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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF MOTIVE COMMUNICATIONS, INC.,
a Delaware Corporation
The undersigned, Scott L. Harmon, hereby certifies that:
ONE: He is the duly elected and acting President and Chief Executive
Officer of said corporation.
TWO: The name of the corporation is Motive Communications, Inc. and
the corporation was originally incorporated on April 25, 1997, under the name
Motive Software, Inc., pursuant to the General Corporation Law.
THREE: The Certificate of Incorporation of said corporation shall be
amended and restated to read in full as follows:
ARTICLE I
The name of this corporation is Motive Communications, Inc.
ARTICLE II
The address of the registered office of this corporation in the State
of Delaware is 1013 Centre Road, in the City of Wilmington, County of New
Castle. The name of the registered agent at such address is Corporation Service
Company.
ARTICLE III
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 Delaware.
ARTICLE IV
A. Classes of Stock. This corporation is authorized to issue two
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classes of stock to be designated, respectively, "Common Stock" and "Preferred
Stock." The total number of shares that this corporation is authorized to issue
is Seventy Million (70,000,000) shares. Fifty Million (50,000,000) shares shall
be Common Stock, par value $0.001 per share, and Twenty Million (20,000,000)
shares shall be Preferred Stock, par value $0.001 per share.
B. Rights, Preferences and Restrictions of Preferred Stock. The
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Preferred Stock authorized by this Amended and Restated Certificate of
Incorporation may be issued from time to time in one or more series. The
rights, preferences, privileges, and restrictions granted to and imposed on the
Series A Preferred Stock, which series shall consist of 7,925,472 shares, the
Series B Preferred Stock, which series shall consist of 3,225,639 shares, the
Series C Preferred Stock which series shall consist of 2,550,000 shares, the
Series D-1 Preferred Stock which series shall consist of 2,067,000 shares, the
Series D-2 Preferred Stock which series shall consist of
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2,600,000 shares and the Series D-3 Preferred Stock which series shall consist
of 280,000 shares (collectively, the "Series D Preferred Stock"), are as set
forth below in this Article IV(B). The Board of Directors is hereby authorized
to fix or alter the rights, preferences, privileges and restrictions granted to
or imposed upon additional series of Preferred Stock, and the number of shares
constituting any such series and the designation thereof, or of any of them.
Subject to compliance with applicable protective voting rights that have been or
may be granted to the Preferred Stock or series thereof in Certificates of
Determination or this corporation's Amended and Restated Certificate of
Incorporation ("Protective Provisions"), but notwithstanding any other rights of
the Preferred Stock or any series thereof, the rights, privileges, preferences
and restrictions of any such additional series may be subordinated to, pari
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passu with (including, without limitation, inclusion in provisions with respect
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to liquidation and acquisition preferences, redemption and/or approval of
matters by vote or written consent), or senior to any of those of any present or
future class or series of Preferred or Common Stock. Subject to compliance with
applicable Protective Provisions, the Board of Directors is also authorized to
increase or decrease the number of shares of any series (other than the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock), prior or subsequent to the issue of that series, but not below
the number of shares of such series then outstanding. In case the number of
shares of any series shall be so decreased, the shares constituting such
decrease shall resume the status that they had prior to the adoption of the
resolution originally fixing the number of shares of such series.
1. Dividend Provisions. Subject to the rights of series of
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Preferred Stock that may from time to time come into existence, the holders of
shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock shall be entitled to receive dividends, out
of any assets legally available therefor, prior and in preference to any
declaration or payment of any dividend (payable other than in Common Stock or
other securities and rights convertible into or entitling the holder thereof to
receive, directly or indirectly, additional shares of Common Stock of this
corporation) on the Common Stock of this corporation, at the rate of $.042 per
share per annum for the Series A Preferred Stock, at the rate of $.219 per share
per annum for the Series B Preferred Stock, at the rate of $.529 per share per
annum for the Series C Preferred Stock, at the rate of $.113 per share per annum
for the Series D-1 Preferred Stock, at the rate of $.28 per share per annum for
the Series D-2 Preferred Stock and at the rate of $.423 per share per annum for
the Series D-3 Preferred Stock or, if greater (as determined on a per annum
basis and an as-converted basis for the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock, the Series D-1 Preferred Stock,
the Series D-2 Preferred Stock and the Series D-3 Preferred Stock), an amount
equal to that paid on any other outstanding shares of this corporation, payable
quarterly when, as and if declared by the Board of Directors. Such dividends
shall not be cumulative. The holders of the outstanding Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred
Stock can waive any dividend preference that such holders shall be entitled to
receive under this Section 1 upon the affirmative vote or written consent of the
holders of, in the case of the Series A Preferred Stock or the Series B
Preferred Stock, at least a majority of such series therein outstanding or, in
the case of the holders of the Series C Preferred Stock and the Series D
Preferred Stock, at least seventy-five percent (75%) of such series therein
outstanding.
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2. Liquidation Preference.
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(a) In the event of any liquidation, dissolution or winding up
of this corporation, either voluntary or involuntary, subject to the rights of
series of Preferred Stock that may from time to time come into existence, the
holders of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock shall be entitled to receive, prior
and in preference to any distribution of any of the assets of this corporation
to the holders of Common Stock by reason of their ownership thereof, (i) for the
Series A Preferred Stock, an amount per share equal to the sum of (A) $.599 for
each outstanding share of Series A Preferred Stock (the "Original Series A Issue
Price") and (B) an amount equal to declared but unpaid dividends on such share;
(ii) for the Series B Preferred Stock, an amount per share equal to the sum of
(A) $3.13 for each outstanding share of Series B Preferred Stock (the "Original
Series B Issue Price") and (B) an amount equal to declared but unpaid dividends
on such share; (iii) for the Series C Preferred Stock, an amount per share equal
to the sum of (A) $6.61 for each outstanding share of Series C Preferred Stock
(the "Original Series C Issue Price") an amount equal to declared but unpaid
dividends on such share; (iv) for the Series D-1 Preferred Stock, an amount per
share equal to the sum of (A) $1.61 for each outstanding share of Series D-1
Preferred Stock (the "Original Series D-1 Issue Price") and (B) an amount equal
to declared but unpaid dividends on such share; (v) for the Series D-2 Preferred
Stock, an amount per share equal to the sum of (A) $4.00 for each outstanding
share of Series D-2 Preferred Stock (the "Original Series D-2 Issue Price") and
(B) an amount equal to declared but unpaid dividends on such share; (vi) for the
Series D-3 Preferred Stock, an amount per share equal to the sum of (A) $6.04
for each outstanding share of Series D-3 Preferred Stock (the "Original Series
D-3 Issue Price"), the Original Series A Issue Price, the Original Series B
Issue Price, the Original Series C Issue Price, the Original Series D-1 Issue
Price, the Original Series D-2 Issue Price and the Original Series D-3 Issue
Price are each hereafter referred to as an "Original Issue Price"); and (B) an
amount equal to declared but unpaid dividends on such share. If upon the
occurrence of such event, the assets and funds thus distributed among the
holders of the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock shall be insufficient to permit the
payment to such holders of the full aforesaid preferential amounts, then,
subject to the rights of series of Preferred Stock that may from time to time
come into existence, the entire assets and funds of this corporation legally
available for distribution shall be distributed ratably among the holders of the
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock in proportion to the preferential amount each such
holder would otherwise be entitled to receive.
