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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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GLOBAL IMAGING SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware 59-3247652
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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13902 North Dale Mabry, Suite 300
Tampa, Florida 33618
(Address of principal executive offices) (zip code)
If this form relates to the If this form relates to the
registration of a class of registration of a class of
securities pursuant to Section 12(b) securities pursuant to Section 12(g)
of the Exchange Act and is effective of the Exchange Act and is effective
pursuant to General Instruction pursuant to General Instruction
A.(c), check the following box. [_] A.(d), check the following box. [X]
Securities Act registration statement
file number to which this form relates:
333-48103
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(if applicable)
Securities to be registered pursuant to Section 12(b) of the Act: None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.01 per share
(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered
Information with respect to the Common Stock, par value $.01 per share (the
"Common Stock"), of the Registrant is incorporated by reference to the sections
captioned "Description of Capital Stock -- Common Stock" and "-- Delaware Law
and Certain Charter, Bylaw and Other Provisions" in the Registrant's
Registration Statement on Form S-1 (No. 333-48103), originally filed on March
17, 1998, as such may be amended (including by any prospectus filed by the
Registrant pursuant to Rule 424(b) promulgated under the Securities Act of 1933,
as amended).
Item 2. Exhibits
The securities to be registered are to be registered on The Nasdaq National
Market, on which no other securities of the Registrant are registered. The
following instruments defining the rights of the holders of Common Stock are
being filed as exhibits to this registration statement:
1. Amended and Restated Certificate of Incorporation
2. Amended and Restated Certificate of Incorporation (to be filed with
the Secretary of Delaware upon the closing of the Registrant's
initial public offering)
3. Bylaws
4. Amended and Restated Bylaws (to become effective upon the closing of
the Registrant's initial public offering)
5. Specimen Common Stock Certificate
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
GLOBAL IMAGING SYSTEMS, INC.
Date: June 1, 1998 By: /s/ Thomas S. Johnson
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Thomas S. Johnson, President and
Chief Executive Officer
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EXHIBIT INDEX
Exhibit No. Description
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1. Amended and Restated Certificate of Incorporation
2. Amended and Restated Certificate of Incorporation (to be filed
with the Secretary of Delaware upon the closing of the
Registrant's initial public offering)*
3. Bylaws*
4. Amended and Restated Bylaws (to become effective upon the closing
of the Registrant's initial public offering)*
5. Specimen Common Stock Certificate*
* Filed as an exhibit to the Registrant's Registration Statement on Form S-1
(No. 333-48103) originally filed on March 17, 1998, and incorporated herein by
reference thereto.
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EXHIBIT 1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GLOBAL IMAGING SYSTEMS, INC.
This corporation was organized by filing its original Certificate of
Incorporation under the name of "Global Imaging Systems Inc." with the Secretary
of State of Delaware on June 3, 1994. This Amended and Restated Certificate of
Incorporation, which restates, integrates and further amends the Certificate of
Incorporation of this corporation, was duly adopted in accordance with Sections
242 and 245 of the General Corporation Law of the State of Delaware.
ARTICLE I
The corporation was organized and exists under Delaware law.
ARTICLE II
The name of the corporation is Global Imaging Systems, Inc.
(hereinafter referred to as the "CORPORATION").
ARTICLE III
The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle 19801. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE IV
The nature of the business or purposes to be conducted or promoted 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.
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ARTICLE V
5.1 AUTHORIZED SHARES
The total number of shares of all classes of stock that the
Corporation shall have the authority to issue is sixty-one million, three
hundred five thousand (61,305,000) shares. Fifty-one million, three hundred five
thousand (51,305,000) shares shall be Common Stock, each having a par value of
one cent ($.01) per share ("COMMON SHARES"), consisting of:
(1) 400,000 shares of Class A Common Stock, par value $.01 per share
("CLASS A COMMON");
(2) 50,000,000 shares of Common Stock (formerly "Class B Common
Stock"), par value $.01 per share ("COMMON STOCK"); and
(3) 905,000 shares of Class C Common Stock, par value $.01 per share
("CLASS C COMMON").
Ten million (10,000,000) shares shall be Preferred Stock, each having a par
value of $.01 per share ("PREFERRED SHARES").
Upon the filing of this Amended and Restated Certificate of
Incorporation, each outstanding share of Class B Common Stock shall be
redesignated as "Common Stock." Also upon the filing of this Amended and
Restated Certificate of Incorporation, each outstanding share of Class B Common
Stock shall be divided into one hundred thirty-two (132) outstanding shares of
Common Stock, and each outstanding share of Class C Common shall be divided into
one hundred thirty-two (132) outstanding shares of Class C Common (the "STOCK
SPLIT").
