(As filed March 1, 2000)
File No. 70-9617
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM U-1/A
AMENDMENT NO. 2
TO
APPLICATION OR DECLARATION
UNDER THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
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Alliant Energy Corporation
Alliant Energy Resources, Inc.
222 West Washington Avenue
Madison, Wisconsin 53703
(Names of companies filing this statement and
addresses of principal executive offices)
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ALLIANT ENERGY CORPORATION
(Name of top registered holding company parent)
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Edward M. Gleason, Vice President-Treasurer
and Corporate Secretary
Alliant Energy Corporation
222 West Washington Avenue
Madison, Wisconsin 53703-0192
(Name and address of agent for service)
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The Commission is requested to send copies of all notices, orders and
communications in connection with this Application/Declaration to:
Barbara J. Swan, General Counsel William T. Baker, Jr., Esq.
Alliant Energy Corporation Thelen Reid & Priest LLP
222 West Washington Avenue 40 West 57th Street
Madison, Wisconsin 53703-0192 New York, New York 10019
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The Application-Declaration filed in this proceeding on January 28,
2000, as amended by Amendment No. 1, filed February 18, 2000, IS HEREBY FURTHER
AMENDED WITH THE FILING OF THE FOLLOWING EXHIBITS LISTED IN ITEM 6 - EXHIBITS
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AND FINANCIAL STATEMENTS:
- ------------------------
A. - EXHIBITS.
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A-1 Form of Amended and Restated Articles of Incorporation
of Capstone.
A-2 Investor Rights Agreement, dated as of August 22, 1997.
(Filed confidentially pursuant to Rule 104 - Paper
format filing).
A-3 Amended and Restated Stockholders Agreement, dated as
of April 9, 1997, as amended. (Filed confidentially
pursuant to Rule 104 - Paper format filing).
B Form of Preferred Stock Purchase Agreement between
Resources and Capstone. (Filed confidentially pursuant
to Rule 104 - Paper format filing).
F Opinion of Counsel.
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, as amended, the undersigned companies have duly caused this statement
filed herein to be signed on their behalf by the undersigned thereunto duly
authorized.
ALLIANT ENERGY CORPORATION
By: /s/ Edward M. Gleason
------------------------------
Name: Edward M. Gleason
Title: Vice President-Treasurer
and Corporate Secretary
ALLIANT ENERGY RESOURCES, INC.
By: /s/ Edward M. Gleason
------------------------------
Name: Edward M. Gleason
Title: Vice President-Treasurer
and Corporate Secretary
Date: March 1, 2000
2
EXHIBIT A
FORM OF
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AMENDED AND RESTATED ARTICLES OF INCORPORATION
----------------------------------------------
OF
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CAPSTONE TURBINE CORPORATION
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The undersigned, Ake Almgren and Jeffrey R. Watts, hereby certify that:
ONE: They are the duly elected and acting President and Secretary,
respectively, of Capstone Turbine Corporation.
TWO: The Articles of Incorporation of this corporation are hereby amended
and restated to read in their entirety as follows:
ARTICLE I
The name of the corporation is Capstone Turbine Corporation (the
"Corporation").
ARTICLE II
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
California other than the banking business, the trust company business or the
practice of a profession permitted to be incorporated by the California
Corporations Code.
ARTICLE III
The Corporation shall have the authority to issue two (2) classes of shares
to be designated respectively "Preferred Stock" and "Common Stock." The total
number of shares of stock that the Corporation shall have the authority to issue
is Three Hundred Fifteen Million (315,000,000) shares of capital stock, par
value $.001 per share. The total number of shares of Preferred Stock that the
Corporation shall have authority to issue is One Hundred Thirty Million
(130,000,000), par value $.001 per share. The total number of shares of Common
Stock that the Corporation shall have the authority to issue is One Hundred
Eighty-Five Million (185,000,000), par value $.001 per share.
The Preferred Stock authorized by these Articles of Incorporation may be
issued from time to time in one or more series. The Board of Directors is hereby
authorized within the limitations and restrictions stated in these Articles of
Incorporation to fix or alter the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption, including sinking fund
provisions, the redemption price or prices, the liquidation preferences and the
other preferences, powers, rights, qualifications, limitations and restrictions
of any wholly unissued Series of Preferred Stock (not including any Series A
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Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or Series G
Preferred Stock) and the number of shares constituting any such Series and the
designation thereof, or any of them.
The Board of Directors is further authorized to increase or decrease the
number of shares of any Series of Preferred Stock, the number of which was fixed
by it, subsequent to the issue of shares of that series, but not below the
number of shares of such Series then outstanding, subject to the limitations and
restrictions stated in the resolution of the Board of Directors originally
fixing the number of shares of such series. In case the number of shares of any
Series shall be so decreased, the shares constituting such decrease shall resume
the status which they had prior to the adoption of the resolution originally
fixing the number of shares of such series.
