SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
SECURITY FIRST TECHNOLOGIES CORPORATION
---------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 58-2395199
-------- ----------
(State of incorporation ( I.R.S. Employer
or organization) Identification No.)
3390 PEACHTREE ROAD, NE, SUITE 1700, ATLANTA, GEORGIA 30326
-----------------------------------------------------------
(Address of principal executive offices) (Zip Code)
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), please check the following box. [ ]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. [X]
Securities Act registration statement file number to which this form
relates: 333-56181 (if applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
NONE
----
Securities to be registered pursuant to Section 12(g)of the Act:
COMMON STOCK, PAR VALUE $0.01 PER SHARE
---------------------------------------
(Title of class)
<PAGE>
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The description of the Common Stock of the Registrant registered hereby
is incorporated by reference to the description of the Registrant's capital
stock set forth under the headings "Additional Information about the Holding
Company -- Description of Capital Stock of the Holding Company," "Proposed
Increase in Authorized Capital Stock of the Holding Company," "Proposed
Elimination of Monetary Liabilities of Holding Company Directors" and "The
Holding Company Reorganization -- Comparison of Shareholders' Rights" in the
Registrant's Registration Statement on Form S-4 (File No. 333-56181), filed with
the Securities and Exchange Commission (the "SEC") on June 5, 1998, as amended
by Pre-Effective Amendment No. 1 thereto filed with the SEC on July 30, 1998,
Pre-Effective Amendment No. 2 thereto filed with the SEC on August 21, 1998 and
Pre-Effective Amendment No. 3 thereto filed with the SEC on August 25, 1998.
ITEM 2. EXHIBITS.
The following exhibits are filed as part of this registration
statement:
Exhibit
No. Description
1 Amended and Restated Certificate of Incorporation of the
Registrant.
2 Certificate of Designation for the Series B Redeemable
Convertible Preferred Stock of the Registrant.
3 Amended and Restated Bylaws of the Registrant.
4 Specimen of certificate representing the common stock of
the Registrant.
-2-
<PAGE>
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.
SECURITY FIRST TECHNOLOGIES CORPORATION
---------------------------------------
(Registrant)
Date: September 29, 1998 By: /s/ Robert F. Stockwell
---------------------------------------
Robert F. Stockwell
Chief Financial Officer, Treasurer
and Secretary
-3-
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
1 Amended and Restated Certificate of Incorporation of the
Registrant.
2 Certificate of Designation for the Series B Redeemable
Convertible Preferred Stock of the Registrant.
3 Amended and Restated Bylaws of the Registrant.
4 Specimen of certificate representing the common stock of
the Registrant.
-4-
Exhibit 1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SECURITY FIRST TECHNOLOGIES CORPORATION
Security First Technologies Corporation, a corporation
organized and existing under the laws of the State of Delaware, hereby certifies
as follows:
FIRST: The name of the corporation is Security First
Technologies Corporation. The date of filing of its original Certificate of
Incorporation with the Secretary of State of Delaware was May 22, 1998.
SECOND: This Amended and Restated Certificate of
Incorporation was duly adopted in accordance with Sections 242 and 245 of the
General Corporation Law of the State of Delaware, and restates and further
amends the provisions of the Certificate of Incorporation of the corporation.
THIRD: The text of the Certificate of Incorporation is
hereby amended and restated to read in its entirety as follows:
1. NAME
The name of this corporation is Security First Technologies
Corporation (the "Corporation").
2. REGISTERED OFFICE AND AGENT
The registered office of the Corporation shall be located at
1013 Centre Road, Wilmington, Delaware 19805 in the County of New Castle. The
registered agent of the Corporation at such address shall be Corporation Service
Company.
3. PURPOSE AND POWERS
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 (the "Delaware General Corporation
Law"). The
1
<PAGE>
Corporation shall have all power necessary or helpful to engage in such acts and
activities.
4. CAPITAL STOCK
4.1. AUTHORIZED SHARES
The total number of shares of all classes of stock that the
Corporation shall have the authority to issue is sixty-five million
(65,000,000), of which sixty million (60,000,000) shares shall be common stock,
par value $0.01 per share ("Common Stock"), and five million (5,000,000) shares
shall be serial preferred stock, par value $0.01 per share ("Preferred Stock").
4.2. COMMON STOCK
4.2.1. RELATIVE RIGHTS
The Common Stock shall be subject to all of the rights,
privileges, preferences and priorities of the Preferred Stock as set forth
herein or in the certificate of designations filed to establish the respective
series of Preferred Stock. Each share of Common Stock shall have the same
relative rights as and be identical in all respects to all the other shares of
Common Stock.
4.2.2. DIVIDENDS
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 Stock as to the payment of dividends, the full amount of
dividends and of sinking fund or retirement payments, if any, to which such
holders are respectively entitled in preference to the Common Stock, then
dividends may be paid on the Common Stock and on any class or series of stock
entitled to participate therewith as to dividends, out of any assets legally
available for the payment of dividends thereon, but only when and as declared by
the Board of Directors of the Corporation.
4.2.3. DISSOLUTION, LIQUIDATION, WINDING UP
In the event of any dissolution, liquidation, or winding up of
the Corporation, whether voluntary or involuntary, the holders of the Common
Stock shall become entitled to participate in the distribution of any assets of
the Corporation remaining after the Corporation shall have paid, or set aside
for payment, to the holders of any class of stock having preference over the
Common Stock in the event of dissolution, liquidation or winding up the full
preferential amounts (if any) to which they are entitled.
4.2.4. VOTING RIGHTS
Each holder of shares of Common Stock shall be entitled to
attend all special and annual meetings of the shareholders of the Corporation
and, share for
2
<PAGE>
share and without regard to class, together with the holders of all other
classes of stock entitled to attend such meetings and to vote (except any class
or series of stock having special voting rights), to cast one vote for each
outstanding share of Common Stock so held upon any matter or thing (including,
without limitation, the election of one or more directors) properly considered
and acted upon by the shareholders. There shall be no cumulative voting rights
in the election of directors.
4.3. PREFERRED STOCK
The Board of Directors is authorized, subject to limitations
prescribed by the Delaware General Corporation Law and the provisions of this
Certificate of Incorporation, to provide, by resolution and by filing a
certificate of designations pursuant to the Delaware General Corporation Law,
for the issuance of the shares of Preferred Stock in series, to establish from
time to time the number of shares to be included in each such series, and to fix
the designation, powers, preferences and other rights of the shares of each such
series and to fix the qualifications, limitations and restrictions thereon.
4.3.1. SERIES A PREFERRED STOCK
The Corporation is hereby authorized to issue up to one million,
six hundred thirty seven thousand, eight hundred and thirty two (1,637,832)
shares of the Preferred Stock authorized pursuant to Section 4.3 as a series of
Preferred Stock, which series shall be designated "Series A Convertible
Preferred Stock" (hereinafter referred to as the "Series A Preferred Stock") and
shall have the following rights and preferences:
4.3.1.1. DIVIDENDS
The holders of shares of the Series A Preferred Stock shall not
have any preference with respect to dividends over the holders of the Common
Stock, but shall participate fully and equally, on a share for share basis, with
the Common Stock, with respect to the payment of any and all dividends or other
distributions, whenever declared and whether paid or payable in cash, the
capital stock of the Corporation, the capital stock of any other entity, or any
other property.