No fractional shares of Common Stock or Class C Common shall be
created or outstanding upon the effectiveness of the Stock Split. All shares of
Common Stock (including fractions thereof) issuable to a holder upon
effectiveness of the Stock Split shall be aggregated for purposes of determining
whether the Stock Split would result in the issuance of any fractional share,
and all shares of Class C Common (including fractions thereof) issuable to a
holder upon effectiveness of the Stock Split shall be aggregated for purposes of
determining whether the Stock Split would result in the issuance of any
fractional share. If, after the aforementioned aggregation and Stock Split, any
holder of Common Stock or of Class C Common would otherwise be entitled to be
issued any fractional share, the Corporation shall, in lieu of issuing such
fractional share, pay cash equal to the fair market value of such fractional
share, as determined in good faith by the Corporation's Board of Directors.
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The Class A Common, the Common Stock, the Class C Common and any other
common stock issued hereafter are referred to collectively as the "COMMON
SHARES." The Common Shares and the Preferred Shares shall have the rights,
preferences and limitations set forth below. Capitalized terms used but not
otherwise defined in Section 5.1 or Section 5.2 of this Article are defined in
Section 5.4.
5.2 COMMON SHARES
Except as otherwise provided in this Section 5.2 or as otherwise
required by applicable law, all shares of Class A Common, Common Stock and Class
C Common shall (1) be subject to all of the rights, privileges, preferences and
priorities of the Preferred Shares as set forth in the certificate of
designations filed to establish each series of Preferred Shares and (2) shall be
identical in all respects and shall entitle the holders thereof to the rights
and privileges, subject to the same qualifications, limitations and
restrictions.
5.2.1 VOTING RIGHTS
Except as otherwise provided in this Section 5.2 or as otherwise
required by applicable law, all holders of Common Stock shall be entitled to one
vote per share on all matters to be voted on by the Corporation's stockholders.
Except for any amendment to this Article V of the Certificate of Incorporation
or except as otherwise required by applicable law, each holder of Class A Common
and Class C Common shall not be entitled to vote on any matter submitted to a
vote of the Corporation's stockholders.
5.2.2 DISTRIBUTIONS
Whenever there shall have been paid, or declared and set aside for
payment, to the holders of shares of any class of stock having preference over
the Common Shares as to the payment of dividends or other distributions,
including upon liquidation of the Corporation, the full amount of such dividends
or other distributions to which such holders are respectively entitled in
preference to the Common Shares, then Distributions may be paid on the Common
Shares and on any class or series of stock entitled to participate therewith as
to Distributions, out of any assets legally available for the payment of
Distributions thereon, but only when and as declared by the Board of Directors
of the Corporation, except in the case of Distributions in complete liquidation
of the Corporation. At the time of each Distribution, such Distribution shall be
made to the holders of Class A Common, Common Stock and Class C Common
outstanding as of the time of such Distribution in the following priority:
(I) The holders of Class A Common shall be entitled to receive all or
a portion of such Distribution (ratably among such holders based upon
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the number of shares of Class A Common held by each such holder as of the time
of such Distribution) equal to the aggregate Unpaid Yield on the outstanding
shares of Class A Common as of the time of such Distribution, and no
Distribution or any portion thereof shall be made under Sections 5.2.2(ii) and
5.2.2(iii) below until the entire amount of the Unpaid Yield on the outstanding
shares of Class A Common as of the time of such Distribution has been paid in
full. The Distributions made pursuant to this Section 5.2.2(i) to holders of
Class A Common shall constitute a payment of Yield on Class A Common.
(II) After the required amount of a Distribution has been made
in full pursuant to Section 5.2.2(i) above, the holders of Class A Common, as a
separate class, shall be entitled to receive all or a portion of such
Distribution (ratably among such holders based upon the number of shares of
Class A Common held by each such holder as of the time of such Distribution)
equal to the aggregate Unreturned Original Cost of the outstanding shares of
Class A Common as of the time of such Distribution, and no Distribution or any
portion thereof shall be made under Section 5.2.2(iii) below until the entire
amount of the Unreturned Original Cost of the outstanding shares of Class A
Common as of the time of such Distribution has been paid in full. The
Distributions made pursuant to this Section 5.2.2(ii) to holders of Class A
Common shall constitute a return of Original Cost of Class A Common.
(III) After the required amount of a Distribution has been
made pursuant to Sections 5.2.2(i) and 5.2.2(ii) above, (A) if there are any
shares of Class A Common outstanding, (1) the holders of Class A Common shall be
entitled to receive 10% of the remaining portion of such Distribution (ratably
among such holders based on the number of shares of Class A Common held by each
such holder as of the time of such Distribution) and (2) the holders of Common
Stock and Class C Common, as a single class, shall be entitled to receive 90% of
the remaining portion of such Distribution (ratably among such holders based
upon the number of shares of Common Stock and Class C Common held by each such
holder as of the time of such Distribution), and (B) if there are no shares of
Class A Common outstanding, the holders of Common Stock and Class C Common, as a
single class, shall be entitled to receive 100% of the remaining portion of such
Distribution (ratably among such holders based upon the number of shares of
Common Stock and Class C Common held by each such holder as of the time of such
Distribution).