ARTICLE IV
Six Million Seven Hundred Thousand (6,700,000) shares of the Preferred
Stock are hereby designated as Convertible Preferred Stock, Series A ("Series A
Preferred Stock"). Three Million Three Hundred Thirty Three Thousand Three
Hundred and Thirty Four (3,333,334) shares of the Preferred Stock are hereby
designated as Convertible Preferred Stock, Series B ("Series B Preferred
Stock"). Eight Million Eight Hundred Thousand (8,800,000) shares of the
Preferred Stock are hereby designated as Convertible Preferred Stock, Series C
("Series C Preferred Stock"). Three Million One Hundred Twenty Five Thousand
(3,125,000) shares of the Preferred Stock are hereby designated as Convertible
Preferred Stock, Series D ("Series D Preferred Stock"). Ten Million Seven
Hundred Thousand (10,700,000) shares of the Preferred Stock are hereby
designated as Convertible Preferred Stock, Series E ("Series E Preferred
Stock"). Eleven Million Five Hundred Thousand (11,500,000) shares of Preferred
Stock are hereby designated as Senior Convertible Preferred Stock, Series F
("Series F Preferred Stock"). Thirty-Seven Million Five Hundred Thousand
(37,500,000) shares of the Preferred Stock are hereby designated as Senior
Convertible Preferred Stock, Series G ("Series G Preferred Stock"). The relative
preferences, powers, rights, qualifications, limitations and restrictions in
respect of the Common Stock, Series A Preferred Stock, the Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred
Stock, the Series F Preferred Stock and the Series G Preferred Stock, are as
follows:
(a) Voting Rights.
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(i) Each holder of record of shares of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock and Series G Preferred Stock
shall be entitled to vote on all matters on which shareholders are entitled to
vote and, except as otherwise expressly provided herein, shall be entitled to
the number of votes equal to the largest whole number of shares of Common Stock
into which such shares of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock,
Series F Preferred Stock or Series G Preferred Stock, as applicable, could be
converted, pursuant to the provisions of subparagraph (d) hereof, on the record
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date for the determination of the shareholders entitled to vote on such matters
or, if no such record date is established, in accordance with California law.
(ii) Each holder of record of shares of Common Stock shall be entitled
to one vote for each share thereof held. Except as otherwise expressly provided
herein or as required by law, the holders of Series A Preferred Stock, the
holders of Series B Preferred Stock, the holders of Series C Preferred Stock,
the holders of Series D Preferred Stock, the holders of the Series E Preferred
Stock, the holders of the Series F Preferred Stock, the holders of Series G
Preferred Stock and the holders of Common Stock shall vote together and not as
separate classes.
(iii)The Corporation shall not create a new series or class of shares
having rights, preferences or privileges prior to the shares of the Series G
Preferred Stock, or increase the rights, preferences or privileges of any series
or class having rights, preferences or privileges prior the shares of the Series
G Preferred Stock, without the approval of holders of a majority of the
outstanding shares of the Series G Preferred Stock.
(b) Dividend Rights.
----------------
(i) Each issued and outstanding share of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock and Series G Preferred Stock
shall entitle the holder of record thereof to receive, when, as and if declared
by the Board of Directors, out of any funds legally available therefor,
dividends in cash at the annual rate per share of Ten Cents ($.10), Fifteen
Cents ($.15), Twenty Cents ($.20), Forty Cents ($.40), Sixty Cents ($.60),
Twenty Cents ($.20) and Forty Cents ($.40), respectively (or such greater amount
per share as such Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock or Series G Preferred Stock would be entitled if such Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or Series G
Preferred Stock were converted into Common Stock), as adjusted for stock splits,
stock dividends, recapitalizations, reclassifications and similar events
(together herein referred to as "Recapitalization Events"), payable quarterly or
otherwise as the Board of Directors may from time to time determine. Dividends
and distributions (other than those solely in Common Stock) may be paid, or
declared and set aside for payment, upon shares of Series A Preferred Stock,
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Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and
Series E Preferred Stock in any calendar year only if dividends shall have been
paid, or declared and set aside for payment on account of all shares of Series F
Preferred Stock and Series G Preferred Stock then issued and outstanding, at the
aforesaid applicable rate for such calendar year. Dividends and distributions
(other than those solely in Common Stock) may be paid, or declared and set aside
for payment, upon shares of Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock and Series E Preferred Stock in any calendar year only
if dividends shall have been paid, or declared and set aside for payment on
account of all shares of Series A Preferred Stock then issued and outstanding,
at the aforesaid applicable rate for such calendar year. Dividends and
distributions (other than those payable solely in Common Stock) may be paid, or
declared and set aside for payment, upon shares of Common Stock in any calendar
year only if dividends shall have been paid, or declared and set apart for
payment (subject to the rights of any other Series of Preferred Stock which has
dividend rights senior to the Common Stock, if any), on account of all shares of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock and
Series G Preferred Stock then issued and outstanding, at the aforesaid rates for
such calendar year. Except as hereinafter set forth, the Board of Directors of
the Corporation is under no obligation to pay dividends and the dividend
preference granted herein to shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock and Series G Preferred Stock shall
apply only at such time as the Board of Directors may in its discretion decide
to pay or declare and set aside for payment any dividends on any shares of
Common Stock of the Corporation. The dividend preference granted herein to
shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock, Series E Preferred Stock, Series F Preferred
Stock and Series G Preferred Stock is subject to any prior payments of dividends
required to be made to any senior shares of preferred stock, if any, which may
be issued from time to time by the Corporation.