4.3.1.2. VOTING
Except as otherwise provided by law and except as hereinafter
provided, the holders of the Series A Preferred Stock shall have no voting
rights and shall not be entitled to notice of meetings of shareholders, and the
exclusive voting power of the Corporation shall be vested in the holders of the
Common Stock. Notwithstanding the foregoing, the holders of the Series A
Preferred Stock shall be entitled to the following specific limited voting
rights:
(a) The holders of the Series A Preferred Stock shall be
entitled to vote, as a separate class, with respect to (i) any amendment or
repeal of
3
<PAGE>
any of the provisions of the Certificate of Incorporation which would change the
specific terms of the Series A Preferred Stock as set forth in this Section 4
(or in any supplementary sections hereto) so as to have an adverse effect on the
rights of the Series A Preferred Stock, including any amendment which would
create or enlarge any class or series ranking prior to the Series A Preferred
Stock in rights and preferences (provided, however, that an amendment which
increases the number of authorized shares of any class or series of capital
stock, or substitutes the surviving association in a merger or consolidation for
the Corporation, shall not be considered to be such an adverse effect), and (ii)
the approval of a merger or consolidation of the Corporation with another
corporation or the sale, lease, or conveyance (other than by mortgage or pledge)
of the properties or business of the Corporation in exchange for securities of a
corporation other than the Corporation if the Series A Preferred Stock is to be
exchanged for securities of such other corporation and if the terms of such
securities are less favorable in any respect to the holders thereof than the
specific terms of the Series A Preferred Stock as set forth in Section 4.3.1 (or
any supplementary section hereto), provided, however, that no such approval for
transactions undertaken with the assistance or pursuant to the direction of the
Office of Thrift Supervision or the Federal Deposit Insurance Corporation, shall
be required. No such amendment, repeal, merger, consolidation, sale, lease, or
conveyance shall be approved or adopted without the affirmative vote, at a
meeting duly called for that purpose and upon notice duly given to the holders
of the Series A Preferred Stock, or the written consent with or without a
meeting, of the holders of at least two-thirds of the shares of the Series A
Preferred Stock then outstanding, together with any other vote or consent of the
holders of other classes of the capital stock of the Corporation as may be
required; and
(b) The holders of the Series A Preferred Stock shall be
entitled to one vote per share, voting with the holders of the shares of Common
Stock as if a single class, on any voluntary dissolution or liquidation of the
Corporation.
4.3.1.3. CONVERSION
Each holder of record of shares of the Series A Preferred Stock
(a "Holder") shall have the option to convert all or fewer than all of such
shares into shares of Common Stock of the Corporation, on a one share for one
share basis upon the following terms and conditions:
(a) Shares of Series A Preferred Stock shall be
convertible only upon the occurrence of one or another of the events or
circumstances described in subparagraphs (i) or (ii) below, to the extent
described in such subparagraphs:
(i) upon a reduction of an original Holder's (the
"Original Holder") ownership of shares of the Common Stock of the
Corporation below 4.999% of the total number of shares of Common Stock
outstanding at any given time, that is attributable only to the issuance of
additional shares of Common Stock and not because of any action taken by
4
<PAGE>
the Original Holder that would reduce the Original Holder's percentage
ownership interest in the total number of shares of Common Stock then
outstanding provided, however, that the Original Holder's ownership of such
shares of Common Stock following the conversion of shares of Series A
Preferred Stock shall not exceed the lesser of 4.999% of the total number
of shares of Common Stock then outstanding or such lesser percentage
attributable to the Original Holder as a result of actions taken by the
Original Holder; and
(ii) at any time following a transfer of the shares of
Series A Preferred Stock held by the Original Holder to any person or
entity not an "affiliate" of such Holder; provided, however, that the
Original Holder shall not be permitted to transfer such shares to any party
(other than an affiliate of the Original Holder) except in a transfer (A)
to the Corporation, (B) to any party who has acquired more than 50% of the
outstanding Common Stock of the Corporation, or (C) in a widely dispersed
distribution or private placement of shares of the Series A Preferred Stock
to non-affiliated parties in which no party or its affiliate acquires
shares that are convertible into more than 2% of the outstanding Common
Stock of the Corporation; or (D) to a single party (e.g., a broker or
investment banker) for the purpose of conducting a widely dispersed public
distribution on behalf of the Original Holder pursuant to an effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"). (For the purposes hereof, "affiliate" shall have the
meaning specified in Rule 405 promulgated by the Securities and Exchange
Commission under the Securities Act.)
(b) The option to convert shares of the Series A Preferred
Stock into shares of Common Stock of the Corporation shall be exercisable by
delivering the certificate or certificates for the shares to be converted,
properly endorsed to the Corporation or in blank, together with a written notice
specifying the number of shares to be converted, to the Secretary of the
Corporation at the home office of the Corporation. The conversion of the shares
of Series A Preferred Stock shall be effective as of the date on which the
Corporation receives such certificate or certificates and such notice of
conversion.
(c) All shares of Common Stock issued upon the conversion
of any shares of Series A Preferred Stock shall be fully paid and
non-assessable.
(d) The number of shares of Common Stock of the
Corporation into which the shares of Series A Preferred Stock can be converted
shall be subject to adjustment from time to time as follows:
(i) If, at any time after the issuance of any shares
of Series A Preferred Stock, the Corporation pays or makes a dividend or
other distribution on any class of capital stock of the Corporation in
Common Stock of the Corporation, then the number of shares of Common Stock
into which each share of Series A Preferred Stock may be converted shall be
increased
5
<PAGE>
by multiplying such number by a fraction, the denominator of which is the
number of shares of such Common Stock outstanding at the close of business
on the day immediately preceding the date of such distribution and the
numerator of which is the sum of such number of shares and the total number
of shares constituting such dividend or other distribution, such increase
to become effective immediately after the opening of business on the day
following such distribution.
(ii) If, at any time after the issuance of any shares
of Series A Preferred Stock, the outstanding shares of Common Stock of the
Corporation are subdivided into a greater number of such shares, then the
number of shares of Common Stock into which each share of Series A
Preferred Stock may be converted shall be proportionately increased, and,
conversely, if, at any time after the issuance of any shares of Series A
Preferred Stock, the outstanding shares of Common Stock of the Corporation
are combined into a smaller number of such shares, then the number of
shares of Common Stock into which each share of Series A Preferred Stock
may be converted shall be proportionately decreased, such increase or
decrease, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(iii) The reclassification (including any
reclassification upon a merger in which the Corporation is the continuing
corporation) of the Common Stock of the Corporation into securities,
including other than shares of such Common Stock, shall be deemed to
involve a subdivision or combination, as the case may be, of the number of
shares of the Common Stock of the Corporation outstanding immediately prior
to such reclassification into the number of shares of such Common Stock
outstanding immediately thereafter and the effective date of such
reclassification shall be deemed to be the day upon which such subdivision
or combination becomes effective, within the meaning of subparagraph (ii)
above.