5.2.3 CONVERSION PROVISION
(A) OPTIONAL CONVERSION OF CLASS A COMMON OR OF CLASS C
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COMMON. Upon compliance with the provisions of Section 5.2.3(c) below, each
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holder of Class A Common or of Class C Common may at any time convert any whole
number or all of such holder's Class A Common or Class C Common, as the case may
be, into shares of fully paid and nonassessable Common Stock. Each share of
Class A Common Stock converted hereunder shall be
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converted into a number of shares of Common Stock equal to the Common Stock
Amount Per Share. Each share of Class C Common converted hereunder shall be
converted at the rate (subject to adjustment as provided in Section 5.2.3(b)) of
one share of Common Stock for each share of Class C Common surrendered for
conversion.
(B) ADJUSTMENTS ON CONVERSION. If the Corporation shall in any manner
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subdivide (by stock split, reclassification, stock dividend or otherwise) or
combine (by reverse stock split, reclassification or otherwise) any class or
series of the outstanding Common Shares, effective provision shall be made by
the Board of Directors of the Corporation to appropriately protect the rights of
the holders of the Common Shares, including provision for the protection of all
conversion rights hereunder. In case of any reorganization, reclassification or
change of any class or series of the Common Shares (other than a change in par
value, or from par value to no par value as a result of a subdivision or
combination), or in case of any consolidation of the Corporation with one or
more other corporations or a merger of the Corporation with another corporation
(other than a consolidation or merger in which the Corporation is the continuing
corporation and which does not result in any reclassification or change of any
class or series of outstanding Common Shares), or in case of any sale, lease or
other disposition to another entity (other than a wholly owned subsidiary of the
Corporation) of all or substantially all the assets of the Corporation or in
case of any other similar event, each holder of a share of Class C Common shall
have the right at any time thereafter, so long as the conversion right hereunder
with respect to such share of Class C Common would exist had such event not
occurred, to convert such share into the kind and amount of shares of stock and
other securities and property (including cash) receivable upon such
reorganization, reclassification, change, consolidation, merger, sale, lease or
other disposition or other similar event had such share of Class C Common been
converted into Common Stock immediately prior to such reorganization,
reclassification, change, consolidation, merger, sale, lease or other
disposition or other similar event. In the event of such a reorganization,
reclassification, change, consolidation, merger, sale, lease or other
disposition or other similar event, effective provision shall be made in the
certificate of incorporation of the resulting or surviving corporation or
otherwise to appropriately protect the rights and interests herein of the
holders of Common Shares (including provision for the protection of the
conversion rights of any class or series of the Common Shares) that shall be
applicable, as nearly as reasonably may be, to any such other shares of stock
and other security and property deliverable upon conversion of any class or
series of the Common Shares into which each share of such class or series of
Common Shares might have been converted immediately prior to such event. The
Corporation shall not have the power to be a party to any reorganization,
reclassification, change, consolidation, merger, sale, lease or other
disposition or other similar event pursuant to which any holder of any class or
series of Common Shares would be required to take (x) any voting securities, the
voting provisions of which would cause such holder to violate any law,
regulation or
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other requirement of any government body applicable to such holder, or (y) any
securities convertible into voting securities, the voting provisions of which if
such convention took place would cause such holder to violate any law,
regulation or other requirement of any government body applicable to such holder
other than securities which are specifically provided to be convertible only in
the event that such conversion may occur without any such violation.
(C) MANNER OF EFFECTING CONVERSION. To convert Class A Common or Class
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C Common into Common Stock, a holder must: (w) complete and sign a conversion
notice on the back of the certificate representing the shares of Class A Common
or Class C Common, as the case may be, to be converted or deliver written notice
to the Corporation (or, if a conversion agent has been designated, to such agent
(the "CONVERSION AGENT")); (x) surrender such Class A Common or Class C Common
stock certificate to an officer designated by the Corporation or, if a
Conversion Agent has been designated, to the Conversion Agent; (y) if the shares
are being issued in a name other than that of the holder, furnish appropriate
endorsements and transfer documents if required by the registrar for the
Corporation's stock or the Conversion Agent; and (z) if the shares are being
issued in a name other than that of the holder, pay any transfer tax or similar
tax if required by Section 5.2.3(e). Such conversion shall be deemed to have
been effected on the date and time such shares of Class A Common or Class C
Common are surrendered for conversion, and the person entitled to receive shares
of Common Stock issuable on such conversion shall be treated for all purposes as
the record holder of the shares of Common Stock as of such date and time. As
soon as practicable after the conversion has been effected, the Corporation
shall deliver (or shall cause any Conversion Agent to deliver) a certificate or
certificates for the number of shares of Common Stock issuable upon the
conversion. If less than all the shares represented by any certificate
representing Common Shares are being converted, a new stock certificate
representing the unconverted shares shall be promptly issued by the Corporation
to the holder thereof.