(ii) Until April 1, 1998 with respect to the Series A Preferred Stock,
July 30, 2000, with respect to the Series B Preferred Stock, July 30, 2001 with
respect to the Series C Preferred Stock, December 31, 2001 with respect to the
Series D Preferred Stock, August 30, 2002 with respect to the Series E Preferred
Stock, February 26, 2004 with respect to the Series F Preferred Stock and March
31, 2005 with respect to the Series G Preferred Stock, the right to dividends
upon the issued and outstanding shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock and Series G Preferred Stock shall be
non-cumulative and shall not be deemed to accrue, whether dividends are earned
or whether there be funds legally available therefor, unless and until said
dividends shall have been declared by the Board of Directors.
(iii) From and after April 1, 1998 with respect to the Series A
Preferred Stock, July 30, 2000 with respect to the Series B Preferred Stock,
July 30, 2001 with respect to Series C Preferred Stock December 31, 2001 with
respect to the Series D Preferred Stock, August 30, 2002 with respect to the
Series E Preferred Stock, February 26, 2004 with respect to the Series F
Preferred Stock and March 31, 2005 with respect to the Series G Preferred Stock,
the right to dividends upon the issued and outstanding shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock and Series G
Preferred Stock, respectively, shall be cumulative so that such rights shall be
deemed to accrue from and after April 1, 1998 with respect to the Series A
Preferred Stock, July 30, 2000 with respect to the Series B Preferred Stock,
July 30, 2001 with respect to the Series C Preferred Stock December 31, 2001
with respect to the Series D Preferred Stock, August 30, 2002 with respect to
the Series E Preferred Stock, February 26, 2004 with respect to the Series F
Preferred Stock and March 31, 2005 with respect to the Series G Preferred Stock,
whether earned, or whether there be funds legally available therefor, or whether
said dividends shall have been declared; and if such dividends in respect of any
period beginning April 1, 1998 with respect to the Series A Preferred Stock,
July 30, 2000 with respect to the Series B Preferred Stock, July 30, 2001 with
respect to the Series C Preferred Stock December 31, 2001 with respect to the
Series D Preferred Stock, August 30, 2002 with respect to the Series E Preferred
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Stock, February 26, 2004 with respect to the Series F Preferred Stock and March
31, 2005 with respect to the Series G Preferred Stock, shall not have been
declared and either paid or a sum sufficient for the payment thereof set aside
in full, the accumulated unpaid dividends shall first be paid pro rata on the
Series F Preferred Stock and the Series G Preferred Stock with respect to their
respective dividend rates, before any dividend or other distribution (other than
those payable solely in Common Stock) may be paid, or declared and set apart for
payment, to the holders of shares of Series A Preferred Stock, Series B
Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock, the
Series E Preferred Stock or Common Stock, and shall, subject to the last
sentence of this subparagraph (iii), next be paid on the Series A Preferred
Stock with respect to its dividend rate, before any dividend or other
distribution (other than those payable solely in Common Stock) may be paid, or
declared and set apart for payment, to the holders of shares of Series B
Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock, the
Series E Preferred Stock or Common Stock and shall next be fully paid pro rata
on the Series B Preferred Stock, the Series C Preferred Stock, the Series D
Preferred Stock, and the Series E Preferred Stock, before any dividend or other
distribution (other than those payable solely in Common Stock) may be paid, or
declared and set apart for payment to the holders of shares of the Common Stock,
and shall in any event (except as set forth in paragraph (d)(ii)(D) of this
Article IV below) be paid upon conversion of the Series A Preferred Stock, the
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock and Series G Preferred Stock,
in cash or in Common Stock at its then fair market value, as determined in good
faith by the Board of Directors of the Corporation, and the Board of Directors
shall have the right to determine whether said payment is made in cash or stock;
provided, however, that at the written request of the holders of a majority of
the outstanding shares of Series A Preferred Stock, a majority of the
outstanding shares of Series B Preferred Stock, a majority of the outstanding
shares of the Series C Preferred Stock, a majority of the outstanding shares of
the Series D Preferred Stock, a majority of the outstanding shares of the Series
E Preferred Stock, a majority of the outstanding shares of Series F Preferred
Stock, and a majority of the outstanding shares of Series G Preferred Stock, the
determination of said fair market value shall be made by an independent
reputable investment banking firm designated by such holders of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock and Series G
Preferred Stock and payment for such determination shall be made in a manner
consistent with Article IV(e)(ii)(A), (B) and (C) hereof. Any accumulation of
dividends on the shares of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock,
Series F Preferred Stock or Series G Preferred Stock shall not bear interest. If
all accrued dividends due on the Series F Preferred Stock and the Series G
Preferred Stock have been paid, but there exists accrued but unpaid dividends
due on the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock or Series E Preferred Stock, the
accrued but unpaid dividends due to the holders of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and
Series E Preferred Stock shall be paid before any further dividends are paid to
the holders of the Series F Preferred Stock and Series G Preferred Stock. If all
accrued dividends due on the Series A Preferred Stock have been paid, but there
exists accrued but unpaid dividends due on the Series B Preferred Stock, Series
C Preferred Stock, Series D Preferred Stock or Series E Preferred Stock, the
accrued but unpaid dividends due to the holders of Series B Preferred Stock,
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Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock
shall be paid before any further dividends are paid to the holders of the Series
A Preferred Stock. After the payment to the holders of Series A Preferred Stock
of any dividends accrued but unpaid for the period of April 1, 1998 to July 30,
2000, no payment of dividends may be paid to the holders of the Series A
Preferred Stock in any year unless all accrued dividends of the holders of
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and
Series E Preferred Stock in respect of prior years shall have been paid.