(b) Upon the completion of the distribution required by
subparagraph (a) of this Section 2 and any other distribution that may be
required with respect to series of Preferred Stock that may from time to time
come into existence, the remaining assets of this corporation available for
distribution to stockholders shall be distributed among the holders of Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Common
Stock pro rata based on the number of shares of Common Stock held by each
(assuming full conversion of all such Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock) until with respect to the holders
of Series B Preferred Stock, such holders shall have received an aggregate of
$6.27 per share (as adjusted for any stock splits, stock dividends,
recapitalizations or the like occurring after the date of filing of this Amended
and Restated Certificate of Incorporation) (including amounts paid pursuant to
subsection (a) of this Section 2), with respect to the holders of the Series C
Preferred Stock such holders shall have received an aggregate of $13.23 per
share (as adjusted for any stock splits, stock dividends, recapitalizations or
the like occurring after the date of filing of this Amended and Restated
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Certificate of Incorporation) (including amounts paid pursuant to subsection (a)
of this Section 2); with respect to the holders of the Series D-1 Preferred
Stock such holders shall have received an aggregate of $3.22 per share (as
adjusted for any stock splits, stock dividends, recapitalizations or the like
occurring after the date of filing of this Amended and Restated Certificate of
Incorporation) (including amounts paid pursuant to subsection (a) of this
Section 2); with respect to the holders of the Series D-2 Preferred Stock such
holders shall have received an aggregate of $8.00 per share (as adjusted for any
stock splits, stock dividends, recapitalizations or the like occurring after the
date of filing of this Amended and Restated Certificate of Incorporation)
(including amounts paid pursuant to subsection (a) of this Section 2); and with
respect to the holders of the Series D-3 Preferred Stock such holders shall have
received an aggregate of $12.08 per share (as adjusted for any stock splits,
stock dividends, recapitalizations or the like occurring after the date of
filing of this Amended and Restated Certificate of Incorporation) (including
amounts paid pursuant to subsection (a) of this Section 2); thereafter, subject
to the rights of series of Preferred Stock that may from time to time come into
existence, if assets remain in this corporation, the holders of the Common Stock
of this corporation shall receive all of the remaining assets of this
corporation pro rata based on the number of shares of Common Stock held by each.
(c) (i) For purposes of this Section 2, unless otherwise
agreed by the vote or written consent of the holders of seventy-five percent
(75%) of the then outstanding shares of each of the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock
voting as separate series and not as a single class, a liquidation, dissolution
or winding up of this corporation shall be deemed to be occasioned by, or to
include, (A) the acquisition of this corporation by another entity by means of
any transaction or series of related transactions (including, without
limitation, any reorganization, merger or consolidation) that results in the
transfer of fifty percent (50%) or more of the outstanding voting power of this
corporation; or (B) a sale of all or substantially all of the assets of this
corporation.
(ii) In any of such events, if the consideration received
by this corporation is other than cash, its value will be deemed its fair market
value. Any securities shall be valued as follows:
(A) Securities not subject to investment letter or
other similar restrictions on free marketability covered by (B) below:
(1) If traded on a securities exchange or
through The Nasdaq Stock Market, the value shall be deemed to be the average of
the closing prices of the securities on such exchange over the thirty (30) day
period ending three (3) days prior to the closing;
(2) If actively traded over-the-counter, the
value shall be deemed to be the average of the closing bid or sale prices
(whichever is applicable) over the thirty (30) day period ending three (3) days
prior to the closing; and
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(3) If there is no active public market, the
value shall be the fair market value thereof, as mutually determined by this
corporation and the holders of at least a majority of the voting power of all
then outstanding shares of Preferred Stock.
(B) The method of valuation of securities subject to
investment letter or other restrictions on free marketability (other than
restrictions arising solely by virtue of a stockholder's status as an
affiliate or former affiliate) shall be to make an appropriate discount
from the market value determined as above in (A) (1), (2) or (3) to reflect
the approximate fair market value thereof, as mutually determined by this
corporation and the holders of at least a majority of the voting power of
all then outstanding shares of such Preferred Stock.
(iii) In the event the requirements of this subsection 2(c)
are not complied with, this corporation shall forthwith either:
(A) cause such closing to be postponed until such
time as the requirements of this Section 2 have been complied with; or
(B) cancel such transaction, in which event the
rights, preferences and privileges of the holders of the Series A Preferred
Stock, the Series B Preferred Stock, the Series C Preferred Stock and the Series
D Preferred Stock shall revert to and be the same as such rights, preferences
and privileges existing immediately prior to the date of the first notice
referred to in subsection 2(c)(iv) hereof.