(D) AUTOMATIC CONVERSION OF CLASS C COMMON.
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(I) Each share of Class C Common shall automatically be
converted into shares of Common Stock immediately prior to the closing of a
Qualified Public Offering with respect to aggregate offering proceeds of at
least $20 million, at the rate (subject to adjustment as provided in Section
5.2.3(b)) of one share of Common Stock for each share of Class C Common.
(II) Upon the occurrence of the event specified in paragraph (i)
above, the outstanding shares of Class C Common shall be converted automatically
without any further action by the holders of such shares and whether or not the
certificates representing such shares are surrendered to the Corporation or its
transfer agent; provided, however, that the Corporation shall not be obligated
to issue certificates evidencing the shares of Common Stock issuable upon such
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conversion unless the certificates evidencing such shares of Class C Common are
either delivered to the Corporation or its transfer agent as provided below, or
the holder notifies the Corporation or its transfer agent that such certificates
have been lost, stolen or destroyed and executes an agreement satisfactory to
the Corporation to indemnify the Corporation from any loss incurred by or in
connection with such certificates. Upon the occurrence of such automatic
conversion of the Class C Common, the holders of shares of Class C Common shall
surrender the certificates representing such shares at the office of the
Corporation or any transfer agent for the Class C Common. Thereupon, there
shall be issued and delivered to such holder promptly at such office in its name
as shown on such surrendered certificate or certificates, a certificate or
certificates for the number of shares of Common Stock into which the shares of
Class C Common surrendered were convertible on the date on which such automatic
conversion occurred.
(E) TRANSFER TAXES, ETC. If a holder converts Class A Common or
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Class C Common, the Corporation shall pay any documentary, stamp or similar
issue or transfer tax due on the issue of shares of Common Stock upon such
conversion. However, the holder shall pay any such tax which is due if and
because the shares are issued in a name other than that of such holder.
(F) RESERVATION OF SHARES. The Corporation shall reserve out of its
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authorized but unissued Common Stock or its Common Stock held in treasury
sufficient shares of Common Stock to permit the conversions of all outstanding
shares of Class A Common or Class C Common pursuant to Section 5.2.3 of this
Article V. All Common Stock issued upon such conversion shall be fully paid and
non-assessable.
5.2.4 REDEMPTION.
(A) REDEMPTION AFTER QUALIFIED PUBLIC OFFERING.
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(I) Upon the occurrence of any Qualified Public Offering, the
Corporation shall redeem all of the outstanding shares of Class A Common. The
Corporation shall effect such redemption by paying, for each share of Class A
Common, (A) cash in an amount equal to the sum of (1) the Unreturned Original
Cost plus (2) the Unpaid Yield and (B) a number of shares of Common Stock equal
to the Common Stock Amount Per Share (the "REDEMPTION PRICE").
(II) As used in this Section 5.2.4(a), the term "REDEMPTION
DATE" shall refer to the date upon which the Qualified Public Offering
triggering the automatic redemption hereunder closes with respect to aggregate
offering proceeds of at least $20 million (the "CLOSING DATE"); provided,
however, that, if the Corporation receives the proceeds from such closing too
late in the day for the Corporation to effect the cash deposit required pursuant
to Section 5.2.4(a)(vi) on such date using such proceeds, then the Redemption
Date
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shall be the next day on which such deposit can be effected. On or prior to the
Redemption Date, written notice shall be mailed, first class postage prepaid, or
delivered personally, to each holder of record (at the close of business on the
day immediately preceding the Redemption Date) of the Class A Common, at the
address last shown on the records of the Corporation for such holder, notifying
such holder of the redemption, the Redemption Date, the Redemption Price and the
place at which payment may be obtained and calling upon such holder to surrender
to the Corporation, in the manner and at the place designated, his or her
certificate or certificates representing the shares of Class A Common (the
"REDEMPTION NOTICE"). Except as provided in Section 5.2.4(a)(iii), on or after
the Redemption Date, each holder of Class A Common shall surrender to the
Corporation the certificate or certificates representing such shares, in the
manner and at the place designated in the Redemption Notice, and thereupon the
Redemption Price of such shares shall be payable (and the Common Stock portion
thereof deliverable) to the order of the person whose name appears on such
certificate or certificates as the owner thereof, and each surrendered
certificate shall be canceled.