(iv) The restrictions on dividends and distributions with respect to
shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock,
Series F Preferred Stock and Series G Preferred Stock set forth in paragraph (b)
hereof are in addition to, and not in derogation of, the other restrictions on
such dividends and distributions set forth herein.
(v) All holders of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock,
Series F Preferred Stock and Series G Preferred Stock shall, at the time of any
declaration of a dividend or distribution with respect to shares of Common
Stock, be given notice of such declaration, including the amount and record date
for such dividend or distribution, which record date shall be not less than ten
(10) business days after such notice is given (in order to enable such holders
sufficient time to convert all or part of their shares to Common Stock, if they
so choose).
(vi) In the event this Corporation shall declare a distribution
payable in securities of other persons, evidences of indebtedness issued by this
Corporation or other persons, assets (excluding cash dividends) or options or
rights to purchase any such securities or evidences of indebtedness, then, in
each such case the holders of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred
Stock, Series F Preferred Stock and Series G Preferred Stock shall be entitled
to a proportionate share of any such distribution as though the holders of the
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock and
Series G Preferred Stock were the holders of the number of shares of Common
Stock of the Corporation into which their respective shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or Series G
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.
(c) Liquidation Rights.
-------------------
(i) Except as set forth below, in the event of a voluntary or
involuntary liquidation, dissolution, or winding up of the Corporation (a
"Liquidation"), the holders of record of shares of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock and Series G Preferred Stock,
on a pro rata basis, shall be entitled to receive, prior and in preference to
any distribution of any assets of the Corporation to the holders of the Common
Stock by reason of their ownership thereof, but subject to the rights of any
Series of preferred shares issued from time to time by the Corporation that has
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rights senior to the Series A Preferred Stock, Series B Preferred Stock, Series
C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock and Series G Preferred Stock on a Liquidation, out of the assets
of the Corporation legally available therefor, One Dollar ($1.00) per share of
Series A Preferred Stock (the "Original Series A Issue Price"), One Dollar and
Fifty Cents ($1.50) per share of Series B Preferred Stock (the "Original Series
B Issue Price"), Two Dollars ($2.00) per share of Series C Preferred Stock (the
"Original Series C Issue Price"), Four Dollars ($4.00) per share of Series D
Preferred Stock (the "Original Series D Issue Price"), Six Dollars ($6.00) per
share of Series E Preferred Stock (the "Original Series E Issue Price"), Two
Dollars ($2.00) per share of Series F Preferred Stock (the "Original Series F
Issue Price") and Four Dollars ($4.00) per share of Series G Preferred Stock
(the "Original Series G Issue Price") as appropriately adjusted for
Recapitalization Events, plus a further amount per share equal to dividends, if
any, (i) then declared and unpaid on account of shares of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock, Series E Preferred Stock, Series F Preferred Stock and Series G Preferred
Stock, and (ii) whether or not declared, then accrued in accordance with the
provisions of subparagraph (b)(ii) hereof, before any payment shall be made or
any assets distributed to the holders of shares of Common Stock. If, upon any
Liquidation, the assets thus distributed among the holders of the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock and Series G
Preferred Stock shall be insufficient to permit payment to such holders of the
full preferential amounts contemplated by this subparagraph (i), then the entire
assets of the Corporation to be distributed shall be distributed first ratably
among the holders of the Series F Preferred Stock and the Series G Preferred
Stock in accordance with their aggregate liquidation preferences with any
remainder then distributed ratably among the holders of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock and Series E Preferred Stock in accordance with their aggregate
liquidation preferences.
