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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
KABIRA TECHNOLOGIES, INC.
Paul Sutton certifies, as of July 5, 2000, that:
(a) He is the President and Chief Executive Officer of Kabira
Technologies, Inc., a Delaware corporation (the "Corporation").
(b) The Certificate of Incorporation of the Corporation, originally
filed March 27, 2000 with the Delaware Secretary of State, is hereby amended and
restated in full to read in its entirety as follows:
"Article I
The name of the Corporation is "Kabira Technologies, Inc."
Article II
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of Delaware.
Article III
The Corporation is authorized to issue two classes of stock, designated
Common Stock, par value $0.001 per share ("Common Stock"), and Preferred Stock,
par value $0.001 per share ("Preferred Stock"). The number of shares of Common
Stock that the Corporation is authorized to issue is 40,000,000. The number of
shares of Preferred Stock that the Corporation is authorized to issue is
19,581,258, 1,161,899 shares of which shall be designated "Series A Preferred,"
2,628,141 shares of which shall be designated "Series B Preferred," 1,092,752
shares of which shall be designated "Series C Preferred," 1,448,466 shares of
which shall be designated "Series D Preferred," 8,500,000 shares of which shall
be designated "Series E Preferred" and 4,750,000 shares of which shall be
designated "Series F Preferred" (the Series A Preferred, Series B Preferred,
Series C Preferred, Series D Preferred, Series E Preferred and Series F
Preferred are referred to collectively as the "Preferred Stock").
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The Corporation shall from time to time in accordance with the laws of
the State of Delaware increase the authorized amount of its Common Stock if at
any time the number of shares of Common Stock remaining unissued and available
for issuance shall not be sufficient to permit conversion of the Preferred
Stock.
The relative rights, preferences, privileges and restrictions granted to
or imposed upon the respective classes of Common Stock and Preferred Stock or
the holders thereof are as follows:
Section 1. Dividends.
The holders of the outstanding Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors, out of funds legally
available therefor, dividends at the rate of $0.042 per share of Series A
Preferred per annum, $0.14 per share of Series B Preferred per annum, $0.28 per
share of Series C Preferred per annum, $0.35 per share of Series D Preferred per
annum, $0.176 per share of Series E Preferred per annum and $0.5456 per share of
Series F Preferred per annum (as adjusted for stock splits, stock dividends,
recapitalizations and the like), payable in preference and priority to any
payment of any dividend on Common Stock of the Corporation. Such dividends shall
not be cumulative, and no right to such dividends shall accrue to holders of
Preferred Stock or the holders of Common Stock unless declared by the Board of
Directors. No dividends or other distributions shall be made with respect to the
Common Stock in any fiscal year, other than dividends payable solely in Common
Stock, until a dividend has been paid to or declared and set apart upon all
shares of Preferred Stock at the annual rates set forth above during that fiscal
year. After the holders of the Preferred Stock have received their dividend
preference as set forth above, any dividends declared by the Board of Directors
out of funds legally available therefor shall be shared equally among all
outstanding shares on an as-converted basis. The holders of the outstanding
Preferred Stock of any series 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 at least a majority of such series of
Preferred Stock then outstanding, voting together as a separate series, and on
an as-converted basis.
(a) For purposes of this Section 1, unless the context otherwise
requires, a "distribution" shall mean the transfer of cash or other property
without consideration whether by way of dividend or otherwise, payable other
than in Common Stock, or the purchase or redemption of shares of the Corporation
(other than repurchases of Common Stock issued to or held by employees,
officers, directors or consultants of the Corporation or its subsidiaries upon
termination of their employment or services pursuant to agreements providing for
the right of said repurchase) for cash or property.
(b) The provisions of Sections 502 and 503 of the California
Corporations Code shall not apply with respect to repurchases by the Corporation
of shares of Common Stock issued to or held by employees, officers, directors or
consultants of the Corporation or its subsidiaries upon termination of their
employment or services pursuant to agreements providing for the right of said
repurchase.
Section 2. Liquidation Preference.
In the event of any liquidation, dissolution, or winding up of the
Corporation, either voluntary or involuntary, distributions to the shareholders
of the Corporation shall be made in the following manner:
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(a) the holders of Series A Preferred, Series B Preferred, Series C
Preferred, Series D Preferred, Series E Preferred and Series F Preferred 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) in the case of the Series A Preferred, an amount per
share equal to the sum of (A) $0.525 for each outstanding share of Series A
Preferred (the "Original Series A Issue Price") and (B) an amount equal to
declared but unpaid dividends on such share, (ii) in the case of the Series B
Preferred, an amount per share equal to the sum of (A) $1.75 for each
outstanding share of Series B Preferred (the "Original Series B Issue Price")
and (B) an amount equal to declared but unpaid dividends on such share, (iii) in
the case of the Series C Preferred, an amount per share equal to the sum of (A)
$3.50 for each outstanding share of Series C Preferred (the "Original Series C
Issue Price") and (B) an amount equal to declared but unpaid dividends on such
share, (iv) in the case of the Series D Preferred, an amount per share equal to
the sum of (A) $4.37 for each outstanding share of Series D Preferred (the
"Original Series D Issue Price") and (B) an amount equal to declared but unpaid
dividends on such share, (v) in the case of the Series E Preferred, an amount
per share equal to the sum of (A) $2.20 for each outstanding share of Series E
Preferred (the "Original Series E Issue Price") and (B) an amount equal to
declared but unpaid dividends on such share, and (vi) in the case of the Series
F Preferred, an amount per share equal to the sum of (A) $6.82 for each
outstanding share of Series F Preferred (the "Original Series F 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, Series B Preferred, Series C Preferred,
Series D Preferred, Series E Preferred and Series F Preferred shall be
insufficient to permit the payment to such holders of the full aforesaid
preferential amounts, then the entire assets and funds of this corporation
legally available for distribution shall be distributed ratably among the
holders of the Series A Preferred, Series B Preferred, Series C Preferred,
Series D Preferred, Series E Preferred and Series F Preferred in proportion to
the full preferential amount each such holder is otherwise entitled to receive
under this Section 2(a).