(III) From and after the Redemption Date, unless there shall
have been a default in payment of the Redemption Price, all rights of the
holders of shares of Class A Common as holders of Class A Common (except the
right to receive the Redemption Price, without interest on the cash portion
thereof, and including the shares of Common Stock comprising a part thereof,
upon surrender of their certificate or certificates) shall cease with respect to
such shares, and such shares shall not thereafter be transferred on the books of
the Corporation or be deemed to be outstanding for any purpose whatsoever. If
the funds of the Corporation legally available for redemption of shares of Class
A Common are insufficient to redeem all of the shares of Class A Common, those
funds which are legally available will be used to pay first the Unpaid Yield
component of the Redemption Price, then the Unreturned Original Cost component
of the Redemption Price on a pro rata basis according to the number of shares
held, and the remaining unpaid cash portion of the Redemption Price shall be
paid to the holders of the Class A Common by the issuance of shares of Common
Stock, valued at the initial public offering price of such shares in the
Qualified Public Offering.
(IV) From and after the Redemption Date, unless there shall have been
a default in payment of the Redemption Price, holders of shares of Class A
Common shall have the rights of holders of Common Stock with respect to the
shares of Common Stock to which such holders are entitled upon redemption, and
such shares shall be deemed to be outstanding whether or not the certificates
representing the redeemed shares of Class A Common are surrendered to the
Corporation or its agent; provided, however, that the Corporation shall not be
obligated to issue certificates evidencing the shares of Common Stock issuable
upon redemption of shares of the Class A Common unless the certificates
evidencing such shares of Class A Common are either delivered to the Corporation
or its agent as provided below, or the holder notifies the Corporation or its
agent that such
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certificates have been lost, stolen or destroyed and executes an agreement
satisfactory to the Corporation to indemnify the Corporation from any loss
incurred by or in connection with such certificates. Upon the occurrence of such
automatic redemption of the Class A Common, the holders of shares of Class A
Common shall surrender the certificates representing such shares at the office
of the Corporation or any transfer agent for the Class A Common. Thereupon,
there shall be issued and delivered to such holder promptly at such office in
its name as shown on such surrendered certificate or certificates, a certificate
or certificates for the number of shares of Common Stock payable upon the
redemption of the shares of Class A Common represented by the surrendered
certificate.
(V) No fractional shares of Common Stock shall be issued upon
redemption of the Class A Common. All shares of Common Stock (including
fractions thereof) issuable upon redemption of more than one share of Class A
Common by a holder thereof shall be aggregated for purposes of determining
whether the redemption would result in the issuance of any fractional share.
If, after the aforementioned aggregation, the redemption would result in the
issuance of any fractional share, the Corporation shall, in lieu of issuing any
fractional share, pay cash equal to the product of such fraction multiplied by
the Common Stock's initial public offering price.
(VI) On the Closing Date, the Corporation shall deposit the cash
portion of the Redemption Price of all shares of Class A Common with a bank or
trust corporation having aggregate capital and surplus in excess of $100,000,000
as a trust fund for the benefit of the respective holders of the shares of Class
A Common, with irrevocable instructions and authority to the bank or trust
corporation to pay the cash portion of the Redemption Price for such shares to
their respective holders on or after the Redemption Date upon receipt of
notification from the Corporation that such holder has surrendered his or her
Class A Common certificate to the Corporation pursuant to Section 5.2.4(a)(iv)
above; provided, however, that if the Corporation receives the proceeds from the
closing of the Qualified Public Offering triggering the automatic redemption
hereunder too late in the day for the Corporation to effect such cash deposit on
the Closing Date using such proceeds, then the Corporation shall effect such
cash deposit on the next day on which such deposit can be effected, and the
Corporation shall also deliver instructions and authority to the bank designated
to receive the proceeds of such Qualified Public Offering for the Corporation's
account to effect such deposit. On the Closing Date, the Corporation shall also
provide irrevocable instructions and authority to the Corporation's transfer
agent to issue the shares of Common Stock payable in redemption of the shares of
Class A Common in accordance with Section 5.2.4(a)(iv) above. As of the
Redemption Date, the deposit and the foregoing instructions to the transfer
agent shall constitute full redemption payment for the shares of Class A Common
to their holders, and from and after the Redemption Date the shares of Class A
Common shall be redeemed and shall be deemed to be no longer outstanding, and
the holders thereof shall cease to be stockholders with
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respect to such shares and shall have no rights with respect thereto except the
right to receive from the bank or trust corporation payment of the cash portion
of the Redemption Price of the shares, without interest, upon surrender of their
certificates therefor, plus to receive from the transfer agent stock
certificates representing the shares of Common Stock issuable as payment for the
redemption. The balance of any moneys deposited by the Corporation pursuant to
this Section 5.2.4(a)(vi) remaining unclaimed at the expiration of two (2) years
following the Redemption Date shall thereafter be returned to the Corporation
upon its request expressed in a resolution of its Board of Directors.
