prior written consent or
affirmative
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vote of the holders of more than 50% of the then outstanding shares of Series A
Preferred Stock, (i) amend, alter or repeal the preferences, special rights or
other powers of the Series A Preferred Stock so as to adversely affect the
Series A Preferred Stock, or (ii) amend, alter or repeal the preferences,
special rights or other powers of any other class or series of the Corporation's
stock (whether by increasing their liquidation preference, dividend rights,
conversion rights or otherwise) so as to materially adversely affect the Series
A Preferred Stock, provided that neither the increase of the number of shares of
any existing or new class or series of stock which the Corporation shall be or
become authorized to issue nor the issuance by the Corporation of any shares of
any such series or class shall be deemed to adversely affect the Series A
Preferred Stock. Any of the rights of the holders of Series A Preferred Stock
set forth in this Certificate of Incorporation may only be waived by the prior
written consent of the holders of more than 50% of the then outstanding shares
of Series A Preferred Stock.
1.4 Conversion. The shares of Series A Preferred Stock are subject to
conversion into shares of Class B-1 Common Stock or other securities,
properties, or rights, as set forth in this Section 1.4:
(a) Optional Conversion.
(i) Subject to and in compliance with the provisions of this Section
1.4, each holder of shares of Series A Preferred Stock may, at any time or from
time to time, elect to convert all or part of the shares of Series A Preferred
Stock held by such holder into fully paid and non-assessable shares of Class B-1
Common Stock. The number of shares of Class B-1 Common Stock to which a holder
of shares of Series A Preferred Stock shall be entitled upon such conversion
shall be the product obtained by multiplying the number of shares of Series A
Preferred Stock being converted by the Series A Conversion Rate (determined as
provided in Section 1.4(d) below).
(ii) To exercise conversion rights under this Section 1.4(a), a
holder of shares of Series A Preferred Stock to be so converted shall surrender
the certificate or certificates representing the shares of Series A Preferred
Stock being converted to the Corporation at its principal office, and shall give
written notice to the Corporation at that office that such holder elects to
convert such shares of Series A Preferred Stock (the "Series A Conversion
Notice"). Such notice shall also state the name or names (with address or
addresses) in which the certificate or certificates for shares of Class B-1
Common Stock issuable upon such conversion shall be issued. The certificate or
certificates for shares of Series A Preferred Stock surrendered for conversion
shall be accompanied by evidence of proper assignment thereof to the
Corporation. The date when such Series A Conversion Notice is received by the
Corporation together with the certificate or certificates representing the
shares of Series A Preferred Stock being converted, shall be the "Series A
Conversion Date."
(iii) Upon receipt of the Series A Conversion Notice, the Corporation
shall immediately notify all holders of Series A Preferred Stock (other than the
holder
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delivering such Series A Conversion Notice) of such conversion request in
accordance with the provisions set forth in Section 1.5 of Part E below.
(iv) As promptly as practicable after any Series A Conversion Date,
the Corporation shall issue and deliver to the holders of the shares of Series A
Preferred Stock being converted, a certificate or certificates in such
denominations as such holder may request in writing for the number of shares of
Class B-1 Common Stock issuable upon the conversion of such shares of Series A
Preferred Stock in accordance with the provisions of this Section 1.4. Such
conversion shall be deemed to have been effected immediately prior to the close
of business on the Series A Conversion Date, and at such time the rights of the
holder as holder of the converted shares of Series A Preferred Stock shall cease
and the Person or Persons in whose name or names any certificate or certificates
for shares of Class B-1 Common Stock shall be issuable upon such conversion
shall be deemed to have become the holder or holders of record of shares of
Class B-1 Common Stock represented thereby.
(b) Mandatory Conversion.
(i) In the event that the holders of more than 50% of the total
number of shares of Series A Preferred Stock originally issued by the
Corporation (such number to be subject to proportionate adjustment in the event
of any Extraordinary Stock Event with respect to the Series A Preferred Stock
occurring after the Effective Date) have elected to convert such shares into
shares of Class B-1 Common Stock pursuant to Section 1.4(a) (a "Mandatory Series
A Conversion Event") and any shares of Series A Preferred Stock remain
outstanding, then all such remaining outstanding shares of Series A Preferred
Stock shall be converted into shares of Class B-1 Common Stock in the manner set
forth in this Section 1.4(b).
(ii) Following the occurrence of a Mandatory Series A Conversion
Event, the Corporation shall immediately notify all remaining holders of shares
of Series A Preferred Stock pursuant to a written notice (the "Mandatory Series
A Conversion Notice"), in accordance with the provisions set forth in Section
1.5 of Part E below, specifying a date (the "Mandatory Series A Conversion
Date") on which such shares of Series A Preferred Stock will be converted into
shares of Class B-1 Common Stock, which date shall be not more than 30 nor less
than 15 days after the date of such Mandatory Series A Conversion Notice.
Following delivery of such notice, on the Mandatory Series A Conversion Date
each share of Series A Preferred Stock outstanding shall be converted into the
number of fully paid and non-assessable shares of Class B-1 Common Stock into
which such share is then convertible pursuant to Section 1.4(a) above,
automatically and without further action.
(iii) Upon any mandatory conversion of shares of Series A Preferred
Stock into shares of Class B-1 Common Stock pursuant to this Section 1.4(b), the
holders of shares of Series A Preferred Stock shall surrender the certificates
formerly representing such shares at the office of the Corporation. Thereupon,
there shall be issued and delivered to each such holder, promptly at the office
of the Corporation and in
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the holder's name as shown on such surrendered certificate or certificates, a
certificate or certificates for the number of shares of Class B-1 Common Stock
into which such shares of Series A Preferred Stock were so converted. The
Corporation shall not be obligated to issue certificates evidencing the shares
of Class B-1 Common Stock issuable upon such conversion unless and until
certificates formerly evidencing the converted shares of Series A Preferred
Stock are either delivered to the Corporation, or the holder thereof notifies
the Corporation that such certificates have been lost, stolen, or destroyed and
executes and delivers an agreement to indemnify the Corporation from any loss
incurred by the Corporation in connection therewith.
(c) Automatic Conversion.
(i) Each share of Series A Preferred Stock outstanding shall be
converted into the number of fully paid and non-assessable shares of Class B-1
Common Stock into which such share is then convertible pursuant to Section
1.4(a) above, automatically and without further action, immediately upon the
closing of a Qualified Public Offering.
