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Exhibit 3.2
State of Delaware PAGE 1
Office of the Secretary of State
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I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "LYNUXWORKS, INCORPORATED", FILED IN THIS OFFICE ON THE TWENTY-
FIRST DAY OF JULY, A.D. 2000, AT 4 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ Edward J. Freel
SEAL ---------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 0574163
DATE: 07-21-00
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CERTIFICATE OF INCORPORATION
OF
LYNUXWORKS, INCORPORATED
(a Delaware corporation)
ARTICLE I
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The name of the Corporation is LynuxWorks, Incorporated (the
"Corporation").
ARTICLE II
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The address of the Corporation's registered office in the State of Delaware
is 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
ARTICLE III
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The nature of the business or purposes to be conducted or promoted by the
Corporation is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
ARTICLE IV
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This Corporation is authorized to issue two (2) classes of shares to be
designated, respectively, Preferred Stock, par value $0.001 per share
("Preferred Stock") and Common Stock, par value $0.001 per share ("Common
Stock"). The total number of shares of capital stock that this Corporation shall
have authority to issue is Seventy Million (70,000,000). The total number of
shares of Preferred Stock this Corporation shall have authority to issue is
Twenty-Two Million (22,000,000). The total number of shares of Common Stock this
Corporation shall have authority to issue is Forty-Eight Million (48,000,000).
The Preferred Stock shall be divided into series. The first series shall
consist of 1,300,000 shares and is designated "Series A Preferred Stock." The
second series shall consist of 1,281,000 shares and is designated "Series B
Preferred Stock." The third series shall consist of 544,998 shares and is
designated "Series C Preferred Stock." The fourth series shall consist of
1,500,000 shares and is designated "Series D Preferred Stock." The fifth series
shall consist of 857,988 shares and is designated "Series E-1 Preferred Stock."
The sixth series shall consist of 6,621,268 shares and is designated "Series E-2
Preferred Stock." The seventh series shall consist of 8,071,207 shares and is
designated "Series F Preferred Stock."
The powers, preferences, rights, restrictions, and other matters relating
to the Series A, B, C, D, E-1, E-2, and F Preferred Stock are as follows:
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1. Dividends.
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1.1. The holders of the Series A, B, C, D, E-1, E-2, and F Preferred
Stock shall be entitled to receive dividends at the rate of $0.50, $0.85, $3.00,
$1.00, $1.5103, $1.5103, and $4.33 per share, respectively (as adjusted for any
stock dividends, combinations or splits with respect to such shares), per annum,
respectively, payable out of funds legally available therefor. Such dividends
shall be payable only when, as, and if declared by the Board of Directors and
shall be noncumulative.
1.2. No dividends (other than those payable solely in the Common
Stock of the Corporation) shall be paid on any Common Stock of the Corporation
during any fiscal year of the Corporation until dividends in the total amount of
$0.50, $0.85, $3.00, $1.00, $1.5103, $1.5103, and $4.33 per share (as adjusted
for any stock dividends, combinations or splits with respect to such shares) on
the Series A, B, C, D, E-1, E-2 and F Preferred Stock, respectively, shall have
been paid or declared and set apart during that fiscal year and any prior year
in which dividends accumulated but remain unpaid, and no dividends shall be paid
on any share of Common Stock unless a dividend (including the amount of any
dividends paid pursuant to the above provisions of this Section 1.2) is paid
with respect to all outstanding shares of Series A, B, C, D, E-1, E-2 and F
Preferred Stock in an amount for each such share of Series A, B, C, D, E-1, E-2
and F Preferred Stock equal to or greater than the aggregate amount of such
dividends for all shares of Common Stock into which each such share of Series A,
B, C, D, E-1, E-2 and F Preferred Stock could then be converted.
1.3. Other than with respect to dividends paid on the Series A, B, C,
D, E-1, E-2 and F Preferred Stock which represent payment of declared but unpaid
dividends thereon from prior years, no dividend shall be paid on or declared and
set apart for the shares of any series of Preferred Stock for any dividend
period unless at the same time a like proportionate dividend for the same
dividend period, ratably in proportion to the respective annual dividend rates
fixed therefor, shall be paid on or declared and set apart for the shares of all
other such series of Preferred Stock.
1.4. No right shall accrue to holders of shares of Series A, B, C, D,
E-1, E-2 and F Preferred Stock by reason of the fact that dividends on said
shares are not declared in any prior year, nor shall any undeclared or unpaid
dividend bear or accrue any interest.
1.5. In the event the Corporation shall declare a distribution (other
than any distribution described in Section 1.2 or 1.3) payable in securities of
other persons, evidences of indebtedness issued by the Corporation or other
persons, assets (excluding cash dividends) or options or rights to purchase any
such securities or evidences of indebtedness, then, in each such case the
holders of the Series A, B, C, D, E-1, E-2 and F Preferred Stock shall be
entitled to a proportionate share of any such distribution as though the holders
of the Series A, B, C, D, E-1, E-2 and F Preferred Stock were the holders of the
number of shares of Common Stock of the Corporation into which their respective
shares of Series A, B, C, D, E-1, E-2 and F Preferred Stock are convertible as
of the record date fixed for the determination of the holders of Common Stock of
the Corporation entitled to receive such distribution.
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2. Liquidation Preference.