4.3.1.4. LIQUIDATION
In the event of the liquidation, dissolution, or
winding up of the Corporation, whether voluntary or involuntary, the holders of
the shares of Series A Preferred Stock shall be entitled to share ratably,
without distinction as to class, in all of the assets of the Corporation
available for distribution to shareholders.
4.3.1.5. RESERVATION OF COMMON STOCK
So long as any shares of Series A Preferred Stock are
outstanding, the Corporation shall maintain a sufficient number of authorized
but unissued shares of Common Stock to provide for the conversion of all
outstanding shares of Series A Preferred Stock into shares of Common Stock.
6
<PAGE>
4.4. PREEMPTIVE RIGHTS
Holders of the capital stock of the Corporation shall
not be entitled to preemptive rights with respect to any shares or other
securities of the Corporation which may be issued.
5. INCORPORATOR; DIRECTORS
5.1. INCORPORATOR
The name and mailing address of the incorporator (the
"Incorporator") is Security First Network Bank, 3390 Peachtree Road, NE, Suite
1700, Atlanta, Georgia 30326. The powers of the Incorporator shall terminate
upon the filing of this Certificate of Incorporation.
5.2. DIRECTORS
The number of directors of the Corporation shall be
such number as from time to time shall be fixed by, or in the manner provided
in, the bylaws of the Corporation.
The classification shall be such that the term of one
class shall expire each succeeding year. The Corporation's board of directors
shall initially be divided into three classes named Class I, Class II and Class
III, with Class I and II each initially consisting of one director and Class III
initially consisting of two directors. The terms, classifications,
qualifications and election of the board of directors and the filling of
vacancies thereon shall be as provided herein and in the bylaws of the
Corporation. The names and business addresses of those persons of each class to
serve on the initial board of directors shall be as follows:
Class I: Term of office expires at the first annual meeting of shareholders:
Name Address
- ---- -------
Robert W. Copelan 3390 Peachtree Road, NE, Suite 1700
Atlanta, Georgia 30326
Class II: Term of office expires at the second annual meeting of shareholders:
Name Address
- ---- -------
Howard J. Runnion, Jr. 3390 Peachtree Road, NE, Suite 1700
Atlanta, Georgia 30326
7
<PAGE>
Class III: Terms of office expire at the third annual meeting of shareholders:
Name Address
- ---- -------
Michael C. McChesney 3390 Peachtree Road, NE, Suite 1700
Atlanta, Georgia 30326
James S. Mahan, III 3390 Peachtree Road, NE, Suite 1700
Atlanta, Georgia 30326
Subject to the foregoing, at each annual meeting of shareholders
the successors to the class of directors whose term shall then expire shall be
elected to hold office for a term expiring at the third succeeding annual
meeting and until their successors shall be elected and qualified.
Any vacancy occurring in the board of directors, including any
vacancy created by reason of an increase in the number of directors, shall be
filled for the unexpired term in the manner provided in the Corporation's
bylaws, and any director so chosen shall hold office for the remainder of the
full term of the class of directors in which the new directorship was created or
the vacancy occurred and until such director's successor shall have been elected
and qualified, or until the director's earlier resignation or removal.
No director may be removed except for cause and then only by an
affirmative vote of at least two-thirds of the total votes eligible to be voted
by shareholders at a duly constituted meeting of shareholders called for such
purpose. At least 30 days prior to such meeting of shareholders, written notice
shall be sent to the director or directors whose removal will be considered at
such meeting.
5.3. LIMITATION OF LIABILITY
No director of the Corporation shall be liable to the
Corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, provided that this provision shall not eliminate or limit
the liability of a director (a) for any breach of the director's duty of loyalty
to the Corporation or its shareholders; (b) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law; (c)
for the types of liability set forth in Section 174 of the Delaware General
Corporation Law; or (d) for any transaction from which the director received any
improper personal benefit. Any repeal or modification of this Section 5.3 by the
shareholders of the Corporation shall not adversely affect any right or
protection of a director for acts or omissions occurring prior to the effective
date of such repeal or modification.
8
<PAGE>
6. INDEMNIFICATION
To the extent permitted by law, the Corporation shall fully
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding (whether
civil, criminal, administrative or investigative) by reason of the fact that
such person is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding.
To the extent permitted by law, the Corporation may fully
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding (whether
civil, criminal, administrative or investigative) by reason of the fact that
such person is or was an employee or agent of the Corporation, or is or was
serving at the request of the Corporation as an employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding.
The Corporation may advance expenses (including attorneys'
fees) incurred by a director or officer in advance of the final disposition of
such action, suit or proceeding upon the receipt of an undertaking by or on
behalf of the director or officer to repay such amount if it shall ultimately be
determined that such director or officer is not entitled to indemnification. The
Corporation may advance expenses (including attorneys' fees) incurred by an
employee or agent in advance of the final disposition of such action, suit or
proceeding upon such terms and conditions, if any, as the Board of Directors
deems appropriate.
7. CALL OF SPECIAL MEETINGS
Special meetings of shareholders relating to changes in control
of the Corporation or amendments to its Certificate of Incorporation shall be
called only upon direction of the Board of Directors.
9
<PAGE>
8. AMENDMENT OF BYLAWS
The Board of Directors or the shareholders may from time to time
amend the bylaws of the Corporation as provided under the Delaware General
Corporation Law.
9. AMENDMENT OF CERTIFICATE OF INCORPORATION
The Certificate of Incorporation of the Corporation may be
amended in accordance with the provisions of the Delaware General Corporation
Law.
10
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Amended
and Restated Certificate of Incorporation to be executed on its behalf on
September 25, 1998.
SECURITY FIRST TECHNOLOGIES
CORPORATION
By:/s/ James S. Mahan, III
------------------------
James S. Mahan, III
Chief Executive Officer and President
ATTEST:
By: /s/ Robert F. Stockwell
-----------------------
Robert F. Stockwell
Secretary
11
Exhibit 2
CERTIFICATE OF DESIGNATION
OF
SECURITY FIRST TECHNOLOGIES CORPORATION
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted on September 25, 1998, by the Board of Directors
(the "Board") of SECURITY FIRST TECHNOLOGIES CORPORATION, a Delaware corporation
(the "Corporation") acting pursuant to the authority granted to the Board in
accordance with the provisions of Section 151(g) of the General Corporation Law
of the State of Delaware:
RESOLVED, that pursuant to authority expressly granted to,
and vested in, the Board by the provisions of the certificate of incorporation
of the Corporation (the "Certificate of Incorporation"), there is hereby created
a Series B Preferred Stock, as set forth below in this Certificate of
Designation.