(b) Upon completion of the distribution required by subsection (a) of
this Section 2, all of the remaining assets of the Corporation available for
distribution to shareholders shall be distributed among the holders of Common
Stock pro rata based on the number of shares of Common Stock held by each.
(c)
(i) For purposes of this Section 2, a liquidation, dissolution
or winding up of the Corporation shall be deemed to be occasioned by, or to
include (i) the acquisition of the Corporation by another entity by means of any
transaction or series of related transactions (including, without limitation,
any reorganization, merger or consolidation, but excluding any merger effected
primarily for the purpose of changing the domicile of the Corporation) that
results in the transfer of fifty percent (50%) or more of the outstanding voting
power of the Corporation; or (ii) a sale of all or substantially all of the
assets of the Corporation.
(ii) In the event of any transaction described in Section
2(c)(i), if the consideration received by the 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:
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(I) If traded on a securities exchange or
through the Nasdaq National Market, the value shall be deemed to be the average
of the closing prices of the securities on such exchange or system over the
thirty (30) day period ending three (3) days prior to the closing;
(II) 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
(III) If there is no active public market, the
value shall be the fair market value thereof, as mutually determined by the
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 shareholder's status as an affiliate
or former affiliate) shall be to make an appropriate discount from the market
value determined as above in (A) (I), (II) or (III) to reflect the approximate
fair market value thereof, as mutually determined by the Corporation and the
holders of at least a majority of the voting power of all then outstanding
shares of such Preferred Stock or, if the Corporation and such holders cannot
agree on such fair market value, it shall be determined by the Board of
Directors of the Corporation, acting in good faith.
(iii) In the event the requirements of this subsection
2(c) are not complied with, the 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 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) The Corporation shall give each holder of record of
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 any transaction referred to in Section 2(c)(i). The first of such
notices shall describe the material terms and conditions of the impending
transaction and the provisions of this Section 2, and the 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 the
Corporation has given the first notice provided for herein or sooner than ten
(10) days after the 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 and that represent at least a majority of the voting power of all
then outstanding shares of such Preferred Stock.
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Section 3. Redemption.
(a) (i) Upon written notice to the Corporation by the holders of not
less than a majority of the then outstanding Preferred Stock (voting together as
a single class and not as separate series, and on an as-converted basis),
received forty-five (45) days or more prior to the applicable Redemption Date
(as defined below) the Corporation shall, subject to applicable law and pursuant
to the limitations enumerated in subsections (ii)-(iii) below, redeem all or, if
less than all, a specified percentage of all holders' shares of Series A
Preferred, Series B Preferred, Series C Preferred, Series D Preferred, Series E
Preferred and Series F Preferred (which percentage shall be the same for the
Series A Preferred, Series B Preferred, Series C Preferred, Series D Preferred,
Series E Preferred and Series F Preferred) at the date set for such redemption
in such notice (the "Redemption Date"). Such Preferred Stock shall be redeemed
by paying in cash or cancellation of indebtedness to the Corporation therefor
(a) a sum per share of Series A Preferred (as adjusted for any stock split,
stock dividend, combination, or the like) equal to $0.525 together with all
declared but unpaid dividends with respect to such share on the applicable
Redemption Date, (b) a sum per share of Series B Preferred (as adjusted for any
stock split, stock dividend, combination, or the like) equal to $1.75 together
with all declared but unpaid dividends with respect to such share on the
applicable Redemption Date, (c) a sum per share of Series C Preferred (as
adjusted for any stock split, stock dividend, combination, or the like) equal to
$3.50 together with all declared but unpaid dividends with respect to such share
on the applicable Redemption Date, (d) a sum per share of Series D Preferred (as
adjusted for any stock split, stock dividend, combination, or the like) equal to
$4.37 together with all declared but unpaid dividends with respect to such share
on the applicable Redemption Date, (e) a sum per share of Series E Preferred (as
adjusted for any stock split, stock dividend, combination, or the like) equal to
$2.20 together with all declared but unpaid dividends with respect to such share
on the applicable Redemption Date, and (f) a sum per share of Series F Preferred
(as adjusted for any stock split, stock dividend, combination, or the like)
equal to $6.82 together with all declared but unpaid dividends with respect to
such share on the applicable Redemption Date (such sums are referred to
hereafter, in the aggregate for all Preferred Stock shares outstanding and
eligible for redemption, as the "Aggregate Redemption Amount").
(i) The Corporation shall not be required to redeem Preferred
Stock in an amount in excess of twenty-five percent (25%) of the Aggregate
Redemption Amount prior to April 26, 2003, or an amount in excess of fifty
percent (50%) of the Aggregate Redemption Amount prior to April 26, 2004, or an
amount in excess of seventy-five percent (75%) of the Aggregate Redemption
Amount prior to April 26, 2005, or an amount in excess of one hundred percent
(100%) of the Aggregate Redemption Amount prior to April 26, 2006.
(b) Any redemption of Series A Preferred effected pursuant to subsection
3(a) shall be made on a pro rata basis among the holders of the Series A
Preferred in proportion to the number of shares of Series A Preferred proposed
to be redeemed by such holders. Any redemption of Series B Preferred effected
pursuant to this subsection 3(a) shall be made on a pro rata basis among the
holders of the Series B Preferred in proportion to the number of shares of
Series B Preferred proposed to be redeemed by such holders. Any redemption of
Series C Preferred effected pursuant to this subsection 3(a) shall be made on a
pro rata basis among the holders of the Series C Preferred in proportion to the
number of shares of Series C Preferred proposed to be redeemed by such holders.
