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EXHIBIT 3.1
CERTIFICATE OF AMENDMENT TO
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GLOBAL KNOWLEDGE, INC.
- - - - - - - - - - - - - - - - - - - - - -
Under Sections 228 and 242 of the
General Corporation Law of
the State of Delaware
- - - - - - - - - - - - - - - - - - - - - -
It is HEREBY CERTIFIED that
1. The name of the corporation (hereinafter called the
"Corporation") is
-----------
GLOBAL KNOWLEDGE, INC.
2. The certificate of incorporation of the Corporation is hereby
amended to restate in its entirety Section B5 of Part I of Article FOURTH
thereof:
" Mandatory Redemption.
--------------------
a. On January 1, 2006, the Corporation shall redeem all of the
shares of the Series A Preferred Stock then outstanding at the Series A
Preferred Stock Redemption Price.
b. Immediately upon the closing of an underwritten public offering
pursuant to an effective registration statement filed pursuant to the Securities
Act of 1933, as amended, covering the offer and sale of Common Stock for the
account of the Corporation resulting in gross proceeds of at least $30,000,000
to the Corporation (prior to deduction of underwriter's fees, expenses,
commissions and discounts) (a "Series A Qualified Offering"), the Corporation
shall redeem, on a pro rata basis, at the Series A Preferred Stock Redemption
Price such number of shares of Series A Preferred Stock equal to the Series A
Redemption Share Number. Notwithstanding the foregoing, the provisions of this
Paragraph b shall have no effect if the closing of a Series A Qualified Offering
occurs after May 31, 2001.
c. "Series A Preferred Stock Redemption Price" means a price equal to
One Hundred Dollars ($100) per share plus all accrued but unpaid dividends
thereon (whether or not declared) as of the applicable Series A Preferred Stock
Redemption Date. "Series A Preferred Stock Redemption Date" means any date upon
which the Corporation is obligated to redeem any shares of Series A Preferred
Stock. "Series A Redemption Share Number" means a number of shares of Series A
Preferred Stock (rounded to the nearest whole number) equal to the
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quotient obtained by dividing (A) $20,000,000 by (B) the Series A Preferred
Stock Redemption Price. "
3. The certificate of incorporation of the Corporation is hereby
further amended to add the following new section as Section B8 of Part I of
Article FOURTH thereof:
" B8. Automatic Conversion.
--------------------
a. Immediately upon the closing of a Series A Qualified Offering, but
following the redemption of the certain shares of Series A Preferred Stock in
accordance with Paragraph b of Section B5, all remaining outstanding shares of
Series A Preferred Stock shall be converted automatically into the number of
shares of Common Stock determined in accordance with the provisions of Paragraph
b of this Section B8. Notwithstanding the foregoing, the provisions of this
Section B8 shall have no effect if the closing of a Series A Qualified Offering
occurs after May 31, 2001.
b. The number of shares of Common Stock issuable upon the automatic
conversion of a share of Series A Preferred Stock under this Section B8 shall be
equal to the quotient obtained by dividing (A) the Series A Preferred Redemption
Price, by (B) the dollar amount which is equal to the initial public offering
price per share in the Series A Qualified Offering (the "IPO Price"). Such
conversion shall be effective whether or not the certificates representing such
shares are surrendered to the Corporation or its transfer agent.
c. Upon the occurrence of the conversion events specified in
Paragraph a of this Section B8, the holders of the Series A Preferred Stock
shall, upon notice from the Corporation, surrender the certificates representing
such shares at the office of the Corporation or of its transfer agent for the
Common Stock. Thereupon, there shall be issued and delivered to such holder a
certificate or certificates for the number of shares of Common Stock into which
the shares of Series A Preferred Stock so surrendered were convertible on the
date on which such conversion occurred. The Corporation shall not be obligated
to issue such certificates unless certificates evidencing the shares of Series A
Preferred Stock being converted are either delivered to the Corporation or any
such transfer agent, or the holder notifies the Corporation 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 therewith. Upon the occurrence of the conversion
events specified in Paragraph a of this Section B8, all rights with respect to
the Series A Preferred Stock so converted, including the rights, if any, to
receive notices and vote (other than as a holder of Common Stock) will
terminate, except only the rights of the holders thereof, upon surrender of
their certificates or certificates therefore, to receive certificates for the
number of shares of Common Stock into which such Series A Preferred Stock has
been converted.
d. No fractional shares of Common Stock or scrip representing
fractional shares shall be issued upon the conversion of shares of Series A
Preferred Stock. Instead of any fractional shares of Common Stock which would
otherwise be issuable upon
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conversion of Series B Preferred Stock (after taking into account all shares of
Series A Preferred Stock held by a holder thereof), the Corporation shall pay to
the holder of the shares of Series A Preferred Stock which were converted a cash
adjustment in respect of such fractional shares in an amount equal to the same
fraction of the IPO Price.
e. 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 Preferred
Stock, such number of its shares of Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding shares of the Series A
Preferred Stock, and if at any time the number of authorized but unissued shares
of Common Stock shall not be sufficient to effect the conversion of all then
outstanding shares of the Series A Preferred Stock, the Corporation promptly
shall take such action as may be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient
for such purpose.
4. The capital of the Corporation will not be decreased on account of
the foregoing amendment.
5. The amendment of the certificate of incorporation herein certified
has been duly adopted and written consent has been given in accordance with the
provisions of Sections 228 and 242 of the General Corporation Law of the State
of Delaware.
Signed on October 2, 2000
/s/ DUNCAN M. ANDERSON
----------------------
Duncan M. Anderson
President and Chief Executive Officer
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CERTIFICATE OF AMENDMENT TO
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GKN HOLDINGS, INC.
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Under Sections 228 and 242 of the
General Corporation Law of
the State of Delaware
- - - - - - - - - - - - - - - - - - - - - -
It is HEREBY CERTIFIED that
1. The name of the corporation (hereinafter called the "Corporation")
-----------
is
GKN HOLDINGS, INC.
2. The certificate of incorporation of the Corporation is hereby
amended by striking out Article FIRST thereof in its entirety and by
substituting in lieu of said article, the following new article:
"FIRST: The name of the Corporation is
GLOBAL KNOWLEDGE, INC."
3. The capital of the Corporation will not be decreased on account of
the foregoing amendment.
4. The amendment of the certificate of incorporation herein certified
has been duly adopted and written consent has been given in accordance with the
provisions of Sections 228 and 242 of the General Corporation Law of the State
of Delaware.
Signed on September 28, 2000
/s/ DUNCAN M. ANDERSON
-----------------------
Duncan M. Anderson
President and Chief Executive Officer
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CERTIFICATE OF AMENDMENT TO
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GKN HOLDINGS, INC.