SERIES B REDEEMABLE CONVERTIBLE PREFERRED STOCK
The Corporation is hereby authorized to issue 749,064
shares of preferred stock, authorized pursuant to Section 4.3 of the
Corporation's Certificate of Incorporation, as a series of preferred stock,
which series shall be designated "Series B Redeemable Convertible Preferred
Stock" (hereinafter referred to as the "Series B Preferred Stock") and shall
have the following rights and preferences:
1. Dividends
The holders of record of shares (the "Holders") of the
Series B Preferred Stock shall not have any preference with respect to dividends
over the holders of the Common Stock, but shall participate fully and equally,
on a share for share basis, with the Common Stock, with respect to the payment
of any and all dividends or other distributions, whenever declared and whether
paid or payable in cash, the capital stock of the Corporation, the capital stock
of any other entity, or any other property.
2. Voting
Except as otherwise provided by law and except as
hereinafter provided, the Holders of the Series B Preferred Stock shall have no
voting rights and shall not be entitled to notice of meetings of shareholders,
and the exclusive voting power of the Corporation shall be vested in the holders
of the Common Stock.
1
<PAGE>
Notwithstanding the foregoing, the Holders of the Series B Preferred Stock shall
be entitled to the following specific limited voting rights:
(a) The Holders of the Series B Preferred Stock
shall be entitled to vote, as a separate class, with respect to (i) any
amendment or repeal of any of the provisions of the Certificate of Incorporation
or this Certificate of Designation, which would change the specific terms of the
Series B Preferred Stock, as set forth in this Certificate of Designation (or in
any supplementary sections hereto) so as to have an adverse effect on the rights
of the Series B Preferred Stock, including any amendment which would create or
enlarge any class or series ranking prior to the Series B Preferred Stock in
rights and preferences (provided, however, that an amendment which increases the
number of authorized shares of any class or series of capital stock, or
substitutes the surviving entity in a merger or consolidation for the
Corporation, shall not be considered to be such an adverse effect), and (ii) the
approval of a merger or consolidation of the Corporation with another
corporation or the sale, lease, or conveyance (other than by mortgage or pledge)
of the properties or business of the Corporation in exchange for securities of a
corporation other than the Corporation if the Series B Preferred Stock is to be
exchanged for securities of such other corporation and if the terms of such
securities are less favorable in any respect to the holders thereof than the
specific terms of the Series B Preferred Stock as set forth in this Certificate
of Designation (or any supplementary section hereto). No such amendment, repeal,
merger, consolidation, sale, lease, or conveyance shall be approved or adopted
without the affirmative vote, at a meeting duly called for that purpose and upon
notice duly given to the Holders of the Series B Preferred Stock, or the written
consent with or without a meeting, of the Holders of at least two-thirds of the
shares of the Series B Preferred Stock then outstanding, together with any other
vote or consent of the holders of other classes of the capital stock of the
Corporation as may be required; and
(b) The Holders of the Series B Preferred Stock
shall be entitled to vote, along with the holders of the shares of Common Stock,
on the basis as if the Series B Preferred Stock had been converted to shares of
Common Stock pursuant to Section 4 hereof, on (i) any merger, acquisition,
consolidation or other business combination involving the Corporation and
another business entity, (ii) the sale, lease or conveyance (other than by
mortgage or pledge) of all or substantially all of the assets or properties of
the Corporation and (iii) any voluntary dissolution or liquidation of the
Corporation; it being understood, however, that the Holders of Series B
Preferred Stock shall be entitled to vote under the circumstances described in
(i) and (ii) above only if the holders of Common Stock are so entitled.
3. Redemption.
(a) At any time before the second anniversary of
the Closing Date (as defined in the Stock Purchase Agreement, by and among
Security First Network Bank ("SFNB"), Security First Technologies Corporation
and State Farm
2
<PAGE>
Mutual Life Insurance Company, dated as of June 29, 1998)(the "Agreement), the
Corporation shall have the option to redeem this Series B Preferred Stock by (a)
providing the Holder with written notice of its intention to redeem this Series
B Preferred Stock, which notice shall state the redemption date (the "Redemption
Date") and which shall be delivered to the Holder 10 business days prior to the
Redemption Date, and (b) delivering to the Holder on the Redemption Date by wire
transfer of immediately available U.S. funds the amount of cash (the "Redemption
Price") equal to (i) the product of (x) $10,000,000, multiplied by (y) the
Two-Year Interest Rate (defined below), multiplied by (z) the Annualization
Factor (defined below), plus (ii) $10,000,000. For purposes of this section
3(a), the term "Two-Year Interest Rate" means the percentage rate for the
two-year U.S. Treasury Bill set forth in the Wall Street Journal at the Closing
Date, and the term "Annualization Factor" means a fraction, the numerator of
which is the number of days between the Closing Date and the Redemption Date and
the denominator of which is 365.
(b) Upon the mailing of the notice pursuant to section 3(a) of
this Certificate of Designation and after the Redemption Date (unless default
shall be made by the Corporation in providing money for the payment of the
Redemption Price and subject to the provisions of this Certificate of
Designation) such shares shall no longer be deemed to be outstanding, and all
rights of the Holders thereof as shareholders of the Corporation (except the
right to receive from the Corporation the Redemption Price) shall cease.
4. Conversion
At any time after the second anniversary of the Closing Date,
the Holders of the Series B Preferred Stock shall have the option to convert all
(but not fewer than all) of such shares into shares of Common Stock of the
Corporation, pursuant to the following terms and conditions:
(a) The shares of Series B Preferred Stock shall be
convertible into that number of shares of the Corporation's Common Stock equal
to (x) 10,000,000, divided by (y) the "Conversion Price," which is the product
of (i) 1.4 and (ii) $13.350 which amount equals the average closing asking price
per share of SFNB's common stock (or the Corporation's Common Stock if SFNB is
then dissolved, or a combination of both), as quoted on the Nasdaq Stock Market
National Market Tier, for each of the 10 trading days preceding the business day
immediately before the Closing Date under the Agreement.
(b) The option to convert shares of the Series B
Preferred Stock into shares of Common Stock of the Corporation shall be
exercisable by delivering the certificate or certificates for the shares to be
converted, properly endorsed to the Corporation or in blank, along with a
written notice of its intention to convert such shares, to the Secretary of the
Corporation at the home office of the Corporation. The conversion of the shares
of Series B Preferred Stock shall be
3
<PAGE>
effective as of the date on which the Corporation receives such both certificate
or certificates and such notice of conversion.
(c) All shares of Common Stock issued upon the
conversion of any shares of Series B Preferred Stock shall be fully paid and
non-assessable.
(d) The number of shares of Common Stock of the
Corporation into which the shares of Series B Preferred Stock can be converted
shall be subject to adjustment from time to time as follows:
(i) If, at any time after the issuance of any
shares of Series B Preferred Stock, the Corporation pays or makes a
dividend or other distribution on any class of capital stock of the
Corporation in Common Stock of the Corporation, then the number of
shares of Common Stock into which each share of Series B Preferred
Stock may be converted shall be increased by multiplying such number
by a fraction, the denominator of which is the number of shares of
such Common Stock outstanding at the close of business on the day
immediately preceding the date of such distribution and the numerator
of which is the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such increase
to become effective immediately after the opening of business on the
day following such distribution.