(ii) Upon any automatic conversion of shares of Series A Preferred
Stock into shares of Class B-1 Common Stock pursuant to this Section 1.4(c), the
holders of shares of Series A Preferred Stock shall surrender the certificates
formerly representing such shares at the office of the Corporation. Thereupon,
there shall be issued and delivered to each such holder, promptly at the office
of the Corporation and in the holder's name as shown on such surrendered
certificate or certificates, a certificate or certificates for the number of
shares of Class B-1 Common Stock into which such shares of Series A Preferred
Stock were so converted. The Corporation shall not be obligated to issue
certificates evidencing the shares of Class B-1 Common Stock issuable upon such
conversion unless and until certificates formerly evidencing the converted
shares of Series A Preferred Stock are either delivered to the Corporation, or
the holder thereof notifies the Corporation that such certificates have been
lost, stolen, or destroyed and executes and delivers an agreement to indemnify
the Corporation from any loss incurred by the Corporation in connection
therewith.
(d) Initial Series A Conversion Rate. The conversion rate with respect to
any share of Series A Preferred Stock (the "Series A Conversion Rate") initially
shall equal one.
(e) Adjustment of Series A Conversion Rate. The Series A Conversion Rate
shall be subject to adjustment as provided in Sections 1.4(f) and 1.4(g) of this
Article Fourth, Part C.
(f) Adjustments for Extraordinary Stock Events. Upon the happening of any
Extraordinary Stock Event with respect to any class or series of stock of the
Corporation which is convertible into shares of Class B Common Stock,
automatically and without further action, and simultaneously with the happening
of such Extraordinary Stock Event, the Series A Conversion Rate shall be
adjusted so that the shares of Series A Preferred
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Stock outstanding immediately after such Extraordinary Stock Event are
convertible after such adjustment into the same percentage of the outstanding
shares of Class B Common Stock (on a fully diluted basis) as they were
immediately prior to such Extraordinary Stock Event. The Series A Conversion
Rate, as so adjusted, shall be readjusted in the same manner upon the happening
of any successive Extraordinary Stock Event or Events with respect to any class
or series of stock of the Corporation which is convertible into shares of Class
B Common Stock.
(g) Adjustments for Reclassifications. If the shares of Class B-1 Common
Stock issuable upon the conversion of shares of Series A Preferred Stock are
changed into the same or a different number of shares of any class(es) or series
of stock, whether by reclassification or otherwise (other than a reorganization
of assets provided for elsewhere in this Section 1.4), then and in each such
event the holder of each share of Series A Preferred Stock shall have the right
thereafter to convert such share into the kind and amount of shares of stock and
other securities and property receivable upon such reorganization,
reclassification, or other change by holders of the number of shares of Class
B-1 Common Stock into which such shares of Series A Preferred Stock might have
been converted immediately prior to such reorganization, reclassification, or
change, all subject to further adjustment as provided herein.
(h) Adjustments for Mergers, Consolidations or Other Reorganizations. If
at any time or from time to time there is any merger, consolidation or other
capital reorganization of shares of Class B-1 Common Stock (other than a
subdivision, combination of shares, reclassification, or exchange of shares
provided for elsewhere in this Section 1.4), then, as a part of and as a
condition to the effectiveness of such merger, consolidation or other capital
reorganization, lawful and adequate provision shall be made so that if the
Corporation is not the surviving corporation, each share of Series A Preferred
Stock shall be converted into a share of capital stock of the surviving
corporation having equivalent preferences, rights, and privileges, except that
in lieu of being able to convert into shares of Class B-1 Common Stock of the
Corporation or common stock of the surviving corporation, the holders of shares
of Series A Preferred Stock (including any such capital stock issued upon
conversion of Series A Preferred Stock) shall thereafter be entitled to receive
upon conversion of such shares of Series A Preferred Stock (including any such
capital stock issued upon conversion of shares of Series A Preferred Stock) the
number of shares of stock or other securities or property of the Corporation or
the surviving corporation to which a holder of the number of shares of Class B-1
Common Stock of the Corporation or common stock of the surviving corporation
deliverable upon conversion of such shares of Series A Preferred Stock
immediately prior to the merger, consolidation or other capital reorganization
would have been entitled on such merger, consolidation or other capital
reorganization. In any such case, appropriate provisions shall be made with
respect to the rights of the holders of shares of Series A Preferred Stock
(including any such capital stock issued upon conversion of shares of Series A
Preferred Stock) after such merger, consolidation or other capital
reorganization to the end that the provisions of this Section 1.4 (including
without limitation provisions for adjustment of the Series A Conversion Rate and
the number of shares issuable upon conversion of shares of Series A Preferred
Stock or such
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shares of capital stock) shall thereafter be applicable, as nearly as may be,
with respect to any shares of stock, securities, or assets to be deliverable
thereafter upon the conversion of such shares of Series A Preferred Stock or
such shares of capital stock.
(i) Certificate as to Adjustments. In each case of an adjustment or
readjustment of the Series A Conversion Rate, the Corporation shall promptly
furnish each holder of Series A Preferred Stock with a certificate, prepared by
the chief financial officer of the Corporation, showing such adjustment or
readjustment, and stating in detail the facts upon which such adjustment or
readjustment is based.
(j) Fractional Shares. Upon conversion of shares of Series A Preferred
Stock pursuant to this Section 1.4, the Corporation shall, if requested by the
holder of any such shares of Series A Preferred Stock being converted, issue
fractional shares in increments of up to one-one thousandth (1/1000 or .000) of
a share of Class B-1 Common Stock.
(k) Partial Conversion. If some but not all of the shares of Series A
Preferred Stock represented by a certificate or certificates surrendered by a
holder are converted, the Corporation shall execute and deliver to or on the
order of the holder, at the expense of the Corporation, a new certificate
representing the number of shares of Series A Preferred Stock that were not
converted.
(l) Reservation of Class B-1 Common Stock. The Corporation shall at all
times reserve and keep available out of its authorized but unissued shares of
Class B-1 Common Stock, solely for the purpose of effecting the conversion of
shares of Series A Preferred Stock, such number of shares of Class B-1 Common
Stock as from time to time is sufficient to effect the conversion of all
outstanding shares of Series A Preferred Stock, and if at any time the number of
authorized but unissued shares of Class B-1 Common Stock is not sufficient to
effect the conversion of all shares of Series A Preferred Stock then
outstanding, the Corporation shall take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Class B-1 Common Stock to such number of shares as is sufficient for
such purpose.