- - - - - - - - - - - - - - - - - - - - - -
Under Sections 228 and 242 of the
General Corporation Law of
the State of Delaware
- - - - - - - - - - - - - - - - - - - - - -
It is HEREBY CERTIFIED that
1. The name of the corporation (hereinafter called the "Corporation")
-----------
is
GKN HOLDINGS, INC.
2. The certificate of incorporation of the Corporation is hereby
amended by striking out the first paragraph of Article Fourth thereof and by
substituting in lieu of said paragraph, the following new paragraph:
"FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 167,100,000 shares, consisting of
7,100,000 shares of Preferred Stock, $1.00 par value (herein called the
"Preferred Stock"), and 160,000,000 shares of Common Stock, $.01 par value per
share (herein called the "Common Stock"). All cross-references in each
subdivision of this Article FOURTH refer to other paragraphs in such subdivision
unless otherwise indicated. "
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3. The capital of the Corporation will not be decreased on account of
the foregoing amendment.
4. The amendment of the certificate of incorporation herein certified
has been duly adopted and written consent has been given in accordance with the
provisions of Sections 228 and 242 of the General Corporation Law of the State
of Delaware.
Signed on March 1, 2000
/s/ DUNCAN M. ANDERSON
--------------------------------------
Duncan M. Anderson
President and Chief Executive Officer
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RESTATED CERTIFICATE OF INCORPORATION
OF
GKN HOLDINGS, INC.
GKN HOLDINGS, INC., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is GKN HOLDINGS, INC. and the name
under which the corporation was originally incorporated is GKN HOLDINGS, INC.
The date of filing of its original Certificate of Incorporation with the
Secretary of State was October 18, 1995.
2. This Restated Certificate of Incorporation restates and integrates
and further amends the Certificate of Incorporation of this corporation by,
amending and restating Article Fourth of the Certificate of Incorporation (a) to
change the authorized capital stock of the Corporation from One Hundred One
Million (101,000,000) shares, consisting of One Million (1,000,000) shares of
Preferred Stock, $1.00 par value, and One Hundred Million (100,000,000) shares
of Common Stock, $.01 par value, to One Hundred Seventeen Million One Hundred
Thousand (117,100,000) shares, consisting of Seven Million One Hundred Thousand
(7,100,000) shares of Preferred Stock, $1.00 par value, and One Hundred Ten
Million (110,000,000) shares of Common Stock, $.01 par value, (b) to redesignate
the Corporation's One Million (1,000,000) outstanding shares of Preferred Stock
as "Series A Preferred Stock," (c) to authorize Six Million One Hundred Thousand
(6,100,000) shares of Series B Convertible Preferred Stock and designate the
powers, preferences, rights, qualifications, limitations and restrictions
thereof and (d) to authorize the Board of Directors of the Corporation to
declare the powers, preferences, rights, qualifications, limitations and
restrictions of the remaining undesignated Preferred Stock.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended hereby to read as herein set forth in
full:
FIRST: The name of the Corporation is GKN HOLDINGS, INC.
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 1013 Centre Road, in the City of Wilmington, County of
New Castle. The name of the Corporation's registered agent at such address is
Corporation Service Company.
THIRD: The purposes for which the Corporation is formed are to engage
in any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is One Hundred Seventeen Million One
Hundred Thousand (117,100,000) shares, consisting of Seven Million One Hundred
Thousand (7,100,000)
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shares of Preferred Stock, $1.00 par value (herein called the "Preferred
Stock"), and One Hundred Ten Million (110,000,000) shares of Common Stock, $.01
par value (herein called the "Common Stock"). All cross-references in each
subdivision of this Article FOURTH refer to other paragraphs in such subdivision
unless otherwise indicated.
The following is a statement of the designations, and the powers,
preferences and rights, and the qualifications, limitations or restrictions
thereof, in respect of each class of stock of the Corporation:
I. PREFERRED STOCK
A. General.
Preferred Stock may be issued from time to time in one or more series,
each of such series to have such terms as stated or expressed herein and in the
resolution or resolutions providing for the issue of such series adopted by the
Board of Directors of the Corporation as hereinafter provided. Any share of
Preferred Stock redeemed, purchased or acquired by the Corporation may be
reissued except as otherwise provided by law or the Certificate of
Incorporation. Different series of Preferred Stock shall not be construed to
constitute different classes of shares for the purposes of voting by classes
unless expressly provided.
Authority is hereby expressly granted to the Board of Directors from
time to time to issue the Preferred Stock in one or more series, and in
connection with the creation of any such series, by resolution or resolutions
providing for the issue of the shares thereof, to determine and fix such voting
powers, full or limited, or no voting powers, and such designations, preferences
and relative participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, including without
limitation thereof, dividend rights, conversion rights, redemption privileges
and liquidation preferences, as shall be stated and expressed in such
resolutions, all to the full extent now or hereafter permitted by the General
Corporation Law of Delaware. Without limiting the generality of the foregoing,
the resolutions providing for issuance of any series of Preferred Stock may
provide that such series shall be superior or rank equally or be junior to the
Preferred Stock of any other series to the extent permitted by law. No vote of
the holders of the Preferred Stock or the Common Stock shall be a prerequisite
to the issuance of any shares of any series of the Preferred Stock authorized by
and complying with law and the conditions of the Certificate of Incorporation,
the right to have such vote being expressly waived by all present and future
holders of the capital stock of the Corporation.
As used herein, the term "Preferred Stock" used without reference to
the Series A Preferred Stock or Series B Preferred Stock means the shares of
Series A Preferred Stock, the shares of Series B Preferred Stock and the shares
of any series of Preferred Stock of the Corporation issued, authorized and
designated from time to time by a resolution or resolutions of the Board of
Directors, share for share alike and without distinction as to class, except as
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otherwise expressly provided for in this Article FOURTH of this Certificate of
Incorporation or as the context otherwise requires.
B. Description and Designation of Series A Preferred Stock.
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B1. Designation. A total of One Million (1,000,000) shares of the
-----------
Corporation's Preferred Stock shall be designated the "Series A Preferred Stock"
(the "Series A Preferred Stock").
B2. Dividends.