(ii) If, at any time after the issuance of any
shares of Series B Preferred Stock, the outstanding shares of Common
Stock of the Corporation are subdivided into a greater number of such
shares, then the number of shares of Common Stock into which each
share of Series B Preferred Stock may be converted shall be
proportionately increased, and, conversely, if, at any time after the
issuance of any shares of Series B Preferred Stock, the outstanding
shares of Common Stock of the Corporation are combined into a smaller
number of such shares, then the number of shares of Common Stock into
which each share of Series B Preferred Stock may be converted shall be
proportionately decreased, such increase or decrease, as the case may
be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination
becomes effective.
(iii) The reclassification (including any
reclassification upon a merger in which the Corporation is the
continuing corporation) of the Common Stock of the Corporation into
securities, including other than shares of such Common Stock, shall be
deemed to involve a subdivision or combination, as the case may be, of
the number of shares of the Common Stock of the Corporation
outstanding immediately prior to such reclassification into the number
of shares of such Common Stock outstanding immediately thereafter and
the effective date of such reclassification shall be
4
<PAGE>
deemed to be the day upon which such subdivision or combination
becomes effective, within the meaning of subparagraph (ii) above.
5. Liquidation
In the event of the liquidation, dissolution, or winding up of
the Corporation, whether voluntary or involuntary, the Holders of the shares of
Series B Preferred Stock shall be entitled to share ratably, without distinction
as to class, in all of the assets of the Corporation available for distribution
to shareholders.
6. Reservation of Common Stock
So long as any shares of Series B Preferred Stock are
outstanding, the Corporation shall maintain a sufficient number of authorized
but unissued shares of Common Stock to provide for the conversion of all
outstanding shares of Series B Preferred Stock into shares of Common Stock.
5
<PAGE>
IN WITNESS WHEREOF, SECURITY FIRST TECHNOLOGIES CORPORATION
has caused this Certificate of Designation to be made under the seal of the
Corporation and signed by James S. Mahan, III, its Chief Executive Officer and
President, and attested by Robert F. Stockwell, its Secretary, this 29th day of
September, 1998.
SECURITY FIRST TECHNOLOGIES CORPORATION
By: /s/ James S. Mahan, III
----------------------------------------
Chief Executive Officer and President
[SEAL]
Attest:
/s/ Robert F. Stockwell
- -----------------------------
Secretary
6
Exhibit 3
---------
AMENDED AND RESTATED BYLAWS
OF
SECURITY FIRST TECHNOLOGIES CORPORATION
1. OFFICES
1.1. REGISTERED OFFICE
The initial registered office of the Corporation shall be in
Wilmington, Delaware, and the initial registered agent in charge thereof shall
be Corporation Service Company.
1.2. OTHER OFFICES
The Corporation may also have offices at such other places,
both within and without the State of Delaware, as the Board of Directors may
from time to time determine or as may be necessary or useful in connection with
the business of the Corporation.
2. MEETINGS OF SHAREHOLDERS
2.1. PLACE OF MEETINGS
All meetings of the shareholders shall be held at such place
as may be fixed from time to time by or upon the authority of the Board of
Directors.
2.2. ANNUAL MEETINGS
The Corporation shall hold annual meetings of shareholders,
commencing with the year 1999, on such date and at such time as shall be
designated from time to time by the Board of Directors, at which shareholders
shall elect a Board of Directors and transact only such other business as may
properly be brought before the meeting. To be properly brought before an annual
meeting, business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought
<PAGE>
before the meeting by or at the direction of the Board of Directors, or (c)
otherwise properly brought before the meeting by a shareholder.
For business to be properly brought before an annual meeting
by a shareholder, the shareholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a shareholder's
notice must be delivered to or mailed and received at the principal executive
offices of the Corporation not less than 30 days nor more than 90 days prior to
the meeting; provided, however, that in the event that less than 45 days' notice
or prior public disclosure of the date of the meeting is given or made to
shareholders, notice by the shareholder to be timely must be so received not
later than the close of business on the 15th day following the day on which such
notice of the date of the annual meeting was mailed or such public disclosure
was made. A shareholder's notice to the Secretary shall set forth as to each
matter the shareholder proposes to bring before the annual meeting (a) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (b) the name and
address, as they appear on the Corporation's books, of the shareholder proposing
such business, (c) the class and number of shares of the Corporation which are
beneficially owned by the shareholder, and (d) any material interest of the
shareholder in such business. Notwithstanding anything in these Bylaws to the
contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this Section 2.2. The chairman of an
annual meeting shall, if the facts warrant, determine and declare to the annual
meeting that a matter of business was not properly brought before the meeting in
accordance with the provisions of this Section 2.2, and if he should so
determine, he shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
2.3. SPECIAL MEETINGS
Special meetings of the shareholders for any purpose or
purposes, unless otherwise prescribed by statute may be called at any time by
the Chairman of the Board of Directors, the President, or a majority of the
Board of Directors, and shall be called by the Chairman of the Board of
Directors, the President, or the Secretary upon the written request of the
holders of not less than one tenth of all of the outstanding capital stock of
the Corporation entitled to vote at the meeting. Such written request shall
state the purpose or purposes of the meeting and shall be delivered to the
principal office of the Corporation addressed to the Chairman of the Board, the
President, or the Secretary.
<PAGE>
2.4. NOTICE OF MEETINGS
Notice of any meeting of shareholders, stating the place, date
and hour of the meeting, and (if it is a special meeting) the purpose or
purposes for which the meeting is called, shall be given to each shareholder
entitled to vote at such meeting not less than ten nor more than sixty days
before the date of the meeting (except to the extent that such notice is waived
or is not required as provided in the General Corporation Law of the State of
Delaware (the "Delaware General Corporation Law") or these Bylaws). Such notice
shall be given in accordance with, and shall be deemed effective as set forth
in, Section 222 (or any successor section) of the Delaware General Corporation
Law.
2.5. WAIVERS OF NOTICE
Whenever the giving of any notice is required by statute, the
Certificate of Incorporation or these Bylaws, a waiver thereof, in writing and
delivered to the Corporation, signed by the person or persons entitled to said
notice, whether before or after the event as to which such notice is required,
shall be deemed equivalent to notice. Attendance of a shareholder at a meeting
shall constitute a waiver of notice (1) of such meeting, except when the
shareholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting, and (2) (if it is a special meeting) of
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice, unless the shareholder
objects to considering the matter at the beginning of the meeting.
2.6. BUSINESS AT SPECIAL MEETINGS
Business transacted at any special meeting of shareholders
shall be limited to the purposes stated in the notice (except to the extent that
such notice is waived or is not required as provided in the Delaware General
Corporation Law or these Bylaws).