----------------------
2.1. In the event of any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, the holders of the Series A,
B, C, D, E-1, E-2 and F Preferred Stock shall be entitled to receive, prior and
in preference to any distribution of any of the assets or surplus funds of the
Corporation to the holders of the Common Stock by reason of their ownership
thereof, the amount of $0.50, $0.85, $3.00, $1.00, $1.5103, $1.5103 and $4.33
per share (as adjusted for any stock dividends, combinations or splits with
respect to such shares), respectively, plus all declared but unpaid dividends on
such share for each share of Series A, B, C, D, E-1, E-2 and F Preferred Stock
then held by them. The Series A, B, C, D, E-1, E-2 and F Preferred Stock shall
rank pari passu as to the receipt of the respective preferential amounts for
each such series upon the occurrence of such event. If upon the occurrence of
such event, the assets and funds thus distributed among the holders of the
Series A, B, C, D, E-1, E-2 and F Preferred Stock shall be insufficient to
permit the payment to such holders of the full aforesaid preferential amount,
then the entire assets and funds of the Corporation legally available for
distribution shall be distributed ratably among the holders of the Series A, B,
C, D, E-1, E-2 and F Preferred Stock in proportion to the preferential amount
each such holder is otherwise entitled to receive.
2.2. In the event of any liquidation, dissolution or winding up of
the Corporation, either voluntary or involuntary and subject to the prior
payment in full of the liquidation preferences with respect to the Series A, B,
C, D, E-1, E-2 and F Preferred Stock as provided in Section 2.1, the holders of
the Common Stock shall be entitled to receive, prior and in preference to any
further distribution of any of the assets or surplus funds of the Corporation to
the holders of the Series A, B, C, D, E-1, E-2 and F Preferred Stock by reason
of their ownership thereof, the amount of $0.05 per share (as adjusted for any
stock dividends, combinations or splits with respect to such shares) for each
share of Common Stock then held by them and no more. Subject to the prior
payment in full of the liquidation preferences with respect to the Series A, B,
C, D, E-1, E-2 and F Preferred Stock as provided in subparagraph 2.1 of this
Section 2, if upon the occurrence of such event, the assets and funds thus
distributed among the holders of the Common Stock shall be insufficient to
permit the payment to such Common Stock holders of the full aforesaid
preferential amount, then the entire remaining assets and funds of the
Corporation legally available for distribution shall be distributed among the
holders of the Common Stock in proportion to the shares of Common Stock then
held by them.
2.3. After payment to the holders of the Series A, B, C, D, E-1, E-2
and F Preferred Stock and the Common Stock of the amounts set forth in Sections
2.1 and 2.2 above, the entire remaining assets and funds of the Corporation
legally available for distribution, if any, shall be distributed among the
holders of the Common Stock and the Series A, B, C, D, E-1, E-2 and F Preferred
Stock in proportion to the shares of Common Stock then held by them and the
shares of Common Stock which they then have the right to acquire upon conversion
of the shares of Series A, B, C, D, E-1, E-2 and F Preferred Stock then held by
them.
2.4. For purposes of this Section 2, (i) any acquisition of the
Corporation by means of merger or other form of corporate reorganization in
which outstanding shares of the Corporation are exchanged for securities or
other consideration issued, or caused to be issued, by the acquiring corporation
or its subsidiary (other than a mere reincorporation transaction) or (ii) a sale
of all or
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substantially all of the assets of the Corporation, shall be treated as a
liquidation, dissolution or winding up of the Corporation and shall entitle the
holders of Series A, B, C, D, E-1, E-2 and F Preferred Stock and Common Stock to
receive at the closing in cash, securities or other property (valued as provided
in Section 2.5 below) amounts as specified in Sections 2.1 through 2.3 above.
2.5. Whenever the distribution provided for in this Section 2 shall
be payable in securities or property other than cash, the value of such
distribution shall be the fair market value of such securities or other property
as determined in good faith by the Board of Directors.
3. Voting Rights; Directors.
------------------------
3.1. Each holder of shares of the Series A, B, C, D, E-1, E-2 and F
Preferred Stock shall be entitled to the number of votes equal to the number of
shares of Common Stock into which such shares of Series A, B, C, D, E-1, E-2 and
F Preferred Stock could be converted and shall have voting rights and powers
equal to the voting rights and powers of the Common Stock (except as otherwise
expressly provided herein or as required by law, voting together with the Common
Stock as a single class) and shall be entitled to notice of any stockholders'
meeting in accordance with the Bylaws of the Corporation. Fractional votes shall
not, however, be permitted and any fractional voting rights resulting from the
above formula (after aggregating all shares into which shares of Series A, B, C,
D, E-1, E-2 and F Preferred Stock held by each holder could be converted) shall
be rounded to the nearest whole number (with one half being rounded upward).
Each holder of Common Stock shall be entitled to one (1) vote for each share of
Common Stock held.
3.2. The Board of Directors shall consist of seven (7) members. The
holders of Series A, voting together as a class, shall be entitled to elect two
(2) members of the Board of Directors at each meeting or pursuant to each
consent of the Corporation's shareholders for the election of directors. The
holders of Series B, C, D, E-1 and F Preferred Stock, voting together as a
class, shall be entitled to elect two (2) members of the Board of Directors at
each meeting or pursuant to each consent of the Corporation's shareholders for
the election of directors. The holders of Series E -2 Preferred Stock, voting
together as a class, shall be entitled to elect one (1) member of the Board of
Directors at each meeting or pursuant to each consent of the Corporation's
shareholders for the election of directors. The holders of the Common Stock,
voting together as a class, shall be entitled to elect two (2) members of the
Board of Directors at each meeting or pursuant to each consent of the
Corporation's shareholders for the election of directors.