Any redemption of Series D Preferred effected pursuant to this subsection 3(a)
shall be made on a pro rata basis among the holders of the Series D Preferred in
proportion to the number of shares of Series D Preferred proposed to be
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redeemed by such holders. Any redemption of Series E Preferred effected pursuant
to this subsection 3(a) shall be made on a pro rata basis among the holders of
the Series E Preferred in proportion to the number of shares of Series E
Preferred proposed to be redeemed by such holders. Any redemption of Series F
Preferred effected pursuant to this subsection 3(a) shall be made on a pro rata
basis among the holders of the Series F Preferred in proportion to the number of
shares of Series F Preferred proposed to be redeemed by such holders. If the
funds of the Corporation legally available for redemption of shares of Series A
Preferred, Series B Preferred, Series C Preferred, Series D Preferred, Series E
Preferred and Series F Preferred on any Redemption Date are insufficient to
redeem the total number of shares of Series A Preferred, Series B Preferred,
Series C Preferred, Series D Preferred, Series E Preferred and Series F
Preferred 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 based upon their holdings of Series A
Preferred, Series B Preferred, Series C Preferred, Series D Preferred, Series E
Preferred or Series F Preferred. The shares of Series A Preferred, Series B
Preferred, Series C Preferred, Series D Preferred, Series E Preferred and Series
F Preferred not redeemed shall remain outstanding and entitled to all the rights
and preferences provided herein. At any time thereafter when additional funds of
the Corporation are legally available for the redemption of shares of Series A
Preferred, Series B Preferred, Series C Preferred, Series D Preferred, Series E
Preferred and Series F Preferred, such funds will immediately be used to redeem
the balance of the shares that the Corporation has become obliged to redeem on
any Redemption Date but that it has not redeemed; provided, however, that any
redemption effected in accordance with this sentence shall be effected only
after the Corporation shall have delivered written notice to the holders of each
of the then outstanding shares of Preferred Stock exactly five business days
prior to such redemption, which shall otherwise be effected immediately.
(c) (i) At least thirty (30) but no more than sixty (60) days prior to
the Redemption Date, written notice (the "Redemption Notice") shall be mailed,
first class postage prepaid, to each holder of record (at the close of business
on the business day preceding the day on which notice is given) of the Preferred
Stock to be redeemed, at the address last shown on the records of the
Corporation for such holder or given by the holder to the Corporation for the
purpose of notice, or, if no such address appears or is given, at the place
where the principal executive office of the Corporation is located, notifying
such holder of the redemption to be effected, specifying the number of shares to
be redeemed from such holder, the Redemption Date, the price per share to be
paid, determined in accordance with Section 3(a) hereof (the "Redemption
Price"), the place at which payment may be obtained and the date on which such
holder's rights as a holder of such shares terminate and calling upon such
holder to surrender to the Corporation, in the manner and at the place
designated, his certificate or certificates representing the shares to be
redeemed. Except as provided in Section 3(c)(ii), on or after the Redemption
Date, each holder of Preferred Stock to be redeemed shall surrender to the
Corporation the certificate or certificates representing such shares, in the
manner and at the place designated in the Redemption Notice, and thereupon the
Redemption Price of such shares shall be payable 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.
(ii) From and after the Redemption Date, unless there shall have been a
default in payment of the Redemption Price, all rights of the holders of such
shares as holders of Preferred Stock called for redemption on such Redemption
Date (except the right to receive the Redemption Price
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without interest subsequent to the Redemption Date upon surrender of their
certificate or certificates) shall cease with respect to such shares, and such
shares shall not thereafter be transferred on the books of the Corporation or be
deemed to be outstanding for any purpose whatsoever. The shares of Preferred
Stock not redeemed shall remain outstanding and entitled to all the powers,
preferences and rights provided herein.
Section 4. Conversion.
The holders of the Preferred Stock shall have conversion rights as
follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series A Preferred 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 the Corporation or any transfer agent
for the Series A Preferred, into such number of fully paid and nonassessable
shares of Common Stock as is determined by dividing $0.525 by the applicable
Conversion Price, determined as hereinafter provided, in effect at the time of
conversion. Each share of Series B Preferred 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 the Corporation or any transfer agent for the Series B Preferred,
into such number of fully paid and nonassessable shares of Common Stock as is
determined by dividing $1.75 by the applicable Conversion Price, determined as
hereinafter provided, in effect at the time of conversion. Each share of Series
C Preferred 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 the Corporation
or any transfer agent for the Series C Preferred, into such number of fully paid
and nonassessable shares of Common Stock as is determined by dividing $3.50 by
the applicable Conversion Price, determined as hereinafter provided, in effect
at the time of conversion. Each share of Series D Preferred 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 the Corporation or any transfer agent
for the Series D Preferred, into such number of fully paid and nonassessable
shares of Common Stock as is determined by dividing $4.37 by the applicable
Conversion Price, determined as hereinafter provided, in effect at the time of
conversion. Each share of Series E Preferred 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 the Corporation or any transfer agent for the Series E Preferred,
into such number of fully paid and nonassessable shares of Common Stock as is
determined by dividing $2.20 by the applicable Conversion Price, determined as
hereinafter provided, in effect at the time of conversion. Each share of Series
F Preferred 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 the Corporation
or any transfer agent for the Series F Preferred, into such number of fully paid
and nonassessable shares of Common Stock as is determined by dividing $6.82 by
the applicable Conversion Price, determined as hereinafter provided, in effect
at the time of conversion. The price at which shares of Common Stock shall be
deliverable upon conversion of shares of Preferred Stock (the "Conversion
Prices") shall initially be $0.525 with respect to the Series A Preferred, $1.75
with respect to the Series B Preferred, $2.873585 with respect to the Series C
Preferred, $3.32437 with respect to the Series D Preferred $2.20 with respect to
the Series E Preferred, and $6.82 with respect to the Series F Preferred. Such
initial Conversion Prices shall be subject to adjustment as hereinafter
provided.