(m) Further Adjustment Provisions. If, at any time as a result of an
adjustment made pursuant to this Section 1.4, the holder of any shares of Series
A Preferred Stock upon thereafter surrendering such shares for conversion
becomes entitled to receive any shares or other securities of the Corporation
other than shares of Class B-1 Common Stock, the Series A Conversion Rate in
respect of such other shares or securities so receivable upon conversion of such
shares of Series A Preferred Stock shall thereafter be adjusted, and shall be
subject to further adjustment from time to time, in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to such shares
of Series A Preferred Stock contained in this Section 1.4, and the remaining
provisions hereof with respect to shares of Series A Preferred Stock shall apply
on like or similar terms to any such other shares or securities.
(n) No Conversion of Accrued Dividends. No holder of Series A Preferred
Stock whose shares of Series A Preferred Stock are converted pursuant to this
Section 1.4
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shall be entitled to any payment of dividends accrued pursuant to Section 1.1(a)
of this Part C for the shares of the Series A Preferred Stock so converted, and
all such accrued and unpaid dividends on such shares shall be cancelled pursuant
to Section 1.1(b) hereof upon such conversion.
(o) Fully Paid and Non-Assessable. Upon the conversion of any shares of
the Series A Preferred Stock into shares of Class B-1 Common Stock, each share
of Class B-1 Common Stock issued upon the conversion thereof shall be fully paid
and non-assessable.
1.5 Redemptions.
(a) Mandatory Redemption Upon Disposition Event. Subject to the provisions
of subsection (b) of this Section 1.5, the Corporation will, upon the closing of
any Disposition Event (other than a Qualified Public Offering) (the "Series A
Redemption Date"), redeem all of the Series A Preferred Stock then outstanding.
(b) Contractual Prohibitions. Notwithstanding any other provision herein
to the contrary, no redemption of any shares of Series A Preferred Stock shall
be made by the Corporation pursuant to subsection (a) above at any time when
such redemption (or the distribution by any Subsidiary of the Corporation to the
Corporation of funds for such redemption) would be prohibited by the terms of
any credit or other financing agreement with any lender to the Corporation or
any of its Subsidiaries.
(c) Notice of Redemption. The Corporation shall provide written notice of
any event giving rise to the mandatory redemption of Series A Preferred Stock
pursuant to this Section 1.5 specifying the time and place of redemption and the
redemption price per share, by first class or registered mail, postage prepaid,
to each holder of record of Series A Preferred Stock to be redeemed at the
address for such holder last shown on the records of the transfer agent therefor
(or the records of the Corporation, if it serves as its own transfer agent), not
more than 60 nor less than 30 days prior to Series A Redemption Date. If less
than all the shares of Series A Preferred Stock are to be redeemed, the notice
will also specify the number of shares of Series A Preferred Stock which are to
be redeemed from such holder. Upon mailing any such notice of redemption, the
Corporation will become obligated, to the extent permitted by law, to redeem at
the time of redemption specified therein all shares of Series A Preferred Stock
specified to be redeemed in such notice. Notwithstanding anything to the
contrary contained in this Section 1.5, any holder of shares of Series A
Preferred Stock shall be entitled to convert such shares of Series A Preferred
Stock into shares of Class B-1 Common Stock in accordance with Section 1.4 at
any time prior to the Series A Redemption Date.
(d) Redemption Price and Priority of Payment. For each share of Series A
Preferred Stock which is to be redeemed, the Corporation will be obligated on
the Redemption Date to pay each holder thereof (upon surrender by each such
holder at the Corporation's principal office of the certificate(s) representing
such shares of Series A Preferred Stock) in immediately available funds or by
certified or bank check payable to
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the order of each such holder an amount equal to the Series A Liquidation Value
of such share of Series A Preferred Stock plus all then accrued and unpaid
dividends thereon (the "Series A Redemption Price"). The Corporation shall not
be obligated to make such payment unless and until certificates formerly
evidencing the redeemed shares of Series A Preferred Stock are either delivered
to the Corporation, or the holder thereof notifies the Corporation that such
certificates have been lost, stolen or destroyed and executes and delivers an
agreement to indemnify the Corporation from any loss incurred by the Corporation
in connection therewith. If (i) the funds of the Corporation legally available
for redemption of shares of Series A Preferred Stock on the applicable
Redemption Date are insufficient to redeem the total number of shares of Series
A Preferred Stock to be redeemed on such date or (ii) the terms of any credit or
other financing agreement with any lender to the Corporation or any of its
Subsidiaries prohibits the redemption (or the distribution to the Corporation of
funds for redemption) of the total number of shares of Series A Preferred Stock
to be redeemed on such date, then those funds which are legally available, or
which are not so prohibited to be used, shall be used to redeem the maximum
possible number of shares of Series A Preferred Stock ratably among the holders
of such shares to be redeemed based upon the aggregate Series A Redemption Price
of such shares of Series A Preferred Stock held by each holder thereof. At any
time thereafter when additional funds of the Corporation are legally available
for the redemption of shares of Series A Preferred Stock or when the terms of
any credit or other financing agreement with any lender to the Corporation or
any of its Subsidiaries do not prohibit the redemption (or the distribution to
the Corporation of funds for redemption) of additional shares of Series A
Preferred Stock, such funds which are legally available or not so prohibited
shall immediately be used to redeem the balance of the shares of Series A
Preferred Stock which the Corporation has become obligated to redeem on the
Redemption Date, but which it has not redeemed. In case fewer than the total
number of shares of Series A Preferred Stock represented by any certificate are
redeemed, a new certificate representing the number of unredeemed shares shall
be issued to the holder thereof without cost to such holder within 7 business
days after surrender of the certificate representing the redeemed shares of
Series A Preferred Stock.
(e) Dividends After Payment of Series A Redemption Price. No share of
Series A Preferred Stock is entitled to any dividends accruing after the date on
which the Series A Redemption Price of such share is paid in full pursuant to
and in accordance with this Section 1.5. On such date, all rights of the holder
of such share of Series A Preferred Stock shall cease, and such share of Series
A Preferred Stock shall be deemed not to be outstanding. Each certificate for
shares of Series A Preferred Stock surrendered for redemption pursuant to this
Section 1.5 shall be canceled and retired by the Corporation.
(f) No Reissuance of Redeemed Shares. No shares of Series A Preferred
Stock acquired by the Corporation by reason of redemption, purchase, conversion
or otherwise shall be reissued, and all such shares shall be canceled, retired,
and eliminated from the shares that the Corporation is authorized to issue.
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(g) Payments on Series A Junior Stock, etc. If and so long as there are
any shares of Series A Preferred Stock outstanding which the Corporation has
become obligated to redeem pursuant to this Section 1.5, until the Corporation
has redeemed all of such shares of Series A Preferred Stock, the Corporation
shall not redeem, repurchase or otherwise acquire for value, or declare or pay
any dividend or other distribution on or with respect to, any shares of any
class or series of Series A Junior Stock.