---------
a. The holders of shares of the Series A Preferred Stock shall be
entitled to receive dividends accruing at the rate of $6.00 per share per annum,
and no more, payable when and as declared by the Board of Directors of the
Corporation and out of funds legally available for the payment thereof. Such
dividends shall be cumulative and shall accrue from and after the date of issue
whether or not declared and whether or not there are any funds of the
Corporation legally available for the payment of dividends. Accrued but unpaid
dividends shall not bear interest. The Board of Directors of the Corporation may
fix a record date for the determination of holders of the Series A Preferred
Stock entitled to receive payment of a dividend declared thereon, which record
date shall be no more than sixty (60) calendar days prior to the date fixed for
the payment thereof.
b. As long as any shares of the Series A Preferred Stock shall remain
outstanding, in no event shall any dividend be declared or paid upon, nor shall
any distribution be made upon, any Common Stock, other than a dividend or
distribution payable solely in shares of Common Stock of the Corporation, nor
shall any shares of Common Stock be purchased or redeemed by the Corporation,
nor shall any moneys be paid to or made available for a sinking fund for the
purchase or redemption of shares of any Common Stock, unless, in each such case,
(i) full cumulative dividends on the outstanding shares of the Series A
Preferred Stock shall have been declared and paid and (ii) any arrears or
defaults in any mandatory redemption of shares of the Series A Preferred Stock
shall have been cured.
B3. Liquidation, Dissolution or Winding Up.
--------------------------------------
a. In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of shares of the
Series A Preferred Stock then outstanding shall be entitled to be paid out of
the assets of the Corporation available for distribution to its stockholders,
before any payment shall be made to the holders of shares of any Common Stock by
reason of their ownership thereof, amount equal to One Hundred Dollars ($100)
per share of the Series A Preferred Stock, plus all accrued but unpaid dividends
thereon (whether or not declared), and no more. If upon any such liquidation,
dissolution or winding up of the Corporation the remaining assets of the
Corporation available for distribution to its stockholders shall be insufficient
to pay the holders of shares of the Series A Preferred Stock the full amount to
which they shall be entitled pursuant to this Section B3.(a), the holders of
shares of the Series A Preferred Stock shall share ratably in any distribution
of the remaining assets and
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funds of the Corporation in proportion to the respective amounts which would
otherwise be payable in respect of the shares of the Series A Preferred Stock
held by them upon such distribution if all amounts payable on or with respect to
such shares were paid in full.
b. After the payment of all amounts required to be paid pursuant to
Section B3.(a) above, to the holders of shares of the Series A Preferred Stock
upon the dissolution, liquidation or winding up of the Corporation, the holders
of shares of Common Stock then outstanding shall share in any distribution of
the remaining assets and funds of the Corporation in the manner provided by law,
in the Certificate of Incorporation of the Corporation, as amended, or as
provided in any pertinent Certificate of Designation of the Corporation, as the
case may be.
c. Neither the merger or consolidation of the Corporation into or with
any other corporation, nor the sale of all or substantially all the assets of
the Corporation, shall be deemed to be a liquidation, dissolution or winding up
of the Corporation for purposes of this Section B3. (unless in connection
therewith the liquidation of the Corporation is specifically approved).
B4. Voting. So long as shares of the Series A Preferred Stock are
------
outstanding, without the consent of the holders of at least Sixty-Six and Two-
Thirds Percent (66-2/3% ) of the Series A Preferred Stock at the time
outstanding given in person or by proxy, either in writing or at a special
meeting called for that purpose at which the holders of the Series A Preferred
Stock shall vote separately as a class, the Corporation may not (i) effect or
validate the amendment, alteration or repeal of any provision hereof which would
amend or repeal the dividend, voting, redemption or liquidation rights of the
Series A Preferred Stock set forth herein, or (ii) create or authorize any
additional class or series of stock ranking senior to or on a parity with the
Series A Preferred Stock as to dividends or as to rights upon mandatory
redemption, liquidation, dissolution or winding up.
B5. Mandatory Redemption.
--------------------
a. On January 1, 2006, the Corporation shall redeem, at a redemption
price of One Hundred Dollars ($100) per share plus all accrued but unpaid
dividends thereon (whether or not declared) as of such date (the "Series A
Preferred Stock Redemption Price"), all of the shares of the Series A Preferred
Stock then outstanding.
B6. Procedure for Redemption.
------------------------
a. At least twenty (20) calendar days (and not more than sixty (60)
calendar days) prior to the Series A Preferred Stock Redemption Date, written
notice thereof (a "Series A Preferred Stock Redemption Notice") shall be mailed,
by first class or registered mail, postage prepaid, to each holder of record of
the Series A Preferred Stock, at his or its address last shown on the records of
the transfer agent of the Series A Preferred Stock (or the records of the
Corporation, if it serves as its own transfer agent), notifying such holder of
the Series A Preferred Stock Redemption Date, the Series A Preferred Stock
Redemption Price, the total
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number of shares to be redeemed from such holder, and calling upon such holder
to surrender to the Corporation, in the manner and at the place designated, his
or its certificate or certificates representing the shares to be redeemed. In
order to facilitate the redemption of the Series A Preferred Stock the Board of
Directors may fix a record date for the determination of holders of the Series A
Preferred Stock, no more than sixty (60) calendar days nor less than ten (10)
calendar days prior to the Series A Preferred Stock Redemption Date.
b. On or prior to the Series A Preferred Stock Redemption Date, all
holders of shares of the Series A Preferred Stock shall surrender their
certificates representing such shares to the Corporation, in the manner and at
the place designated in the Series A Preferred Stock Redemption Notice, and
against such surrender the Series A Preferred Stock Redemption Price of such
shares shall be paid to the order of the person whose name appears on each such
certificate as the owner thereof. Each surrendered certificate shall be
canceled. From and after the Series A Preferred Stock Redemption Date, unless
there shall have been a default in payment of the Series A Preferred Stock
Redemption Price, all rights of the holders of the shares of the Series A
Preferred Stock as holders of such shares of the Series A Preferred Stock
(except the right to receive the Series A Preferred Stock Redemption Price
without interest against 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.
c. If the funds of the Corporation legally available for redemption of
the Series A Preferred Stock on the Series A Preferred Stock Redemption Date are
insufficient to redeem the full number of shares of the Series A Preferred Stock
on such date, those funds which are legally available shall be used to redeem
the maximum possible number of such shares of the Series A Preferred Stock
ratably from each holder whose shares are otherwise required to be redeemed. At
any time thereafter when additional funds of the Corporation become legally
available for the redemption of the Series A Preferred Stock, such funds will be
used, at the end of the next succeeding fiscal quarter, to redeem the balance of
the shares which the Corporation was theretofore obligated to redeem, ratably on
the basis set forth in the preceding sentence.
B7. Reacquired Shares. Any shares of the Series A Preferred Stock, which
-----------------
are redeemed or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof and the
number of authorized shares of the Preferred Stock shall be reduced accordingly.
C. Description and Designation of Series B Preferred Stock.
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C1. Designation. A total of Six Million One Hundred Thousand
(6,100,000) shares of the Corporation's Preferred Stock shall be designated the
"Series B Convertible Preferred Stock" (the "Series B Preferred Stock").