3.3. In the case of any vacancy in the office of a director occurring
among the directors elected by the holders of the Series A Preferred Stock
pursuant to Section 3.2 hereof, the election of the new director shall be by
vote of the holders of the Series A Preferred Stock. In the case of any vacancy
in the office of a director occurring among the directors elected by the holders
of the Series B, Series C, Series D, E-1 and Series F Preferred Stock, voting as
a class, pursuant to Section 3.2 hereof, the election of the new director shall
be by vote of the holders of the Series B, Series C, Series D, E-1 and Series F
Preferred Stock, voting as a class. In the case of any vacancy in the office of
a director occurring among the directors elected by the holders of the Series E-
2 Preferred Stock pursuant to Section 3.2 hereof, the election of the new
director shall be by vote of the holders of the Series E-2 Preferred Stock. In
the case of any vacancy in the office of a director occurring among the
directors elected by the holders of Common Stock pursuant to Section 3.2
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hereof, the election of the new director shall be by vote of the holders of
Common Stock. Any director who shall have been elected by the holders of the
Series A, B, C, D, E-1, E-2, and F Preferred Stock or Common Stock or any
director so elected as provided in the preceding sentence hereof, may be removed
during the aforesaid term of office, whether with or without cause, only by the
affirmative vote of the holders of a majority of the Series A, B, C, D, E-1, E-
2, and F Preferred Stock or Common Stock, as the case may be.
4. Conversion. The holders of the Series A, B, C, D, E-1, E-2 and F
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Preferred Stock shall have conversion rights as follows (the "Conversion
Rights"):
4.1. Right to Convert. Each share of Series A Preferred Stock shall
----------------
be convertible, at the option of the holder thereof, at any time after the date
of issuance of such share at the office of the Corporation or any transfer agent
for such stock, into such number of fully paid and nonassessable shares of
Common Stock as is determined by dividing fifty cents ($0.50) by the Conversion
Price applicable to such share, determined as hereinafter provided, in effect on
the date the certificate is surrendered for conversion. The price at which
shares of Common Stock shall be deliverable upon conversion of shares of the
Series A Preferred Stock (the "Series A Conversion Price") shall initially be
fifty cents ($0.50) per share of Common Stock. Such initial Series A Conversion
Price shall be adjusted as hereinafter provided.
Each share of Series B Preferred Stock shall be convertible, at the option
of the holder thereof, at any time after the date of issuance of such share at
the office of the Corporation or any transfer agent for such stock, into such
number of fully paid and nonassessable shares of Common Stock as is determined
by dividing Eighty-Five cents ($0.85) by the Conversion Price applicable to such
share, determined as hereinafter provided, in effect on the date the certificate
is surrendered for conversion. The price at which shares of Common Stock shall
be deliverable upon conversion of shares of the Series B Preferred Stock (the
"Series B Conversion Price") shall initially be ($0.85) per share of Common
Stock. Such initial Series B Conversion Price shall be adjusted as hereinafter
provided.
Each share of Series C Preferred Stock shall be convertible, at the option
of the holder thereof, at any time after the date of issuance of such share at
the office of the Corporation or any transfer agent for such stock, into such
number of fully paid and nonassessable shares of Common Stock as is determined
by dividing three dollars ($3.00) by the Conversion Price applicable to such
share, determined as hereinafter provided, in effect on the date the certificate
is surrendered for conversion. The price at which shares of Common Stock shall
be deliverable upon conversion of shares of the Series C Preferred Stock (the
"Series C Conversion Price") shall initially be three dollars ($3.00) per share
of Common Stock. Such initial Series C Conversion Price shall be adjusted as
hereinafter provided.
Each share of Series D Preferred Stock shall be convertible, at the option
of the holder thereof, at any time after the date of issuance of such share at
the office of the Corporation or any transfer agent for such stock, into such
number of fully paid and nonassessable shares of Common Stock as is determined
by dividing one dollar ($1.00) by the Conversion Price applicable to such share,
determined as hereinafter provided, in effect on the date the certificate is
surrendered for conversion. The price at which shares of Common Stock shall be
deliverable upon conversion of
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shares of the Series D Preferred Stock (the "Series D Conversion Price") shall
initially be one dollar ($1.00) per share of Common Stock. Such initial Series D
Conversion Price shall be adjusted as hereinafter provided.
Each share of Series E-1 Preferred Stock shall be convertible, at the
option of the holder thereof, at any time after the date of issuance of such
share at the office of the Corporation or any transfer agent for such stock,
into such number of fully paid and nonassessable shares of Common Stock as is
determined by dividing one dollar fifty-one cents ($1.51) by the Conversion
Price applicable to such share, determined as hereinafter provided, in effect on
the date the certificate is surrendered for conversion. The price at which
shares of Common Stock shall be deliverable upon conversion of shares of the
Series E-1 Preferred Stock (the "Series E-1 Conversion Price") shall initially
be one dollar fifty-one cents ($1.51) per share of Common Stock. Such initial
Series E-1 Conversion Price shall be adjusted as hereinafter provided.
Each share of Series E-2 Preferred Stock shall be convertible, at the
option of the holder thereof, at any time after the date of issuance of such
share at the office of the Corporation or any transfer agent for such stock,
into such number of fully paid and nonassessable shares of Common Stock as is
determined by dividing one dollar fifty-one cents ($1.51) by the Conversion
Price applicable to such share, determined as hereinafter provided, in effect on
the date the certificate is surrendered for conversion. The price at which
shares of Common Stock shall be deliverable upon conversion of shares of the
Series E-2 Preferred Stock (the "Series E-2 Conversion Price") shall initially
be one dollar fifty-one cents ($1.51) per share of Common Stock. Such initial
Series E-2 Conversion Price shall be adjusted as hereinafter provided.
Each share of Series F Preferred Stock shall be convertible, at the option
of the holder thereof, at any time after the date of issuance of such share at
the office of the Corporation or any transfer agent for such stock, into such
number of fully paid and nonassessable shares of Common Stock as is determined
by dividing four dollars and thirty-seven cents ($4.33) by the Conversion Price
applicable to such share, determined as hereinafter provided, in effect on the
date the certificate is surrendered for conversion. The price at which shares of
Common Stock shall be deliverable upon conversion of shares of the Series F
Preferred Stock (the "Series F Conversion Price") shall initially be four
dollars and thirty-seven cents ($4.33) per share of Common Stock. Such initial
Series F Conversion Price shall be adjusted as hereinafter provided.