(ii) After payment to the holders of record of the shares of the
Series A Preferred Stock, the Series B Preferred Stock, the Series C Preferred
Stock, the Series D Preferred Stock, the Series E Preferred Stock, the Series F
Preferred Stock and the Series G Preferred Stock of the amounts set forth in the
preceding subparagraph (i) above, the remaining assets of the Corporation shall
be distributed in like amounts per share to the holders of record of the
Corporation's capital stock, with each share of Series A Preferred Stock, Series
B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock and Series G Preferred Stock being
treated as the number of shares of Common Stock (giving effect to fractional
shares) into which it could then be converted for such purpose; provided,
however, that if the assets and the funds thus distributed would be sufficient
to permit the payment to the holders of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock and Series G Preferred Stock of an
amount in excess of Five Dollars ($5.00) per share of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock or Series G Preferred Stock
(as adjusted for Recapitalization Events), then the holders of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or Series G
Preferred Stock shall be entitled to the full amounts otherwise payable to them
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pursuant to the preceding provisions, but shall not be entitled to share in the
remaining assets and funds of the Corporation in excess of Five Dollars ($5.00)
per share of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock or Series G Preferred Stock (as adjusted for Recapitalization
Events), until such time as the holders of Common Stock have received or been
entitled to receive Five Dollars ($5.00) per share of Common Stock held, after
which payment, the remaining assets of the Corporation shall be distributed in
like amounts per share to the holders of record of the Corporation's stock, each
share of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock, Series E Preferred Stock, Series F Preferred
Stock and Series G Preferred Stock being treated as the number of shares of
Common Stock (giving effect to fractional shares) into which it could then be
converted for such purpose.
(iii) A consolidation or merger of the Corporation with or into any
other corporation (other than a reincorporation merger) except where the
Corporation is the surviving entity and the shareholders prior to such
consolidation or merger own more than 50% of the capital stock of the surviving
entity generally in the same proportion to each other as existed prior to such
consolidation or merger, or a sale of all or substantially all of the assets of
the Corporation, shall each be deemed, unless holders of record of at least
sixty-seven percent (67%) of the outstanding shares of Preferred Stock vote
otherwise, to be a Liquidation within the meaning of this Paragraph (c) and
shall entitle the holders of the Corporation's Stock to receive at the closing
in cash, securities or other property, valued at the fair market value of such
securities or other property as determined in good faith by the Board of
Directors, amounts as specified in subparagraphs (c)(i) and (c)(ii) above.
(d) Conversion Rights. The holders of the Series A Preferred Stock,
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Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock and Series G Preferred Stock
shall have conversion rights (the "Conversion Rights") as follows:
(i) Right to Convert. Each holder of record of shares of Series A
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Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or Series G
Preferred Stock may, at any time, upon surrender to the Corporation of the
certificates therefor at the principal office of the Corporation or at such
other place as the Corporation shall designate, convert all or any part of such
holder's shares of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock or Series G Preferred Stock into such number of fully paid and
non-assessable shares of Common Stock of the Corporation (as such Common Stock
shall then be constituted) equal to the product of (A) the number of shares of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or
Series G Preferred Stock which such holder shall then surrender to the
Corporation, multiplied by (B) the number determined by dividing: (1) in the
case of the Series A Preferred Stock, One Dollar ($1.00) by the Conversion Price
(as hereinafter defined) per share for the Series A Preferred Stock in effect at
the time of conversion, (2), in the case of the Series B Preferred Stock, One
Dollar and Fifty Cents ($1.50) by the Conversion Price per share for the Series
B Preferred Stock in effect at the time of conversion, (3), in the case of the
Series C Preferred Stock, Two Dollars ($2.00) by the Conversion Price per share
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for the Series C Preferred Stock in effect at the time of conversion, (4), in
the case of the Series D Preferred Stock, Four Dollars ($4.00) by the Conversion
Price per share for the Series D Preferred Stock in effect at the time of
conversion, (5), in the case of the Series E Preferred Stock, Six Dollars
($6.00) by the Conversion Price per share for the Series E Preferred Stock in
effect at the time of conversion, (6), in the case of the Series F Preferred
Stock, Two Dollars ($2.00) by the Conversion Price per share for the Series F
Preferred Stock in effect at the time of conversion, (7), in the case of Series
G Preferred Stock, Four Dollars ($4.00) by the Conversion Price per share for
the Series G Preferred Stock in effect at the time of conversion. Promptly
following surrender of such certificates, the holder shall be entitled to
receive certificates evidencing the number of shares of Common Stock into which
such shares of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock or Series G Preferred Stock are converted.
(ii) Automatic Conversion.