C2. Dividends.
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The holders of the outstanding shares of Series B Preferred Stock
shall be entitled to receive, out of any funds legally available therefor,
cumulative dividends at the rate of Six Percent (6%) per annum, payable only (a)
if, as and when determined by the Board of Directors of the Corporation, (b)
upon the liquidation, dissolution, sale, winding up of the Corporation or deemed
liquidation of the Corporation (as set forth in Section C3.(c) of Article
FOURTH), or (c) upon redemption in accordance with Section C6. of Article
FOURTH. Such dividends on the Series B Preferred Stock shall be cumulative so
that if such dividends in respect of any previous or current annual dividend
period, at the annual rate specified above, shall not have been paid or declared
and a sum sufficient for the payment thereof set apart, the deficiency shall
first be fully paid before any dividend or other distribution (as defined below)
shall be paid or declared and set apart for the Common Stock. Upon conversion of
the Series B Preferred Stock, any right of the holders thereof with respect to
any accrued but unpaid dividends shall terminate and any accrued and unpaid
dividends shall be forfeited.
For purposes of this Section C2. "distribution" shall mean the
transfer of cash or property without consideration, whether by way of dividend
or otherwise, payable other than in Common Stock or other securities of the
Corporation, or the purchase or redemption of shares of the Corporation (other
than repurchases of Common Stock held by employees or directors of, or
consultants to, the Corporation upon termination of their employment or services
pursuant to agreements approved by the Board of Directors providing for such
repurchase at a price equal to the original issue price of such shares) for cash
or property, including any such transfer, purchase or redemption by a subsidiary
of the Corporation.
C3. Liquidation, Dissolution or Winding Up.
--------------------------------------
(a) Treatment at Liquidation, Dissolution or Winding Up. In the event
---------------------------------------------------
of any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, or in the event of its insolvency, before any
distribution or payment is made to any holders of any shares of Common Stock or
any other class or series of capital stock of the Corporation designated to be,
junior to, the Series B Preferred Stock, and subject to the prior liquidation
rights and preferences of the Series A Preferred Stock and to the rights and
preferences of any other class or series of Preferred Stock designated to be
senior to, or on a parity with, the Series B Preferred Stock, the holders of
each share of Series B Preferred Stock shall be entitled to be paid first out of
the assets of the Corporation available for distribution to holders of the
Corporation's capital stock of all classes whether such assets are capital,
surplus or earnings, an amount (such amount, as so determined, is referred to
herein as the "Series B Liquidation Preference") equal to the greater of: (i)
$5.00 per share of Series B Preferred Stock (which amount shall be subject to
appropriate adjustment to the same extent and in the same manner as set forth in
Section C5.(d) of Article FOURTH, with respect to adjustments to the Series B
Applicable Conversion Value plus any dividends accrued but unpaid on such shares
(whether or not declared)), or (ii) an amount per share which the holders of
Series B Preferred Stock would have received if they had converted their shares
of Series B Preferred Stock into Common Stock, pursuant to Section C5. of this
Article FOURTH, immediately prior to such liquidation, dissolution or winding up
of the Corporation.
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After payment has been made to the holders of the Series B Preferred
Stock (and any other class or series of stock of the Corporation designated to
be senior to, or on a parity with, the Series B Preferred Stock) of the full
Series B Liquidation Preference to which such holders shall be entitled as
aforesaid, the remaining assets shall be distributed to the holders of any class
or series of Preferred Stock designated to be junior to the Series B Preferred
Stock to the extent then provided in the Corporation's Certificate of
Incorporation and, thereafter, to the holders of the Common Stock on a pro-rata
basis.
(b) Insufficient Funds. If upon such liquidation, dissolution or
------------------
winding up the assets or surplus funds of the Corporation to be distributed to
the holders of shares of Series B Preferred Stock and any other then-outstanding
shares of the Corporation's capital stock ranking on a parity with respect to
the payments on liquidation with the Series B Preferred Stock (such shares,
being referred to herein as the "Parity Preferred Stock") shall be insufficient
to permit payment to such holders of the full Liquidation Preference and all
other preferential amounts payable with respect to the Series B Preferred Stock
and such Parity Preferred Stock, then the assets available for payment or
distribution to such holders shall be allocated among the holders of the Series
B Preferred Stock and such Parity Preferred Stock, pro rata, in proportion to
the full respective preferential amounts to which the Series B Preferred Stock
and such Parity Preferred Stock are each entitled.
(c) Certain Transactions Treated as Liquidation. For purposes of this
-------------------------------------------
Section C3., at the election of a majority of the outstanding holders of Series
B Preferred Stock, (A) any acquisition of the Corporation by means of merger or
other form of corporate reorganization with or into another corporation in which
outstanding shares of the Corporation are exchanged for securities or other
consideration issued, or caused to be issued, by the other corporation or its
subsidiary, in which transaction this Corporation is not the surviving entity,
and, as a result of which transaction, the stockholders of this Corporation own
Fifty Percent (50% ) or less of the voting power of the surviving entity (other
than a mere reincorporation transaction), or (B) a sale, transfer or lease
(other than a pledge or grant of a security interest to a bona fide lender) of
all or substantially all of the assets of the Corporation (other than to or by a
wholly-owned subsidiary of the Corporation), shall be treated as a liquidation,
dissolution or winding up of the Corporation and shall entitle the holders of
Series B Preferred Stock to receive at the closing of any such transactions the
amount that would be received in a liquidation, dissolution or winding up
pursuant to Section C3.(a) hereof.
(d) Distributions of Property. Whenever the distribution provided for
-------------------------
in this Section C3. shall be payable in property other than cash, the value of
such distribution shall be the fair market value of such property as determined
in good faith by the Board of Directors.
C4. Voting Power. Except as otherwise expressly provided in Section C7. of
------------
this Article FOURTH or as otherwise required by law, the holders of Series B
Preferred Stock shall not be entitled to vote on any matters.