Upon conversion, all declared and unpaid dividends on the Preferred Stock
shall be paid either in cash or in shares of Common Stock of the Corporation, at
the election of the Corporation, wherein the
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shares of Common Stock shall be valued at the fair market value at the time of
such conversion, as determined in good faith by the Board of Directors of the
Corporation.
(b) Automatic Conversion. Each share of Preferred Stock shall
automatically be converted into shares of Common Stock at the then effective
Conversion Price for such share upon the closing of a firm commitment
underwritten public offering pursuant to an effective registration statement
under the Securities Act of 1933, as amended, covering the offer and sale of
Common Stock for the account of the Corporation to the public with gross
proceeds to the Corporation (prior to underwriter commissions and offering
expenses) of not less than $15 million and either (i) with respect to any such
public offering which closes on or prior to December 31, 2000, a per share price
to the public of at least $7.00 per share or (ii) with respect to any public
offering which closes after such date, a per share price to the public of at
least $10.23 per share (in either case, adjusted for any subdivisions,
combinations, consolidation, or stock distributions or stock dividends with
respect to such shares effected after the date this Amended and Restated
Certificate of Incorporation was filed with the Secretary of State) (a
"Qualified Public Offering"). Each share of Series A Preferred, Series B
Preferred, Series C Preferred and Series F Preferred shall automatically be
converted into shares of Common Stock at the then effective Conversion Prices
upon the receipt by the Corporation of the affirmative vote at a duly noticed
shareholders meeting or pursuant to a duly solicited written consent of the
holders of more than fifty percent (50%) of the then outstanding shares of
Series A Preferred, Series B Preferred, Series C Preferred and Series F
Preferred (voting together as a single class and not as separate series, and on
an as-converted basis) in favor of the conversion of all of the shares of Series
A Preferred, Series B Preferred, Series C Preferred and Series F Preferred. Each
share of Series D Preferred shall automatically be converted into shares of
Common Stock at the then effective Conversion Price upon the receipt by the
Corporation of the affirmative vote at a duly noticed shareholders meeting or
pursuant to a duly solicited written consent of the holders of more than fifty
percent (50%) of the then outstanding shares of Series D Preferred (voting as a
separate series) in favor of the conversion of all of the shares of Series D
Preferred. Each share of Series E Preferred shall automatically be converted
into shares of Common Stock at the then effective Conversion Price upon the
receipt by the Corporation of the affirmative vote at a duly noticed
shareholders meeting or pursuant to a duly solicited written consent of the
holders of more than fifty percent (50%) of the then outstanding shares of
Series E Preferred (voting as a separate series) in favor of the conversion of
all of the shares of Series E Preferred. In the event of the automatic
conversion of the Preferred Stock upon a Qualified Public Offering, the
person(s) entitled to receive the Common Stock issuable upon such conversion of
Preferred Stock shall not be deemed to have converted such Preferred Stock until
immediately prior to the closing of such sale of securities.
(c) Mechanics of Conversion. No fractional shares of Common Stock shall be
issued upon conversion of Preferred Stock. In lieu of any fractional shares to
which the holder would otherwise be entitled, the Corporation shall (after
aggregating all shares into which shares of Preferred Stock held by each holder
could be converted) pay cash equal to such fraction multiplied by the
then-effective Conversion Price. Before any holder of Preferred Stock shall be
entitled to convert the same into full shares of Common Stock and to receive
certificates therefor, he shall surrender the certificate or certificates
therefor, duly endorsed, at the office of the Corporation or of any transfer
agent for the Preferred Stock, and shall give written notice to the Corporation
at such office that he elects to convert the same; provided, however, that in
the event of an automatic conversion pursuant to Section 4(b), the outstanding
shares of Preferred Stock shall be converted automatically without any further
action by the holders of such shares and whether or not the certificates
representing such shares are surrendered to the
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Corporation or its transfer agent, and provided further that the Corporation
shall not be obligated to issue certificates evidencing the shares of Common
Stock issuable upon such automatic conversion unless the certificates evidencing
such shares of Preferred Stock are either delivered to the Corporation or its
transfer agent as provided above, or the holder notifies the Corporation or its
transfer agent that such certificates have been lost, stolen or destroyed and
executes an agreement satisfactory to the Corporation to indemnify the
Corporation from any loss incurred by it in connection with such certificates.
The Corporation shall, as soon as practicable after such delivery, or such
agreement and indemnification in the case of a lost certificate, issue and
deliver at such office to such holder of Preferred Stock, a certificate or
certificates for the number of shares of Common Stock to which he shall be
entitled as aforesaid and a check payable to the holder in the amount of any
cash amounts payable as the result of a conversion into fractional shares of
Common Stock. 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
Preferred Stock to be converted, or in the case of automatic conversion
immediately prior to the closing of the offering or on the effective date of
such written consent, 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 on such date.
(d) Adjustments to Conversion Price.
(i) Special Definitions. For purposes of this Section 4(d),
the following definitions shall apply:
(1) "Options" shall mean rights, options or warrants
to subscribe for, purchase or otherwise acquire either Common Stock or
Convertible Securities.
(2) "Original Issue Date" shall mean the date on which
the first share of Series F Preferred was issued.
(3) "Convertible Securities" shall mean any evidences
of indebtedness, shares (other than the Common Stock) or other securities
convertible into or exchangeable for Common Stock.
(4) "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued (or, pursuant to Section 4(d)(iii), deemed to be
issued) by the corporation on or after the Original Issue Date, other than
shares of Common Stock issued or issuable at any time:
(A) upon conversion of the 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 authorized herein;
(B) to officers, directors, employees and
customers of, and consultants to, the Corporation to be designated and approved
by the Board of Directors, which approval shall include the affirmative vote of
a majority of the directors designated by the holders of the Preferred Stock;
(C) as a dividend or distribution on Preferred
Stock or any event for which adjustment is made pursuant to subparagraphs
(d)(v), (d)(vi) or (d)(vii) hereof;
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(D) by way of dividend or other distribution on
shares of Common Stock excluded from the definition of Additional Shares of
Common Stock by the foregoing clauses (A), (C), or this clause (D) or on shares
of Common Stock so excluded; provided that any such dividend or distribution be
made on all such shares of Common Stock so excluded from the definition of
Additional Shares of Common Stock or on shares of Common Stock so excluded; or
(E) pursuant to any options, warrants or other
convertible securities outstanding as of the Original Issue Date.