4.2. Automatic Conversion. Each share of Series A, B, C, D, E-1, E-2
--------------------
and F Preferred Stock shall automatically be converted into shares of Common
Stock at the then effective Series A Conversion Price, Series B Conversion
Price, Series C Conversion Price, Series D Conversion Price, Series E-1
Conversion Price, Series E-2 Conversion Price, or Series F Conversion Price
respectively, upon the earlier, as to each Series, of (i) the date specified by
vote or written consent or agreement of holders of at least two-thirds (2/3) of
the shares of such series then outstanding, or (ii) immediately upon the closing
of the sale of the Corporation's Common Stock in a firm commitment, underwritten
public offering registered under the Securities Act of 1933, as amended (the
"Securities Act"), other than a registration relating solely to a transaction
under Rule 145 under such Act (or any successor thereto) or to an employee
benefit plan of the Corporation, at a public offering price (prior to
underwriters' discounts and expenses) equal to or exceeding $8.00 per share of
Common Stock (as adjusted for any stock dividends, combinations or splits with
respect to
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such shares) and the aggregate proceeds to the Corporation and/or any selling
stockholders of which exceed Twenty Million Dollars ($20,000,000) (a "Qualified
Public Offering").
4.3. Mechanics of Conversion.
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4.3.1. Before any holder of Series A, B, C, D, E-1, E-2 or F
Preferred Stock, respectively, shall be entitled to convert the same into
shares of Common Stock, such holder shall surrender the certificate or
certificates therefor, duly endorsed, at the office of the Corporation or
of any transfer agent for such stock, and shall give written notice to the
Corporation at such office that such holder elects to convert the same and
shall state therein the name or names in which such holder wishes the
certificate or certificates for shares of Common Stock to be issued. The
Corporation shall, as soon as practicable thereafter, issue and deliver at
such office to such holder of Series A, B, C, D, E-1, E-2 or F Preferred
Stock, respectively, a certificate or certificates for the number of shares
of Common Stock to which such holder shall be entitled as aforesaid. Such
conversion shall be deemed to have been made immediately prior to the close
of business on the date of surrender of the shares of Series A, B, C, D, E-
1, E-2 or F Preferred Stock, respectively, to be converted, and the person
or persons entitled to receive the shares of Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock on such date.
4.3.2. If the conversion is in connection with an underwritten
offering of securities pursuant to the Securities Act, the conversion may,
at the option of any holder tendering shares of Series A, B, C, D, E-1, E-2
or F Preferred Stock for conversion, be conditioned upon the closing with
the underwriters of the sale of securities pursuant to such offering, in
which event the person(s) entitled to receive the Common Stock upon
conversion of the Series A, B, C, D, E-1, E-2 or F Preferred Stock shall
not be deemed to have converted such Series A, B, C, D, E-1, E-2 or F
Preferred Stock until immediately prior to the closing of such sale of
securities.
4.4. Adjustments to Series E-1 Conversion Price, Series E-2
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Conversion Price, and Series F Conversion Price for Certain Diluting Issues.
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4.4.1. Special Definitions. For purposes of this Section 4.4,
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the following definitions apply:
4.4.1.1. "Options" shall mean rights, options, or
warrants to subscribe for, purchase or otherwise acquire either Common
Stock or Convertible Securities (defined below).
4.4.1.2. "Original Issue Date" shall mean, for each
series of Preferred Stock, the respective date on which a share of
Series E-1, E-2, or a share of Series F Preferred Stock was first
issued.
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4.4.1.3. "Convertible Securities" shall mean any
evidences of indebtedness, shares (other than Common Stock and
Preferred Stock) or other securities convertible into or exchangeable
for Common Stock.
4.4.1.4. "Additional Shares of Common Stock" shall mean
all shares of Common Stock issued (or, pursuant to Section 4.4.3,
deemed to be issued) by the Corporation after the Original Issue Date,
other than shares of Common Stock issued or issuable:
(A) upon conversion of shares of Series A, B,
C, D, E-1, E-2 and F Preferred Stock;
(B) to officers, directors or employees of, or
consultants to, the Corporation pursuant to stock option or stock purchase
plans or agreements on terms approved by the Board of Directors, but not
exceeding fifteen percent (15%) of the outstanding capital stock as of the
Original Issue Date (net of any repurchases of such shares or cancellations
or expirations of options), subject to adjustment for all subdivisions and
combinations; provided, however, that such number may be increased with the
approval of five (5) out of seven (7) members of the Corporation's Board of
Directors.
(C) as a dividend or distribution on Series E-
2 or Series F Preferred Stock;
(D) upon exercise of 373,210 warrants to
purchase Common Stock;
(E) for which adjustment of the Series E-2
Conversion Price or the Series F Conversion Price is made pursuant to
Section 4.4.4; or
4.4.2. No Adjustment of Conversion Price. Any provision herein
---------------------------------
to the contrary notwithstanding, no adjustment in the Series E-1 Conversion
Price, the Series E-2 Conversion Price, or the Series F Conversion Price
shall be made pursuant to Section 4.4.4 below and no adjustment in the
Series E-1 Conversion Price, the Series E-2 Conversion Price, or the Series
F Conversion Price shall be made in respect of the issuance of Additional
Shares of Common Stock unless the consideration per share (determined
pursuant to Section 4.4.5 hereof) for an Additional Share of Common Stock
issued or deemed to be issued by the Corporation is less than the Series E-
1 Conversion Price, the Series E-2 Conversion Price, or the Series F
Conversion Price, respectively, as the case may be, in effect on the date
of, and immediately prior to, such issue.