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C5. Conversion Rights. The holders of the Series B Preferred Stock shall
-----------------
have the following rights with respect to the conversion of such shares into
shares of Common Stock:
(a) General. Subject to and in compliance with the provisions of this
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Section C5., any or all shares of the Series B Preferred Stock may, at the
option of the holder thereof (except that (1) the right of conversion shall
terminate in accordance with Section C5.(e)(iv), (2) upon any liquidation of the
Corporation the right of conversion shall terminate at the close of business on
the business day fixed for payment of the amounts distributable on the Series B
Preferred Stock, and (3) except that in the event of a notice of redemption of
any shares of Series B Preferred Stock pursuant to Section C6. of this Article
FOURTH, the right of conversion of the shares designated for redemption shall
terminate at the close of business on the first full day preceding the date
fixed for redemption, unless the redemption price is not paid when due, in which
case the right of conversion for such shares shall continue until such price is
paid in full), be converted at any time into fully-paid and non-assessable
shares of Common Stock. Except as otherwise provided in Section C5.(e)(ii)
below, the number of shares of Common Stock that a holder of Series B Preferred
Stock shall be entitled to receive upon conversion shall be the product obtained
by multiplying the Series B Applicable Conversion Value for the Series B
Preferred Stock (determined as provided in Section C5.(b) below) by the number
of shares of Series B Preferred Stock being converted at any time.
(b) Applicable Conversion Rate. The conversion rate in effect at any time
--------------------------
for the Series B Preferred Stock (the "Series B Applicable Conversion Rate")
shall be the quotient obtained by dividing $5.00 by the Series B Applicable
Conversion Value, calculated as provided in Section C5.(c) below. Initially, the
Series B Applicable Conversion Rate shall be one (1), and each share of Series B
Preferred Stock shall initially be convertible into one (1) share of Common
Stock.
(c) Applicable Conversion Value. The Series B Applicable Conversion Value
---------------------------
in effect from time to time, except as adjusted in accordance with Section
C5.(d) below or as provided in Section C5.(e) below, shall be $5.00 with respect
to the Series B Preferred Stock (the "Series B Applicable Conversion Value").
(d) Adjustment to Applicable Conversion Value. Upon the happening of an
-----------------------------------------
Extraordinary Common Stock Event (as hereinafter defined), the Series B
Applicable Conversion Value shall, simultaneously with the happening of such
Extraordinary Common Stock Event, be adjusted by multiplying the Series B
Applicable Conversion Value by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to such
Extraordinary Common Stock Event and the denominator of which shall be the
number of shares of Common Stock outstanding immediately after such
Extraordinary Common Stock Event, and the product so obtained shall thereafter
be the Series B Applicable Conversion Value. The Series B Applicable Conversion
Value, as so adjusted, shall be readjusted in the same manner upon the happening
of any successive Extraordinary Common Stock Event or Events. An "Extraordinary
Common Stock Event" shall mean (i) the issue of additional shares of Common
Stock, or any securities convertible into or exchangeable for
14
<PAGE>
Common Stock, as a dividend or other distribution on outstanding shares of the
Corporation's capital stock, (ii) a subdivision of outstanding shares of Common
Stock into a greater number of shares of Common Stock, (iii) a combination or
reverse stock split of outstanding shares of Common Stock into a smaller number
of shares of Common Stock, or (iv) a reclassification of the outstanding shares
of Common Stock.
(e) Automatic Conversion.
(i) Mandatory Conversion of Series B Preferred Stock. Immediately upon the
------------------------------------------------
closing of an underwritten public offering pursuant to an effective registration
statement filed pursuant to the Securities Act of 1933, as amended, covering the
offer and sale of Common Stock for the account of the Corporation or covering
the offer and sale of common stock of Global Knowledge Network, Inc., a Delaware
corporation and a wholly-owned subsidiary of the Corporation ("Global
Knowledge") resulting in gross proceeds of at least $30,000,000 to the
Corporation or Global Knowledge, as the case may be, (prior to deduction of
underwriter's fees, expenses, commissions and discounts) (a "Qualified
Offering"), all outstanding shares of Series B Preferred Stock shall be
converted automatically into the number of shares of Common Stock determined in
accordance with the provisions of Section C5.(e)(ii) below.
(ii) Number of Shares Issuable Upon Mandatory Conversion. In the case of a
---------------------------------------------------
Qualified Offering of the Corporation's Common Stock, the number of shares of
Common Stock issuable upon automatic conversion under this Section C5.(e) shall
be determined by dividing (A) the product obtained by multiplying (1) Series B
Applicable Conversion Value and (2) the number of shares of Series B Preferred
Stock outstanding, by (B) the dollar amount which is Eighty Percent (80%) of the
initial public offering price per share in the Qualified Offering. Such
conversion shall be effective whether or not the certificates representing such
shares are surrendered to the Corporation or its transfer agent. In the case of
a Qualified Offering of the common stock of Global Knowledge, the number of
shares of Common Stock issuable upon automatic conversion pursuant to this
Section C5.(e) shall be equal to the number of shares issuable upon a voluntary
conversion in accordance with the provisions of Section C5.(a) above.
(iii) Surrender of Certificates Upon Mandatory Conversion. Upon the
---------------------------------------------------
occurrence of the conversion events specified in Section C5.(e)(i), the holders
of the Series B Preferred Stock shall, upon notice from the Corporation,
surrender the certificates representing such shares at the office of the
Corporation or of its transfer agent for the Common Stock. Thereupon, there
shall be issued and delivered to such holder a certificate or certificates for
the number of shares of Common Stock into which the shares of Series B Preferred
Stock so surrendered were convertible on the date on which such conversion
occurred. The Corporation shall not be obligated to issue such certificates
unless certificates evidencing the shares of Series B Preferred Stock being
converted are either delivered to the Corporation or any such transfer agent, or
the holder notifies the Corporation that such certificates have been lost,
stolen or destroyed and executes an agreement satisfactory to the Corporation to
indemnify the
15
<PAGE>
Corporation from any loss incurred by it in connection therewith. Upon the
occurrence of the conversion events specified Section C5.(e)(i) above, all
rights with respect to the Series B Preferred Stock so converted, including the
rights, if any, to receive notices and vote (other than as a holder of Common
Stock) will terminate, except only the rights of the holders thereof, upon
surrender of their certificate or certificates therefor, to receive certificates
for the number of shares of Common Stock into which such Series B Preferred
Stock has been converted.
(iv) Notice of Qualified Offering; Termination of Voluntary Conversion
-----------------------------------------------------------------
Rights. In the event that the Corporation intends to file, or cause Global
------
Knowledge to file a registration statement for a Qualified Offering, the
Corporation shall give notice, or cause Global Knowledge to give notice (in
either case, a "Qualified Offering Notice"), to the holders of the Series B
Preferred Stock, not earlier than one hundred twenty (120) calendar days nor
later than sixty (60) calendar days prior to the intended effective date of such
registration statement (the "Projected Effective Date"). The Qualified Offering
Notice shall contain such details concerning the proposed Qualified Offering as
are available to the Corporation or Global Knowledge, as the case may be, at the
time of the giving of the Qualified Offering Notice. For a period commencing on
the date of the Qualified Offering Notice and ending fifteen (15) calendar days
prior to the Projected Effective Date (the "Election Period"), each holder of
Series B Preferred Stock may elect to convert such holder's shares of Series B
Preferred Stock, and such conversion may be made conditional upon the closing of
the Qualified Offering in accordance with the provisions of Section C5.(a)
above; provided, that the closing of the Qualified Offering shall occur within
--------
thirty (30) calendar days of the Projected Effective Date. Following the
Election Period, the conversion of shares of Series B Preferred Stock shall
occur only pursuant to the provisions of this Section C5.(e) and the rights of
holders of Series B Preferred Stock to elect conversion pursuant to Section
C5.(a) above shall terminate.