(iv) This corporation shall give each holder of record of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock written notice of such impending transaction not later
than twenty (20) days prior to the stockholders' meeting called to approve such
transaction, or twenty (20) days prior to the closing of such transaction,
whichever is earlier, and shall also notify such holders in writing of the final
approval of such transaction. The first of such notices shall describe the
material terms and conditions of the impending transaction and the provisions of
this Section 2, and this corporation shall thereafter give such holders prompt
notice of any material changes. The transaction shall in no event take place
sooner than twenty (20) days after this corporation has given the first notice
provided for herein or sooner than ten (10) days after this corporation has
given notice of any material changes provided for herein; provided, however,
that such periods may be shortened upon the written consent of the holders of
Preferred Stock that are entitled to such notice rights or similar notice rights
and that represent at least a majority of the voting power of all then
outstanding shares of such Preferred Stock.
3. Redemption.
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(a) Subject to the rights of series of Preferred Stock that may
from time to time come into existence, at any time after June 24, 2004 (the
"Redemption Commencement Date"), but within ninety (90) days after the receipt
by this corporation of a written request from the holders of not less than two-
thirds of the then outstanding Series A Preferred Stock, seventy-five percent
(75%) of the Series B Preferred Stock, seventy-five percent (75%) of the Series
C Preferred Stock or seventy-five percent (75%) of the Series D Preferred
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Stock, as the case may be, that all or, if less than all, a specified percentage
of such holders' shares of such Preferred Stock be redeemed, and concurrently
with surrender by such holders of the certificates representing such shares,
this corporation shall, to the extent it may lawfully do so, redeem in three (3)
annual installments (each payment date being referred to herein as a "Redemption
Date") the shares specified in such request by paying in cash therefor a sum per
share equal to: (i) for the Series A Preferred Stock (A) $.599 per share of
Series A Preferred Stock (as adjusted for any stock splits, stock dividends,
recapitalizations or the like occurring after the date of filing of this Amended
and Restated Certificate of Incorporation) plus (B) all declared but unpaid
dividends on such share (the "Series A Redemption Price") plus (C) an imputed
dividend of 7% per annum on the amount payable under clause (i)(A) accruing from
the Redemption Commencement Date through and until the applicable Redemption
Date; and (ii) for the Series B Preferred Stock (A) $3.13 per share of Series B
Preferred Stock (as adjusted for any stock splits, stock dividends,
recapitalizations or the like occurring after the date of filing of this Amended
and Restated Certificate of Incorporation) plus (B) all declared but unpaid
dividends on such share (the "Series B Redemption Price") plus (C) an imputed
dividend of 7% per annum on the amount payable under clause (ii)(A) accruing
from the Redemption Commencement Date through and until the applicable
Redemption Date; (iii) for the Series C Preferred Stock (A) $6.61 per share of
Series C Preferred Stock (as adjusted for any stock splits, stock dividends,
recapitalization or the like occurring after the date of filing of this Amended
and Restated Certificate of Incorporation) plus (B) all declared but unpaid
dividends on such share (the "Series C Redemption Price") plus (C) an imputed
dividend of 7% per annum on the amount payable under clause (iii) (A) accruing
from the Redemption Commencement Date through and until the applicable
Redemption Date; (iv) for the Series D-1 Preferred Stock (A) $1.61 per share of
Series D-1 Preferred Stock (as adjusted for any stock splits, stock dividends,
recapitalization or the like occurring after the date of filing of this Amended
and Restated Certificate of Incorporation) plus (B) all declared but unpaid
dividends on such share (the "Series D-1 Redemption Price") plus (C) an imputed
dividend of 7% per annum on the amount payable under clause (iv) (A) accruing
from the Redemption Commencement Date through and until the applicable
Redemption Date; (v) for the Series D-2 Preferred Stock (A) $4.00 per share of
Series D-2 Preferred Stock (as adjusted for any stock splits, stock dividends,
recapitalization or the like occurring after the date of filing of this Amended
and Restated Certificate of Incorporation) plus (B) all declared but unpaid
dividends on such share (the "Series D-2 Redemption Price") plus (C) an imputed
dividend of 7% per annum on the amount payable under clause (v) (A) accruing
from the Redemption Commencement Date through and until the applicable
Redemption Date; and (vi) for the Series D-3 Preferred Stock (A) $6.04 per share
of Series D-3 Preferred Stock (as adjusted for any stock splits, stock
dividends, recapitalization or the like occurring after the date of filing of
this Amended and Restated Certificate of Incorporation) plus (B) all declared
but unpaid dividends on such share (the "Series D-3 Redemption Price"; each of
the Series A Redemption Price, the Series B Redemption Price, the Series C
Redemption Price, the Series D-1 Redemption Price, the Series D-2 Redemption
Price and the Series D-3 Redemption Price are hereafter referred to as a
"Redemption Price") plus (C) an imputed dividend of 7% per annum on the amount
payable under clause (vi) (A) accruing from the Redemption Commencement Date
through and until the applicable Redemption Date. The number of shares of Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series
D Preferred Stock that this corporation shall be required to redeem on any one
Redemption Date shall be equal to the amount determined by dividing (x) the
aggregate number
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of shares of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock or Series D Preferred Stock outstanding immediately prior to
such Redemption Date that have been requested to be redeemed pursuant to this
Section 3(a) by (y) the number of remaining Redemption Dates (including the
Redemption Date to which such calculation applies). Any redemption of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock effected pursuant to this subsection 3(a) shall be made on a pro
rata basis among the holders of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock and Series D Preferred Stock in proportion to
the number of shares of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock, respectively, proposed to
be redeemed by such holders.
(b) Subject to the rights of series of Preferred Stock that may
from time to time come into existence, at least fifteen (15) but no more than
thirty (30) days prior to each Redemption Date, written notice shall be mailed,
first class postage prepaid, to each holder of record (at the close of business
on the business day next preceding the day on which notice is given) of the
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock to be redeemed, at the address last shown on the
records of this corporation for such holder, notifying such holder of the
redemption to be effected on the applicable Redemption Date, specifying the
number of shares to be redeemed from such holder, the Redemption Date, the
applicable Redemption Price, the place at which payment may be obtained and
calling upon such holder to surrender to this corporation, in the manner and at
the place designated, his, her or its certificate or certificates representing
the shares to be redeemed (the "Redemption Notice"). Except as provided in
subsection (3)(c), on or after each Redemption Date, each holder of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D
Preferred Stock to be redeemed on such Redemption Date shall surrender to this
corporation the certificate or certificates representing such shares, in the
manner and at the place designated in the Redemption Notice, and thereupon the
applicable Redemption Price of such shares shall be payable 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. In the event less
than all the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares.