4.4.3. Deemed Issue of Additional Shares of Common Stock. In
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the event the Corporation at any time or from time to time 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 then 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 designed to protect against dilution) of Common
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Stock issuable upon the exercise of such Options or, in the case of
Convertible Securities and Options therefor, the conversion or exchange of
such Convertible Securities and Options therefor, the conversion 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 in any such case in which Additional Shares of
Common Stock are deemed to be issued:
4.4.3.1. no further adjustments in the Series E-1
Conversion Price, the Series E-2 Conversion Price, or the Series F
Conversion Price shall be made upon the subsequent issue of
Convertible Securities or shares of Common Stock upon the exercise of
such Options or conversion or exchange of such Convertible Securities;
4.4.3.2. if such Options or Convertible Securities by
their terms provide, with the passage of time or otherwise, for any
increase or decrease in the consideration payable to the Corporation,
or decrease or increase in the number of shares of Common Stock
issuable, upon the exercise, conversion or exchange thereof, the
Series E-1 Conversion Price, the Series E-2 Conversion Price, or the
Series F 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 or exchange under such Convertible Securities (provided,
however, that no such adjustment of the Series E-1 Conversion Price,
the Series E-2 Conversion Price, or the Series F Conversion Price
shall affect Common Stock previously issued upon conversion of the
Series E-1, E-2, or F Preferred Stock);
4.4.3.3. upon the expiration of any such Options or any
rights of conversion or exchange under such Convertible Securities
which shall not have been exercised, the Series E-1 Conversion Price,
the Series E-2 Conversion Price, or the Series F 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:
(A) in the case of Convertible Securities or
Options for Common Stock, the only Additional Shares of Common Stock issued
were the 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 which were actually converted or exchanged, plus the additional
consideration, if any, actually received by the Corporation upon such
conversion or exchange and
(B) 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
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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 Section 4.4)
upon the issue of the Convertible Securities with respect to which such
Options were actually exercised;
4.4.3.4. no readjustment pursuant to clause 4.4.3.2 or
4.4.3.3 above shall have the effect of increasing the Series E-1
Conversion Price, the Series E-2 Conversion Price, or the Series F
Conversion Price to an amount which exceeds the lower of (a) the
Series E-1 Conversion Price, the Series E-2 Conversion Price, or the
Series F Conversion Price on the original adjustment date, or (b) the
Series E-1 Conversion Price, the Series E-2 Conversion Price, or the
Series F Conversion Price that would have resulted from any issuance
of Additional Shares of Common Stock between the original adjustment
date and such readjustment date;
4.4.3.5. in the case of any Options which expire by
their terms not more than 30 days after the date of issue thereof, no
adjustment of the Series E-1 Conversion Price, the Series E-2
Conversion Price, or the Series F Conversion Price shall be made until
the expiration or exercise of all such Options, whereupon such
adjustment shall be made in the same manner provided in clause 4.4.3.3
above.
4.4.4. Adjustment of Conversion Price Upon Issuance of
-----------------------------------------------
Additional Shares of Common Stock. In the event this Corporation at any
---------------------------------
time after the Original Issue Date shall issue Additional Shares of Common
Stock (including Additional Shares of Common Stock deemed to be issued
pursuant to Section 4.4.3) without consideration or for a consideration per
share less than the Series E-1 Conversion Price, the Series E-2 Conversion
Price, or the Series F Conversion Price in effect on the date of and
immediately prior to such issue, then and in such event the Series E-1
Conversion Price, the Series E-2 Conversion Price, or the Series F
Conversion Price as the case may be, shall be reduced, concurrently with
such issue, to a price (calculated to the nearest cent) determined by
multiplying the Series E-1 Conversion Price, the Series E-2 Conversion
Price, or the Series F Conversion Price by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such issue plus the number of shares of Common Stock which the
aggregate consideration received by the corporation for the total number of
Additional Shares of Common Stock so issued would purchase at the Series E-
1 Conversion Price, the Series E-2 Conversion Price, or the Series F
Conversion Price and the denominator of which shall be the number of shares
of Common Stock outstanding immediately prior to such issue plus the number
of such Additional Shares of Common Stock so issued; and provided further
that, for the purposes of this 4.4.4, all shares of Common Stock issuable
upon conversion of outstanding Options, Convertible Securities, and
Preferred Stock shall be deemed to be outstanding.
4.4.5. Determination of Consideration. For purposes of this
------------------------------
Section 4.4, the consideration received by the Corporation for the issue of
any Additional Shares of Common Stock shall be computed as follows:
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<PAGE>
4.4.5.1. 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; 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 which 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.
4.4.5.2. 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
4.4.3 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 designed to protect
against dilution) 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 designed to protect against the dilution)
issuable upon the exercise of such Options or conversion or exchange of
such Convertible Securities.
4.5. Adjustments to Conversion Prices for Stock Dividends and for
------------------------------------------------------------
Combinations or Subdivisions of Common Stock. In the event that this Corporation
--------------------------------------------
at any time or from time to time after the Original Issue Date shall declare or
pay, without consideration, any dividend on the Common Stock payable in Common
Stock or in any right to acquire Common Stock for no consideration, or shall
effect a subdivision of the outstanding shares of Common Stock into a greater
number of shares of Common Stock (by stock split, reclassification or otherwise
than by payment of a dividend in Common Stock or in any right to acquire Common
Stock), or in the event the outstanding shares of Common Stock shall be combined
or consolidated, by reclassification or otherwise, into a lesser number of
shares of Common Stock, then the Conversion Price for any series of Preferred
Stock in effect immediately prior to such event shall, concurrently with the
effectiveness of such event, be proportionately decreased or increased, as
appropriate. In the event that this
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<PAGE>
Corporation shall declare or pay, without consideration, any dividend on the
Common Stock payable in any right to acquire Common Stock for no consideration,
then the Corporation shall be deemed to have made a dividend payable in Common
Stock in an amount of shares equal to the maximum number of shares issuable upon
exercise of such rights to acquire Common Stock.
