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EXHIBIT 3.5
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
EXTRICITY, INC.
Extricity, Inc., a corporation organized and existing under the laws of the
State of Delaware, hereby certifies as follows:
FIRST: The name of the corporation is Extricity, Inc.
SECOND: The corporation was incorporated on March 21, 2000 under the name
Extricity (Delaware), Inc. pursuant to the General Corporation Law of the State
of Delaware.
THIRD: Pursuant to Sections 242 and 245 of the General Corporation Law of
the State of Delaware, this Amended and Restated Certificate of Incorporation
restates, integrates and further amends the provisions of the Certificate of
Incorporation of the corporation, as previously amended.
FOURTH: The Certificate of Incorporation of the corporation shall be
amended and restated to read in full as follows:
ARTICLE I
The name of the corporation is Extricity, Inc.
ARTICLE II
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 III
This corporation is authorized to issue two classes of shares, designated
"Common Stock" and "Preferred Stock," respectively. The number of shares of
Common Stock authorized to be issued is fifty million (50,000,000) shares. The
number of shares of Preferred Stock authorized to be issued is eighteen million
one hundred twenty six thousand six hundred fifty (18,126,650) shares, 3,055,000
of which are designated as "Series A Preferred Stock", 1,976,469 of which are
designated as "Series B Preferred Stock", 2,055,760 of which are designated as
"Series C Preferred Stock", 1,187,575 of which are designated as "Series D
Preferred Stock", 2,051,846 of which are designated as "Series E Preferred
Stock", and 7,800,000 of which are designated as "Series F Preferred Stock".
Both the Preferred Stock and the Common Stock shall have a par value of $0.00001
per share.
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ARTICLE IV
The rights, preferences, privileges and restrictions granted to and imposed
on the Preferred Stock and the Common Stock are as follows:
1. Definitions. For purposes of this Article VI, the following
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definitions shall apply:
1.1. "Board" shall mean the Board of Directors of the Company.
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1.2. "Company" shall mean this corporation.
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1.3. "Common Stock" shall mean the Common Stock, par value $0.00001
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per share, of the Company.
1.4. "Common Stock Dividend" shall mean a stock dividend declared and
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paid on the Common Stock that is payable in shares of Common Stock.
1.5. "Dividend Rate" shall mean $0.05 per share per annum for the
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Series A Preferred Stock, $0.05 per share per annum for the Series B Preferred
Stock, $0.05 per share per annum for the Series C Preferred Stock, $0.05 per
share per annum for the Series D Preferred Stock, $0.05 per share per annum for
the Series E Preferred Stock, and $0.05 per share per annum for the Series F
Preferred Stock, as adjusted for any stock dividends, combinations, splits,
recapitalizations and the like with respect to such shares.
1.6. "Liquidation Preference" for the Series A Preferred Stock shall
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mean an amount per share equal to the Original Issue Price of the Series A
Preferred Stock plus all declared but unpaid dividends on the Series A Preferred
Stock, for the Series B Preferred Stock shall mean an amount per share equal to
the Original Issue Price of the Series B Preferred Stock plus all declared but
unpaid dividends on the Series B Preferred Stock, for the Series C Preferred
Stock shall mean an amount per share equal to the Original Issue Price of the
Series C Preferred Stock plus all declared but unpaid dividends on the Series C
Preferred Stock, for the Series D Preferred Stock shall mean an amount per share
equal to the Original Issue Price of the Series D Preferred Stock plus all
declared but unpaid dividends on the Series D Preferred Stock, for the Series E
Preferred Stock shall mean an amount per share equal to the Original Issue Price
of the Series E Preferred Stock plus all declared but unpaid dividends on the
Series E Preferred Stock, and for the Series F Preferred Stock shall mean an
amount per share equal to the Original Issue Price of the Series F Preferred
Stock plus all declared but unpaid dividends on the Series F Preferred Stock, as
adjusted for any stock dividends, combinations, splits, recapitalizations and
the like with respect to such shares.
1.7. "Original Issue Date" shall mean the date on which the first
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share of Series F Preferred Stock is issued by the Company.
1.8. "Original Issue Price" shall mean $1.00 per share for the Series
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A Preferred Stock, $2.75 per share for the Series B Preferred Stock, $5.10 for
the Series C Preferred Stock, $5.91 for the Series D Preferred Stock, $4.91 for
the Series E Preferred Stock, and $6.45 for the Series F Preferred Stock.
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1.9. "Permitted Repurchases" shall mean the repurchase by the Company
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of shares of Common Stock held by employees, officers, directors, consultants,
independent contractors, advisors, or other persons performing services for the
Company or a subsidiary that are subject to restricted stock purchase agreements
or stock option exercise agreements under which the Company has the option to
repurchase such shares: (i) at cost, upon the occurrence of certain events, such
as the termination of employment or services; or (ii) at any price pursuant to
the Company's exercise of a right of first refusal to repurchase such shares.
1.10. "Preferred Stock" shall mean the Series A Preferred Stock, the
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Series B Preferred Stock, the Series C Preferred Stock, the Series D Preferred
Stock, the Series E Preferred Stock and the Series F Preferred Stock,
collectively.
1.11. "Series A Preferred Stock" shall mean the Series A Preferred
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Stock, par value $0.00001 per share, of the Company.
1.12. "Series B Preferred Stock" shall mean the Series B Preferred
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Stock, par value $0.00001 per share, of the Company.
1.13. "Series C Preferred Stock" shall mean the Series C Preferred
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Stock, par value $0.00001 per share, of the Company.
1.14. "Series D Preferred Stock" shall mean the Series D Preferred
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Stock, par value $0.00001 per share, of the Company.
1.15. "Series E Preferred Stock" shall mean the Series E Preferred
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Stock, par value $0.00001 per share, of the Company.
1.16. "Series F Preferred Stock" shall mean the Series F Preferred
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Stock, par value $0.00001 per share, of the Company.
1.17. "Subsidiary" shall mean any corporation of which at least fifty
percent (50%) of the outstanding voting stock is at the time owned directly or
indirectly by the Company or by one or more of such subsidiary corporations.