(B) SPECIAL REDEMPTIONS. If a Sale of the Corporation has
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occurred or the Corporation obtains knowledge that a Sale of the Corporation is
to occur, the Corporation shall give prompt written notice of such Sale of the
Corporation describing in reasonable detail the definitive terms and date of
consummation thereof to each holder of Class A Common, but in any event such
notice shall not be given later than five days after the occurrence of such Sale
of the Corporation. The holder or holders of a majority of the Class A Common
then outstanding may require the Corporation to redeem all of the shares of
Class A Common by giving written notice to the Corporation of such election (the
"CLASS A ELECTION") prior to the later of (i) 21 days after receipt of the
Corporation's notice and (ii) five (5) days prior to the consummation of the
sale of the Corporation (the "EXPIRATION DATE"). Upon receipt of the Class A
Election, the Corporation shall be obligated to redeem the Class A Common on the
later to occur of (i) the occurrence of the Sale of the Corporation or (ii) five
(5) days after the Corporation's receipt of such election. The redemption price
for each share of Class A Common shall be equal to the sum of (i) the Unreturned
Original Cost, (ii) the Unpaid Yield and (iii) the Fair Market Value of the
Class A Common. If in any case a proposed Sale of the Corporation does not
occur, all requests to make such redemption in connection therewith shall be
automatically rescinded.
5.2.5 STOCK SPLITS AND STOCK DIVIDENDS.
The Corporation shall not in any manner subdivide (by stock split,
stock dividend or otherwise) or combine (by stock split, stock dividend or
otherwise) the outstanding Common Shares of one Class unless the outstanding
Common Shares of all the other classes shall be proportionately subdivided or
combined, or unless the applicable conversion rates, redemption price formulas,
and definitions set forth in this Certificate of Incorporation are
proportionately adjusted. All such subdivisions and combinations shall be
payable only in Class A Common to the holders of Class A Common, in Common Stock
to the holders of Common Stock, and in Class C Common to the holders of Class C
Common. In no event shall a stock split or stock dividend constitute a payment
of Yield or a return of Original Cost.
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5.2.6 REGISTRATION OF TRANSFER
The Corporation shall keep at its principal office (or such other
place as the Corporation reasonably designates) a register for the registration
of Common Shares. Upon the surrender of any certificate representing shares of
any Class of Common Shares at such place, the Corporation shall, at the request
of the registered holder of such certificate, execute and deliver a new
certificate or certificates in exchange therefor representing in the aggregate
the number of shares of such Class represented by the surrendered certificate,
and the Corporation forthwith shall cancel such surrendered certificate, and the
Corporation forthwith shall cancel such surrendered certificate. Each such new
certificate will be registered in such name and will represent such number of
shares of such Class as is requested by the holder of the surrendered
certificate and shall be substantially identical in form to 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.
5.2.7 REPLACEMENT.
Upon receipt of evidence reasonably satisfactory to the Corporation
(an affidavit of the registered holder will be satisfactory) of the ownership
and the loss, theft, theft, destruction or mutilation of any certificate
evidencing one or more shares of any Class of Common Shares, 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 is a financial
institution or other institutional investor its own agreement will 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 such Class represented by such lost, stolen, destroyed or mutilated
certificate and dated the date of such lost, stolen, destroyed or mutilated
certificate.
5.2.8 NOTICES
All notices referred to herein shall be in writing, shall be delivered
personally or by first Class mail, postage prepaid, and shall be deemed to have
been given when so delivered or mailed to the Corporation at its principal
executive offices and to any stockholder at such holder's address as it appears
in the stock records of the Corporation (unless otherwise specified in a written
notice to the Corporation by such holder).
5.2.9 AMENDMENT AND WAIVER.
No amendment or waiver of any provision of this Article V shall be
effective without the prior written consent of the holders of a majority of each
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Class of the then outstanding Common Shares voting separately and not as a
single class.
5.3 PREFERRED SHARES
The Board is authorized, subject to limitations prescribed by the
Delaware General Corporation Law and the provisions of this Certificate of
Incorporation, to provide, by resolution or resolutions from time to time and by
filing a certificate of designations pursuant to the Delaware General
Corporation Law, for the issuance of the shares of Preferred Shares in series,
to establish from time to time the number of shares to be included in each such
series, to fix the powers, designations, preferences and relative,
participating, optional or other special rights of the shares of each such
series and to fix the qualifications, limitations or restrictions thereof. Any
such provision for the issuance of any series of Preferred Shares shall require
the approval of the holders of at least three fourths of the outstanding shares
of Class A Common then outstanding, if any.
5.4 DEFINITIONS
"AFFILIATE" of GTCR means any general or limited partner of GTCR or
any other Person or investment fund controlling, controlled by or under common
control with GTCR.