D. COMMON STOCK.
------------
1. Terms Applicable to Class A Common Stock.
1.1 Dividends.
(a) Subject to the rights of the holders of shares of Series A Preferred
Stock described in Part C of this Article Fourth and the rights of any other
series of Preferred Stock ranking senior to the Class A Common Stock with
respect to payment of dividends, the holders of Class A Common Stock shall be
entitled to dividends out of funds legally available therefor, when declared by
the Board of Directors in respect of Class A Common Stock; provided, that no
such dividend shall be declared or paid unless a corresponding dividend is
simultaneously declared and paid on the Class B Common Stock in an amount per
share equal to the amount that would be payable per share of Class B Common
Stock if all outstanding shares of Class A Common Stock had been converted into
Class B-1 Common Stock and the total dividend payable on the shares of Class A
Common Stock had instead been paid on such converted shares of Class B-1 Common
Stock. Except for (i) any repurchases of Common Stock pursuant to any Management
Repurchase Agreement which are made in accordance with the terms thereof and
(ii) any repurchases of Common Stock or warrants therefor pursuant to the
Mezzanine Debt Documents which are made in accordance with the terms thereof, no
dividend of cash or other property or other distribution shall be paid, declared
or set apart with respect to any share of Class B Common Stock unless a dividend
is paid or declared and set apart for payment with respect to each outstanding
share of Class A Common Stock in an amount at least equal to the product of (A)
the amount of such dividends or distributions so paid, declared, or set apart
for each share of Class B Common Stock, multiplied by (B) the number of shares
of Class B-1 Common Stock into which such share of Class A Common Stock is then
convertible pursuant to Section 1.4 below.
(b) Except as set forth in paragraph (a) above, the Corporation shall not
pay any dividends (including, without limitation, any stock dividends) on the
outstanding shares of Class A Common Stock.
1.2 Liquidation. Subject to the rights of the holders of Series A
Preferred Stock and any other series of Preferred Stock ranking on liquidation
senior to the Class A Common Stock:
(a) Upon any Liquidation, the holders of shares of Class A Common Stock
shall be entitled to be paid, before any payment shall be made to the holders of
Junior
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Stock, with respect to each share of Class A Common Stock then held by such
holder, the Class A Liquidation Value plus all then accrued and unpaid dividends
thereon up to the date of payment, and the holder of such shares of Class A
Common Stock shall not be entitled to any further payment with respect thereto.
If, upon any Liquidation, the Corporation's assets to be distributed among the
holders of Class A Common Stock are insufficient to permit payment to such
holders of the full amount to which they are entitled pursuant to the
immediately preceding sentence, then the entire assets to be distributed shall
be distributed ratably among such holders and any other class or series of stock
of the Corporation ranking on liquidation on a parity with the Class A Common
Stock based upon the respective amounts which would otherwise be payable in
respect of such stock, which in the case of the Class A Common Stock, shall
equal the then aggregate Class A Liquidation Value (plus all then accrued but
unpaid dividends thereon) of the shares of Class A Common Stock held by each
such holder. Upon and after any Liquidation, unless and until the holder of each
share of Class A Common Stock receives payment in full of the full amount to
which they are entitled hereunder, the Corporation shall not redeem, repurchase
or otherwise acquire for value, or declare or pay any dividend or other
distribution on or with respect to, any shares of any class or series of Junior
Stock.
(b) Upon and after any Liquidation, after the payment of all preferential
amounts required to be paid to the holders of the Class A Common Stock and any
other class or series of stock of the Corporation ranking on liquidation on a
parity with the Class A Common Stock, the holders of Junior Stock then
outstanding shall be entitled to receive the remaining assets of the Corporation
available for distribution to its stockholders.
(c) In the event that a distribution to the holders of shares of Class A
Common Stock made pursuant to this Section 1.2 shall include any assets other
than cash, the Board of Directors shall determine in good faith and with due
care the value of such assets for such purpose, and shall notify all holders of
shares of Series A Preferred Stock and Common Stock of such determination.
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1.3 Voting Rights.
(a) General. Except as otherwise expressly provided herein or in the
Stockholder Agreement or as required by applicable law, the holder of each share
of Class A Common Stock shall be entitled to vote on all matters on which
holders of shares of Class B-1 Common Stock are entitled to vote. Each share of
Class A Common Stock shall entitle the holder thereof to such number of votes
per share as shall equal the number of shares of Class B-1 Common Stock into
which such share of Class A Common Stock is convertible pursuant to Section 1.4
of Part D below. Except as otherwise provided herein, in the Stockholder
Agreement or the Series A Stockholder Agreement or as otherwise required by
applicable law, the holders of shares of Series A Preferred Stock, the holders
of shares of Class A Common Stock and the holders of shares of Class B-1 Common
Stock shall vote together as a single class on all matters submitted to a vote
or consent of stockholders.
(b) Amendments; Waivers. So long as any shares of Class A Common Stock are
outstanding, the Corporation shall not, without the prior written consent or
affirmative vote of the holders of more than 50% of the then outstanding shares
of Class A Common Stock, (i) amend, alter or repeal the preferences, special
rights or other powers of the Class A Common Stock so as to adversely affect the
Class A Common Stock, or (ii) amend, alter or repeal the preferences, special
rights or other powers of any other class or series of the Corporation's stock
(whether by increasing their liquidation preference, dividend rights, conversion
rights or otherwise) so as to materially adversely affect the Class A Common
Stock, provided that neither the increase of the number of shares of any
existing or new class or series of stock which the Corporation shall be or
become authorized to issue nor the issuance by the Corporation of any shares of
any such series or class shall be deemed to adversely affect the Class A Common
Stock. Any of the rights of the holders of Class A Common Stock set forth in
this Certificate of Incorporation may only be waived by the prior written
consent of the holders of more than 50% of the then outstanding shares of Class
A Common Stock.
1.4 Conversion. The shares of Class A Common Stock are subject to
conversion into shares of Class B-1 Common Stock or other securities,
properties, or rights, as set forth in this Section 1.4:
(a) Optional Conversion.
(i) Subject to and in compliance with the provisions of this Section
1.4, each holder of shares of Class A Common Stock may, at any time or from time
to time elect to convert all or part of the shares of Class A Common Stock held
by such holder into fully paid and non-assessable shares of Class B-1 Common
Stock. The number of shares of Class B-1 Common Stock to which a holder of
shares of Class A Common Stock shall be entitled upon such conversion shall be
the product obtained by multiplying the number of shares of Class A Common Stock
being converted by the Class A Conversion Rate (determined as provided in
Section 1.4(c) below).