2. Dividend Rights.
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2.1. Preferred Stock. In each calendar year, the holders of the then
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outstanding Preferred Stock shall be entitled to receive, when and as declared
by the Board, out of any funds and assets of the Company legally available
therefor, noncumulative dividends at the annual Dividend Rate for each such
series of Preferred Stock, prior and in preference to the payment of any
dividends on the Common Stock in such calendar year (other than a Common Stock
Dividend). No dividends (other than a Common Stock Dividend) shall be paid,
with respect to the Common Stock during any calendar year unless dividends in
the total amount of the annual Dividend Rate for each series of Preferred Stock
shall have first been paid or declared and set apart for payment to the holders
of such series of Preferred Stock, respectively, during that calendar year;
provided, however, that this restriction shall not apply to Permitted
Repurchases. Payments of any dividends to the holders of each series of
Preferred Stock shall be paid pro rata, on an equal priority, pari passu basis
according to their respective dividend preferences as set
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forth herein. Dividends on each series of Preferred Stock shall not be mandatory
or cumulative, and no rights or interest shall accrue to the holders of such
series of Preferred Stock by reason of the fact that the Company shall fail to
declare or pay dividends on such series of Preferred Stock in the amount of the
annual Dividend Rate for each such series or in any other amount in any calendar
year or any fiscal year of the Company, whether or not the earnings of the
Company in any calendar year or fiscal year were sufficient to pay such
dividends in whole or in part.
2.2. Participation Rights. If, after dividends in the full
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preferential amounts specified in this Section 2 for each series of Preferred
Stock have been paid or declared and set apart for such payment in any calendar
year of the Company, the Board shall declare additional dividends out of funds
legally available therefor in that calendar year, then such additional dividends
shall be declared pro rata on the Common Stock and the Preferred Stock on a pari
passu basis according to the number of shares of Common Stock held by such
holders, where each holder of shares of Preferred Stock is to be treated for
this purpose as holding the greatest whole number of shares of Common Stock then
issuable upon conversion of all shares of Preferred Stock held by such holder
under Section 5 hereof.
2.3. Non-Cash Dividends. Whenever a dividend provided for in this
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Section 2 shall be payable in property other than cash, the value of such
dividend shall be deemed to be the fair market value of such property as
determined in good faith by the Board.
3. Liquidation Rights. In the event of any liquidation, dissolution or
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winding up of the Company, whether voluntary or involuntary, the funds and
assets of the Company that may be legally distributed to the Company's
stockholders (the "Available Funds and Assets") shall be distributed to
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stockholders in the following manner:
3.1. Liquidation Preferences. The holders of each share of Series C
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Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F
Preferred Stock then outstanding shall be entitled to be paid, out of the
Available Funds and Assets, and prior and in preference to any payment or
distribution (or any setting apart of any payment or distribution) of any
Available Funds and Assets on any shares of Common Stock, Series A Preferred
Stock or Series B Preferred Stock, the Liquidation Preference for such Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F
Preferred Stock. If upon any liquidation, dissolution or winding up of the
Company, the Available Funds and Assets shall be insufficient to permit the
payment to holders of the Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock and Series F Preferred Stock of their full preferential
amount described in this subsection, then all of the Available Funds and Assets
shall be distributed among the holders of the then outstanding Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F
Preferred Stock pro rata, on an equal priority, pari passu basis, according to
the respective Liquidation Preferences of the Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock and Series F Preferred Stock held by
each such holder. If there are any Available Funds and Assets remaining after
the payment or distribution (or the setting aside for payment or distribution)
to the holders of the Series C Preferred Stock, Series D Preferred Stock, Series
E Preferred Stock and Series F Preferred Stock of their full preferential
amounts described above in this Section 3, the holders of each share of Series A
Preferred Stock and Series B Preferred Stock then outstanding shall be entitled
to be paid, out of the Available Funds and Assets, and prior and in preference
to any payment or distribution (or any setting apart
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of any payment or distribution) of any Available Funds and Assets on any shares
of Common Stock, the Liquidation Preference for each such series of Preferred
Stock, respectively. If upon any liquidation, dissolution or winding up of the
Company, the Available Funds and Assets (after payments required to be made to
the holders of the Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock and Series F Preferred Stock) shall be insufficient to permit
the payment to holders of the Series A Preferred Stock and Series B Preferred
Stock of their full preferential amount described in this subsection, then all
of such remaining Available Funds and Assets shall be distributed among the
holders of the then outstanding Series A Preferred Stock and Series B Preferred
Stock pro rata, on an equal priority, pari passu basis, according to the
respective Liquidation Preferences of the Series A Preferred Stock and Series B
Preferred Stock held by each such holder.
3.2. Remaining Assets. If there are any Available Funds and Assets
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remaining after the payment or distribution (or the setting aside for payment or
distribution) to the holders of the Preferred Stock of their full preferential
amounts described above in this Section 3, then all such remaining Available
Funds and Assets shall be distributed among the holders of the then outstanding
Common Stock pro rata according to the number of shares of Common Stock held by
each holder thereof.
3.3. Merger or Sale of Assets. A (i) consolidation or merger of the
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Company with or into any other corporation or corporations in which the holders
of the Company's outstanding shares immediately before such consolidation or
merger do not, immediately after such consolidation or merger, retain stock
representing a majority of the voting power of the surviving corporation of such
consolidation or merger; or (ii) a transaction or series of transactions in
which stockholders transfer more than fifty percent (50%) of the voting power of
the Company; or (iii) a sale of all or substantially all of the assets of the
Company, shall each be deemed to be a liquidation, dissolution or winding up of
the Company as those terms are used in this Section 3.