(c) From and after each Redemption Date, unless there shall have
been a default in payment of any applicable Redemption Price, all rights of the
holders of shares of Preferred Stock designated for redemption on such
Redemption Date in the Redemption Notice as holders of such Preferred Stock
(except the right to receive the applicable Redemption Price without interest
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
this corporation or be deemed to be outstanding for any purpose whatsoever.
Subject to the rights of series of Preferred Stock that may from time to time
come into existence, if the funds of this corporation legally available for
redemption of shares of such series of Preferred Stock on a Redemption Date are
insufficient to redeem the total number of shares of the Preferred Stock to be
redeemed on such date, those funds that are legally available will be used to
redeem the maximum possible number of such shares ratably among the holders of
such shares to be redeemed such that each holder of a share of Preferred Stock
receives for such share the same percentage of the applicable Redemption Price
as each other holder receives for any such share. The shares of Preferred
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Stock not redeemed shall remain outstanding and entitled to all the rights and
preferences provided herein and the imputed dividend as provided for in clauses
(i)(c), (ii)(c), (iii)(c), iv(c), v(c) and vi(c) of Section 3(a) shall continue
to accrue with respect to such shares. Subject to the rights of series of
Preferred Stock that may from time to time come into existence, at any time
thereafter when additional funds of this corporation are legally available for
the redemption of shares of Preferred Stock, such funds will immediately be used
to redeem the balance of the shares that this corporation has become obliged to
redeem on any Redemption Date but that it has not redeemed.
4. Conversion. The holders of the Series A Preferred Stock, Series
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B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock shall
have conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series A Preferred Stock,
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Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock
shall be convertible, at the option of the holder thereof, at any time after the
date of issuance of such share, at the office of this corporation or any
transfer agent for such stock, into such number of fully paid and nonassessable
shares of Common Stock as is determined by dividing the applicable Original
Issue Price by the Conversion Price applicable to such series, determined as
hereafter provided, in effect on the date the certificate is surrendered for
conversion. The initial Conversion Price per share for each series shall be the
Original Issue Price for such series; provided, however, that the Conversion
Price for the Preferred Stock shall be subject to adjustment as set forth in
subsection 4(d).
(b) Automatic Conversion. Each share of Series A Preferred
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Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock shall automatically be converted into shares of Common Stock at the
Conversion Price at the time in effect for such series of Preferred Stock
immediately upon the earlier of (i) this corporation's sale of its Common Stock
in a public offering pursuant to a registration statement on Form S-1 or Form
SB-2 or any comparable successor form then in effect under the Securities Act of
1933, as amended, the public offering price of which was not less than $9.92 per
share (adjusted to reflect subsequent stock dividends, stock splits or
recapitalization occurring after the filing of this Amended and Restated
Certificate of Incorporation) and $25,000,000 in the aggregate, (ii) if in
connection with an underwritten public offering of the corporation's Common
Stock, the date specified by written consent or agreement of the holders of two-
thirds of the then outstanding shares of Preferred Stock voting together as a
single class or (iii) the date specified by written consent or agreement of the
holders of two-thirds of the then outstanding shares of Series A Preferred
Stock, with respect to conversion of the Series A Preferred Stock, the date
specified by written consent or agreement of the holders of seventy-five percent
(75%) of the then outstanding shares of Series B Preferred Stock, with respect
to conversion of the Series B Preferred Stock, the date specified by written
consent or agreement of the holders of seventy-five percent (75%) of the then
outstanding shares of Series C Preferred Stock, with respect to conversion of
the Series C Preferred Stock, and the date specified by written consent or
agreement of the holders of seventy-five percent (75%) of the then outstanding
shares of Series D Preferred Stock, with respect to conversion of the Series D
Preferred Stock.
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(c) Mechanics of Conversion. Before any holder of Series A
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Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D
Preferred Stock shall be entitled to convert the same into shares of Common
Stock, such holder shall surrender the certificate or certificates therefor,
duly endorsed, at the office of this corporation or of any transfer agent for
the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock
or Series D Preferred Stock, and shall give written notice to this corporation
at its principal corporate office, of the election to convert the same and shall
state therein the name or names in which the certificate or certificates for
shares of Common Stock are to be issued. This corporation shall, as soon as
practicable thereafter, issue and deliver at such office to such holder of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, or
Series D Preferred Stock or to the nominee or nominees of such holder, a
certificate or certificates for the number of shares of Common Stock to which
such holder shall be entitled as aforesaid. Such conversion shall be deemed to
have been made immediately prior to the close of business on the date of such
surrender of the shares of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock or Series D Preferred Stock to be converted, and the
person or persons entitled to receive the shares of Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock as of such date. If the conversion is in
connection with an underwritten offering of securities registered pursuant to
the Securities Act of 1933, as amended, the conversion may, at the option of any
holder tendering Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock or Series D Preferred Stock for conversion, be conditioned upon
the closing with the underwriters of the sale of securities pursuant to such
offering, in which event the person(s) entitled to receive the Common Stock upon
conversion of the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock or Series D Preferred Stock shall not be deemed to have
converted such Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock or Series D Preferred Stock until immediately prior to the
closing of such sale of securities.