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(ii) To exercise conversion rights under this Section 1.4(a), a
holder of shares of Class A Common Stock to be so converted shall surrender the
certificate or certificates representing the shares of Class A Common Stock
being converted to the Corporation at its principal office, and shall give
written notice to the Corporation at that office that such holder elects to
convert such shares of Class A Common Stock (the "Class A Conversion Notice").
Such notice shall also state the name or names (with address or addresses) in
which the certificate or certificates for shares of Class B-1 Common Stock
issuable upon such conversion shall be issued. The certificate or certificates
for shares of Class A Common Stock surrendered for conversion shall be
accompanied by evidence of proper assignment thereof to the Corporation. The
date when such Class A Conversion Notice is received by the Corporation together
with the certificate or certificates representing the shares of Class A Common
Stock being converted, shall be the "Class A Conversion Date."
(iii) Upon receipt of the Class A Conversion Notice, the Corporation
shall immediately notify all holders of Class A Common Stock (other than the
holder delivering such Class A Conversion Notice) of such conversion request in
accordance with the provisions set forth in Section 1.5 of Part E below.
(iv) As promptly as practicable following any Class A Conversion
Date, the Corporation shall issue and deliver to the holders of the shares of
Class A Common Stock being converted, a certificate or certificates in such
denominations as such holder may request in writing for the number of shares of
Class B-1 Common Stock issuable upon the conversion of such shares of Class A
Common Stock in accordance with the provisions of this Section 1.4. Such
conversion shall be deemed to have been effected immediately prior to the close
of business on the Class A Conversion Date, and at such time the rights of the
holder as holder of the converted shares of Class A Common Stock shall cease and
the Person or Persons in whose name or names any certificate or certificates for
shares of Class B-1 Common Stock shall be issuable upon such conversion shall be
deemed to have become the holder or holders of record of shares of Class B-1
Common Stock represented thereby.
(b) Automatic Conversion.
(i) Each share of Class A Common Stock outstanding shall be
converted into the number of fully paid and non-assessable shares of Class B-1
Common Stock into which such share is then convertible pursuant to Section
1.4(a) above, automatically and without further action, immediately upon the
earlier of (A) the closing of a Qualified Public Offering and (B) the conversion
of all outstanding shares of Series A Preferred Stock into shares of Class B-1
Common Stock pursuant to Section 1.4(a) or 1.4(b) of Part C above.
(ii) Upon any automatic conversion of shares of Class A Common Stock
into shares of Class B-1 Common Stock pursuant to this Section 1.4(b), the
holders of shares of Class A Common Stock shall surrender the certificates
formerly representing such shares at the office of the Corporation. Thereupon,
there shall be issued and
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delivered to each such holder, promptly at the office of the Corporation and in
the holder's name as shown on such surrendered certificate or certificates, a
certificate or certificates for the number of shares of Class B-1 Common Stock
into which such shares of Class A Common Stock were so converted. The
Corporation shall not be obligated to issue certificates evidencing the shares
of Class B-1 Common Stock issuable upon such conversion unless and until
certificates formerly evidencing the converted shares of Class A Common Stock
are either delivered to the Corporation, or the holder thereof notifies the
Corporation that such certificates have been lost, stolen, or destroyed and
executes and delivers an agreement to indemnify the Corporation from any loss
incurred by the Corporation in connection therewith.
(c) Initial Class A Conversion Rate. The conversion rate with respect to
any share of Class A Common Stock (the "Class A Conversion Rate") initially
shall equal one.
(d) Adjustment of Class A Conversion Rate. The Class A Conversion Rate
shall be subject to adjustment as provided in Sections 1.4(e) and 1.4(f) of this
Article Fourth. Part D.
(e) Adjustments for Extraordinary Stock Events. Upon the happening of any
Extraordinary Stock Event with respect to any class or series of stock of the
Corporation which is convertible into shares of Class B Common Stock,
automatically and without further action, and simultaneously with the happening
of such Extraordinary Stock Event, the Class A Conversion Rate shall be adjusted
so that the shares of Class A Common Stock outstanding immediately after such
Extraordinary Stock Event are convertible after such adjustment into the same
percentage of the outstanding shares of Class B Common Stock (on a fully diluted
basis) as they were immediately prior to such Extraordinary Stock Event. The
Class A Conversion Rate, as so adjusted, shall be readjusted in the same manner
upon the happening of any successive Extraordinary Stock Event or Events with
respect to any class or series of stock of the Corporation which is convertible
into shares of Class B Common Stock.
(f) Adjustments for Reclassifications. If the shares of Class B-1 Common
Stock issuable upon the conversion of shares of Class A Common Stock are changed
into the same or a different number of shares of any class(es) or series of
stock, whether by reclassification or otherwise (other than a reorganization of
assets provided for elsewhere in this Section 1.4), then and in each such event
the holder of each share of Class A Common Stock shall have the right thereafter
to convert such share into the kind and amount of shares of stock and other
securities and property receivable upon such reorganization, reclassification,
or other change by holders of the number of shares of Class B-1 Common Stock
into which such shares of Class A Common Stock might have been converted
immediately prior to such reorganization, reclassification, or change, all
subject to further adjustment as provided herein.
(g) Adjustments for Mergers, Consolidations or Other Reorganizations. If
at any time or from time to time there is any merger, consolidation or other
capital
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reorganization of shares of Class B-1 Common Stock (other than a subdivision,
combination of shares, reclassification, or exchange of shares provided for
elsewhere in this Section 1.4), then, as a part of and as a condition to the
effectiveness of such merger, consolidation or other capital reorganization,
lawful and adequate provision shall be made so that if the Corporation is not
the surviving corporation, each share of Class A Common Stock shall be converted
into a share of capital stock of the surviving corporation having equivalent
preferences, rights, and privileges, except that in lieu of being able to
convert into shares of Class B-1 Common Stock of the Corporation or common stock
of the surviving corporation, the holders of shares of Class A Common Stock
(including any such capital stock issued upon conversion of Class A Common
Stock) shall thereafter be entitled to receive upon conversion of such shares of
Class A Common Stock (including any such capital stock issued upon conversion of
shares of Class A Common Stock) the number of shares of stock or other
securities or property of the Corporation or the surviving corporation to which
a holder of the number of shares of Class B-1 Common Stock of the Corporation or
common stock of the surviving corporation deliverable upon conversion of such
shares of Class A Common Stock immediately prior to the merger, consolidation or
other capital reorganization would have been entitled on such merger,
consolidation or other capital reorganization. In any such case, appropriate
provisions shall be made with respect to the rights of the holders of shares of
Class A Common Stock (including any such capital stock issued upon conversion of
shares of Class A Common Stock) after such merger, consolidation or other
capital reorganization to the end that the provisions of this Section 1.4
(including without limitation provisions for adjustment of the Class A
Conversion Rate and the number of shares issuable upon conversion of shares of
Class A Common Stock or such shares of capital stock) shall thereafter be
applicable, as nearly as may be, with respect to any shares of stock,
securities, or assets to be deliverable thereafter upon the conversion of such
shares of Class A Common Stock or such shares of capital stock.