3.4. Non-Cash Consideration. If any assets of the Company distributed
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to stockholders in connection with any liquidation, dissolution, or winding up
of the Company are other than cash, then the value of such assets shall be their
fair market value as determined in good faith by the Board, except that any
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securities to be distributed to stockholders in a liquidation, dissolution, or
winding up of the Company shall be valued as follows:
(a) The method of valuation of securities not subject to
investment letter or other similar restrictions on free marketability shall be
as follows:
(i) if the securities are then traded on a national
securities exchange or the Nasdaq National Market (or a similar national
quotation system), then the value shall be deemed to be the average of the
closing prices of the securities on such exchange or system over the 30-day
period ending three (3) days prior to the distribution; and
(ii) if actively traded over-the-counter, then the value
shall be deemed to be the average of the closing bid prices over the 30-day
period ending three (3) days prior to the distribution; and
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(iii) if there is no active public market, then the value
shall be the fair market value thereof, as determined in good faith by the Board
of Directors of the Company.
(b) The method of valuation of securities subject to investment
letter or other restrictions on free marketability shall be to make an
appropriate discount from the market value determined as above in subparagraphs
(a)(i),(ii) or (iii) of this subsection to reflect the approximate fair market
value thereof, as determined in good faith by the Board.
4. Voting Rights.
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4.1. Common Stock. Each holder of shares of Common Stock shall be
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entitled to one (1) vote for each share thereof held.
4.2. Preferred Stock. Each holder of shares of Preferred Stock shall
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be entitled to the number of votes equal to the number of whole shares of Common
Stock into which such shares of Preferred Stock could be converted pursuant to
the provisions of Section 5 below at the record date for the determination of
the stockholders entitled to vote on such matters or, if no such record date is
established, the date such vote is taken or any written consent of stockholders
is solicited.
4.3. General. Subject to the foregoing provisions of this Section 4,
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each holder of Preferred Stock shall have full voting rights and powers equal to
the voting rights and powers of the holders of Common Stock, and shall be
entitled to notice of any stockholders' meeting in accordance with the Bylaws of
the Company (as in effect at the time in question) and applicable law, and shall
be entitled to vote, together with the holders of Common Stock, with respect to
any question upon which holders of Common Stock have the right to vote, except
as may be otherwise provided by applicable law. Except as otherwise expressly
provided herein or as required by law, the holders of Preferred Stock and the
holders of Common Stock shall vote together and not as separate classes.
4.4. Board of Directors Election and Removal.
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(a) Election.
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(i) So long as any shares of Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock and Series F Preferred Stock
are outstanding, the holders of the Series C Preferred Stock, Series D Preferred
Stock, Series E Preferred Stock and Series F Preferred Stock, voting together as
a separate class (with cumulative voting rights as among themselves in
accordance with Section 214 of the General Corporation Law of Delaware), shall
be entitled to elect one (1) director of the Company;
(ii) so long as an aggregate of at least 2,000,000 shares of
Series A Preferred Stock and Series B Preferred Stock are outstanding (such
number of shares being subject to proportional adjustment to reflect
combinations or subdivisions of such series of Preferred Stock or dividends
declared in shares of such stock), the holders of the Series A Preferred Stock
and Series B Preferred, voting together as a separate class (with cumulative
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voting rights as among themselves in accordance with Section 214 of the General
Corporation Law of Delaware), shall be entitled to elect three (3) directors of
the Company; and
(iii) the holders of the Common Stock, voting as a separate
class (with cumulative voting rights as among themselves in accordance with
Section 214 of the General Corporation Law of Delaware), shall be entitled to
elect one (1) director of the Company.
(b) Quorum; Required Vote.
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(i) Quorum. At any meeting held for the purpose of
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electing directors, the presence in person or by proxy of the holders of a
majority of the shares of the Series C Preferred Stock, Series D Preferred
Stock, Series E Preferred Stock and Series F Preferred Stock, together, a
majority of the Series A Preferred Stock and Series B Preferred Stock, together,
or a majority of the Common Stock then outstanding, respectively, shall
constitute a quorum of the Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock and Series F Preferred Stock, together, Series A
Preferred Stock and Series B Preferred Stock, together, or Common Stock, as the
case may be, for the election of directors to be elected solely by the holders
of the Series C Preferred Stock, Series D Preferred Stock, Series E Preferred
Stock and Series F Preferred Stock, together, Series A Preferred Stock and
Series B Preferred Stock, together, or Common Stock, respectively.
(ii) Required Vote. With respect to the election of any
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director or directors by the holders of the outstanding shares of a specified
class of stock given the right to elect such director or directors pursuant to
subsection 4.4(a) above ("Specified Stock"), that candidate or those candidates
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(as applicable) shall be elected who either: (i) in the case of any such vote
conducted at a meeting of the holders of such Specified Stock, receive the
highest number of affirmative votes of the outstanding shares of such Specified
Stock, up to the number of directors to be elected by such Specified Stock; or
(ii) in the case of any such vote taken by written consent without a meeting,
are elected by the unanimous written consent of the holders of shares of such
Specified Stock.
(c) Vacancy. If there shall be any vacancy in the office of a
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director elected by the holders of any Specified Stock pursuant to subsection
4.4(a), then a successor to hold office for the unexpired term of the office of
such director may be elected by either: (i) the remaining director or directors
(if any) in office that were so elected by the holders of such Specified Stock,
by the affirmative vote of a majority of such directors (or by the sole
remaining director elected by the holders of such Specified Stock if there be
but one), or (ii) the affirmative vote of holders of the shares of such
Specified Stock that are entitled to elect such director under subsections
4.4(a) and 4.4(b).
(d) Removal. Subject to Section 223 of the General Corporation
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Law of Delaware, any director who shall have been elected to the Board by the
holders of any Specified Stock pursuant to subsection 4.4(a) or by any director
or directors elected by holders of any Specified Stock as provided in subsection
4.4(c), may be removed during his or her term of office, either with or without
cause, by, and only by, the affirmative vote of shares representing a majority
of the voting power of all the outstanding shares of such Specified Stock
entitled to
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vote, given either at a meeting of such stockholders duly called for that
purpose or pursuant to a written consent of stockholders without a meeting, and
any vacancy created by such removal may be filled only in the manner provided in
subsection 4.4(c).