4.6. Adjustments for Reclassification and Reorganization. If the Common
---------------------------------------------------
Stock issuable upon conversion of the Series A, B, C, D, E-1, E-2 and F
Preferred Stock shall be changed into the same or a different number of shares
of any other class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination of shares
provided for in Section 4.5 above or a merger or other reorganization referred
to in Section 2.4 above), the Series A, B, C, D, E-1, E-2 and F Conversion Price
then in effect shall, concurrently with the effectiveness of such reorganization
or reclassification, be proportionately adjusted so that the Series A, B, C, D,
E-1, E-2 and F 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
equivalent to the number of shares of Common Stock that would have been subject
to receipt by the holders upon conversion of the Series A, B, C, D, E-1, E-2 and
F Preferred Stock immediately before that change.
4.7. No Impairment. The Corporation will not, by amendment of its Articles
-------------
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
Series A, B, C, D, E-1, E-2 and F Preferred Stock against impairment.
4.8. Certificates as to Adjustments. Upon the occurrence of each
------------------------------
adjustment or readjustment of any 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 prepare and furnish to each
holder of Series A, B, C, D, E-1, E-2 or F Preferred Stock, respectively, a
certificate executed by the Corporation's President or Chief Financial Officer
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 Series A, B, C, D, E-1, E-2 or
F Preferred Stock, respectively, furnish or cause to be furnished to such holder
a like certificate setting forth (i) such adjustments and readjustments, (ii)
the Conversion Price for such series of Preferred Stock 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 the Series
A, B, C, D, E-1, E-2 or F Preferred Stock, respectively.
4.9. Issue Taxes. The Corporation shall pay any and all issue and other
-----------
taxes that may be payable in respect of any issue or delivery of shares of
Common Stock on conversion of Series A, B, C, D, E-1, E-2 or F Preferred Stock,
respectively, pursuant hereto; provided, however, that the Corporation shall not
be obligated to pay any transfer taxes resulting from any transfer requested by
any holder in connection with any such conversion.
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<PAGE>
4.10. Reservation of Stock Issuable Upon Conversion. The Corporation
---------------------------------------------
shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of the Series A, B, C, D, E-1, E-2 and F Preferred Stock, such number
of its shares of Common Stock as shall from time to time be sufficient to effect
the conversion of all outstanding shares of the Series A, B, C, D, E-1, E-2 and
F Preferred Stock; and if at any time the number of authorized but unissued
shares of Common Stock shall not be sufficient to effect the conversion of all
then outstanding shares of the Series A, B, C, D, E-1, E-2 and F Preferred
Stock, the Corporation will take such corporate action as may, in the opinion of
its counsel, be necessary to increase its authorized but unissued shares of
Common Stock to such number of shares as shall be sufficient for such purpose,
including, without limitation, engaging in best efforts to obtain the requisite
stockholder approval of any necessary amendment to this Certificate.
4.11. Fractional Shares. No fractional share shall be issued upon the
-----------------
conversion of any share or shares of Series A, B, C, D, E-1, E-2 or F Preferred
Stock, respectively. All shares of Common Stock (including fractions thereof)
issuable upon conversion of more than one share of Series A, B, C, D, E-1, E-2
or F Preferred Stock, respectively, by a holder thereof shall be aggregated for
purposes of determining whether the conversion would result in the issuance of
any fractional share. If, after the aforementioned aggregation, the conversion
would result in the issuance of a fraction of a share of Common Stock, the
Corporation shall, in lieu of issuing any fractional share, pay the holder
otherwise entitled to such fraction a sum in cash equal to the fair market value
of such fraction on the date of conversion (as determined in good faith by the
Board of Directors).
4.12. Notices. Any notice required by the provisions of this Section
-------
4 to be given to the holders of shares of Series A, B, C, D, E-1, E-2 or F
Preferred Stock, respectively, shall be deemed given if deposited in the United
States mail, postage prepaid, or if sent by facsimile or delivered personally by
hand or nationally recognized courier and addressed to each holder of record at
such holder's address or facsimile number appearing in the records of the
Corporation.
5. 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 sell, lease or convey all or
substantially all of its assets, or to liquidate, dissolve or wind up; then, in
connection with each such event, the Corporation shall send to the holders of
Series A, Series B, Series C, Series D, Series E-1, Series E-2 and Series F
Preferred Stock:
5.1. 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, if any, in respect of the
matters referred to in (iii) and (iv) above; and
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<PAGE>
5.2. 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).
6. Restrictions and Limitations.
----------------------------
6.1. So long as any shares of Preferred Stock remain outstanding,
the Corporation shall not, without the vote or written consent by the holders of
at least sixty-six and two-thirds percent (66 2/3%) of the then outstanding
shares of the Series A, B, C, D, and E-1 Preferred Stock, voting as a class, the
vote or written consent by the holders of at least sixty-six and two-thirds
percent (66 2/3%) of the then outstanding shares of the Series E-2 Preferred
Stock, voting together as a class, and the vote or written consent by the
holders of at least sixty-six and two-thirds percent (66 2/3%) of the then
outstanding shares of the Series F Preferred Stock, voting together as a class:
6.1.1. Redeem, purchase or otherwise acquire for value (or pay
into or set aside for a sinking fund for such purpose) any share or shares
of Preferred Stock otherwise than by conversion in accordance with Section
4 hereof;
6.1.2. Redeem, purchase or otherwise acquire (or pay into or
set aside for a sinking fund for such purpose) any of the 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 plus interest at a rate not to
exceed nine percent (9%) per annum upon the occurrence of certain events,
such as the termination of employment, provided further, however, that the
total amount applied to the repurchase of shares of Common Stock shall not
exceed $100,000 during any twelve (12) month period;
6.1.3. Authorize or issue, or obligate itself to issue, any
other equity security (including any security convertible into or
exercisable for any equity security) senior to or on a parity with the
Preferred Stock as to dividend rights or redemption rights or liquidation
preferences;
6.1.4. Effect any sale, lease, assignment, transfer, or other
conveyance of all or substantially all of the assets of the Corporation or
any of its subsidiaries, or any consolidation or merger involving the
Corporation or any of its subsidiaries, or any reclassification or other
change of any stock, or any recapitalization of the Corporation;
6.1.5. Permit any subsidiary to issue or sell, or obligate
itself to issue or sell, except to the Corporation or any wholly owned
subsidiary, any stock of such subsidiary;
6.1.6. Increase or decrease (other than by redemption or
conversion) the total number of authorized shares of Preferred Stock;
6.1.7. Change, amend, or otherwise alter any provision of the
Bylaws of the Corporation; or
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<PAGE>
6.1.8. Change, amend, or otherwise alter the number of members
of the Board of Directors of the Corporation.