---------------------
(A) All outstanding shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock and Series G Preferred Stock shall be
deemed automatically converted into such number of shares of Common Stock as are
determined in accordance with subparagraph (d)(i) hereof upon (1) the
consummation of a firm commitment underwritten public offering of the securities
of the Corporation pursuant to a registration statement filed with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended, where the aggregate gross proceeds to the Corporation resulting from
the sale of such securities (before deduction of underwriting discounts and
expenses of sale) is not less than $30,000,000 and the per share sales price of
such securities before such deductions is not less than Eight Dollars ($8.00),
as adjusted for Recapitalization Events, or (2) the affirmative vote of the
holders of record of at least fifty-one percent (51%) of the outstanding shares
of Preferred Stock voting as a class to that effect (either such event being
hereinafter referred to as an "Automatic Conversion Event"). The affirmative
vote of the holders of at least fifty-one percent (51%) of the Series B
Preferred Stock voting as a class to convert to Common Stock shall also result
in the conversion of all of the outstanding shares of Series B Preferred Stock
to Common Stock, at the Conversion Price set forth herein. The affirmative vote
of the holders of at least seventy-five percent (75%) of the Series C Preferred
Stock voting as a class to convert to Common Stock shall also result in the
conversion of all of the outstanding shares of Series C Preferred Stock to
Common Stock, at the Conversion Price for the Series C Preferred Stock set forth
herein. The affirmative vote of the holders of at least seventy-five percent
(75%) of the Series D Preferred Stock voting as a class to convert to Common
Stock shall also result in the conversion of all of the outstanding shares of
Series D Preferred Stock to Common Stock, at the Conversion Price for the Series
D Preferred Stock set forth herein. The affirmative vote of the holders of at
least seventy-five percent (75%) of the Series E Preferred Stock voting as a
class to convert to Common Stock shall also result in the conversion of all of
the outstanding shares of Series E Preferred Stock to Common Stock, at the
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<PAGE>
Conversion Price for the Series E Preferred Stock set forth herein. The
affirmative vote of the holders of at least seventy-five percent (75%) of the
Series F Preferred Stock voting as a class to convert to Common Stock shall also
result in the conversion of all of the outstanding shares of Series F Preferred
Stock to Common Stock, at the Conversion Price for the Series F Preferred Stock
set forth herein. The affirmative vote of the holders of at least seventy-five
percent (75%) of the Series G Preferred Stock voting as a class to convert to
Common Stock shall also result in the conversion of all of the outstanding
shares of Series G Preferred Stock to Common Stock, at the Conversion Price for
the Series G Preferred Stock set forth herein.
(B) In addition to the Automatic Conversion Events set forth in
subparagraph (A) above, if any holder of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock or Series G Preferred Stock (by itself
or together with affiliated persons or entities which affiliation shall include
(X) any venture fund related to a holder of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock or Series G Preferred Stock by virtue
of having at least two common individuals who are officers, employees, directors
or partners of the entities that are general partners or managers of such
venture funds or (Y) any partner of such venture fund; any such person or
entity, hereinafter an "Affiliate") fails to participate in any particular
financing by the Corporation, consisting of a bridge loan for a term not in
excess of one year or the offering of Convertible Securities (as hereinafter
defined) (an "Additional Offering") where a majority of the Board of Directors
has designated that such financing is subject to this paragraph, by acquiring in
such bridge loan financing or Additional Offering such portion of the principal
amount of the financing or such number of shares as shall equal the product of
(i) the principal amount of the bridge loan or the number of shares to be
offered in the Additional Offering, as the case may be, if any, offered to all
holders of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock and Series G Preferred Stock, as determined in good faith by the
Board of Directors, multiplied by (ii) a fraction: (a) the numerator of which is
the number of shares of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock,
Series F Preferred Stock and Series G Preferred Stock held by such holder (by
itself or together with any Affiliate) at the time of such Additional Offering,
and (b) the denominator of which is the total number of shares of the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock and Series G
Preferred Stock then outstanding, in each case determined on the basis of the
number of shares of Common Stock into which such shares of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock, Series E Preferred Stock, Series F Preferred Stock or Series G Preferred
Stock would be convertible at the Conversion Price for Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock or Series G Preferred Stock
that would be in effect immediately after the transaction, assuming all holders
of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or
Series G Preferred Stock participated in the bridge loan financing or purchased
their respective pro rata shares in such Additional Offering (the "Pro Rata
Share"), then to the extent of the percentage of the Pro Rata Share not so
acquired by the holder of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock,
Series F Preferred Stock or Series G Preferred Stock (or by an Affiliate of such
holder) ("Refused Percentage") the number of outstanding shares of such holder's
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
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<PAGE>
Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or
Series G Preferred Stock determined by multiplying the Refused Percentage by all
outstanding shares of such holder's Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred
Stock, Series F Preferred Stock or Series G Preferred Stock ("Converted
Percentage") shall be automatically converted into such number of fully paid and
non-assessable shares of Common Stock of the Corporation (as such Common Stock
shall then be constituted) equal to the product of (x) the Converted Percentage
multiplied by (y) the number determined by dividing, in the case of the Series A
Preferred Stock, One Dollar ($1.00) by the Conversion Price for the Series A
Preferred Stock, in the case of the Series B Preferred Stock, One Dollar and
Fifty Cents ($1.50) by the Conversion Price for the Series B Preferred Stock, in
the case of the Series C Preferred Stock, Two Dollars ($2.00) by the Conversion
Price for the Series C Preferred Stock, in the case of the Series D Preferred
Stock, Four Dollars ($4.00) by the Conversion Price for the Series D Preferred
Stock, in the case of the Series E Preferred Stock, Six Dollars ($6.00) by the
Conversion Price for the Series E Preferred Stock, in the case of the Series F
Preferred Stock, Two Dollars ($2.00) by the Conversion Price for the Series F
Preferred Stock and in the case of the Series G Preferred Stock, Four Dollars
($4.00) by the Conversion Price for the Series G Preferred Stock (in each case,
all such Conversion Prices to be as adjusted pursuant to subparagraphs
(d)(iv)(B)-(F), but without giving any effect to any prior or concurrent
adjustments to any Conversion Price pursuant to subparagraph (d)(iv)(A)) per
share for the Series A Preferred Stock, the Series B Preferred Stock, the Series
C Preferred Stock, the Series D Preferred Stock, the Series E Preferred Stock,
the Series F Preferred Stock or the Series G Preferred Stock (such event being
hereinafter referred to as an "Additional Automatic Conversion Event"), provided
that no event described in this sentence will be deemed to be an Additional
Automatic Conversion Event unless the portion of the bridge loan financing or
Additional Offering offered to the holders of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock and Series G Preferred Stock is
offered to all of the holders of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock and Series G Preferred Stock and
thereby subjects all such holders to the consequences of non-participation in
such bridge loan financing or Additional Offering.