(e) Procedures. Any meeting of the holders of any Specified
Stock, and any action taken by the holders of any Specified Stock by written
consent without a meeting, in order to elect or remove a director under this
subsection 4.4, shall be held in accordance with the procedures and provisions
of the Company's Bylaws, the Delaware General Corporation Law and applicable law
regarding stockholder meetings and stockholder actions by written consent, as
such are then in effect (including but not limited to procedures and provisions
for determining the record date for shares entitled to vote).
(f) Termination. Notwithstanding anything in this subsection
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4.4 to the contrary:
(i) the provisions of subsection 4.4(a)(i) shall cease to
be of any further force or effect upon the first date that there are no longer
any outstanding shares of Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock or Series F Preferred Stock;
(ii) the provisions of subsection 4.4(a)(ii) shall cease to
be of any further force or effect upon the first date that the total number of
outstanding shares of Series A Preferred Stock and Series B Preferred Stock is
less than 2,000,000 shares (such number of shares being subject to proportional
adjustment to reflect combination or subdivisions of such series of Preferred
Stock or dividends declared in shares of such stock); and
(iii) the provisions of this subsection 4.4 shall cease to
be of any further force or effect upon the earlier to occur of: (A) a merger or
consolidation of the Company with or into any other corporation or corporations
if such consolidation or merger is approved by the stockholders of the Company
in compliance with applicable law and the Certificate of Incorporation and
Bylaws of the Company; or (B) a sale of all or substantially all of the
Company's assets.
5. Conversion Rights. The outstanding shares of Preferred Stock shall be
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convertible into Common Stock as follows:
5.1. Optional Conversion.
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(a) At the option of the holder thereof, each share of Preferred
Stock shall be convertible, at any time or from time to time, into fully paid
and nonassessable shares of Common Stock as provided herein.
(b) Each holder of Preferred Stock who elects to convert the
same into shares of Common Stock shall surrender the certificate or certificates
therefor, duly endorsed, at the office of the Company or any transfer agent for
the Preferred Stock or Common Stock, and shall give written notice to the
Company at such office that such holder elects to convert the same and shall
state therein the number of shares of Preferred Stock being converted. Thereupon
the Company shall promptly issue and deliver at such office to such holder a
certificate or
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certificates for the number of shares of Common Stock to which such holder is
entitled upon such conversion. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of such surrender of the
certificate or certificates representing the shares of Preferred Stock to be
converted, and the person entitled to receive the shares of Common Stock
issuable upon such conversion shall be treated for all purposes as the record
holder of such shares of Common Stock on such date.
5.2. Automatic Conversion.
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(a) Each share of Preferred Stock shall automatically be
converted into fully paid and nonassessable shares of Common Stock, as provided
herein: (i) immediately prior to the closing of a firm commitment underwritten
public offering pursuant to an effective registration statement filed under the
Securities Act of 1933, as amended, covering the offer and sale of Common Stock
for the account of the Company in which the aggregate public offering price
(before deduction of underwriters' discounts and commissions) equals or exceeds
$25,000,000 and in which the public offering price per share equals or exceeds
$9.00 per share before deduction of underwriters' discounts and commissions
(such price per share of Common Stock to be appropriately adjusted to reflect
Common Stock Events (as defined in subsection 5.4)); or (ii) upon the Company's
receipt of the written consent of the holders of not less than a majority of the
then outstanding shares of Preferred Stock to the conversion of all then
outstanding Preferred Stock under this Section 5.
(b) Upon the occurrence of any event specified in subparagraph
5.2(a) (i) or (ii) above, the outstanding shares of Preferred Stock shall be
converted into Common Stock automatically without the need for any further
action by the holders of such shares and whether or not the certificates
representing such shares are surrendered to the Company or its transfer agent;
provided, however, that the Company shall not be obligated to issue certificates
evidencing the shares of Common Stock issuable upon such conversion unless the
certificates evidencing such shares of Preferred Stock are either delivered to
the Company or its transfer agent as provided below, or the holder notifies the
Company or its transfer agent that such certificates have been lost, stolen or
destroyed and executes an agreement satisfactory to the Company to indemnify the
Company from any loss incurred by it in connection with such certificates. Upon
the occurrence of such automatic conversion of the Preferred Stock, the holders
of Preferred Stock shall surrender the certificates representing such shares at
the office of the Company or any transfer agent for the Preferred Stock or
Common Stock. Thereupon, there shall be issued and delivered to such holder
promptly at such office and in its name as shown on such surrendered certificate
or certificates, a certificate or certificates for the number of shares of
Common Stock into which the shares of Preferred Stock surrendered were
convertible on the date on which such automatic conversion occurred.
5.3. Conversion Price. Each share of Preferred Stock shall be
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convertible in accordance with subsection 5.1 or subsection 5.2 above into the
number of shares of Common Stock which results from dividing the Original Issue
Price for such series of Preferred Stock by the conversion price for such series
of Preferred Stock that is in effect at the time of conversion (the "Conversion
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Price"). The initial Conversion Price for the Series A Preferred Stock shall be
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$0.50 per share, the initial conversion price for the Series B Preferred Stock
shall be $1.375 per share, the initial conversion price for the Series C
Preferred Stock shall be $2.55 per share, the
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initial conversion price for the Series D Preferred Stock shall be $2.955 per
share, the initial conversion price for the Series E Preferred Stock shall be
$4.91 per share, and the initial conversion price for the Series F Preferred
Stock shall be the Original Issue Price for the Series F Preferred Stock. The
Conversion Price of each series of Preferred Stock shall be subject to
adjustment from time to time as provided below.