"COMMON STOCK AMOUNT PER SHARE" means a number of shares of Common
Stock equal to the quotient obtained by dividing (i) the sum of the number of
shares of Common Stock plus the number of shares of Class C Common outstanding
immediately prior to the closing of the relevant Qualified Public Offering (or,
in the case of a conversion pursuant to Section 5.2.3 hereof, the date preceding
such conversion) minus the number of shares of Common Stock issued prior to such
point in time upon the conversion of any shares of Class A Common pursuant to
Section 5.2.3 hereof (as adjusted for any stock splits, combinations, or similar
events) by (ii) the product of nine (9) multiplied by the sum of the number of
shares of Class A Common outstanding immediately prior to the closing of the
Qualified Public Offering (or, in the case of a conversion pursuant to Section
5.2.3 hereof, the date preceding such conversion) plus the number of shares of
Class A Common that have been converted prior to such point in time pursuant to
Section 5.2.3 hereof (as adjusted for any stock splits, combinations, or similar
events).
"DISTRIBUTION" means each distribution made by the Corporation to
holders of Common Shares, whether in cash, property, or securities of the
Corporation and whether by dividend, liquidating distributions or otherwise;
provided that neither of the following shall be a Distribution: (a) any
redemption or repurchase by the Corporation of any Common Shares for any reason
(after which such shares shall cease to be outstanding shares) or (b) any
recapitalization or
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exchange of any Common Shares, or any subdivision (by stock split, stock
dividend or otherwise) or any combination (by stock split, stock dividend or
otherwise) of any outstanding Common Shares.
"FAIR MARKET VALUE" means the fair market value of each share of the
Class A Common as of the date of determination as computed in accordance with
the following formula:
FMVA = (AMP/9) x (1/TCA)
WHERE
FMVA = The fair market value per share of Class A Common.
AMP = The product of (i) the Market Price and (ii) the sum of
the number of shares of Common Stock plus the number of
shares of Class C Common outstanding on the date of
determination minus the number of shares of Common
Stock issued prior to the date of determination upon
the conversion of any shares of Class A Common pursuant
to Section 5.2.3 hereof (as adjusted for any stock
splits, combinations, or similar events).
TCA = The total number of outstanding shares of Class A
Common on the date of determination (plus the number of
shares of Class A Common that have been converted prior
to the date of determination pursuant to Section 5.2.3
hereof (as adjusted for any stock splits, combinations,
or similar events)).
"GTCR" means Golder, Thoma, Cressey, Rauner Fund IV, L.P.
"ORIGINAL COST" of each share of Class A Common shall be equal to
$90.00 (as proportionally adjusted for all stock splits, stock dividends and
other recapitalizations affecting the Class A Common).
"MARKET PRICE" of the Common Stock means the average of the closing
prices of the Common Stock's sales on all securities exchanges on which the
Common Stock may at the time be listed, or, if there have been no sales on any
such exchange on any day, the average of the highest bid and lowest asked prices
on all such exchanges at the end of such day, or, if on any day the Common Stock
is not so
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listed, the closing sale price of the Common Stock on the NASDAQ National Market
System if it is listed on the NASDAQ National Market System, or if the Common
Stock is not listed on the NASDAQ National Market System, the average of the
representative bid and asked prices quoted in the NASDAQ System as of 4:00 P.M.,
New York time, or, if on any day the Common Stock is not quoted in the NASDAQ
System, the average of the highest bid and lowest asked prices on such day in
the domestic over-the-counter market as reported by the National Quotation
Bureau, Incorporated, or any similar successor organization, in each such case
averaged over a period of 21 days consisting of the day as of which "FAIR MARKET
VALUE" is being determined and the 20 consecutive business days prior to such
day. If at any time the Common Stock is not listed on any securities exchange or
quoted in the NASDAQ System or the over-the-counter market, "FAIR MARKET VALUE"
will be the fair value thereof determined jointly by the Corporation and the
holders of a majority of the Common Shares, with the consent of the holders of a
majority of the Class C Common Stock, which consent shall not be unreasonably
withheld. If such parties are unable to reach agreement within a reasonable
period of time, such fair value will be determined by an independent appraiser
jointly selected by the Corporation and the holders of a majority of the Common
Stock. In determining the "FAIR MARKET VALUE" of the Common Stock under the
preceding two sentences, the Corporation or the independent appraiser, as the
case may be, shall subtract the aggregate amount of the Unreturned Original Cost
and the Unpaid Yield, if any, on the outstanding Class A Common.
"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
"QUALIFIED PUBLIC OFFERING" means the sale in an underwritten public
offering registered under the Securities Act of shares of the Corporation's
Common Shares having an aggregate offering value of at least $20 million,
including any amounts to be sold on account of selling security holders or upon
the exercise of underwriters' options and prior to the deduction of fees,
expenses and underwriters' discounts and commissions.