(h) Certificate as to Adjustments. In each case of an adjustment or
readjustment of the Class A Conversion Rate, the Corporation shall promptly
furnish each holder of Class A Common Stock with a certificate, prepared by the
chief financial officer of the Corporation, showing such adjustment or
readjustment, and stating in detail the facts upon which such adjustment or
readjustment is based.
(i) Fractional Shares. Upon conversion of shares of Class A Common Stock
pursuant to this Section 1.4, the Corporation shall, if requested by the holder
of any such shares of Class A Common Stock being converted, issue fractional
shares in increments of up to one-one thousandth (1/1000 or .000) of a share of
Class B-1 Common Stock.
(j) Partial Conversion. If some but not all of the shares of Class A
Common Stock represented by a certificate or certificates surrendered by a
holder are converted, the Corporation shall execute and deliver to or on the
order of the holder, at the expense of the Corporation, a new certificate
representing the number of shares of Class A Common Stock that were not
converted.
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(k) Reservation of Class B-1 Common Stock. The Corporation shall at all
times reserve and keep available out of its authorized but unissued shares of
Class B-1 Common Stock, solely for the purpose of effecting the conversion of
shares of Class A Common Stock, such number of shares of Class B-1 Common Stock
as from time to time is sufficient to effect the conversion of all outstanding
shares of Class A Common Stock, and if at any time the number of authorized but
unissued shares of Class B-1 Common Stock is not sufficient to effect the
conversion of all shares of Class A Common Stock then outstanding, the
Corporation shall take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Class
B-1 Common Stock to such number of shares as is sufficient for such purpose.
(l) Further Adjustment Provisions. If, at any time as a result of an
adjustment made pursuant to this Section 1.4, the holder of any shares of Class
A Common Stock upon thereafter surrendering such shares for conversion becomes
entitled to receive any shares or other securities of the Corporation other than
shares of Class B-1 Common Stock, the Class A Conversion Rate in respect of such
other shares or securities so receivable upon conversion of such shares of Class
A Common Stock shall thereafter be adjusted, and shall be subject to further
adjustment from time to time, in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to such shares of Class A Common
Stock contained in this Section 1.4, and the remaining provisions hereof with
respect to shares of Class A Common Stock shall apply on like or similar terms
to any such other shares or securities.
(m) Fully Paid and Non-Assessable. Upon the conversion of any shares of
the Class A Common Stock into shares of Class B-1 Common Stock, each share of
Class B-1 Common Stock issued upon the conversion thereof shall be fully paid
and non-assessable.
2. Terms Applicable to Class B Common Stock.
2.1 Dividend and Other Rights of Class B Common Stock.
(a) Ratable Treatment. Except as specifically otherwise provided herein,
all shares of Class B Common Stock shall be identical and shall entitle the
holders thereof to the same rights and privileges. The Corporation shall not
subdivide or combine any shares of Class B Common Stock, or pay any dividend or
retire any share or make any other distribution on any share of Class B Common
Stock, or accord any other payment, benefit or preference to any share of Class
B Common Stock, except by extending such subdivision, combination, distribution,
payment, benefit or preference equally to all shares of Class B Common Stock. If
dividends are declared which are payable in shares of Class B Common Stock, such
dividends shall be payable in shares of Class B-1 Common Stock to holders of
Class B-1 Common Stock and in shares of Class B-2 Common Stock to holders of
Class B-2 Common Stock.
(b) Dividends. The holders of Class B Common Stock shall be entitled to
dividends out of funds legally available therefor, when declared by the Board of
Directors
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in respect of Class B Common Stock, and, upon any Liquidation, to share ratably
in the assets of the Corporation available for distribution to the holders of
Class B Common Stock. In the event that a distribution to the holders of shares
of Class B Common Stock made pursuant to this Section 2.1(b) shall include any
assets other than cash, the Board of Directors shall determine in good faith and
with due care the value of such assets for such purpose and shall determine in
god faith and with due care the value of such assets for such purpose, and shall
notify all holders of shares of Series A Preferred Stock and Common Stock of
such determination.
2.2 Voting Rights of Class B Common Stock.
(a) Class B-1 Common Stock. Except as otherwise provided by law, the
holders of Class B-1 Common Stock shall have full voting rights and powers to
vote on all matters submitted to stockholders of the Corporation for vote,
consent or approval, and each holder of Class B-1 Common Stock shall be entitled
to one vote for each share of Class B-1 Common Stock held of record by such
holder. Except as otherwise provided herein, in the Stockholder Agreement or in
the Series A Stockholder Agreement or as otherwise required by applicable law,
the holders of shares of Series A Preferred Stock, the holders of shares of
Class A Common Stock and the holders of shares of Class B-1 Common Stock shall
vote together as a single class on all matters submitted to a vote or consent of
stockholders.
(b) Class B-2 Common Stock. Except as otherwise provided by law, the
holders of Class B-2 Common Stock shall have no right to vote on any matter
submitted to stockholders of the Corporation for vote, consent or approval, and
the Class B-2 Common Stock shall not be included in determining the number of
shares voting or entitled to vote on such matters.
(c) Amendments; Waivers. So long as any shares of Class B Common Stock are
outstanding, the Corporation shall not, without the prior written consent or
affirmative vote of the holders of more than 50% of the then outstanding shares
of Class B Common Stock, (i) amend, alter or repeal the preferences, special
rights or other powers of the Class B Common Stock so as to adversely affect the
Class B Common Stock, or (ii) amend, alter or repeal the preferences, special
rights or other powers of any other class or series of the Corporation's stock
(whether by increasing their liquidation preference, dividend rights, conversion
rights or otherwise) so as to materially adversely affect the Class B Common
Stock, provided that neither the increase of the number of shares of any
existing or new class or series of stock which the Corporation shall be or
become authorized to issue nor the issuance by the Corporation of any shares of
any such series or class shall be deemed to adversely affect the Class B Common
Stock. Any of the rights of the holders of Class B Common Stock set forth in
this Certificate of Incorporation may only be waived by the prior written
consent of the holders of more than 50% of the then outstanding shares of Class
B Common Stock. In addition to the foregoing, (i) any amendment, alteration,
repeal or waiver of the provisions of Section 2.2(a) of this Part D shall also
require the prior written consent of the holders of more than 50% of the
then-outstanding shares of Class B-1 Common Stock and (ii) any amendment,
alteration,
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repeal or waiver of the provisions of Section 2.2(b) or Section 2.3 of this Part
D shall also require the prior written consent of the holders of more than 50%
of the then outstanding shares of Class B-2 Common Stock.