(ii) Adjustment of Conversion Price Upon Issuance of
Additional Shares of Common Stock. In the event the Corporation shall issue
after the Original Issue Date Additional Shares of Common Stock (including
Additional Shares of Common Stock deemed to be issued pursuant to Section
4(d)(iii)) without consideration or for a consideration per share less than the
Conversion Price in effect for a particular series of Preferred Stock on the
date of and immediately prior to such issue, then and in such event, the
Conversion Price for such series of Preferred Stock shall be reduced,
concurrently with such issue, to a price (calculated to the nearest cent)
determined by multiplying such Conversion Price by a fraction, the numerator of
which shall be the sum of (1) the number of shares of Common Stock outstanding,
(2) the number of shares of Common Stock issuable upon conversion of the shares
of Preferred Stock outstanding immediately prior to such issue and (3) the
number of shares of Common Stock that the aggregate consideration received by
the Corporation for the total number of Additional Shares of Common Stock so
issued would purchase at such Conversion Price, and the denominator of which
shall be the sum of (x) the number of shares of Common Stock outstanding, (y)
the number of shares of Common Stock issuable upon conversion of the shares of
Preferred Stock outstanding immediately prior to such issue and (z) the number
of such Additional Shares of Common Stock so issued; provided, however, that in
each such case, the Conversion Price shall not be so reduced at that time if the
amount of such reduction would be an amount less than one cent ($0.01), but any
such amount shall be carried forward and reduction with respect thereto made at
the time of any subsequent reduction which, together with such amount and any
other amount or amounts so carried forward, shall aggregate to one cent ($0.01)
or more.
(iii) Deemed Issuance of Additional Shares of Common Stock.
(1) Options and Convertible Securities. In the event
the Corporation at any time or from time to time on or after the Original Issue
Date shall issue any Options or Convertible Securities or shall fix a record
date for the determination of holders of any class of securities entitled to
receive any such Options or Convertible Securities, then the maximum number of
shares (as set forth in the instrument relating thereto without regard to any
provisions contained therein for a subsequent adjustment of such number) of
Common Stock issuable upon the exercise of such Options or, in the case of
Convertible Securities and Options therefor, the conversion, exercise and/or
exchange of such Convertible Securities, shall be deemed to be Additional Shares
of Common Stock issued as of the time of such issue or, in case such a record
date shall have been fixed, as of the close of business on such record date,
provided that Additional Shares of Common Stock shall not be deemed to have been
issued unless the consideration per share (determined pursuant to Section
4(d)(iv) hereof) of such Additional Shares of Common Stock would be less than
the Conversion Price in effect on the date of and immediately prior to such
issue, or such record date, as the case may be, and provided further that in any
such case in which Additional Shares of Common Stock are deemed to be issued:
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(A) no further adjustment in the Conversion
Price of the Preferred Stock shall be made upon the subsequent issue of shares
of Common Stock upon the exercise of such Options or conversion, exercise and/or
exchange of such Convertible Securities (or Options therefor);
(B) if such Options or Convertible Securities
by their terms provide, with the passage of time or otherwise, for any increase
in the consideration payable to the Corporation, or decrease in the number of
shares of Common Stock issuable, upon the conversion, exercise and/or exchange
thereof, the Conversion Price computed upon the original issue thereof (or upon
the occurrence of a record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon any such increase or decrease becoming
effective, be recomputed to reflect such increase or decrease insofar as it
affects such Options or the rights of conversion, exercise and/or exchange under
such Convertible Securities (or Options therefor);
(C) upon the expiration of any such Options or
any rights of conversion or exchange under such Convertible Securities that
shall not have been exercised, the Conversion Price computed upon the original
issue thereof (or upon the occurrence of a record date with respect thereto),
and any subsequent adjustments based thereon, shall, upon such expiration, be
recomputed as if:
(I) in the case of Convertible
Securities or Options for Common Stock, the only Additional Shares of Common
Stock issued were shares of Common Stock, if any, actually issued upon the
exercise of such Options or the conversion or exchange of such Convertible
Securities and the consideration received therefor was the consideration
actually received by the Corporation for the issue of all such Options, whether
or not exercised, plus the consideration actually received by the Corporation
upon such exercise, or for the issue of all such Convertible Securities that
were actually converted or exchanged, plus the additional consideration, if any,
actually received by the Corporation upon such conversion or exchange, and
(II) in the case of Options for
Convertible Securities, only the Convertible Securities, if any, actually issued
upon the exercise thereof were issued at the time of issue of such Options, and
the consideration received by the Corporation for the Additional Shares of
Common Stock deemed to have been then issued was the consideration actually
received by the Corporation for the issue of all such Options, whether or not
exercised, plus the consideration deemed to have been received by the
Corporation (determined pursuant to subsection 4(d)(iv)) upon the issue of the
Convertible Securities with respect to which such Options were actually
exercised;
(D) no readjustment pursuant to clause (B) or
(C) above shall have the effect of increasing the Conversion Price of the
Preferred Stock to an amount which exceeds the Conversion Price on the original
adjustment date;
(E) in the case of any Options that expire by
their terms not more than thirty (30) days after the date of issue thereof, no
adjustment of the Conversion Price of the Preferred Stock shall be made until
the expiration or exercise of all such Options.