(f) Dividends. In the event the Corporation shall make or issue, or shall
---------
fix a record date for the determination of holders of Common Stock entitled to
receive a dividend or other distribution (other than a distribution in
liquidation or other distribution otherwise provided for herein) with respect to
the Common Stock payable in (i) securities of the Corporation other than shares
of Common Stock, or (ii) other assets (excluding cash dividends or
distributions), then and in each such event provision shall be made so that the
holders of the Series B Preferred Stock shall receive upon conversion thereof in
addition to the number of shares of Common Stock receivable thereupon, the
number of securities or such other assets of the Corporation which they would
have received had their Series B 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 Conversion Date (as that term is
defined in Section C5.(j)), retained such securities or such other assets
receivable by them during such period, giving application to all other
adjustments called for during such period under this Section C5. with respect to
the rights of the holders of the Series B Preferred Stock; provided, however,
--------
that no such adjustment shall be made if the holders of Series B Preferred Stock
simultaneously receive a dividend or other distribution of such securities in an
amount equal to the amount of such securities as they would have received if all
outstanding shares of Series B Preferred Stock had been converted into Common
Stock on the date of such event.
16
<PAGE>
(g) Capital Reorganization or Reclassification. If the Common Stock
------------------------------------------
issuable upon the conversion of the Series B Preferred Stock shall be changed
into the same or different number of shares of any class or classes of capital
stock, whether by capital reorganization, recapitalization, reclassification or
otherwise (other than a subdivision or combination of shares or stock dividend
provided for elsewhere in this Section C5., or the sale of all or substantially
all of the Corporation's capital stock or assets to any other person), then and
in each such event the holder of each share of Series B Preferred Stock shall
have the right thereafter to convert such share into the kind and amount of
shares of capital stock and other securities and property receivable upon such
reorganization, recapitalization, reclassification or other change by the
holders of the number of shares of Common Stock into which such shares of Series
B Preferred Stock might have been converted immediately prior to such
reorganization, recapitalization, reclassification or change, all subject to
further adjustment as provided herein.
(h) Merger, Consolidation or Sale of Assets. If at any time or from time to
---------------------------------------
time there shall be a merger or consolidation of the Corporation with or into
another corporation (other than a merger or reorganization involving only a
change in the state of incorporation of the Corporation or the acquisition by
the Corporation of another business where the Corporation survives as a going
concern) or the sale of all or substantially all of the Corporation's capital
stock or assets to any other person, then, as a part of such reorganization,
merger, consolidation or sale, provision shall be made so that the holders of
the Series B Preferred Stock shall thereafter be entitled to receive upon
conversion of the Series B Preferred Stock the per share kind and amount of
consideration received or receivable (including cash) upon such merger,
consolidation or sale, to which such holder would have been entitled if such
holder had converted its shares of Series B Preferred Stock into Common Stock
immediately prior to such capital reorganization, merger, consolidation or sale.
In any such case, appropriate adjustment (as determined in good faith by the
Board of Directors) shall be made in the application of the provisions of this
Section C5. to the end that the provisions of this Section C5. (including
adjustment of the Series B Applicable Conversion Value then in effect and the
number of shares of Common Stock or other securities issuable upon conversion of
such shares of Series B Preferred Stock) shall be applicable after that event so
that the economic effect shall be the same with respect to any shares of stock
or other property thereafter deliverable upon the conversion of the Series B
Preferred Stock.
(i) Certificate as to Adjustments; Notice by Corporation. In each case of
----------------------------------------------------
an adjustment or readjustment of the Series B Applicable Conversion Value
pursuant to this Section C5., the Corporation at its expense will furnish each
holder of Series B Preferred Stock with a written notice certified by the Chief
Financial Officer of the Corporation, showing such adjustment or readjustment,
and stating in detail the facts upon which such adjustment or readjustment is
based.
(j) Exercise of Conversion Privilege. To exercise its conversion privilege,
--------------------------------
a holder of Series B Preferred Stock shall surrender the certificate or
certificates representing the shares being converted to the Corporation at its
principal office, and shall give written notice to the Corporation at that
office that such holder elects to convert such shares.
17
<PAGE>
Such notice shall also state the name or names (with address or addresses) in
which the certificate or certificates for shares of Common Stock issuable upon
such conversion shall be issued. The certificate or certificates for shares of
Series B Preferred Stock surrendered for conversion shall be accompanied by
proper instruments of assignment thereof to the Corporation or in blank. The
date when such written notice is received by the Corporation, together with the
certificate or certificates representing the shares of Series B Preferred Stock
being converted, shall be the "Conversion Date". As promptly as practicable
after the Conversion Date, the Corporation shall issue and shall deliver to the
holder of the shares of Series B Preferred Stock being converted, or another
person on its written order, such certificate or certificates as such holder may
request for the number of whole shares of Common Stock issuable upon the
conversion of such shares of Series B Preferred Stock in accordance with the
provisions of this Section C5., and cash, as provided in Section C5.(k) below,
in respect of any fraction of a share of Common Stock issuable upon such
conversion. Such conversion shall be deemed to have been effected immediately
prior to the close of business on the Conversion Date, and at such time the
rights of the holder as holder of the converted shares of Series B Preferred
Stock shall cease and the person(s) in whose name(s) any certificate(s) for
shares of Common Stock shall be issuable upon such conversion shall be deemed to
have become the holder or holders of record of the shares of Common Stock
represented thereby.
(k) Cash In Lieu of Fractional Shares. No fractional shares of Common Stock
---------------------------------
or scrip representing fractional shares shall be issued upon the conversion of
shares of Series B Preferred Stock. Instead of any fractional shares of Common
Stock which would otherwise be issuable upon conversion of Series B Preferred
Stock, the Corporation shall pay to the holder of the shares of Series B
Preferred Stock which were converted a cash adjustment in respect of such
fractional shares in an amount equal to the same fraction of the market price
per share of the Common Stock (as determined in a reasonable manner prescribed
by the Board of Directors) at the close of business on the Conversion Date.