(d) Conversion Price Adjustments of Preferred Stock for Splits
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and Combinations. The applicable Conversion Price of each series of the
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Preferred Stock shall be subject to adjustment from time to time as follows:
(i) (A) If this corporation shall issue, within one year
after the date upon which any shares of Series B Preferred Stock, Series C
Preferred Stock or Series D Preferred Stock were first issued (each, a "Purchase
Date"), any Additional Stock (as defined below) without consideration or for a
consideration per share less than the Conversion Price for such series in effect
immediately prior to the issuance of such Additional Stock, the Conversion Price
for such series in effect immediately prior to each such issuance shall
forthwith (except as otherwise provided in this clause (i)) be adjusted to a
price equal to the price paid per share for such Additional Stock. The
provisions of this paragraph 4(d)(i)(A) shall terminate on the first anniversary
of the Purchase Date for each such series and shall not apply to any shares of
Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock
held by a holder of such shares if (a) the holders of shares of Series B
Preferred Stock, Series C Preferred Stock or Series D Preferred Stock are
entitled to exercise the right of first offer (the "Right of First Offer") set
forth in Section 2.5 of the Third Amended and Restated Investors' Rights
Agreement, dated January __, 2000, by and among this corporation and certain
investors, as amended from time to time (the "Rights Agreement"), with respect
to an equity financing of this corporation (an
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"Equity Financing"), (b) this corporation has complied with its notice
obligations, or such obligations have been waived, under the Right of First
Offer with respect to such Equity Financing and this corporation thereafter
proceeds to consummate the Equity Financing, and (c) such holder does not by
exercise of such holder's Right of First Offer acquire his, her or its pro rata
share (as described in Section 2.5 of the Rights Agreement) offered in such
Equity Financing; provided, however, that the foregoing limitations of this
-------- -------
sentence shall not apply in connection with a particular Equity Financing if,
pursuant to the written request of this corporation, such holder agrees in
writing to waive his, her or its Right of First Offer with respect to such
Equity Financing.
(B) If this corporation shall issue any Additional Stock
without consideration or for a consideration per share less than the Conversion
Price for the Series B Preferred Stock, Series C Preferred Stock or Series D
Preferred Stock in effect immediately prior to the issuance of such Additional
Stock and the Conversion Price was not adjusted pursuant to Article 4(d)(i)(A)
above, the Conversion Price for such series in effect immediately prior to each
such issuance shall forthwith (except as otherwise provided in this clause (i))
be adjusted to a price determined by multiplying such Conversion Price by a
fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such issuance (including shares of Common Stock
deemed to be issued pursuant to subsection 4(d)(i)(F)(1) or (2)) plus the number
of shares of Common Stock that the aggregate consideration received by this
corporation for such issuance would purchase at such Conversion Price; and the
denominator of which shall be the number of shares of Common Stock outstanding
immediately prior to such issuance (including shares of Common Stock deemed to
be issued pursuant to subsection 4(d)(i)(F)(1) or (2)) plus the number of shares
of such Additional Stock.
(C) No adjustment of the Conversion Price for the Series B
Preferred Stock, Series C Preferred Stock or Series D Preferred Stock shall be
made in an amount less than one cent per share, provided that any adjustments
that are not required to be made by reason of this sentence shall be carried
forward and shall be either taken into account in any subsequent adjustment made
prior to three (3) years from the date of the event giving rise to the
adjustment being carried forward, or shall be made at the end of three (3) years
from the date of the event giving rise to the adjustment being carried forward.
Except to the limited extent provided for in subsections 4(d)(i)(F)(3) and
(F)(4), no adjustment of such Conversion Price pursuant to this subsection
4(d)(i) shall have the effect of increasing the Conversion Price above the
Conversion Price in effect immediately prior to such adjustment.
(D) In the case of the issuance of Common Stock for cash,
the consideration shall be deemed to be the amount of cash paid therefor before
deducting any reasonable discounts, commissions or other expenses allowed, paid
or incurred by this corporation for any underwriting or otherwise in connection
with the issuance and sale thereof.
(E) In the case of the issuance of the Common Stock for a
consideration in whole or in part other than cash, the consideration other than
cash shall be deemed to be the fair value thereof as determined by the Board of
Directors irrespective of any accounting treatment.
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<PAGE>
(F) In the case of the issuance (whether before, on or
after the applicable Purchase Date) of options to purchase or rights to
subscribe for Common Stock, securities by their terms convertible into or
exchangeable for Common Stock or options to purchase or rights to subscribe for
such convertible or exchangeable securities, the following provisions shall
apply for all purposes of this subsection 4(d)(i) and subsection 4(d)(ii):
(1) The aggregate maximum number of shares of Common
Stock deliverable upon exercise (assuming the satisfaction of any conditions to
exercisability, including without limitation, the passage of time, but without
taking into account potential antidilution adjustments) of such options to
purchase or rights to subscribe for Common Stock shall be deemed to have been
issued at the time such options or rights were issued and for a consideration
equal to the consideration (determined in the manner provided in subsections
4(d)(i)(D) and (d)(i)(E)), if any, received by this corporation upon the
issuance of such options or rights plus the minimum exercise price provided in
such options or rights (without taking into account potential antidilution
adjustments) for the Common Stock covered thereby.
(2) The aggregate maximum number of shares of Common
Stock deliverable upon conversion of, or in exchange (assuming the satisfaction
of any conditions to convertibility or exchangeability, including, without
limitation, the passage of time, but without taking into account potential
antidilution adjustments) for, any such convertible or exchangeable securities
or upon the exercise of options to purchase or rights to subscribe for such
convertible or exchangeable securities and subsequent conversion or exchange
thereof shall be deemed to have been issued at the time such securities were
issued or such options or rights were issued and for a consideration equal to
the consideration, if any, received by this corporation for any such securities
and related options or rights (excluding any cash received on account of accrued
interest or accrued dividends), plus the minimum additional consideration, if
any, to be received by this corporation (without taking into account potential
antidilution adjustments) upon the conversion or exchange of such securities or
the exercise of any related options or rights (the consideration in each case to
be determined in the manner provided in subsections 4(d)(i)(D) and (d)(i)(E)).
(3) In the event of any change in the number of shares
of Common Stock deliverable or in the consideration payable to this corporation
upon exercise of such options or rights or upon conversion of or in exchange for
such convertible or exchangeable securities, including, but not limited to, a
change resulting from the antidilution provisions thereof (unless such options
or rights or convertible or exchangeable securities were merely deemed to be
included in the numerator and denominator for purposes of determining the number
of shares of Common Stock outstanding for purposes of subsection 4(d)(i)(B)),
the Conversion Price of the Series B Preferred Stock, the Series C Preferred
Stock and the Series D Preferred Stock, to the extent in any way affected by or
computed using such options, rights or securities, shall be recomputed to
reflect such change, but no further adjustment shall be made for the actual
issuance of Common Stock or any payment of such consideration upon the exercise
of any such options or rights or the conversion or exchange of such securities.