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(iv) Determination of Consideration. For purposes of this
Section 4(d), the consideration received by the Corporation for the issue of any
Additional Shares of Common Stock shall be computed as follows:
(1) Cash and Property: Such consideration shall:
(A) insofar as it consists of cash, be computed
at the aggregate amount of cash received by the Corporation excluding amounts
paid or payable for accrued interest or accrued dividends;
(B) insofar as it consists of property other
than cash, be computed at the fair value thereof at the time of such issue, as
determined in good faith by the Board of Directors of the Corporation; and
(C) in the event Additional Shares of Common
Stock are issued together with other shares or securities or other assets of the
Corporation for consideration that covers both, be the proportion of such
consideration so received, computed as provided in clauses (A) and (B) above, as
determined in good faith by the Board of Directors of the Corporation.
(2) Options and Convertible Securities. The
consideration per share received by the Corporation for Additional Shares of
Common Stock deemed to have been issued pursuant to Section 4(d)(iii)(1),
relating to Options and Convertible Securities, shall be determined by dividing
(A) the total amount, if any, received or
receivable by the Corporation as consideration for the issue of such Options or
Convertible Securities, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating thereto, without regard
to any provision contained therein for a subsequent adjustment of such
consideration) payable to the Corporation upon the exercise of such Options or
the conversion or exchange of such Convertible Securities, or in the case of
Options for Convertible Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such Convertible Securities by
(B) the maximum number of shares of Common
Stock (as set forth in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of such number) issuable
upon the exercise of such Options or the conversion or exchange of such
Convertible Securities, or in the case of Options for Convertible Securities,
the exercise of such Options for Convertible Securities and the conversion or
exchange of such Convertible Securities.
(v) Adjustments for Subdivisions, Stock Dividends,
Combinations or Consolidations of Common Stock. In the event the Corporation
effects a subdivision, whether by stock split or stock dividend, or combination
of its outstanding shares of Common Stock into a greater or smaller number of
shares without a proportionate and corresponding subdivision or combination of
its outstanding shares of Preferred Stock, then and in each such event the
Conversion Price for each series of Preferred Stock shall be proportionally
decreased or increased, respectively.
(vi) Adjustments for Other Dividends and Distributions. In
the event the Corporation at any time or from time to time makes, or fixes a
record date for the determination of holders of Common Stock entitled to
receive, any distribution payable in securities of the Corporation other than
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shares of Common Stock and other than as otherwise adjusted in this Section 4,
then and 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 thereupon, the amount of securities of the
Corporation which they would have received had their shares of Preferred Stock
been converted into Common Stock on the date of such event and had they
thereafter, during the period from the date of such event to and including the
date of conversion, retained such securities receivable by them as aforesaid
during such period, subject to all other adjustments called for during such
period under this Section 4 with respect to the rights of the holders of the
Preferred Stock.
(vii) Adjustments for Reclassification, Exchange and
Substitution. If the Common Stock issuable upon conversion of the Preferred
Stock shall be changed into the same or a different number of shares of any
other class or classes of stock or other securities or property, whether by
capital reorganization, reclassification or otherwise, the Conversion Price then
in effect shall, concurrently with the effectiveness of such reorganization or
reclassification, be proportionately adjusted such that the Preferred Stock
shall be convertible into, in lieu of the number of shares of Common Stock which
the holders would otherwise have been entitled to receive, a number of shares of
such other class or classes of stock or other securities or property equivalent
to the number of shares of Common Stock that would have been subject to receipt
by the holders upon conversion of the Preferred Stock immediately before that
change and, in any such case, appropriate adjustment (as determined in good
faith by the Board of Directors of the Corporation) shall be made in the
application of the provisions herein set forth with respect to the rights and
interest thereafter of the holders of the Preferred Stock, to the end that the
provisions set forth herein (including provisions with respect to change in and
other adjustments of the Conversion Price) shall thereafter be applicable, as
nearly as reasonably may be, in relation to any shares of stock or other
property thereafter deliverable upon the conversion of the Preferred Stock.
(viii) Adjustment for Merger, Consolidation or Sale of Assets.
In the event that at any time or from time to time after the Original Issue
Date, the Corporation shall enter into any transaction described in Section
2(c)(i), each share of Preferred Stock as to which such transaction is not
treated as a liquidation under Subsection 2(c)(i) shall thereafter be
convertible into the kind and amount of shares of stock or other securities or
property to which a holder of the number of shares of Common Stock of the
Corporation deliverable upon conversion of such series of Preferred Stock would
have been entitled to receive upon such transaction; and, in such case,
appropriate adjustment (as determined in good faith by the Board of Directors of
the Corporation) shall be made in the application of the provisions set forth in
this Section 4 with respect to the rights and interest thereafter of the holders
of shares of the Preferred Stock, to the end that the provisions set forth
herein (including provisions with respect to change in and other adjustments of
the Conversion Price) shall thereafter be applicable, as nearly as reasonably
may be, in relation to any shares of stock or other securities or property
thereafter deliverable upon the conversion of Preferred Stock.
(e) No Impairment. Except as permitted by applicable law and as provided
in Section 6, the Corporation will not, by amendment of its Certificate of
Incorporation or through any reorganization, 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 the 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 Preferred Stock against
impairment.
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(f) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Conversion Price pursuant to this Section 4,
the Corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
Preferred Stock a certificate setting forth such adjustment or readjustment and
showing in detail the facts upon which such adjustment or readjustment is based.
The Corporation shall, upon the written request at any time of any holder of
Preferred Stock, furnish or cause to be furnished to such holder a like
certificate setting forth (i) such adjustments and readjustments, (ii) the
Conversion Price at the time in effect, and (iii) the number of shares of Common
Stock and the amount, if any, of other property which at the time would be
received upon the conversion of Preferred Stock.