5.4. Adjustment Upon Common Stock Event. Upon the happening of a
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Common Stock Event (as hereinafter defined), the Conversion Price of the Series
A Preferred Stock, the Conversion Price of the Series B Preferred Stock, the
Conversion Price of the Series C Preferred Stock, the Conversion Price of the
Series D Preferred Stock, the Conversion Price of the Series E Preferred Stock
and the Conversion Price of the Series F Preferred Stock, simultaneously with
the happening of such Common Stock Event, be adjusted by multiplying the
Conversion Price of such series of Preferred Stock in effect immediately prior
to such Common Stock Event by a fraction, (i) the numerator of which shall be
the number of shares of Common Stock issued and outstanding immediately prior to
such Common Stock Event, and (ii) the denominator of which shall be the number
of shares of Common Stock issued and outstanding immediately after such Common
Stock Event, and the product so obtained shall thereafter be the Conversion
Price for such series of Preferred Stock. The Conversion Price for a series of
Preferred Stock shall be readjusted in the same manner upon the happening of
each subsequent Common Stock Event. As used herein, the term "Common Stock
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Event" shall mean, at any time or from time to time after the Original Issue
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Date, (i) the issue by the Company of additional shares of Common Stock as a
dividend or other distribution on outstanding Common Stock, (ii) a subdivision
of the outstanding shares of Common Stock into a greater number of shares of
Common Stock, or (iii) a combination of the outstanding shares of Common Stock
into a smaller number of shares of Common Stock.
5.5. Adjustments for Other Dividends and Distributions. If at any
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time or from time to time after the Original Issue Date the Company pays a
dividend or makes another distribution to the holders of the Common Stock
payable in securities of the Company other than shares of Common Stock, then in
each such event provision shall be made so that the holders of Preferred Stock
shall receive upon conversion thereof, in addition to the number of shares of
Common Stock receivable upon conversion thereof, the amount of securities of the
Company which they would have received had their Preferred Stock been converted
into Common Stock on the date of such event (or such record date, as applicable)
and had they thereafter, during the period from the date of such event (or such
record date, as applicable) to and including the conversion date, retained such
securities receivable by them as aforesaid during such period, subject to all
other adjustments called for during such period under this Section 5 with
respect to the rights of the holders of the Preferred Stock or with respect to
such other securities by their terms.
5.6. Adjustment for Reclassification, Exchange and Substitution. If
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at any time or from time to time after the Original Issue Date the Common Stock
issuable upon the conversion of the Preferred Stock is changed into the same or
a different number of shares of any class or classes of stock, whether by
recapitalization, reclassification or otherwise (other than by a Common Stock
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Event or a stock dividend, reorganization, merger, consolidation or sale of
assets provided for elsewhere in this Section 5), then in any such event each
holder of Preferred Stock shall have the right thereafter to convert such stock
into the kind and amount of stock and
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other securities and property receivable upon such recapitalization,
reclassification or other change by holders of the number of shares of Common
Stock into which such shares of Preferred Stock could have been converted
immediately prior to such recapitalization, reclassification or change, all
subject to further adjustment as provided herein or with respect to such other
securities or property by the terms thereof.
5.7. Sale of Shares Below Conversion Price.
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(a) Adjustment Formula. If at any time or from time to time
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after the Original Issue Date the Company issues or sells, or is deemed by the
provisions of this subsection 5.7 to have issued or sold, Additional Shares of
Common Stock (as hereinafter defined), otherwise than in connection with a
Common Stock Event as provided in subsection 5.4, a dividend or distribution as
provided in subsection 5.5 or a recapitalization, reclassification or other
change as provided in subsection 5.6, for an Effective Price (as hereinafter
defined) that is less than the Conversion Price for a series of Preferred Stock
in effect immediately prior to such issue or sale, then, and in each such case,
the Conversion Price for such series of Preferred Stock shall be reduced, as of
the close of business on the date of such issue or sale, to the price obtained
by multiplying such Conversion Price by a fraction:
(i) The numerator of which shall be the sum of (A) the
number of Common Stock Equivalents Outstanding (as hereinafter defined)
immediately prior to such issue or sale of Additional Shares of Common Stock
plus (B) the quotient obtained by dividing the Aggregate Consideration Received
(as hereinafter defined) by the Company for the total number of Additional
Shares of Common Stock so issued or sold (or deemed so issued and sold) by the
Conversion Price for such series of Preferred Stock in effect immediately prior
to such issue or sale; and
(ii) The denominator of which shall be the sum of (A) the
number of Common Stock Equivalents Outstanding immediately prior to such issue
of Additional Shares of Common Stock or sale plus (B) the number of Additional
Shares of Common Stock so issued or sold (or deemed so issued and sold).
(b) Certain Definitions. For the purpose of making any
-------------------
adjustment required under this subsection 5.7:
(i) "Additional Shares of Common Stock" shall mean all
---------------------------------
shares of Common Stock issued by the Company, whether or not subsequently
reacquired or retired by the Company, other than: (A) shares of Common Stock
issued or issuable upon conversion of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock and Series F Preferred Stock; (B) any shares of the Company's
Common Stock (and/or options or warrants therefor) issued to employees,
officers, directors, contractors, advisors or consultants of the Company
pursuant to incentive agreements or plans unanimously approved by the Board of
Directors of the Company; (C) any shares of the Company's Common Stock or
Preferred Stock (and/or options or warrants therefor) issued or issuable in
connection with a key customer relationship of the Company or to parties
providing the Company with equipment leases, real property leases, loans, credit
lines, guaranties of indebtedness, cash price reductions or similar benefits
with non financing purposes
11
<PAGE>
unanimously approved by the Board of Directors of the Company; or (D) securities
issued pursuant to the acquisition of another corporation or entity by the
Company by consolidation, merger, purchase of all or substantially all of the
assets, or other reorganization in which the Company acquires, in a single
transaction or series of related transactions, all or substantially all of the
assets of such other corporation or entity or fifty percent (50%) or more of the
voting power of such other corporation or entity or fifty percent (50%) or more
of the equity ownership of such other entity.
(ii) The "Aggregate Consideration Received" by the Company
--------------------------------
for any issue or sale (or deemed issue or sale) of securities shall (A) to the
extent it consists of cash, be computed at the gross amount of cash received by
the Company before deduction of any underwriting or similar commissions,
compensation or concessions paid or allowed by the Company in connection with
such issue or sale and without deduction of any expenses payable by the Company;
(B) to the extent it consists of property other than cash, be computed at the
fair value of that property as determined in good faith by the Board; and (C) if
Additional Shares of Common Stock, Convertible Securities or Rights or Options
to purchase either Additional Shares of Common Stock or Convertible Securities
are issued or sold together with other stock or securities or other assets of
the Company for a consideration which covers both, be computed as the portion of
the consideration so received that may be reasonably determined in good faith by
the Board to be allocable to such Additional Shares of Common Stock, Convertible
Securities or Rights or Options.