2.7. LIST OF SHAREHOLDERS
After the record date for a meeting of shareholders has been
fixed, at least ten days before such meeting, the officer who has charge of the
stock ledger of the Corporation shall make a list of all shareholders entitled
to vote at the meeting, arranged in alphabetical order and showing the address
of each shareholder and the number of shares registered in the name of each
shareholder. Such list shall be open to the examination of any shareholder for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to
<PAGE>
the meeting, either at a place in the city where the meeting is to be held,
which place is to be specified in the notice of the meeting, or at the place
where the meeting is to be held. Such list shall also, for the duration of the
meeting, be produced and kept open to the examination of any shareholder who is
present at the time and place of the meeting.
2.8. QUORUM AT MEETINGS
Shareholders may take action on a matter at a meeting only if
a quorum exists with respect to that matter. Except as otherwise provided by
statute or by the Certificate of Incorporation, the holders of one-third of the
shares issued and outstanding and entitled to vote at the meeting, and who are
present in person or represented by proxy, shall constitute a quorum at all
meetings of the shareholders for the transaction of business. Once a share is
represented for any purpose at a meeting (other than solely to object (1) to
holding the meeting or transacting business at the meeting, or (2) (if it is a
special meeting) to consideration of a particular matter at the meeting that is
not within the purpose or purposes described in the meeting notice), it is
deemed present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for the
adjourned meeting. The holders of a majority of the voting shares represented at
a meeting, whether or not a quorum is present, may adjourn such meeting from
time to time.
2.9. VOTING AND PROXIES
Unless otherwise provided in the Delaware General Corporation
Law or in the Corporation's Certificate of Incorporation, and subject to the
other provisions of these Bylaws, each shareholder shall be entitled to one vote
on each matter, in person or by proxy, for each share of the Corporation's
capital stock that has voting power and that is held by such shareholder. No
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period. A duly executed appointment of proxy shall
be irrevocable if the appointment form states that it is irrevocable and if, and
only as long as, it is coupled with an interest sufficient in law to support an
irrevocable power.
2.10. REQUIRED VOTE
If a quorum exists, action on a matter (other than the
election of directors) is approved if the votes cast favoring the action exceed
the votes cast opposing the action, unless the Certificate of Incorporation or
the Delaware General Corporation Law requires a greater number of affirmative
votes (in which case such different requirement shall apply). Directors shall be
elected by a plurality of the
<PAGE>
votes cast by the shares entitled to vote in the election (provided a quorum
exists), and the election of directors need not be by written ballot.
2.11. ACTION WITHOUT A MEETING
Any action required or permitted to be taken at a
shareholders' meeting may be taken without a meeting if the action is taken by
persons who would be entitled to vote at a meeting and who hold shares having
voting power to cast not less than the minimum number of votes that would be
necessary to authorize or take the action at a meeting at which all shareholders
entitled to vote were present and voted. The action must be evidenced by one or
more written consents describing the action taken, signed by the shareholders
entitled to take action without a meeting, and delivered to the Corporation for
inclusion in the minute book. No consent shall be effective to take the
corporate action specified unless the number of consents required to take such
action are delivered to the Corporation within sixty days of the delivery of the
earliest-dated consent. All shareholders entitled to vote on the record date of
such written consent who do not participate in taking the action shall be given
written notice thereof in accordance with the Delaware General Corporation Law.
3. DIRECTORS
3.1. POWERS
The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such
powers of the Corporation and do all such lawful acts and things, subject to any
limitation set forth in the Certificate of Incorporation, these Bylaws, or
agreements among shareholders which are otherwise lawful.
3.2. NUMBER AND ELECTION
The number of directors which shall constitute the whole Board
shall not be fewer than four nor more than fifteen. The first Board shall
consist of four. Thereafter, within the limits above specified, the number of
directors shall be determined by resolution of the Board of Directors.
3.3. NOMINATION OF DIRECTORS
(a) The Board of Directors shall nominate candidates to stand
for election as directors; and other candidates also may be nominated by any
<PAGE>
Corporation shareholder as provided in Section 3.3(b) below. The directors shall
be elected at the annual meeting of the shareholders, except as provided in
Section 3.4 hereof, and each director elected shall hold office until such
director's successor is elected and qualified or until the director's earlier
resignation or removal. Directors need not be shareholders.
(b) Only persons who are nominated in accordance with the
procedures set forth in this Section 3.3 shall be eligible for election as
directors. Nominations of persons for election to the Board of Directors of the
Corporation may be made at a meeting of shareholders by or at the direction of
the Board of Directors or by any shareholder of the Corporation entitled to vote
for the election of directors at the meeting who complies with the notice
procedures set forth in this Section 3.3(b). Such nominations, other than those
made by or at the direction of the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary of the Corporation. To be timely, a
shareholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 30 days nor more
than 90 days prior to the meeting; provided, however, that in the event that
less than 45 days notice or prior public disclosure of the date of the meeting
is given or made to shareholders, notice by the shareholder to be timely must be
so received not later than the close of business on the 15th day following the
day on which such notice of the date of the meeting was mailed or such public
disclosure was made. Such shareholder's notice shall set forth (a) as to each
person whom the shareholder proposes to nominate for election or re-election as
a director, (i) the name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such person, (iii) the
class and number of shares of the Corporation which are beneficially owned by
such person, and (iv) any other information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (including without limitation such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director if elected); and (b) as to the shareholder giving
notice (i) the name and address, as they appear in the Corporation's books, of
such shareholder and (ii) the class and number of shares of the Corporation
which are beneficially owned by such shareholder. At the request of the Board of
Directors, any person nominated by the Board of Directors for election as a
director shall furnish to the Secretary of the Corporation that information
required to be set forth in a shareholder's notice of nomination which pertains
to the nominee. No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 3.3. The chairman of the meeting shall, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with
<PAGE>
procedures prescribed by the Bylaws, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
3.4. VACANCIES
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by the shareholders
or by a majority of the directors then in office, although fewer than a quorum,
or by a sole remaining director. Each director so chosen shall hold office for
the remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until such director's
successor is elected and qualified, or until the director's earlier resignation
or removal. In the event that one or more directors resigns from the Board,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold office until the
next election of directors, and until such director's successor is elected and
qualified, or until the director's earlier resignation or removal.
3.5. MEETINGS
3.5.1. REGULAR MEETINGS
Regular meetings of the Board of Directors may be held without
notice at such time and at such place as shall from time to time be determined
by the Board of Directors.
3.5.2. SPECIAL MEETINGS
Special meetings of the Board may be called by a majority of
the Board of Directors on one day's notice to each director, either personally
or by telephone, express delivery service (so that the scheduled delivery date
of the notice is at least one day in advance of the meeting), telegram or
facsimile transmission, and on five days' notice by mail (effective upon deposit
of such notice in the mail). The notice need not describe the purpose of a
special meeting.
3.5.3. TELEPHONE MEETINGS
Members of the Board of Directors may participate in a meeting
of the Board by any communication by means of which all participating directors
can simultaneously hear each other during the meeting. A director participating
in a meeting by this means is deemed to be present in person at the meeting.