(C) On or after the date of occurrence of an Automatic Conversion
Event or an Additional Automatic Conversion Event, and in any event within 10
days after receipt of notice, by mail, postage prepaid from the Corporation of
the occurrence of such Event, each holder of record of shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or Series G
Preferred Stock, as the case may be, shall surrender such holder's certificates
evidencing the Converted Percentage of such shares at the principal office of
the Corporation or at such other place as the Corporation shall designate, and
shall thereupon be entitled to receive certificates evidencing the number of
shares of Common Stock into which such shares of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock or Series G Preferred Stock
11
<PAGE>
are converted (plus additional certificates representing shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or Series G
Preferred Stock not so converted, if any). On the date of the occurrence of an
Automatic Conversion Event or an Additional Automatic Conversion Event, each
holder of record of shares of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred
Stock, Series F Preferred Stock or Series G Preferred Stock, as applicable,
shall be deemed to be the holder of record of the Common Stock issuable upon
such conversion, notwithstanding that the certificates representing such shares
of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or
Series G Preferred Stock shall not have been surrendered at the office of the
Corporation, that notice from the Corporation shall not have been received by
any holder of record of shares of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred
Stock, Series F Preferred Stock or Series G Preferred Stock, or that the
certificates evidencing such shares of Common Stock shall not then be actually
delivered to such holder.
(D) In the event of the conversion of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock or Series G Preferred Stock
upon the occurrence of an Automatic Conversion Event or an Additional Automatic
Conversion Event, the right to receive any declared or accrued and unpaid
dividends on the shares of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock,
Series F Preferred Stock or Series G Preferred Stock, as the case may be, so
converted shall be deemed waived by the holders of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock or Series G Preferred Stock
whose shares are being converted pursuant thereto.
(iii) For purposes of these Articles of Incorporation:
"Additional Shares of Common Stock" shall mean all shares of Common
---------------------------------
Stock issued (or, pursuant to subparagraphs (d)(iv)(A), deemed to be issued) by
the Corporation, other than shares of Common Stock issued or issuable:
(A) upon conversion of shares of Preferred Stock;
(B) to officers, directors, or employees of, or consultants to,
the Corporation pursuant to a stock grant or sale or option plan or other
employee stock incentive program approved by the Board of Directors;
(C) as a dividend or distribution on Preferred Stock, or Common
Stock to the extent set forth in subparagraphs (d)(iv)(C) and (D) hereof, and
(D) to equipment lessors, banks, lenders, customers or vendors in
connection with financings, sales, or incentive arrangements with lessors,
lenders, or customers.
"Common Stock Outstanding" shall include all Common Stock issued and
------------------------
outstanding and issuable upon exercise of all outstanding Options and conversion
of all outstanding Convertible Securities.
12
<PAGE>
"Conversion Price" shall mean the price at which shares of the Common
----------------
Stock shall be deliverable upon conversion of the Series A Preferred Stock, the
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock or Series G Preferred Stock
as adjusted from time to time as herein provided. The initial Conversion Price
per share for shares of Series A Preferred Stock shall be the Original Series A
Issue Price. The initial Conversion Price per share for shares of Series B
Preferred Stock shall be the Original Series B Issue Price. The initial
Conversion Price per share for shares of Series C Preferred Stock shall be the
Original Series C Issue Price. The initial Conversion Price per share for shares
of Series D Preferred Stock shall be the Original Series D Issue Price. The
initial Conversion Price per share for shares of Series E Preferred Stock shall
be the Original Series E Issue Price. The initial Conversion Price per share for
shares of Series F Preferred Stock shall be the Original Series F Issue Price.
The initial Conversion Price per share for shares of Series G Preferred Stock
shall be the Original Series G Issue Price. The Conversion Prices for the Series
A Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock,
the Series D Preferred Stock, the Series E Preferred Stock, the Series F
Preferred Stock and the Series G Preferred Stock shall be subject to adjustment
as herein provided.