(l) Partial Conversion. In the event some but not all of the shares of
------------------
Series B Preferred Stock represented by a certificate(s) surrendered by a holder
are converted, the Corporation shall execute and deliver to or on the order of
the holder, at the expense of the Corporation, a new certificate representing
the number of shares of Series B Preferred Stock that were not converted.
(m) Reservation of Common Stock. 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 B
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 B Preferred Stock (including any shares of Series B Preferred Stock
represented by any warrants, options, subscription or purchase rights for Series
B 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 B Preferred Stock (including any shares of
Series B Preferred Stock represented by any warrants, options, subscriptions or
purchase rights for such Preferred Stock), the Corporation
18
<PAGE>
promptly shall take such action as may be necessary to increase its authorized
but unissued shares of Common Stock to such number of shares as shall be
sufficient for such purpose.
(n) No Reissuance of Preferred Stock. No share or shares of Series B
--------------------------------
Preferred Stock acquired by the Corporation by reason of redemption, purchase,
conversion or otherwise shall be reissued, and all such shares shall be
cancelled, retired and eliminated from the shares which the Corporation shall be
authorized to issue. The Corporation shall from time to time take such
appropriate corporate action as may be necessary to reduce the authorized number
of shares of the Series B Preferred Stock.
C6. Redemption.
-----------
(a) Mandatory Redemption. The Corporation shall, subject to the conditions
--------------------
set forth below, on each Series B Redemption Date provided in this Section
C6.(a), redeem from each holder of shares of Series B Preferred Stock, at the
Series B Redemption Price (as defined in Section C6.(h) below), the following
respective portions of the number of shares of Series B Preferred Stock held by
such holder set forth opposite the applicable Series B Redemption Date:
<TABLE>
<CAPTION>
Portion of then
Series B Outstanding Shares of Series B
Redemption Date Preferred Stock To Be Redeemed
--------------- ------------------------------
<S> <C>
Second Anniversary Date 50%
Third Anniversary Date All Shares then held
</TABLE>
(b) Optional Redemption. The Corporation shall have the right and option to
-------------------
redeem, at the Series B Redemption Price, all or any portion of the shares of
Series B Preferred Stock outstanding by giving notice to the holders not less
than forty-five (45) calendar days prior to the applicable Series B Redemption
Date.
(c) Insufficient Funds for Redemption.
---------------------------------
(i) If the funds of the Corporation legally available for redemption of
the Series B Preferred Stock on the Series B Redemption Date are insufficient to
redeem the number of shares of Series B Preferred Stock to be so redeemed on
such Series B Redemption Date, the holders of shares of Series B Preferred Stock
shall share ratably in any funds legally available for redemption of such shares
according to the respective amounts which would be payable with respect to the
number of shares owned by them if the shares to be so redeemed on such Series B
Redemption Dates were redeemed in full. The shares of Series B Preferred Stock
not redeemed shall remain outstanding and entitled to all rights and preferences
provided herein.
19
<PAGE>
(ii) At any time thereafter when additional funds of the Corporation are
legally available for the redemption of such shares of Series B Preferred Stock,
such funds will be used, as soon as practicable but no later than the end of the
next succeeding fiscal quarter, to redeem the balance of such shares, or such
portion thereof for which funds are then legally available, on the basis set
forth above.
(d) Redemption Proportionate. Each redemption of Series B Preferred Stock
------------------------
shall be made so that the number of shares of Series B Preferred Stock held by
each registered owner electing redemption shall be reduced in an amount which
shall bear the same ratio to the total number of shares of Series B Preferred
Stock being so redeemed as the number of shares of Series B Preferred Stock then
held by such registered owner bears to the aggregate number of shares of Series
B Preferred Stock then outstanding.
(e) Redemption Notice. At least forty-five (45) calendar days prior to a
-----------------
Series B Redemption Date with respect to a redemption under Section C6.(b)
above, written notice (hereinafter referred to as the "Series B Redemption
Notice") shall be mailed, first class or certified mail, postage prepaid, by the
Corporation to each holder of record of shares of Series B Preferred Stock which
are to be redeemed, at such holder's address shown on the records of the
Corporation. The Series B Redemption Notice shall contain the following
information:
(i) the number of shares of Series B Preferred Stock held by the holder
which are to be redeemed by the Corporation;
(ii) the Series B Redemption Date and the Series B Redemption Price; and
(iii) that the holder is to surrender to the Corporation, at the place
designated therein, such holder's certificate or certificates representing the
Series B Preferred Stock to be redeemed.
(f) Surrender of Certificates. Each holder of Series B Preferred Stock
-------------------------
shall surrender the certificate(s) representing such shares to the Corporation
at the place designated in the Series B Redemption Notice, and thereupon the
Series B Redemption Price for such shares as set forth in this Section C6. shall
be paid to the order of the person whose name appears on such certificate(s) and
each surrendered certificate shall be canceled and retired. In the event some
but not all of the shares of Series B Preferred Stock represented by a
certificate(s) surrendered by a holder are being redeemed, the Corporation shall
execute and deliver to such holder or another person on the written order of the
holder, at the expense of the Corporation, a new certificate representing the
number of shares of Series B Preferred Stock which were not redeemed.
(g) Rights as a Stockholder after Redemption. Unless there shall have been
----------------------------------------
a default in payment of the Series B Redemption Price, on such Series B
Redemption Date all rights of each holder of shares of Series B Preferred Stock
as a stockholder of the Corporation by reason of the ownership of such shares
will cease, except the right to receive the Series B
20
<PAGE>
Redemption Price for such shares, without interest, upon presentation and
surrender of the certificate representing such shares, and such shares will not
from and after such Series B Redemption Date be deemed to be outstanding.
(h) Definitions. "Series B Redemption Price" means a price equal to $5.00
-----------
per share (subject to appropriate adjustment to the same extent and in the same
manner as set forth in Section C5.(d) of Article FOURTH, with respect to the
adjustment to the Series B Applicable Conversion Value, plus any accrued but
unpaid dividends (whether or not declared) thereon. "Series B Redemption Date"
means the date fixed for redemption pursuant to either of Sections C6.(a) or
C6.(b).
C7. Restrictions and Limitations. At any time when shares of Series B
----------------------------
Preferred Stock are outstanding, except where the vote or written consent of the
holders of a greater number of shares of the Corporation is required by law or
this Certificate of Incorporation, and in addition to any other vote required by
law, without the written consent of the holders of at least Sixty-Six and Two-
Thirds Percent (66 2/3%) of the then outstanding Series B Preferred Stock (with
each share being entitled to one vote) given in writing or by vote at a meeting,
consenting or voting (as applicable) separately as a class, the Corporation will
not amend its Certificate of Incorporation or by-laws if such amendment would
materially adversely affect any of the rights, preferences, privileges of or
limitations provided for herein of any shares of Series B Preferred Stock.