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<PAGE>
(4) Upon the expiration of any such options or rights,
the termination of any such rights to convert or exchange or the expiration of
any options or rights related to such convertible or exchangeable securities,
the Conversion Price of the Series B Preferred Stock, the Series C Preferred
Stock and the Series D Preferred Stock, to the extent in any way affected by or
computed using such options, rights or securities or options or rights related
to such securities (unless such options or rights were merely deemed to be
included in the numerator and denominator for purposes of determining the number
of shares of Common Stock outstanding for purposes of subsection 4(d)(i)(B)),
shall be recomputed to reflect the issuance of only the number of shares of
Common Stock (and convertible or exchangeable securities that remain in effect)
actually issued upon the exercise of such options or rights, upon the conversion
or exchange of such securities or upon the exercise of the options or rights
related to such securities.
(5) The number of shares of Common Stock deemed issued
and the consideration deemed paid therefor pursuant to subsections 4(d)(i)(F)(1)
and (2) shall be appropriately adjusted to reflect any change, termination or
expiration of the type described in either subsection 4(d)(i)(F)(3) or (4).
(ii) "Additional Stock" shall mean any shares of Common Stock
issued (or deemed to have been issued pursuant to subsection 4(d)(i)(F)) by this
corporation after the Purchase Date other than:
(A) Common Stock issued pursuant to a transaction described
in subsection 4(d)(iii) hereof;
(B) Common Stock issued upon conversion of the Preferred
Stock;
(C) Up to 24,217,638 shares of Common Stock (or such other
number as is unanimously approved by the corporation's Board of Directors)
issuable or issued to employees, consultants, directors or vendors (if in
transactions with primarily non-financing purposes) of this corporation directly
or pursuant to any stock option plans or restricted stock plan approved by the
Board of Directors of this corporation assumed pursuant to an acquisition;
(D) Shares of Common Stock or options or warrants
exercisable for Common Stock issued with the approval of the Board of Directors
to banks, savings and loan associations, equipment lessors or other similar
lending institutions in connection with such entities providing working capital
credit facilities or equipment financing to the corporation;
(E) Shares of Common Stock issued or issuable with the
approval of at least seventy-five percent (75%) of the members of the
corporation's Board of Directors pursuant to the acquisition of another business
entity or business segment of any such entity by the corporation by merger,
purchase of substantially all the assets or other reorganization (other than a
merger or other transaction described in Section 2(c)); or
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<PAGE>
(F) Shares of Common Stock issued with the approval of
at least seventy-five percent (75%) of the members of the corporation's Board of
Directors in connection with business combinations or corporate partnering
agreements approved by the Board of Directors.
(iii) In the event this corporation should at any time or
from time to time after the Purchase Date fix a record date for the effectuation
of a split or subdivision of the outstanding shares of Common Stock or the
determination of holders of Common Stock entitled to receive a dividend or other
distribution payable in additional shares of Common Stock or other securities or
rights convertible into, or entitling the holder thereof to receive directly or
indirectly, additional shares of Common Stock (hereinafter referred to as
"Common Stock Equivalents") without payment of any consideration by such holder
for the additional shares of Common Stock or the Common Stock Equivalents
(including the additional shares of Common Stock issuable upon conversion or
exercise thereof), then, as of such record date (or the date of such dividend
distribution, split or subdivision if no record date is fixed), the Conversion
Price of the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock shall be appropriately decreased so
that the number of shares of Common Stock issuable on conversion of each share
of such series shall be increased in proportion to such increase of the
aggregate of shares of Common Stock outstanding and those issuable with respect
to such Common Stock Equivalents with the number of shares issuable with respect
to Common Stock Equivalents determined from time to time in the manner provided
for deemed issuances in subsection 4(d)(i)(F).
(iv) If the number of shares of Common Stock outstanding at
any time after the Purchase Date is decreased by a combination of the
outstanding shares of Common Stock, then, following the record date of such
combination, the Conversion Price for the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock and the Series D Preferred Stock
shall be appropriately increased so that the number of shares of Common Stock
issuable on conversion of each share of such series shall be decreased in
proportion to such decrease in outstanding shares.
(e) Other Distributions. In the event this corporation shall
-------------------
declare a distribution payable in securities of other persons, evidences of
indebtedness issued by this corporation or other persons, assets (excluding cash
dividends) or options or rights not referred to in subsection 4(d)(i), then, in
each such case for the purpose of this subsection 4(e), the holders of the
Series A Preferred Stock, the Series B Preferred Stock, the Series C Preferred
Stock and the Series D Preferred Stock shall be entitled to a proportionate
share of any such distribution as though they were the holders of the number of
shares of Common Stock of this corporation into which their shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D
Preferred Stock are convertible as of the record date fixed for the
determination of the holders of Common Stock of this corporation entitled to
receive such distribution.
(f) Recapitalizations. If at any time or from time to time there
shall be a recapitalization of the Common Stock (other than a subdivision,
combination, reorganization or merger or sale of assets transaction provided for
elsewhere in this Section 4 or in Section 2), provision shall be made so that
the holders of the Series A Preferred Stock, Series B Preferred
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<PAGE>
Stock, Series C Preferred Stock and Series D Preferred Stock shall thereafter be
entitled to receive upon conversion of such series of Preferred Stock, in lieu
of each share of Common Stock otherwise issuable upon such conversion, the
number of shares of stock or other securities or property of the Company or
otherwise, to which a holder of Common Stock deliverable upon conversion would
have been entitled on such recapitalization. In any such case, appropriate
adjustment shall be made in the application of the provisions of this Section 4
with respect to the rights of the holders of the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock
after the recapitalization to the end that the provisions of this Section 4
(including adjustment of the Conversion Price then in effect and the number of
shares purchasable upon conversion of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock) shall be
applicable after that event as nearly equivalent as may be practicable.
(g) No Impairment. This corporation shall not, by amendment of its
-------------
Amended and Restated Certificate of Incorporation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by this corporation, but will at all times in good faith assist in the
carrying out of all the provisions of this Section 4 and in the taking of all
such action as may be necessary or appropriate in order to protect the
Conversion Rights of the holders of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock against
impairment.
(h) No Fractional Shares and Certificate as to Adjustments.
------------------------------------------------------
(i) No fractional shares shall be issued upon the conversion
of any share or shares of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock or Series D Preferred Stock, and the number of
shares of Common Stock to be issued shall be rounded to the nearest whole share.