6.2. Except as provided in Section 6.3 below, the Corporation shall
not amend its Articles of Incorporation or Bylaws without the approval, by vote
or written consent, of at least sixty-six and two-thirds percent (66 2/3%) of
the then outstanding shares of the Series A, B, C, D and E-1 and F Preferred
Stock, voting together as a class, the vote or written consent by the holders of
at least sixty-six and two-thirds percent (66 2/3%) of the then outstanding
shares of the Series E-2 Preferred Stock, voting together as a class, if such
amendment would change any of the rights, preferences or privileges provided for
herein for the benefit of any shares of that series of Preferred Stock. Without
limiting the generality of the preceding sentence, the Corporation will not
amend its Articles of Incorporation or Bylaws without the approval of the
holders of at least sixty-six and two-thirds percent (66 2/3%) of the then
outstanding shares of the Series A, B, C, D, E-1 and F Preferred Stock, voting
together as a class, the vote or written consent by the holders of at least
sixty-six and two-thirds percent (66 2/3%) of the then outstanding shares of the
Series E-2 Preferred Stock, voting together as a class, if such amendment would:
6.2.1. Reduce the dividend rates on that series of Preferred
Stock provided for herein, or defer the date from which dividends will
accrue, or cancel accrued and unpaid dividends, or change the relative
seniority rights of the holders of that series of Preferred Stock as to the
payment of dividends in relation to the holders of any other capital stock
of the Corporation;
6.2.2. Reduce the amount payable to the holders of that series
of Preferred Stock upon the voluntary or involuntary liquidation,
dissolution, or winding up of the Corporation, or change the relative
seniority of the liquidation preferences of the holders of that series of
Preferred Stock to the rights upon liquidation of the holders of any other
capital stock of the Corporation;
6.2.3. Make the Series A, B, C, D, E-1, E-2 or F Preferred
Stock, respectively, redeemable at the option of the Corporation;
6.2.4. Cancel or modify the Conversion Rights of that series
provided for in Section 4 hereof.
6.3. The consent of the holders of sixty-six and two-thirds
percent (66 2/3%) of the Series E-2 Preferred Stock shall be required for any
action which: (i) alters or changes the rights, preferences or privileges of the
Series E-2 Preferred Stock or (ii) amends or decreases the authorized number of
shares of Series E-2 Preferred Stock. The consent of the holders of sixty-six
and two-thirds percent (66 2/3%) of the Series F Preferred Stock shall be
required for any action which: (i) alters or changes the rights, preferences or
privileges of the Series F Preferred Stock or (ii) amends or decreases the
authorized number of shares of Series F Preferred Stock.
6.4. Right of First Refusal. The following rights shall terminate
----------------------
upon the occurrence of a Qualified Public Offering:
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<PAGE>
6.4.1. Except as set forth in Section 6.4.4 below, if, at any time after
the Original Issue Date, the Corporation shall propose to sell to any persons in
a transaction not registered under the Securities Act any Equity Securities (as
hereinafter defined), it shall give the holders of Series E-2 and Series F
Preferred Stock, or transferees who acquired their shares from such holders, the
right to purchase all such Equity Securities and each holder may purchase his or
its pro rata share (which proportion is to be determined by dividing the number
of shares of Common Stock issued or issuable upon conversion of the Series E-2
and Series F Preferred Stock held by such holder of Series E-2 and Series F
Preferred Stock by all of the Corporation's Common Stock then outstanding or
issuable upon conversion of Series E-2 and Series F Preferred Stock) of such
privately offered Equity Securities on the same terms and conditions as the
Corporation is offering such Equity Securities to such other persons. Prior to
any sale or issuance by the Corporation of any Equity Securities subject to this
right of first refusal, the Corporation shall notify the holders of Series E-2
and Series F Preferred Stock, in writing, of its intention to sell and issue
such Equity Securities, setting forth the terms under which it proposes to make
such sale. Within thirty (30) business days after receipt of such notice, the
holders of Series E-2 and Series F Preferred Stock shall notify the Corporation
as to whether they desire to purchase any or all of their pro rata share of such
Equity Securities for the price and on the general terms specified in the
notice. In the event any holder of Series E-2 and Series F Preferred Stock
elects not to purchase such holder's pro rata share of such Equity Securities,
the Corporation shall provide five (5) days notice to the remaining holders of
Preferred Stock who shall have the right to purchase their pro rata share of
such available shares on the terms described above. Within five (5) business
days following receipt of such notice, the remaining holders of Series E-2 and
Series F Preferred Stock shall notify the Corporation of the number of such
additional Equity Securities it chooses to purchase. (In the event that such
shares are over subscribed, each holder of Series E-2 and Series F Preferred
Stock shall be entitled to purchase on a pro-rata basis.)