<PAGE>
3.5.4. ACTION WITHOUT MEETING
Any action required or permitted to be taken at any meeting of
the Board of Directors may be taken without a meeting if the action is taken by
all members of the Board. The action must be evidenced by one or more written
consents describing the action taken, signed by each director, and delivered to
the Corporation for inclusion in the minute book.
3.5.5. WAIVER OF NOTICE OF MEETING
A director may waive any notice required by statute, the
Certificate of Incorporation or these Bylaws before or after the date and time
stated in the notice. Except as set forth below, the waiver must be in writing,
signed by the director entitled to the notice, and delivered to the Corporation
for inclusion in the minute book. Notwithstanding the foregoing, a director's
attendance at or participation in a meeting waives any required notice to the
director of the meeting unless the director at the beginning of the meeting
objects to holding the meeting or transacting business at the meeting and does
not thereafter vote for or assent to action taken at the meeting.
3.6. QUORUM AND VOTE AT MEETINGS
At all meetings of the Board, a quorum of the Board of
Directors consists of a majority of the total number of directors prescribed
pursuant to Section 3.2 of these Bylaws (or, if no number is prescribed, the
number in office immediately before the meeting begins). The vote of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute or by the Certificate of Incorporation or by these Bylaws.
3.7. COMMITTEES OF DIRECTORS
The Board of Directors may by resolution create one or more
committees and appoint members of the Board of Directors to serve on the
committees at the pleasure of the Board of Directors. To the extent specified in
a resolution adopted by the Board of Directors, each committee may exercise the
full authority of the Board of Directors, except as limited by Section 141 (or
any successor section) of the Delaware General Corporation Law. All provisions
of the Delaware General Corporation Law and these Bylaws relating to meetings,
action without meetings, notice (and waiver thereof), and quorum and voting
requirements of the Board of Directors apply, as well, to such committees and
their members.
<PAGE>
3.8. COMPENSATION OF DIRECTORS
The Board of Directors shall have the authority to fix the
compensation of directors. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
4. OFFICERS
4.1. POSITIONS
The officers of the Corporation shall be a Chairman, a Chief
Executive Officer, a President, a Secretary and a Treasurer, and such other
officers as the Board of Directors (or an officer authorized by the Board of
Directors) from time to time may appoint, including one or more Vice Chairmen,
Executive Vice Presidents, Vice Presidents, Assistant Secretaries and Assistant
Treasurers. Each such officer shall exercise such powers and perform such duties
as shall be set forth below and such other powers and duties as from time to
time may be specified by the Board of Directors or by any officer(s) authorized
by the Board of Directors to prescribe the duties of such other officers. Any
number of offices may be held by the same person, except that in no event shall
the President and the Secretary be the same person. Each of the Chairman, the
Chief Executive Officer, the President, the Chief Financial Officer and/or any
Vice President may execute bonds, mortgages and other documents under the seal
of the Corporation, except where required or permitted by law to be otherwise
executed and except where the execution thereof shall be expressly delegated by
the Board of Directors to some other officer or agent of the Corporation.
4.2. CHAIRMAN
The Chairman shall (when present) preside at all meetings of
the Board of Directors and shareholders, and shall ensure that all orders and
resolutions of the Board of Directors and shareholders are carried into effect.
The Chairman may be the Chief Executive Officer of the Corporation.
4.3. CHIEF EXECUTIVE OFFICER
The Chief Executive Officer shall have overall responsibility
and authority for management of the operations of the Corporation (subject to
the authority of the Board of Directors), shall (in the absence of the Chairman)
preside at all meetings of the Board of Directors and shareholders, and shall
ensure that all
<PAGE>
orders and resolutions of the Board of Directors and shareholders are carried
into effect.
4.4. PRESIDENT
The President may be the chief operating officer of the
Corporation and shall have full responsibility and authority for management of
the day-to-day operations of the Corporation, subject to the authority of the
Board of Directors and the Chairman.
4.5. VICE PRESIDENT
In the absence of the President or in the event of the
President's inability or refusal to act, the Vice President (or in the event
there be more than one Vice President, the Vice Presidents in the order
designated, or in the absence of any designation, then in the order of their
election) shall perform the duties of the President, and when so acting shall
have all the powers of, and be subject to all the restrictions upon, the
President.
4.6. SECRETARY
The Secretary shall have responsibility for preparation of
minutes of meetings of the Board of Directors and of the shareholders and for
authenticating records of the Corporation. The Secretary shall give, or cause to
be given, notice of all meetings of the shareholders and special meetings of the
Board of Directors. The Secretary or an Assistant Secretary may also attest and
apply the seal to all instruments signed by any other officer of the
Corporation.
4.7. ASSISTANT SECRETARY
The Assistant Secretary, or if there be more than one, the
Assistant Secretaries in the order determined by the Board of Directors (or if
there shall have been no such determination, then in the order of their
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability or refusal to act, perform the duties and exercise the
powers of the Secretary.
4.8. TREASURER
The Treasurer may be the chief financial officer of the
Corporation and shall have responsibility for the custody of the corporate funds
and securities and shall see to it that full and accurate accounts of receipts
and disbursements are kept in books belonging to the Corporation. The Treasurer
shall render to the
<PAGE>
Chairman, the Chief Executive Officer, the President, and the Board of
Directors, upon request, an account of all financial transactions and of the
financial condition of the Corporation.
4.9. ASSISTANT TREASURER
The Assistant Treasurer, or if there shall be more than one,
the Assistant Treasurers in the order determined by the Board of Directors (or
if there shall have been no such determination, then in the order of their
election), shall, in the absence of the Treasurer or in the event of the
Treasurer's inability or refusal to act, perform the duties and exercise the
powers of the Treasurer.
4.10. TERM OF OFFICE
The officers of the Corporation shall hold office until their
successors are chosen and qualify or until their earlier resignation or removal.
Any officer may resign at any time upon written notice to the Corporation. Any
officer elected or appointed by the Board of Directors may be removed at any
time, with or without cause, by the affirmative vote of a majority of the Board
of Directors.
4.11. COMPENSATION
The compensation of officers of the Corporation shall be fixed
by the Board of Directors or by any officer(s) authorized by the Board of
Directors to prescribe the compensation of such other officers.
4.12. FIDELITY BONDS
The Corporation may secure the fidelity of any or all of its
officers or agents by bond or otherwise.
5. CAPITAL STOCK
5.1. CERTIFICATES OF STOCK; UNCERTIFICATED SHARES
The shares of the Corporation shall be represented by
certificates, provided that the Board of Directors may provide by resolution
that some or all of any or all classes or series of the Corporation's stock
shall be uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock represented by
<PAGE>
certificates, and upon request every holder of uncertificated shares, shall be
entitled to have a certificate (representing the number of shares registered in
certificate form) signed in the name of the Corporation by the Chairman,
President or any Vice President, and by the Treasurer, Secretary or any
Assistant Treasurer or Assistant Secretary of the Corporation. Any or all the
signatures on the certificate may be facsimile. In case any officer, transfer
agent or registrar whose signature or facsimile signature appears on a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if such person were such officer, transfer agent or registrar at
the date of issue.