Whether or not fractional shares are issuable upon such conversion shall be
determined on the basis of the total number of shares of Preferred Stock the
holder is at the time converting into Common Stock and the number of shares of
Common Stock issuable upon such aggregate conversion.
(ii) Upon the occurrence of each adjustment or readjustment of
the Conversion Price of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock or Series D Preferred Stock pursuant to this Section 4,
this corporation, at its expense, shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and prepare and furnish to each
holder of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock a certificate setting forth such adjustment
or readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. This corporation shall, upon the written request at any
time of any holder of Series A Preferred Stock, Series B Preferred Stock, Series
C Preferred Stock or Series D Preferred Stock, furnish or cause to be furnished
to such holder a like certificate setting forth (A) such adjustment and
readjustment, (B) the Conversion Price for the Series A Preferred Stock, Series
B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock as the
case may be, at the time in effect, and (C) the number of shares of Common Stock
and the amount, if any, of other property that at the time would be received
upon the conversion of such series of Preferred Stock.
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(i) Notices of Record Date. In the event of any taking by this
----------------------
corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, this
corporation shall mail to each holder of Preferred Stock, at least twenty (20)
days prior to the date specified therein, a notice specifying the date on which
any such record is to be taken for the purpose of such dividend, distribution or
right, and the amount and character of such dividend, distribution or right.
(j) Reservation of Stock Issuable Upon Conversion. This
---------------------------------------------
corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock, solely for the purpose of effecting the
conversion of the shares of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock and Series D Preferred Stock, such number of its
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock; and if
at any time the number of authorized but unissued shares of Common Stock shall
not be sufficient to effect the conversion of all then outstanding shares of the
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock, in addition to such other remedies as shall be
available to the holders of such Preferred Stock, this corporation will take
such corporate action as may, in the opinion of its counsel, be necessary to
increase its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purposes, including, without limitation,
engaging in best efforts to obtain the requisite stockholder approval of any
necessary amendment to its Amended and Restated Certificate of Incorporation.
(k) Notices. Any notice required by the provisions of this
-------
Section 4 to be given to the holders of shares of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock
shall be deemed given if deposited in the United States mail, postage prepaid,
and addressed to each holder of record at his address appearing on the books of
this corporation.
5. Voting Rights.
-------------
(a) General Voting Rights. The holder of each share of Series A
---------------------
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock shall have the right to one vote for each share of Common Stock
into which such Preferred Stock could then be converted, and with respect to
such vote, such holder shall have full voting rights and powers equal to the
voting rights and powers of the holders of Common Stock, and shall be entitled,
notwithstanding any provision hereof, to notice of any stockholders' meeting in
accordance with the bylaws of this corporation, and shall be entitled to vote,
together with holders of Common Stock, with respect to any question upon which
holders of Common Stock have the right to vote. Fractional votes shall not,
however, be permitted and any fractional voting rights available on an as-
converted basis (after aggregating all shares into which shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock held by each holder could be converted) shall be rounded to the
nearest whole number (with one-half being rounded upward).
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<PAGE>
(b) Voting for the Election of Directors. As long as at least a
------------------------------------
majority of Series A Preferred Stock originally issued remain outstanding, the
holders of such shares of Series A Preferred Stock shall be entitled to elect
two (2) directors of this corporation at each annual election of directors. The
holders of outstanding Common Stock shall be entitled to elect three (3)
directors of this corporation at each annual election of directors. The holders
of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock
and Series D Preferred Stock (voting together as a single class and not as
separate series, and on an as-converted basis) shall be entitled to elect any
remaining directors of this corporation.
In the case of any vacancy (other than a vacancy caused by
removal) in the office of a director occurring among the directors elected by
the holders of a class or series of stock pursuant to this Section 5(b), the
remaining directors so elected by that class or series may by affirmative vote
of a majority thereof (or the remaining director so elected if there be but one,
or if there are no such directors remaining, by the affirmative vote of the
holders of a majority of the shares of that class or series), elect a successor
or successors to hold office for the unexpired term of the director or directors
whose place or places shall be vacant. Any director who shall have been elected
by the holders of a class or series of stock or by any directors so elected as
provided in the immediately preceding sentence hereof may be removed during the
aforesaid term of office, either with or without cause, by, and only by, the
affirmative vote of the holders of the shares of the class or series of stock
entitled to elect such director or directors, given either at a special meeting
of such stockholders duly called for that purpose or pursuant to a written
consent of stockholders, and any vacancy thereby created may be filled by the
holders of that class or series of stock represented at the meeting or pursuant
to written consent.