(g) Notices of Record Date. In the event that the Corporation shall
propose at any time:
(i) to declare any dividend or distribution upon its Common
Stock, whether in cash, property, stock or other securities, whether or not a
regular cash dividend and whether or not out of earnings or earned surplus;
(ii) to offer for subscription pro rata to the holders of
any class or series of its stock any additional shares of stock of any class or
series or other rights;
(iii) to effect any reclassification or recapitalization of
its Common Stock outstanding involving a change in the Common Stock; or
(iv) to merge or consolidate with or into any other
corporation (or to merge or consolidate any Subsidiary with or into another
corporation, other than this Corporation), or sell, lease or convey all or
substantially all of the assets, property or business of a Subsidiary; then, in
connection with each such event, unless notice is otherwise provided for in
Section 2(a)(iv) hereof, the Corporation shall send to the holders of the
Preferred Stock:
(1) at least twenty (20) days' prior written notice of
the date on which a record shall be taken for such dividend, distribution or
subscription rights (and specifying the date on which the holders of Common
Stock shall be entitled thereto) or for determining rights to vote in respect of
the matters referred to in (i) and (ii) above; and
(2) in the case of the matters referred to in (iii)
and (iv) above, at least twenty (20) days' prior written notice of the date when
the same shall take place (and specifying the date on which the holders of
Common Stock shall be entitled to exchange their Common Stock for securities or
other property deliverable upon the occurrence of such event).
For purposes of this Section 4(g), the term "Subsidiary" shall mean a
corporation or entity at least 50% of the outstanding equity securities of or
equity interest in which are owned directly or indirectly by the Corporation or
by one or more of its Subsidiaries.
All notices and other communications required or permitted hereunder
shall be in writing and shall be mailed by registered or certified mail, postage
prepaid, or otherwise delivered by hand, by facsimile or by messenger, to the
holders of Preferred Stock at such holder's address as shall have been furnished
to the Corporation in writing (including the address, if any, of any counsel to
such holder). Each such notice or other communications shall for all purposes
hereunder shall be treated as effective
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<PAGE> 15
or having been given when delivered if delivered personally or by facsimile, or,
if sent by mail, at the earlier of its receipt or 72 hours after the same has
been deposited in a regularly maintained receptacle for the deposit of the
United States mail, addressed and mailed as aforesaid. Notwithstanding the
notice requirements defined above, each such notice or other communications
required or permitted hereunder to persons with addresses outside the United
States shall be mailed by air mail or air courier and shall be treated as
effective or having been given five (5) days after mailing.
Section 5. Voting Rights.
(a) Except as otherwise required by law or by Section 6 hereof, the
holder of each share of Common Stock issued and outstanding shall have one vote
with respect to such share and the holder of each share of Preferred Stock shall
be entitled with respect to such share to a number of votes equal to the number
of shares of Common Stock into which such share of Preferred Stock could be
converted at the record date for determination of the shareholders entitled to
vote on such matters, or, if no such record date is established, at the date
such vote is taken or any written consent of shareholders is solicited, such
votes to be counted together with all other shares of stock of the Corporation
having general voting power and not separately as a class. Holders of Common
Stock and Preferred Stock shall be entitled to notice of any shareholders'
meeting in accordance with the Bylaws of the Corporation. Fractional votes by
the holders of Preferred Stock shall not, however, be permitted and any
fractional voting rights shall (after aggregating all shares into which shares
of Preferred Stock held by each holder could be converted) be rounded to the
nearest whole number.
(b) Election of Directors. For so long as authorized shares of Series A
Preferred, Series B Preferred, Series C Preferred, Series D Preferred, Series E
Preferred or Series F Preferred are outstanding, then the Corporation's board of
directors shall be elected as follows:
(i) Common Stock Director. The holders of record of
outstanding shares of Common Stock, voting separately as a class, shall be
entitled to elect one (1) director;
(ii) Series A Preferred Director. The holders of record of
outstanding shares of Series A Preferred, voting separately as a class, shall be
entitled to elect one (1) director;
(iii) Series B Preferred Director. The holders of record of
outstanding shares of Series B Preferred, voting separately as a class, shall be
entitled to elect one (1) director;
(iv) Series D Preferred Director. The holders of record of
outstanding shares of Series D Preferred, voting separately as a class, shall be
entitled to elect one (1) director;
(v) Series E Preferred Director. The holders of record of
outstanding shares of Series E Preferred, voting separately as a class, shall be
entitled to elect one (1) director; and
(vi) All Other Directors. The holders of record of outstanding
shares of Common Stock, Series A Preferred, Series B Preferred, Series C
Preferred, Series D Preferred, Series E Preferred and Series F Preferred, voting
together as a single class and not as separate series and on an as-converted
basis, shall be entitled to elect all other directors. If at least 60% of the
authorized shares of Series A Preferred are not outstanding, then the seat for
the Series A Preferred director set forth in Section (b)(ii) herein shall be
elected in accordance with this Section (b)(vi). If at least 40% of the
authorized shares of
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Series B Preferred are not outstanding, then the seat for the Series B Preferred
director set forth in Section (b)(iii) herein shall be elected in accordance
with this Section (b)(vi).
(c) Quorum; Required Vote. At any meeting held for the purpose of
electing directors to be elected solely by the holders of the Common Stock,
Series A Preferred, Series B Preferred, Series D Preferred or Series E
Preferred, respectively, the presence in person or by proxy of the holders of a
majority of any such Common Stock or series of Preferred Stock shall constitute
a quorum of the applicable class or series for purposes of electing directors to
be elected solely by any such class or series. The holders of Common Stock,
Series A Preferred, Series B Preferred, Series C Preferred, Series D Preferred,
Series E Preferred and Series F Preferred representing a majority of the voting
power of all the then-outstanding shares of such Common Stock and series of
Preferred Stock shall together constitute a quorum for the election of the
directors to be elected jointly by the holders of such Common Stock and series
of Preferred Stock.
(d) Required Vote. With respect to the election of any director or
directors by the holders of the outstanding shares of a specified series,
series', class or classes of stock given the right to elect such director or
directors pursuant to Subsections 5(b)(i)-(vi) above ("Specified Stock"), that
candidate or those candidates (as applicable) shall be elected who either: (1)
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 (2) in the case of any such vote taken by
written consent without a meeting, are elected by the unanimous written consent
of the holder of shares of such Specified Stock.