6.4.2. If, following the expiration of the notice periods set forth above,
the holders of Series E-2 and Series F Preferred Stock have not notified the
Corporation that they desire to purchase all of the Equity Securities described
in such notice upon the terms and conditions set forth in such notice, the
Corporation may, during a period of ninety (90) days following the end of such
notice periods, sell and issue such Equity Securities which the holders of
Series E-2 and Series F Preferred Stock have not elected to purchase at a price
and upon terms and conditions no more favorable than those set forth in such
notice.
6.4.3. If the holders of Series E-2 and Series F Preferred Stock elect to
purchase all of the Equity Securities offered by the Corporation, the holders of
Series E-2 and Series F Preferred Stock shall pay for them by immediately
available funds against delivery of the securities at the executive offices of
the Corporation at the time of the scheduled closing therefor. The Corporation
shall take all such action (except registration under the Securities Act or the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) as may be
reasonably required by any regulatory authority in connection with the exercise
by the holders of Series E-2 and Series F Preferred Stock of the right to
purchase Equity Securities as set forth herein.
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<PAGE>
6.4.4. "Equity Securities" shall mean (i) shares of Common
Stock of the Corporation and (ii) any security convertible into or
exchangeable for shares of Common Stock of the Corporation; provided,
--------
however, that Equity Securities shall not include the shares of Common
-------
Stock or Preferred Stock issued on or prior to the date hereof and,
provided, further, that Equity Securities shall not include securities: (A)
-------- -------
issued or reserved for issuance to employees, consultants, directors or
officers of the Company pursuant to stock grant, stock purchase and/or
stock option plans or any other stock incentive program, agreement or
arrangement approved by the Board of Directors, but not exceeding fifteen
percent (15%) of the outstanding capital stock of the Corporation as of the
Original Issue Date; provided, however, that such number may be increased
with the approval of five (5) out of seven (7) members of the Company's
Board of Directors, (B) issued upon conversion of the Preferred Stock, (C)
pursuant to equipment financing or leasing arrangements, pursuant to
lending arrangements with a bank or other lender approved by two-thirds
(2/3) of the Board of Directors or (D) issued in connection with any stock
split, stock dividend, recapitalization or similar event.
6.4.5. The rights set forth in this Section 6 shall terminate
immediately prior to, and shall not apply to, the closing of the
Corporation's initial Qualified Public Offering.
7. No Reissuance of Series A, B, C, D, E-1, E-2 or F Preferred Stock,
-----------------------------------------------------------------
respectively.
------------
No share or shares of Series A, B, C, D, E-1, E-2 or F Preferred Stock,
respectively, 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.
8. Repurchase of Certain Stock. Each holder of any outstanding shares of
---------------------------
Series A, Series B, Series C, Series D, Series E-1, Series E-2 or Series F
Preferred Stock shall be deemed to have consented, for purposes of Sections 502,
503 and 506 of the California Code, to distributions made by the Corporation in
connection with the repurchase of shares of Common Stock issued to or held by
employees, officers or directors of or consultants to the Corporation (or any of
its subsidiaries) when such repurchase is in accordance with the terms of
payment in Section 7.
ARTICLE V
---------
The name and mailing address for the incorporator is as follows:
Christine S. Wong, Esq.
c/o Wilson Sonsini Goodrich & Rosati, P.C.
975 Page Mill Road
Palo Alto, CA 94304-1050
ARTICLE VI
----------
The Corporation is to have perpetual existence.
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<PAGE>
ARTICLE VII
-----------
The management of the business and the conduct of the affairs of the
Corporation shall be vested in the Board of Directors. Except as set forth
herein, the number of directors which shall constitute the whole Board of
Directors shall be fixed in the manner designated in the Bylaws of the
Corporation.
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter, amend or repeal
the Bylaws of the Corporation.
Elections of directors need not be by written ballot unless a stockholder
demands election by written ballot at the meeting and before voting begins or
unless the Bylaws of the Corporation shall so provide.
ARTICLE VIII
------------
To the fullest extent permitted by the Delaware General Corporation Law as
the same exists or as may hereafter be amended, 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.
The Corporation may indemnify to the fullest extent permitted 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 he,
his testator or intestate is or was a director, officer, employee or agent of
the Corporation or any predecessor of the Corporation or serves or served at any
other enterprise as a director, officer, employee or agent at the request of the
Corporation or any predecessor to the Corporation.
Neither any amendment nor repeal of this Article VIII, nor the adoption of
any provision of this Corporation's Certificate of Incorporation inconsistent
with this Article VIII, shall eliminate or reduce the effect of this Article
VIII, in respect of any matter occurring, or any action or proceeding accruing
or arising or that, but for this Article VIII, would accrue or arise, prior to
such amendment, repeal or adoption of an inconsistent provision.
ARTICLE IX
----------
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside of the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of the Corporation.
ARTICLE X
---------
Except as set forth herein, vacancies created by newly created
directorships, created in accordance with the Bylaws of this Corporation, may be
filled by the vote of a majority, although less than a quorum, of the directors
then in office, or by a sole remaining director.
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<PAGE>
ARTICLE XI
----------
At any time following the closing of the first sale of Common Stock of the
Corporation pursuant to a registration statement declared effective by the
Securities and Exchange Corporation under the Securities Act of 1933, as amended
("Initial Public Offering"), stockholders of the Corporation may not take any
action by written consent in lieu of a meeting and any action contemplated by
stockholders after such time must be taken at a duly called annual or special
meeting of stockholders.
Advance notice of new business and stockholder nominations for the election
of directors shall be given in the manner and to the extent provided in the
Bylaws of the Corporation.
ARTICLE XII
-----------
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purposes of forming a Corporation pursuant to the Corporation Law of the State
of Delaware, do make this certificate, hereby declaring and certifying, under
penalties of perjury, that this is my act and deed and the facts herein stated
are true, and accordingly have hereunto set my hand on July 21, 2000.
/s/ Christine S. Wong
---------------------
Christine S. Wong