2.3 Conversion of Class B-2 Common Stock.
(a) Automatic Conversion of Class B-2 Common Stock. Upon the closing of a
Qualified Public Offering, all shares of Class B-2 Common Stock then issued and
outstanding shall be converted into the same number of shares of Class B-1
Common Stock. Except as otherwise provided in the preceding sentence, the
holders of Class B-2 Common Stock shall not be entitled to convert any shares of
Class B-2 Common Stock into shares of any other class of Common Stock.
Notwithstanding anything to the contrary stated herein, any share or shares of
Class B-2 Common Stock shall only be converted into a share or shares of Class
B-1 Common Stock to the extent that after giving effect to such conversion the
holder of such share or shares of Class B-1 Common Stock and its affiliates
shall not directly or indirectly own, control or have the power to vote a
greater quantity of securities of any kind issued by the Corporation than such
holder and its affiliates are permitted to own, control or have power to vote
under any law or under any regulation, rule or other requirement of any
governmental authority than applicable to such holder and its affiliates.
(b) Conversion Procedure.
(i) Upon any automatic conversion of shares of Class B-2 Common Stock
into shares of Class B-1 Common Stock pursuant to this Section 2.3, the
holders of shares of Class B-2 Common Stock shall surrender the
certificates formerly representing such shares at the office of the
Corporation along with a written statement by the holder of such Class B-2
Common Stock stating that upon such conversion into shares of Class B-1
Common Stock such holder and its affiliates shall not directly or
indirectly own, control or have the power to vote a greater quantity of
securities of any kind issued by the Corporation than such holder and its
affiliates are permitted to own, control or have power to vote under any
law or under any regulation, rule or other requirement of any governmental
authority then applicable to such holder and its affiliates (and such
statement will obligate the Corporation to issue such shares of Class B-1
Common Stock). Thereupon, there shall be issued and delivered to each such
holder, promptly at the office of the Corporation and in the holder's name
as shown on such surrendered certificate or certificates, a certificate or
certificates for the number of shares of Class B-1 Common Stock into which
such shares of Class B-2 Common Stock were so converted. The Corporation
shall not be obligated to issue certificates evidencing the shares of the
Class B-1 Common Stock issuable upon such conversion unless and until
certificates formerly evidencing the converted shares of Class B-2 Common
Stock are either delivered to the Corporation, or the holder thereof
notifies the Corporation that such certificates have been lost, stolen or
destroyed and executes and delivers an agreement to indemnify the
Corporation from any loss incurred by the Corporation in connection
therewith.
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(ii) Such conversion, to the extent permitted by law, will be deemed
to have been effected as of the close of business on the date on which such
certificate or certificates have been surrendered in accordance herewith
and such written statement has been received, and at such time the rights
of the holder of such Class B-2 Common Stock will cease and the person or
persons in whose name or names the certificate or certificates for shares
of Class B-1 Common Stock are to be issued upon such conversion shall be
deemed to have become the holder or holders of record of the shares of
Class B-1 Common Stock represented thereby.
(c) Reservation of Class B-1 Common Stock. The Corporation shall at all
times reserve and keep available out of its authorized but unissued shares of
Class B-1 Common Stock, solely for the purpose of effecting the conversion of
shares of Class B-2 Common Stock as provided in this Section, such number of
shares of Class B-1 Common Stock as from time to time is sufficient to effect
the conversion of all outstanding shares of Class B-2 Common Stock, and if, at
any time, the number of authorized but unissued shares of Class B-1 Common Stock
is not sufficient to effect the conversion of all shares of Class B-2 Common
Stock then outstanding, the Corporation shall take such corporate action as may
in the opinion of its counsel, be necessary to increase its authorized but
unissued shares of Class B-1 Common Stock to such number of shares as is
sufficient for such purpose.
(d) Fully Paid and Non-Assessable. Upon the conversion of any shares of
Class B-2 Common Stock into shares of Class B-1 Common Stock, each share of
Class B-1 Common Stock issued upon conversion thereof shall be fully paid and
non-assessable.
(e) Taxes and Costs. The issuance of certificates for shares of Class B-1
Common Stock upon automatic conversion of Class B-2 Common Stock shall be made
without charge to any original holder of any shares of Common Stock for any
issuance tax in respect thereof, or other cost incurred by the Corporation in
connection with such conversion and the related issuance of Class B-1 Common
Stock, provided that the Corporation will not be required to pay any such taxes
or costs which may be payable in respect of any such conversion by any other
person or in respect of any transfer involved in the issuance and delivery of
any certificate in a name other than that of the registered holder of the shares
converted.
E. PROVISIONS OF COMMON APPLICATION.
--------------------------------
1.1 Registration of Transfer. The Corporation shall keep at its principal
office or at the office of its legal counsel a register for the registration of
all series of Preferred Stock and all classes of Common Stock. Except as
otherwise provided in this Article Fourth, upon the surrender of any certificate
representing shares of Preferred Stock or Common Stock at such place, the
Corporation shall, at the request of the record holder of such certificate,
execute and deliver a new certificate or certificates in exchange therefor
representing in the aggregate the number of shares of Preferred Stock or Common
Stock
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of the applicable class or series represented by the surrendered certificate.
Each such new certificate shall be registered in such name and shall represent
such number of shares of Preferred Stock or Common Stock as is requested by the
holder of the surrendered certificate and shall be substantially identical in
form and (in the case of shares of Preferred Stock) series to the surrendered
certificate, and, with respect to Preferred Stock, dividends shall accrue on the
shares of Preferred Stock represented by such new certificate from the date to
which dividends have been fully paid on the shares of Preferred Stock
represented by the surrendered certificate. The issuance of new certificates
shall be made without charge to the holders of the surrendered certificates for
any issuance tax in respect thereof or other cost incurred by the Corporation in
connection with such issuance, unless such issuance is made in connection with a
transfer of Preferred Stock or Common Stock, in which case the transferring
holder shall pay all taxes arising from such transfer.
1.2 Record Holders. The Corporation shall be entitled to treat the Person
in whose name any share of its stock is registered on the stock transfer books
of the Corporation as the owner thereof for all purposes and shall not be bound
to recognize any equitable or other claim to, or interest in, such share on the
part of any other Person, whether or not the Corporation shall have notice
thereof, except as expressly provided by applicable law.