Without limiting the generality of the foregoing, the Corporation will not amend
its Certificate of Incorporation or by-laws without the approval of at least
Sixty-Six and Two-Thirds Percent (66 2/3%) of the then outstanding shares of
Series B Preferred Stock to:
a. increase or decrease (except retirement following conversion) the
authorized number of shares of Series B Preferred Stock or reissue shares of
Series B Preferred Stock previously converted; or
b. adversely affect the liquidation preferences, dividend rights or voting
rights of the holders of Series B Preferred Stock; or
c. pay any dividends on the Common Stock at a time when any shares of
Series B Preferred Stock are still outstanding.
C8. No Dilution or Impairment. The Corporation will not, by amendment of
-------------------------
its Certificate of Incorporation or through any reorganization, transfer of
capital stock or 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 of the Series B Preferred Stock set forth
herein, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the holders of the Series B
Preferred Stock against dilution or other impairment.
C9. Notices of Record Date. In the event of:
----------------------
21
<PAGE>
a. any taking by the Corporation of a record of the holders of any class of
securities for the purpose of determining the holders thereof who are entitled
to receive any dividend or other distribution, or any right to subscribe for,
purchase or otherwise acquire any shares of capital stock of any class or any
other securities or property, or to receive any other right, or
b. any capital reorganization of the Corporation, any reclassification or
recapitalization of the capital stock of the Corporation, any merger or
consolidation of the Corporation, or any transfer of all or substantially all of
the assets of the Corporation to any other corporation, or any other entity or
person, or
c. any voluntary or involuntary dissolution, liquidation or winding up of
the Corporation,
(i) then and in each such event the Corporation shall mail or cause to be
mailed to each holder of Series B Preferred Stock a notice specifying (i) the
date on which any such record is to be taken for the purpose of such dividend,
distribution or right and a description of such dividend, distribution or right,
(ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding up is expected to become effective, and (iii) the time, if any, that is
to be fixed, as to when the holders of record of shares of Common Stock (or
other securities) shall be entitled to exchange their shares of Common Stock (or
other securities) for securities or other property deliverable upon such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding up. Such notice shall be mailed by
first class mail, postage prepaid, at least twenty (20) calendar days prior to
the earlier of (1) the date specified in such notice on which such record is to
be taken, and (2) the date specified in such notice on which such action is to
be taken.
C10. Issue Tax. The issuance of certificates for shares of Common Stock
---------
upon conversion of Series B Preferred Stock shall be made without charge to the
holders thereof for any issuance tax in respect thereof; provided, that the
Corporation shall not be required to pay any tax in respect of any transfer
involved in the issuance and delivery of any certificate in a name other than
that of the holder of the Series B Preferred Stock that is being converted.
C11. Waiver. Any of the rights of the holders of Series B Preferred Stock
------
set forth herein may be waived by the affirmative vote of the holders of a
majority of the shares of Series B Preferred Stock.
II. COMMON STOCK
All shares of Common Stock shall be identical and shall entitle the
holders thereof to the same rights and privileges:
A. Dividends.
---------
22
<PAGE>
When and as dividends are declared upon the Common Stock, whether
payable in cash, in property or in shares of stock of the Corporation, the
holders of Common Stock shall be entitled to share equally, share for share, in
such dividends.
B. Voting Rights.
-------------
Each holder of Common Stock shall be entitled to one vote per share.
There shall be no cumulative voting.
FIFTH: The name and mailing address of the sole incorporator of the
Corporation are as follows:
Gregory R. Salathe
45 Rockefeller Plaza
New York, N.Y. 10111
SIXTH: In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the Board of Directors of the Corporation
is expressly authorized and empowered to make, alter or repeal the By-laws of
the Corporation, subject to the power of the stockholders of the Corporation to
alter or repeal any By-law made by the Board of Directors.
SEVENTH: The Corporation reserves the right at any time and from time
to time to amend, alter, change or repeal any provisions contained in this
Certificate of Incorporation; and other provisions authorized by the laws of the
State of Delaware at the time in force may be added or inserted, in the manner
now or hereafter prescribed by law; and all rights, preferences and privileges
of whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Certificate of Incorporation in its present
form or as hereafter amended are granted subject to the right reserved in this
Article.
EIGHTH:
A. The Corporation shall indemnify each of the Corporation's directors and
officers in each and every situation where, under Section 145 of the General
Corporation Law of the State of Delaware, as amended from time to time ("Section
145"), the Corporation is permitted or empowered to make such indemnification.
The Corporation may, in the sole discretion of the Board of Directors of the
Corporation, indemnify any other person who may be indemnified pursuant to
Section 145 to the extent the Board of Directors deems advisable, as permitted
by Section 145. The Corporation shall promptly make or cause to be made any
determination required to be made pursuant to Section 145.
B. No person shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided, however, that the foregoing shall not eliminate or limit the liability
-------- -------
of a director (i) for any breach of the director's duty of loyalty to the
Corporation of its stockholders, (ii) for acts or omissions not in good faith
23
<PAGE>
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the General Corporation Law of the State of Delaware or
(iv) for any transaction from which the director derived an improper personal
benefit. If the General Corporation Law of the State of Delaware is subsequently
amended to further eliminate or limit the liability of a director, then a
director of the Corporation, in addition to the circumstances in which a
director is not personally liable as set forth in the preceding sentence, shall
not be liable to the fullest extent permitted by the amended General Corporation
Law of the State of Delaware. For purposes of this Article EIGHTH, "fiduciary
duty as a director" shall include any fiduciary duty arising out of serving at
the Corporation's request as a director of another corporation, partnership,
joint venture or other enterprise, and "personal liability to the Corporation or
its stockholders" shall include any liability to such other corporation,
partnership, joint venture, trust or other enterprise, and any liability to the
Corporation in its capacity as a security holder, joint venturer, partner,
beneficiary, creditor or investor of or in any such other corporation,
partnership, joint venture, trust or other enterprise.
4. This Restated Certificate of Incorporation was duly adopted by
vote of the stockholders of the Corporation in accordance with Sections 228, 242
and 245 of the General Corporation Law of the State of Delaware.
5. This Restated Certificate of Incorporation shall be effective on
the date of filing hereof.
IN WITNESS WHEREOF, said GKN HOLDINGS, INC. has caused this
Certificate to be signed by, Stacey M. Cannon its Secretary, as of the 23rd day
of November 1999.
GKN HOLDINGS, INC.
By: /S/ STACEY M. CANNON
-------------------------
Name: Stacey M. Cannon
Title: Secretary
24