(iii) "Common Stock Equivalents Outstanding" shall mean the
------------------------------------
number of shares of Common Stock that is equal to the sum of (A) all shares of
Common Stock of the Company that are outstanding at the time in question, plus
(B) all shares of Common Stock of the Company issuable upon conversion of all
shares of Preferred Stock or other Convertible Securities that are outstanding
at the time in question, plus (C) all shares of Common Stock of the Company that
are issuable upon the exercise of Rights or Options that are outstanding at the
time in question assuming the full conversion or exchange into Common Stock of
all such Rights or Options that are Rights or Options to purchase or acquire
Convertible Securities into or for Common Stock.
(iv) "Convertible Securities" shall mean stock or other
securities convertible into or exchangeable for shares of Common Stock.
(v) The "Effective Price" of Additional Shares of Common
---------------
Stock shall mean the quotient determined by dividing the total number of
Additional Shares of Common Stock issued or sold, or deemed to have been issued
or sold, by the Company under this subsection 5.7, into the Aggregate
Consideration Received, or deemed to have been received, by the Company under
this subsection 5.7, for the issue of such Additional Shares of Common Stock;
and
(vi) "Rights or Options" shall mean warrants, options or
other rights to purchase or acquire shares of Common Stock or Convertible
Securities.
(c) Deemed Issuances. For the purpose of making any adjustment
----------------
to the Conversion Price of the Series A Preferred Stock, Series B Preferred
Stock, Series C
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Preferred Stock, Series D Preferred Stock, Series E Preferred Stock or Series F
Preferred Stock required under this subsection 5.7, if the Company issues or
sells any Rights or Options or Convertible Securities and if the Effective Price
of the shares of Common Stock issuable upon exercise of such Rights or Options
and/or the conversion or exchange of Convertible Securities (computed without
reference to any additional or similar protective or antidilution clauses) is
less than the Conversion Price then in effect for a series of Preferred Stock,
then the Company shall be deemed to have issued, at the time of the issuance of
such Rights, Options or Convertible Securities, that number of Additional Shares
of Common Stock that is equal to the maximum number of shares of Common Stock
issuable upon exercise or conversion of such Rights, Options or Convertible
Securities upon their issuance and to have received, as the Aggregate
Consideration Received for the issuance of such shares, an amount equal to the
total amount of the consideration, if any, received by the Company for the
issuance of such Rights or Options or Convertible Securities, plus, in the case
of such Rights or Options, the minimum amounts of consideration, if any, payable
to the Company upon the exercise in full of such Rights or Options, plus, in the
case of Convertible Securities, the minimum amounts of consideration, if any,
payable to the Company (other than by cancellation of liabilities or obligations
evidenced by such Convertible Securities) upon the conversion or exchange
thereof; provided that:
(i) if the minimum amounts of such consideration cannot be
ascertained, but are a function of antidilution or similar protective clauses,
then the Company shall be deemed to have received the minimum amounts of
consideration without reference to such clauses;
(ii) if the minimum amount of consideration payable to the
Company upon the exercise of Rights or Options or the conversion or exchange of
Convertible Securities is reduced over time or upon the occurrence or non-
occurrence of specified events other than by reason of antidilution or similar
protective adjustments, then the Effective Price shall be recalculated using the
figure to which such minimum amount of consideration is reduced; and
(iii) if the minimum amount of consideration payable to the
Company upon the exercise of such Rights or Options or the conversion or
exchange of Convertible Securities is subsequently increased other than by
reason of antidilution or similar protective adjustments, then the Effective
Price shall again be recalculated using the increased minimum amount of
consideration payable to the Company upon the exercise of such Rights or Options
or the conversion or exchange of such Convertible Securities.
No further adjustment of the Conversion Price, adjusted upon the issuance
of such Rights or Options or Convertible Securities, shall be made as a result
of the actual issuance of shares of Common Stock on the exercise of any such
Rights or Options or the conversion or exchange of any such Convertible
Securities. If any such Rights or Options or the conversion rights represented
by any such Convertible Securities shall expire without having been fully
exercised, then the Conversion Price as adjusted upon the issuance of such
Rights or Options or Convertible Securities shall be readjusted to the
Conversion Price which would have been in effect had an adjustment been made on
the basis that the only shares of Common Stock so issued were the shares of
Common Stock, if any, that there actually issued or sold on the exercise of such
Rights or Options or rights of conversion or exchange of such Convertible
Securities, and such shares of
13
<PAGE>
Common Stock, if any, were issued or sold for the consideration actually
received by the Company upon such exercise, plus the consideration, if any,
actually received by the Company for the granting of all such Rights or Options,
whether or not exercised, plus the consideration received for issuing or selling
all such Convertible Securities actually converted or exchanged, plus the
consideration, if any, actually received by the Company (other than by
cancellation of liabilities or obligations evidenced by such Convertible
Securities) on the conversion or exchange of such Convertible Securities,
provided that such readjustment shall not apply to prior conversions of
Preferred Stock.
5.8. Certificate of Adjustment. In each case of an adjustment or
-------------------------
readjustment of the Conversion Price for a series of Preferred Stock, the
Company, at its expense, shall cause its Chief Financial Officer to compute such
adjustment or readjustment in accordance with the provisions hereof and prepare
a certificate showing such adjustment or readjustment, and shall mail such
certificate, by first class mail, postage prepaid, to each registered holder of
the Preferred Stock at the holder's address as shown in the Company's books.
5.9. Fractional Shares. No fractional shares of Common Stock shall be
-----------------
issued upon any conversion of Preferred Stock. In lieu of any fractional share
to which the holder would otherwise be entitled, the Company shall pay the
holder cash equal to the product of such fraction multiplied by the Common
Stock's fair market value as determined in good faith by the Board as of the
date of conversion.