5.2. LOST CERTIFICATES
The Board of Directors, Chairman, President or Secretary may
direct a new certificate of stock to be issued in place of any certificate
theretofore issued by the Corporation and alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
that the certificate of stock has been lost, stolen or destroyed. When
authorizing such issuance of a new certificate, the Board or any such officer
may, as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or such owner's legal
representative, to advertise the same in such manner as the Board or such
officer shall require and/or to give the Corporation a bond, in such sum as the
Board or such officer may direct, as indemnity against any claim that may be
made against the Corporation on account of the certificate alleged to have been
lost, stolen or destroyed or on account of the issuance of such new certificate
or uncertificated shares.
5.3. RECORD DATE
5.3.1. ACTIONS BY SHAREHOLDERS
In order that the Corporation may determine the shareholders
entitled to notice of or to vote at any meeting of shareholders (or to take any
other action), the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors and shall not be less than 10 nor more than 60
days before the meeting or action requiring a determination of shareholders.
In order that the Corporation may determine the shareholders
entitled to consent to corporate action without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors and shall not be more
<PAGE>
than ten days after the date upon which the resolution fixing the record date is
adopted by the Board of Directors.
A determination of shareholders of record entitled to notice
of or to vote at a meeting of shareholders shall apply to any adjournment of the
meeting, unless the Board of Directors fixes a new record date.
If no record date is fixed by the Board of Directors, the
record date shall be at the close of business on the day next preceding the day
on which notice is given, or if notice is not required or is waived, at the
close of business on the day next preceding the day on which the meeting is held
or such other action is taken, except that (if no record date is established by
the Board of Directors) the record date for determining shareholders entitled to
consent to corporate action without a meeting is the first date on which a
shareholder delivers a signed written consent to the Corporation for inclusion
in the minute book.
5.3.2. PAYMENTS
In order that the Corporation may determine the shareholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the shareholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining shareholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
5.4. SHAREHOLDERS OF RECORD
The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, to receive notifications, to vote as such owner, and to exercise all
the rights and powers of an owner. The Corporation shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise may be provided by the Delaware General
Corporation Law.
<PAGE>
6. INSURANCE
The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
Corporation (or is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise)
against liability asserted against or incurred by such person in such capacity
or arising from such person's status as such (whether or not the Corporation
would have the power to indemnify such person against the same liability).
7. GENERAL PROVISIONS
7.1. INSPECTION OF BOOKS AND RECORDS
Any shareholder, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have the
right during the usual hours for business to inspect for any proper purpose the
Corporation's stock ledger, a list of its shareholders, and its other books and
records, and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a shareholder. In every
instance where an attorney or other agent shall be the person who seeks the
right to inspection, the demand under oath shall be accompanied by a power of
attorney or such other writing which authorizes the attorney or other agent to
so act on behalf of the shareholder. The demand under oath shall be directed to
the Corporation at its registered office or at its principal place of business.
7.2. DIVIDENDS
The Board of Directors may declare dividends upon the capital
stock of the Corporation, subject to the provisions of the Certificate of
Incorporation and the laws of the State of Delaware.
7.3. RESERVES
The directors of the Corporation may set apart, out of the
funds of the Corporation available for dividends, a reserve or reserves for any
proper purpose and may abolish any such reserve.
<PAGE>
7.4. EXECUTION OF INSTRUMENTS
All checks, drafts or other orders for the payment of money,
and promissory notes of the Corporation shall be signed by such officer or
officers or such other person or persons as the Board of Directors may from time
to time designate.
7.5. FISCAL YEAR
The fiscal year of the Corporation shall be December 31 of
each year.
7.6. SEAL
The corporate seal shall be in such form as the Board of
Directors shall approve. The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or otherwise reproduced.
<PAGE>
* * * * *
The foregoing Amended and Restated Bylaws were adopted by the
Board of Directors on September 25, 1998.
SECURITY FIRST TECHNOLOGIES CORPORATION
/s/ Robert F. Stockwell
----------------------------------
Robert F. Stockwell
Secretary
EXHIBIT 4
---------
COMMON STOCK COMMON STOCK
NUMBER SHARES
--SPECIMEN-- --SPECIMEN--
[SECURITY FIRST TECHNOLOGIES CORPORATION LOGO]
SECURITY FIRST TECHNOLOGIES CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
SEE REVERSE SIDE FOR
CERTAIN LEGENDS
CUSIP 814279 10 5
This Certifies that -- SPECIMEN--
is the owner of --SPECIMEN--
FULLY PAID AND NONASSESSABLE SHARES OF
COMMON STOCK, PAR VALUE $0.01 PER SHARE, OF
Security First Technologies Corporation (the "Corporation"), a Delaware
corporation with its principal executive office located in Atlanta, Georgia. The
shares represented by this certificate are transferable only on the stock
transfer books of the Corporation by the holder of record hereof, or by his or
her duly authorized attorney or legal representative, upon the surrender of this
certificate properly endorsed.
This certificate is not valid unless countersigned and registered by the
Transfer Agent and Registrar.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
executed by the signature of its duly authorized officers and has caused its
corporate seal to be hereunto affixed.
Dated: SECURITY FIRST TECHNOLOGIES CORPORATION
[SEAL APPEARS HERE] BY:
SECRETARY PRESIDENT
COUNTERSIGNED AND REGISTERED:
WACHOVIA BANK, N.A.
(WINSTON-SALEM, N.C.) TRANSFER AGENT
AND REGISTRAR
BY:
AUTHORIZED SIGNATURE
<PAGE>
SECURITY FIRST TECHNOLOGIES CORPORATION
The shares represented by this certificate are issued subject to all the
provisions of the certificate of incorporation and bylaws of Security First
Technologies Corporation (the "Corporation") as from time to time amended
(copies of which are on file at the principal executive office of the
Corporation), to all of which the holder by acceptance hereof assents.
The Corporation is authorized to issue more than one class or series of
stock. The Corporation will furnish to any shareholder, upon request and without
charge, a full statement of the powers, designations, preferences and relative,
participating, optional, or other special rights of each authorized class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights, to the extent that the same have been fixed, and
of the authority of the board of directors to designate the same with respect to
other series. Such request may be made to the Corporation at its principal
executive office.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT-__________Custodian__________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_______________
in common (State)
</TABLE>
Additional abbreviations may also be used
though not in the above list.
For value received, ____________________________________________ hereby
sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
[RECTANGULAR BOX APPEARS HERE]
________________________________________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING POSTAL CODE, OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
_____________________________________________ shares represented by the within
certificate, and do hereby irrevocably constitute and appoint __________________
________________________________________________________________________________
Attorney to transfer the said shares on the books of the Corporation with full
power of substitution in the premises.
Dated_________________________
__________________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER
SIGNATURE(S) GUARANTEED: THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND
CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAM) PURSUANT TO
S.E.C. RULE 17Ad-15.