"SALE OF THE CORPORATION" means any transaction or series of
transactions pursuant to which any Person(s) other than GTCR in the aggregate
acquire(s) (i) capital stock of the Corporation possessing the voting power
(other than voting rights accruing only in the event of a default, breach or
event of noncompliance) to elect a majority of the Corporation's board of
directors (whether by merger, consolidation, reorganization, combination, sale
or transfer of the Corporation's capital stock, shareholder or voting agreement,
proxy, power of attorney or otherwise) or (ii) all or substantially all of the
Corporation's and its Subsidiaries' assets determined on a consolidated basis
(measured by either book value in accordance with generally accepted accounting
principles consistently
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applied or fair market value determined in the reasonable good faith judgment of
the Corporation's board of directors).
"SUBSIDIARY" means with respect to any Person, any corporation of
which the shares of stock having a majority of the general voting power in
electing the board of directors are, at the time as of which any determination
is being made, owned by such Person either directly or indirectly through
Subsidiaries.
"UNPAID YIELD" of any share of Class A Common means an amount equal to
the excess, if any, of (a) the aggregate Yield accrued on such share, over (b)
the aggregate amount of Distributions made by the Corporation that constitute
payment of Yield on such share.
"UNRETURNED ORIGINAL COST" of any share of Class A Common means an
amount equal to the excess, if any, of (a) the Original Cost of such share, over
(b) the aggregate amount of Distributions made by the Corporation that
constitute a return of Original Cost of such share.
"YIELD" means, with respect to each share of Class A Common, the
amount accruing on such share, from the date of its original issuance by the
Corporation through the date on which the Corporation declares or becomes
obligated to pay, as the case may be, any Distribution or redemption price, each
day during such period at the rate of 8% per annum of such share's Unreturned
Original Cost; provided, however, that for purposes of calculating the
Redemption Price of a share of Class A Common in connection with a Qualified
Public Offering, the Yield shall be calculated through May 31, 1998 in the event
such Qualified Public Offering closes with respect to at least $20 million in
aggregate offering proceeds on or prior to June 30, 1998.
ARTICLE VI
The Corporation is to have perpetual existence.
ARTICLE VII
In furtherance and not in limitation of the powers conferred by
statute, the board of directors of the Corporation is expressly authorized to
make, alter or repeal the by-laws of the Corporation.
ARTICLE VIII
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws of the Corporation may provide. The books of the
Corporation may be kept outside the State of Delaware at such place or places as
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may be designated from time to time by the board of directors or in the by-laws
of the Corporation. Election of directors need not be by written ballot unless
the by-laws of the Corporation so provide.
ARTICLE IX
The Corporation shall, to the fullest extent permitted by Delaware law
as in effect from time to time, indemnify any person against all liability and
expense (including attorney's fees) incurred by reason of the fact that he is or
was a director or officer of the Corporation or, while serving at the request of
the Corporation as a director, officer, partner or trustee of, or in any similar
managerial or fiduciary position of, or as an employee or agent of, another
corporation, partnership, joint venture, trust, association, or other entity.
Expenses (including attorneys' fees) incurred in defending an action, suit, or
proceeding may be paid by the Corporation in advance of the final disposition of
such action, suit, or proceeding to the full extent and under the circumstances
permitted by Delaware law. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee, fiduciary,
or agent of the Corporation against any liability asserted against and incurred
by such person in any such capacity or arising out of such person's position,
whether or not the Corporation would have the power to indemnify against such
liability under the provisions of this Article IX. The indemnification provided
by this Article XI shall not be deemed exclusive of any other rights to which
those indemnified may be entitled under this certificate of incorporation, any
bylaw, agreement, vote of stockholders or disinterested directors, statute, or
otherwise, and shall inure to the benefit of their heirs, executors, and
administrators. The provisions of this Article IX shall not be deemed to
preclude the Corporation from indemnifying other persons from similar or other
expenses and liabilities as the board of directors or the stockholders may
determine in a specific instance or by resolution of general application. Any
repeal or modification of this Article IX by the stockholders of the Corporation
shall not adversely affect any right or protection of a director or officer of
the Corporation existing at the time of such repeal or modification.
ARTICLE X
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except as to liability (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) for violations of Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived any
improper personal benefit. If the Delaware General Corporation law hereafter is
amended to further eliminate or limit the liability of a director, then a
director of the Corporation, in addition to the
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circumstances in which a director is not personally liable as set forth in the
preceding sentence, shall not be liable to the fullest extent permitted by the
amended Delaware General Corporation Law. Any repeal or modification of this
Article X by the stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification.
ARTICLE XI
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this certificate of incorporation in the manner now
or hereafter prescribed herein and by the laws of the State of Delaware, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
The undersigned, for the purpose of Amending and Restating the
Certificate of Incorporation of the Corporation, does make and file this Amended
and Restated Certificate of Incorporation and does hereby certify that the facts
herein stated are true; and I have accordingly hereunto set my hand.
Executed this 27th day of May, 1998.
/s/ Thomas S. Johnson
--------------------------
Thomas S. Johnson
President
ATTEST:
/s/ Raymond Schilling
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Raymond Schilling
Secretary
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