1.3 Notices of Record Dates, Etc. If (a) the Corporation establishes a
record date to determine the holders of any class or series of securities who
are entitled to receive any dividend or other distribution, or (b) there occurs
any capital reorganization of the Corporation, any reclassification or
recapitalization of the capital stock of the Corporation, or any Liquidation,
the Corporation shall deliver to each holder of Preferred Stock and each holder
of Common Stock at least 20 days prior to such record date or the proposed
effective date of the transaction specified therein, as the case may be, a
notice specifying (i) the date of such record date for the purpose of such
dividend or distribution and a description of such dividend or distribution,
(ii) the date on which any such reorganization, reclassification or Liquidation
is expected to become effective, and (iii) the time, if any, that is to be
fixed, as to when the holders of record of shares of Common Stock or Preferred
Stock or any other securities of the Corporation, as the case may be, shall be
entitled to exchange their securities for the cash, securities, and/or other
property deliverable upon such reorganization, reclassification or Liquidation.
1.4 Replacement. Upon receipt of evidence reasonably satisfactory to the
Corporation (an affidavit of the registered holder shall be satisfactory) of the
ownership and the loss, theft, destruction or mutilation of any certificate
evidencing shares of Preferred Stock or Common Stock, and in the case of any
such loss, theft or destruction upon receipt of indemnity reasonably
satisfactory to the Corporation (provided that if the holder of such shares is
an "accredited investor" as defined pursuant to Section 2(15) of the Securities
Act of 1933, as amended, such holder's own unsecured agreement of indemnity
shall be deemed to be satisfactory), or, in the case of any such mutilation upon
surrender of such certificate, the Corporation shall (at its expense) execute
and deliver in lieu of such certificate a new certificate of like kind
representing the number of shares of
-26-
and series of Preferred Stock or number of shares and class of Common Stock
represented by such lost, stolen, destroyed or mutilated certificate and dated
the date of such lost, stolen, destroyed or mutilated certificate, and, with
respect to Preferred Stock, dividends shall accrue on the Preferred Stock
represented by such new certificate from the date to which dividends have been
fully paid on such lost, stolen, destroyed or mutilated certificate.
1.5 Notices. Except as otherwise expressly provided, all notices referred
to herein shall be in writing and shall be deemed properly delivered if either
personally delivered or sent by facsimile, overnight courier or mailed certified
or registered mail, return receipt requested, postage prepaid, to the recipient
(a) in the case of any stockholder, at such holder's address as it appears in
the stock records of the Corporation (unless otherwise indicated by any such
holder) and (b) in the case of the Corporation, at its principal office. Any
such notice shall be effective (i) if delivered personally, when received, (ii)
if sent by facsimile, when transmitted, (iii) if sent by overnight courier, when
receipted for, and (iv) if mailed, 5 days after being mailed as described above.
1.6. Calculation of Fully-Diluted Equity. All references herein to
calculations of the Corporation's (or any of its successors') equity or any type
or class thereof as then outstanding "on a fully diluted basis" or as "fully
diluted" or similar terms shall mean such equity or type or class thereof at any
date as diluted by the issuance of all shares of such equity or type or class
thereof then issuable upon the exercise or conversion of all then outstanding
and exercisable warrants, options or convertible securities pursuant to which
the Corporation (or any of its successors) is then obligated to issue such
equity or type or class thereof (and if such exercise or conversion results in
the issuance of convertible securities, as further diluted by the conversion of
such convertible securities), but specifically excluding all shares issuable
under stock options which are not then exercisable.
***
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 09/17/2002
020578502 - 3565036
CERTIFICATE OF INCORPORATION
----------------------------
OF
--
TWI HOLDINGS, INC.
------------------
FIRST: The name of the corporation is:
TWI Holdings, Inc.
SECOND: The address of its registered office in the State of Delaware is
2711 Centerville Road Suite 400, in the City of Wilmington, County of New
Castle, 19808. The name of its registered agent at such address is Corporation
Service Company.
THIRD: 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.
FOURTH: The total number of shares of capital stock which the corporation
shall have authority to issue is three thousand (3,000), and the par value of
each of such share is one cent ($0.01), amounting in the aggregate to thirty
dollars ($30.00) of capital stock.
FIFTH: The name and mailing address of the sole incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
Robert Porcelli, c/o Bingham McCutchen LLP
Corporate Paralegal 150 Federal Street
Boston, Massachusetts 02110
SIXTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the corporation and for defining
and regulating the powers of the corporation and its directors and stockholders
and are in furtherance and not in limitation of the powers conferred upon the
corporation by statute:
(a) The election of directors need not be by written ballot.
(b) The Board of Directors shall have the power and authority:
(1) to adopt, amend or repeal by-laws of the corporation, subject
only to such limitation, if any, as may be from time to time
imposed by law or by the by-laws; and
-2-
(2) to the full extent permitted or not prohibited by law, and
without the consent of or other action by the stockholders, to
authorize or create mortgages, pledges or other liens or
encumbrances upon any or all of the assets, real, personal or
mixed, and franchises of the corporation, including
after-acquired property, and to exercise all of the powers of the
corporation in connection therewith; and
(3) subject to any provision of the by-laws, to determine whether, to
what extent, at what times and places and under what conditions
and regulations the accounts, books and papers of the corporation
(other than the stock ledger), or any of them, shall be open to
the inspection of the stockholders, and no stockholder shall have
any right to inspect any account, book or paper of the
corporation except as conferred by statute or authorized by the
by-laws or by the Board of Directors.
SEVENTH: No director of the corporation shall be personally liable to the
corporation or to any of its stockholders for monetary damages for breach of
fiduciary duty as a director, notwithstanding any provision of law imposing such
liability; provided, however, that to the extent required from time to time by
applicable law, this Article Seventh shall not eliminate or limit the liability
of a director, to the extent such liability is provided by applicable law, (i)
for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
Title 8 of the Delaware Code, or (iv) for any transaction from which the
director derived an improper personal benefit. No amendment to or repeal of this
Article Seventh shall apply to or have any effect on the liability or alleged
liability of any director for or with respect to any acts or omissions of such
director occurring prior to the effective date of such amendment or repeal.
-3-
THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this certificate, hereby declaring and certifying
that this is my act and deed and the facts stated herein are true, and
accordingly have hereunto set my hand this 17/th/ day of September,
2002.
/s/ Robert Porcelli
----------------------------------------
Robert Porcelli
Sole Incorporator