(e) Vacancy. If there shall be any vacancy in the office of a director
elected by the holders of any Specified Stock pursuant to Subsection 5(b)(i-vi),
then a successor to hold office for the unexpired term of such director may be
elected by either: (a) 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 is but one), or (b) the
affirmative vote of holders of the shares of such Specified Stock that are
entitled to elect such director under Subsection 5(b)(i)-(vi).
Section 6. Covenants.
(a) In addition to any other rights provided by law, so long as any
Preferred Stock shall be outstanding, the Corporation shall not, without first
obtaining the affirmative vote or written consent of the holders of not less
than a majority of such outstanding shares of Preferred Stock (voting together
as a single class and not as separate series, and on an as-converted basis).
(i) repurchase or redeem any Preferred Stock, otherwise than
pursuant to Redemption as set forth in Section 3 above;
(ii) redeem, purchase or otherwise acquire any share or shares
of Common Stock, 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 the Corporation or any
subsidiary pursuant to agreements under which the Corporation has the option to
repurchase such shares at cost or at cost upon the occurrence of certain events,
such as the termination of service;
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<PAGE> 17
(iii) declare or pay dividends on or make any distribution on
account of Common Stock;
(iv) permit any subsidiary of the Corporation to sell Common
or Preferred Stock;
(v) increase or decrease the authorized number of shares of
Preferred Stock;
(vi) amend or repeal any provision of, or add any provision
to, the Corporation's Amended and Restated Certificate of Incorporation or
Bylaws if such action would adversely alter or change the preferences, rights,
privileges or powers of, or the restrictions provided for the benefit of, any
Preferred Stock;
(vii) authorize a liquidation, dissolution, or winding up of
the Corporation, either voluntarily or involuntarily. For purposes of this
Section 6(a)(vii), a liquidation, dissolution or winding up of the Corporation
shall be deemed to be occasioned by, or to include, (i) the acquisition of the
Corporation by another entity by means of any transaction or series of related
transactions (including, without limitation, any reorganization, merger or
consolidation, but excluding any merger effected primarily for the purpose of
changing the domicile of the Corporation) that results in the transfer of fifty
percent (50%) or more of the outstanding voting power of the Corporation; (ii) a
sale of all or substantially all of the assets of the Corporation; or
(viii) authorize or issue, or obligate itself to issue, any
other equity security (including any other security convertible into or
exercisable or exchangeable for any equity security) having a preference over,
or being on a parity with, the Series A Preferred, Series B Preferred, Series C
Preferred, Series D Preferred, Series E Preferred or Series F Preferred with
respect to voting, dividends, redemption, conversion or upon liquidation.
(b) In addition to any other rights provided by law, so long as any
Preferred Stock shall be outstanding, absent the unanimous consent of the Board
of Directors of the Corporation, the Corporation shall not, without first
obtaining the affirmative vote or written consent of the holders of not less
than a majority of such outstanding shares of Preferred Stock (voting together
as a single class and not as separate series, and on an as-converted basis):
(i) mortgage, pledge or create a security interest in the
assets of the Corporation;
(ii) make any guarantees for indebtedness to third parties; or
(iii) invest in any other company.
Section 7. No Reissuance of Preferred Stock.
No share or shares of Preferred Stock acquired by the Corporation by
reason of redemption, purchase, conversion or otherwise shall be reissued, and
all such shares shall be canceled, retired and eliminated from the shares which
the Corporation shall be authorized to issue.
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Article IV
Section 1. Limitation of Director's Liability.
To the fullest extent not prohibited by the General Corporation Law of
Delaware as the same exists or as it may hereafter be amended, a director of the
corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for conduct as a director.
Section 2. Indemnification of Corporate Agents.
The corporation shall indemnify to the fullest extent not prohibited by
law any person made or threatened to be made a party to an action or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact
that such person, such person's testator or intestate is or was a director,
officer, employee benefit plan fiduciary, or employee of the corporation or any
predecessor of the corporation or serves or served at the request of the
corporation or any predecessor of the corporation as a director, officer, agent,
employee benefit plan fiduciary or employee of another corporation, partnership,
limited liability company, joint venture, trust or other entity or enterprise.
Section 3. Repeal or Modification.
Neither any amendment or repeal of this Article IV, nor the adoption of
any provision of the corporation's Certificate of Incorporation inconsistent
with this Article IV, shall eliminate or reduce the effect of this Article IV in
respect of any matter occurring, or any action or proceeding accruing or arising
or that, but for this Article IV, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
Article V
The Board of Directors of the Corporation is expressly authorized to
make, alter or repeal Bylaws of the Corporation, but the stockholders may make
additional Bylaws and may alter or repeal any Bylaw whether adopted by them or
otherwise.
Article VI
Except as otherwise set forth herein, the Corporation reserves the right
to amend, alter, change or repeal any provisions contained in this 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.
(c) The foregoing amendment and restatement of the Certificate of
Incorporation has been duly approved by the Board of Directors of the
Corporation.
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(d) The foregoing amendment and restatement of the Certificate of
Incorporation has been duly approved by the required vote of the Corporation's
stockholders entitled to vote in accordance with the Certificate of
Incorporation of the Corporation and Sections 228, 242 and 245 of the General
Corporations Law of the State of Delaware. The number of shares of Common Stock,
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
voting in favor of the Amended and Restated Articles of Incorporation equaled or
exceeded the vote required. The percentage vote required was a majority of the
outstanding shares of Common Stock and a majority of the outstanding shares of
Preferred Stock, each voting separately as a class.
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IN WITNESS WHEREOF, the undersigned has executed this Amended and
Restated Certificate of Incorporation at San Rafael, California as of the date
first set forth above.
/s/ PAUL SUTTON
-------------------------------------------------
Paul Sutton, President and Chief Executive Office
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