5.10. Reservation of Stock Issuable Upon Conversion. The Company
---------------------------------------------
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 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 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 Preferred Stock, the
Company 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 purpose.
5.11. Notices. Any notice required by the provisions of this Section
-------
5 to be given to the holders of shares of the Preferred Stock shall be deemed
given upon the earlier of actual receipt or deposit in the United States mail,
by certified or registered mail, return receipt requested, postage prepaid,
addressed to each holder of record at the address of such holder appearing on
the books of the Company.
5.12. No Impairment. The Company shall not avoid or seek to avoid the
-------------
observance or performance of any of the terms to be observed or performed
hereunder by the Company, but shall at all times in good faith assist in
carrying out all such action as may be reasonably necessary or appropriate in
order to protect the conversion rights of the holders of the Preferred Stock
against impairment.
14
<PAGE>
6. Restrictions and Limitations.
----------------------------
6.1. Class Protective Provisions. (a) The Company shall not, without
---------------------------
the approval, by vote or written consent, of the holders of a majority of the
Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and
Series F Preferred Stock then outstanding, voting together as a single class:
(1) redeem, repurchase, or otherwise acquire,
directly or indirectly, any shares of Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock or Series F Preferred Stock now or
hereafter outstanding;
(2) authorize or issue any other stock having
rights or preferences senior to or on a parity with the Series C Preferred
Stock, Series D Preferred Stock, Series E Preferred Stock and Series F Preferred
Stock; or
(3) amend its Certificate of Incorporation or
Bylaws to increase or decrease the authorized Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock or Series F Preferred Stock or to
change the rights, preferences, privileges, voting powers, qualifications,
restrictions, or limitations of the Series C Preferred Stock, Series D Preferred
Stock, Series E Preferred Stock or Series F Preferred Stock.
(b) So long as 2,600,000 shares of Preferred Stock remain
outstanding (such number of shares being subject to proportional adjustment to
reflect combinations or subdivisions of such Preferred Stock or dividends
declared in shares of such stock), the Company shall not, without the approval,
by vote or written consent, of the holders of a majority of the Preferred Stock
then outstanding, voting as a single class:
(1) declare and/or pay any dividend on or declare
or make any other distribution (other than Permitted Repurchases), directly or
indirectly, on account of any shares of Common Stock now or hereafter
outstanding;
(2) authorize or issue any other stock having
rights or preferences senior to or on a parity with any series of Preferred
Stock as to dividend rights, redemption, voting or liquidation preferences;
(3) merge or consolidate with or into any
corporation; acquire all or substantially all of the assets or stock of another
entity in exchange for Company stock; or sell, convey, or otherwise encumber all
or substantially all the Company's assets in a single transaction or series of
related transactions; or engage in any other transaction or series of
transactions in which stockholders transfer more than fifty percent (50%) of the
voting power of the Company; or
(4) amend its Certificate of Incorporation to
increase or decrease the authorized Preferred Stock or to change the rights,
preferences, privileges, voting powers, qualifications, restrictions, or
limitations of the Preferred Stock.
15
<PAGE>
7. Miscellaneous
-------------
7.1. No Reissuance of Preferred Stock. No share or shares of
--------------------------------
Preferred Stock acquired by the Company by reason of redemption, purchase,
conversion or otherwise shall be reissued, and all such shares shall be
canceled, retired and eliminated from the shares which the Company shall be
authorized to issue..
7.2. Determination of "Fair Market Value" by the Board. In each case
-------------------------------------------------
herein where there is reference to the Board determining the fair market value
of property or assets, such reference shall be construed to mean that if holders
of a majority of the Preferred Stock object to the valuation set by the Board,
the Board shall appoint an independent appraiser, reasonably acceptable to the
holders of Preferred Stock, to determine the fair market value of such assets or
property.
ARTICLE V
In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware:
A. The Board of Directors is expressly authorized to adopt, amend or
repeal the Bylaws of the corporation, provided, however, that the Bylaws may
only be amended in accordance with the provisions thereof.
B. Elections of directors need not be by written ballot unless the
Bylaws of the corporation shall so provide.
C. The books of the corporation may be kept at such place within or
without the State of Delaware as the Bylaws of the corporation may provide or as
may be designated from time to time by the Board of Directors.
D. On and after the closing date of the first sale of the
corporation's Common Stock pursuant to a firmly underwritten registered public
offering ("IPO""), any action required or permitted to be taken by the
stockholders of the corporation must be effected at a duly called annual or
special meeting of stockholders of the corporation and may not be effected by
any consent in writing by such stockholders. Prior to the IPO, unless otherwise
provided by law, any action which may otherwise be taken at any meeting of the
stockholders may be taken without a meeting and without prior notice, if a
written consent describing such actions is signed by the holders of outstanding
shares having not less than the minimum number of votes which would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted.
E. Special meetings of stockholders of the corporation may be called
only by (1) the Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or not there exist
any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board for adoption), (2) the Chairman of the
Board or Chief Executive Officer of the Company, or (3) the holders of shares
entitled to cast not less than ten percent (10%) of votes at the meeting.
16
<PAGE>
ARTICLE VI
A. The authorized number of directors shall initially be set at six
(6) and, thereafter, shall be fixed from time to time exclusively by the Board
of Directors pursuant to a resolution adopted by a majority of the total number
of authorized directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented to the
Board for adoption). Upon the closing of the IPO, the directors shall be divided
into three (3) classes with the term of office of the first class (Class I) to
expire at the first annual meeting of stockholders held after the IPO; the term
of office of the second class (Class II) to expire at the second annual meeting
of stockholders held after the IPO; the term of office of the third class (Class
III) to expire at the third annual meeting of stockholders held after the IPO;
and thereafter for each such term to expire at each third succeeding annual
meeting of stockholders after such election. Subject to the rights of the
holders of any series of Preferred Stock then outstanding, a vacancy resulting
from the removal of a director by the stockholders as provided in Article VI,
Section C below may be filled at a special meeting of the stockholders held for
that purpose. All directors shall hold office until the expiration of the term
for which elected and until their respective successors are elected, except in
the case of the death, resignation, or removal of any director.
B. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, newly created directorships resulting from any increase
in the authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation or other cause (other than removal from office
by a vote of the stockholders) may be filled only by a majority vote of the
directors then in office, though less than a quorum, and directors so chosen
shall hold office for a term expiring at the next annual meeting of stockholders
at which the term of office of the class to which they have been elected
expires, and until their respective successors are elected, except in the case
of the death, resignation, or removal of any director. No decrease in the number
of directors constituting the Board of Directors shall shorten the term of any
incumbent director.
C. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any directors, or the entire Board of Directors, may be
removed from office at any time, with or without cause, but only by the
affirmative vote of the holders of at least a majority of the voting power of
all of the then outstanding shares of capital stock of the corporation entitled
to vote generally in the election of directors, voting together as a single
class. Vacancies in the Board of Directors resulting from such removal may be
filled by a majority of the directors then in office, though less than a quorum,
or by the stockholders as provided in Article VI, Section A above. Directors so
chosen shall hold office for a term expiring at the next annual meeting of
stockholders at which the term of office of the class to which they have been
elected expires, and until their respective successors are elected, except in
the case of the death, resignation, or removal of any director.
17
<PAGE>
ARTICLE VII
A. Limitation on Liability. A director of the corporation shall not
-----------------------
be personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (1) for any
breach of the director's duty of loyalty to the corporation or its stockholders;
(2) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (3) under Section 174 of the Delaware
General Corporation Law; or (4) for any transaction from which the director
derived an improper personal benefit.
If the Delaware General Corporation Law hereafter is amended to further
eliminate or limit the liability of directors, then the liability of a director
of the corporation, in addition to the limitation on personal liability provided
herein, shall be limited to the fullest extent permitted by the amended Delaware
General Corporation Law.
B. Indemnification. Each person who is or is made a party or is
---------------
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification
rights than said law permitted the corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that, except
as provided in the second paragraph hereof, the corporation shall indemnify any
such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the corporation. The right to
indemnification conferred in this section shall be a contract right and shall
include the right to be paid by the corporation for any expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this section or otherwise. The
corporation may, by action of its Board of Directors, provide indemnification to
18
<PAGE>
employees and agents of the corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
If a claim under the first paragraph of this section is not paid in
full by the corporation within thirty (30) days after a written claim has been
received by the corporation, the claimant may at any time thereafter bring suit
against the corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Delaware General Corporation Law for the corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the corporation. Neither the failure of the corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
section shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the Restated Certificate of
Incorporation, Bylaw, agreement, vote of stockholders or disinterested directors
or otherwise.
C. Insurance. The corporation may maintain insurance, at its
---------
expense, to protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
D. Repeal and Modification. Any repeal or modification of the
-----------------------
foregoing provisions of this Article VII shall not adversely affect any right or
protection of any director, officer, employee or agent of the corporation
existing at the time of such repeal or modification. To the fullest extent
permitted by applicable law, the Corporation is authorized to provide
indemnification of (and advancement of expenses to) agents of the Corporation
(and any other persons to which Delaware law permits the 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
Delaware General Corporation Law, subject only to limits created by applicable
Delaware law (statutory or non-statutory), with respect to actions for breach of
duty to the Corporation, its stockholders, and others.
19
<PAGE>
E. Amendment or Repeal. The amendment or repeal of this Article VII
-------------------
shall require the approval of the holders of shares representing at least sixty-
six and two-thirds percent (66-2/3%) of the shares of the corporation entitled
to vote in the election of directors, voting as one class.
ARTICLE VIII
Except as otherwise provided in this restated certificate of incorporation,
the corporation reserves the right to amend or repeal any provision, rescind or
amend in any respect any provision contained in this restated certificate of
incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon a stockholder herein are granted subject to this
reservation.
ARTICLE IX
The name and address of the registered agent is as follows:
The Corporation Trust Company
1209 Orange Street
Wilmington, New Castle County, Delaware
* * *
FIFTH: This Amended and Restated Certificate of Incorporation was
duly adopted by the Board of Directors of the corporation.
SIXTH: This Amended and Restated Certificate of Incorporation was
duly approved by the written consent of stockholders in accordance with the
provisions of Sections 242 and 245 of the General Corporation Law of the State
of Delaware. The corporation has two classes of stock, Common Stock and
Preferred Stock. The number of outstanding shares on the record date for the
vote of the shareholders of the corporation on this matter was shares of
Common Stock, 3,055,000 shares of Series A Preferred Stock, 1,976,469 shares of
Series B Preferred Stock, 1,954,937 shares of Series C Preferred Stock,
1,187,575 shares of Series D Preferred Stock, 2,031,846 shares of Series E
Preferred Stock and 7,737,937 shares of Series E Preferred Stock. The number of
shares voting in favor of the Amended and Restated Certificate of Incorporation
set forth herein equaled or exceeded the vote required. The percentage vote
required was (i) more than 50% of the outstanding shares of Common Stock, voting
as a single class, (ii) more than 50% of the outstanding shares of all series of
Preferred Stock, voting together as a single class (on an as-converted to Common
Stock basis), (iii) more than 50% of the outstanding shares of Series F
Preferred Stock, Series E Preferred Stock, Series D Preferred Stock, and Series
C Preferred Stock, voting as a single class, and (iv) more than 50% of the
outstanding shares of Series A Preferred Stock and Series B Preferred Stock,
voting together as a single class. Pursuant to Section 228 of the General
Corporation Law of the State of Delaware, prompt written notice of this
amendment and restatement has been given to all stockholders who did not consent
to this amendment as provided in Section 228.
20
<PAGE>
IN WITNESS WHEREOF, Extricity, Inc. has caused this certificate to be
signed by its Chief Executive Officer and Assistant Secretary this ___ day of
________, 2000.
______________________________________________
Barry M. Ariko, Chairman and Chief Executive
Officer
______________________________________________
Vicki L. Randall, Esq., Assistant Secretary
21