6. Protective Provisions. Subject to the rights of series of
---------------------
Preferred Stock that may from time to time come into existence, so long as any
shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock are outstanding, this corporation shall not
without first obtaining the approval (by vote or written consent, as provided by
law) of the holders of at least two-thirds of the then outstanding shares of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock voting together as a single class and not as separate
series:
(a) sell, convey, or otherwise dispose of all or substantially
all of its property or business or merge into or consolidate with any other
corporation (other than a wholly-owned subsidiary corporation) unless the
stockholders of this corporation who own more than fifty percent (50%) of the
voting power of this corporation immediately prior to such transaction will own
more than fifty percent (50%) of the voting power of the surviving corporation
or effect any transaction or series of related transactions in which more than
fifty percent (50%) of the voting power of this corporation is disposed of;
(b) amend, alter or change the Amended and Restated Certificate
of Incorporation or Bylaws of this corporation so as to affect adversely the
rights, preferences or privileges of the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock or the Series D Preferred Stock,
provided that the consent of the holders of seventy-five percent (75%) of the
shares of a particular series of Preferred Stock shall be required for any
amendment, alteration or change that adversely affects such series in a
different manner than the other series of Preferred Stock;
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(c) increase or decrease (other than by redemption or
conversion) the total number of authorized shares of Preferred Stock, provided
that the consent of the holders of seventy-five percent (75%) of the shares of a
particular series of Preferred Stock shall be required for such increase or
decrease in the total number of authorized shares of such series;
(d) authorize or issue, or effect any reclassification, or
obligate itself to issue, any other equity security, including any other
security convertible into or exercisable for any equity security, having a
preference over or on parity with the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock or the Series D Preferred Stock
with respect to voting, dividends, redemption or upon liquidation, provided that
the consent of the holders of seventy-five percent (75%) of the shares of a
particular series of Preferred Stock shall be required for the authorization or
issuance of any equity security having a preference over such series in a
different manner than the other series of Preferred Stock;
(e) declare or pay any dividends on its Common Stock or redeem,
purchase or otherwise acquire (or pay into or set aside for a sinking fund for
such purpose) any share or shares of Preferred Stock or Common Stock, or rights
to purchase or acquire Preferred Stock or Common Stock (whether by exercise,
conversion or exchange); provided, however, that this restriction shall not
apply to the repurchase of shares of Common Stock from employees, officers,
directors, consultants or other persons performing services for this corporation
or any subsidiary pursuant to agreements under which this corporation has the
option to repurchase such shares at cost upon the occurrence of certain events,
such as the termination of employment;
(f) amend the Bylaws of the corporation to increase, or
otherwise take any action that would have the effect of increasing, the
authorized number of directors of the corporation to more than six (6);
(g) authorize or issue, or obligate itself to issue, any equity
security, including any other security convertible into or exercisable for any
equity security, of the corporation to any employee of the corporation, other
than up to 24,217,638 shares of Common Stock (or such other number as is
unanimously approved by this corporation's Board of Directors) that may be
reserved for issuance or otherwise issued under any stock option or other plan
or agreement of the corporation, including, but not limited to, the
corporation's 1997 Stock Option/Stock Issuance Plan; or
(h) amend any of the provisions set forth in this Subsection 6;
provided, however, that any amendment to any particular provision shall require
the same percentage or series vote as is required in such provision.
7. Status of Converted or Redeemed Stock. In the event any shares
-------------------------------------
of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock
or Series D Preferred Stock shall be redeemed or converted pursuant to Section 3
or Section 4 hereof, the shares so converted or redeemed shall be cancelled and
shall not be issuable by this corporation. The Amended and Restated Certificate
of Incorporation of this corporation shall be appropriately amended to effect
the corresponding reduction in this corporation's authorized capital stock.
C. Common Stock.
------------
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1. Dividend Rights. Subject to the prior rights of holders of all
---------------
classes of stock at the time outstanding having prior rights as to dividends,
the holders of the Common Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of any assets of this corporation
legally available therefor, such dividends as may be declared from time to time
by the Board of Directors.
2. Liquidation Rights. Upon the liquidation, dissolution or winding
------------------
up of this corporation, the assets of this corporation shall be distributed as
provided in Section B2 of this Article IV.
3. Redemption. The Common Stock is not redeemable.
----------
4. Voting Rights. The holder of each share of Common Stock shall
-------------
have the right to one vote, and shall be entitled to notice of any stockholders'
meeting in accordance with the bylaws of this corporation, and shall be entitled
to vote upon such matters and in such manner as may be provided by law.
ARTICLE V
Except as otherwise provided in this Amended and Restated Certificate
of Incorporation, in furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, repeal,
alter, amend and rescind any or all of the Bylaws of this corporation.
ARTICLE VI
Subject to Section B.6 of Article IV of this Amended and Restated
Certificate of Incorporation, the number of directors of this corporation shall
be fixed from time to time by a bylaw or amendment thereof duly adopted by the
Board of Directors or by the stockholders.
ARTICLE VII
Elections of directors need not be by written ballot unless the Bylaws
of this corporation shall so provide.
ARTICLE VIII
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of this corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of this corporation.
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ARTICLE IX
A director of this corporation shall, to the fullest extent permitted
by the General Corporation Law of Delaware as it now exists or as it may
hereafter be amended, not be personally liable to this corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
this corporation or its stockholders, (ii) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the General Corporation Law, or (iv) for any
transaction from which the director derived any improper personal benefit. If
the General Corporation Law of Delaware is amended, after approval by the
stockholders of this Article, to authorize corporation action further
eliminating or limiting the personal liability of directors, then the liability
of a director of this corporation shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law of Delaware, as so amended.
Any amendment, repeal or modification of this Article IX, or the
adoption of any provision of this Amended and Restated Certificate of
Incorporation inconsistent with this Article IX, by the stockholders of this
corporation shall not apply to or adversely affect any right or protection of a
director of this corporation existing at the time of such amendment, repeal,
modification or adoption.
ARTICLE X
To the fullest extent permitted by applicable law, this corporation is
authorized to provide indemnification of (and advancement of expenses to) agents
of this corporation (and any other persons to which General Corporation Law of
Delaware permits this corporation to provide indemnification) through bylaw
provisions, agreements with such agents or other persons, vote of stockholders
or disinterested directors or otherwise, in excess of the indemnification and
advancement otherwise permitted by Section 145 of the General Corporation Law of
Delaware, subject only to limits created by applicable provisions of the General
Corporation Law of Delaware (statutory or non-statutory), with respect to
actions for breach of duty to this corporation, its stockholders, and others.
Any amendment, repeal or modification of the foregoing provisions of
this Article X shall not adversely affect any right or protection of a director,
officer, agent, or other person existing at the time of, or increase the
liability of any director of this corporation with respect to any acts or
omissions of such director, officer or agent occurring prior to such amendment,
repeal or modification.
ARTICLE XI
Subject to Section B.6 of Article IV of this Amended and Restated
Certificate of Incorporation, this corporation reserves the right to amend,
alter, change or repeal any provision contained in this Amended and Restated
Certificate of Incorporation in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject
to this reservation.
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* * *
FOUR: That thereafter said amendment and restatement was duly adopted
in accordance with the provisions of Section 242 and Section 245 of the General
Corporation Law of Delaware by obtaining a majority vote of the Common Stock, in
favor of said amendment and restatement in the manner set forth in Section 222
of the General Corporation Law of Delaware.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY.]
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IN WITNESS WHEREOF, the undersigned has executed this Amended and
Restated Certificate of Incorporation on January 28, 2000.
/s/ Scott L. Harmon
-------------------------------------------
Scott L. Harmon
President and Chief Executive Officer