"Conversion Shares Outstanding" shall include (i) all outstanding
-----------------------------
shares of Common Stock previously issued upon conversion of Preferred Stock, and
(ii) all shares of Common Stock issuable upon conversion of outstanding shares
of Preferred Stock.
"Convertible Securities" shall mean any evidences of indebtedness,
----------------------
shares or securities, in each case convertible into or exchangeable for
Additional Shares of Common Stock.
"Effective Price" of Additional Shares of Common Stock shall mean the
---------------
quotient determined by dividing the total number of Additional Shares of Common
Stock issued or sold, or deemed to have been issued or sold by the Corporation
under subparagraph (d)(iv)(A), into the aggregate consideration received or
deemed to have been received by the Corporation for such issue under
subparagraph (d)(iv)(A).
"Issuance Date" shall mean the actual initial date of issuance of
-------------
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or
Series G Preferred Stock, as applicable.
"Options" shall mean rights, options or warrants to subscribe for
-------
purchase or otherwise acquire Common Stock or Convertible Securities.
(iv) Adjustments to Conversion Price for Diluting Issues.
---------------------------------------------------
(A) Sale of Shares Below Conversion Price.
--------------------------------------
(1) If at any time or from time to time after an Issuance Date, the
Corporation issues or sells, or is deemed by the express provisions of this
subparagraph (d)(iv)(A) to have issued or sold, Additional Shares of Common
Stock, for an Effective Price per share less than the Conversion Price then in
effect with respect to the series of Preferred Stock first issued on such
Issuance Date, then and in each such case the then existing Conversion Price for
13
<PAGE>
the Series A Preferred Stock, the Series B Preferred Stock, the Series C
Preferred Stock, the Series D Preferred Stock, the Series E Preferred Stock, the
Series F Preferred Stock or the Series G Preferred Stock, as applicable, shall
be reduced, as of the opening of business on the date of such issue or sale, to
a price determined by multiplying the Conversion Price for the Series A
Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock,
Series D Preferred Stock, the Series E Preferred Stock, the Series F Preferred
Stock or the Series G Preferred Stock, as applicable, by a fraction (a) the
numerator of which shall be (A) the number of shares of Conversion Shares
Outstanding immediately prior to such issue or sale plus (B) the number of
shares of Common Stock which the aggregate consideration received (or by express
provision hereof deemed to have been received) by the Corporation for the total
number of Additional Shares of Common Stock so issued would purchase at such
Conversion Price for the Series A Preferred Stock, the Series B Preferred Stock,
the Series C Preferred Stock, the Series D Preferred Stock, the Series E
Preferred Stock, the Series F Preferred Stock or the Series G Preferred Stock,
as applicable, and (b) the denominator of which shall be (x) the number of
shares of Conversion Shares Outstanding immediately prior to such issue or sale
plus (y) the total number of Additional Shares of Common Stock issued in
connection with such issue or sale. The foregoing formula shall apply to, and
shall constitute the sole adjustment with respect to, any adjustment to any
Conversion Price to be made as a result of any issuance of Additional Shares of
Common Stock after any Issuance Date, regardless of whether occurring before or
after the filing of this amendment and restatement, and any prior formulas and
adjustments are hereby superseded.
(2) For the purpose of making any adjustment required under this
subparagraph (d)(iv)(A), the consideration received by the Corporation for any
issue or sale of securities shall (a) to the extent it consists of cash be
computed at the gross amount of cash received by the Corporation before
deduction of any expenses payable by the Corporation and any underwriting or
similar commissions, compensation or concessions paid or allowed by the
Corporation in connection with such issue or sale, (b) to the extent it consists
of property other than cash, be computed at the fair market value of that
property as determined in good faith by the Board of Directors and (c) if
Additional Shares of Common Stock, Convertible Securities rights or options to
purchase either Additional Shares of Common Stock or Convertible Securities are
issued or sold together with other stock or securities or other assets of the
Corporation for a consideration which covers both, be computed (as provided in
clauses (a) and (b) above) as the portion of the consideration so received that
may be reasonably determined in good faith by the Board of Directors to be
allocable to such Additional Shares of Common Stock, Convertible Securities or
rights or options. Without limiting the foregoing, for avoidance of doubt, the
Board may in its discretion treat any issuance of options, warrants or other
Convertible Securities together with any issuance of stock as one combined
issuance of Additional Shares of Common Stock in exchange for the aggregate
consideration received therefor. In addition, for the purpose of making any
adjustment required under this subparagraph (d)(iv)(A), if the Company issues or
sells Additional Shares of Common Stock in one or more transactions occurring
within any six month period on substantially similar terms, and the Board
determines in good faith that such transactions were part of a single plan of
financing, the Board may elect to make only a single Conversion Price adjustment
hereunder, treating all such transactions as one issuance of Additional Shares
of Common Stock in exchange for the aggregate consideration received therefor,
all occurring on the last date of such transactions.
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<PAGE>
(3) For the purpose of the adjustment required under this subparagraph
(d)(iv)(A), if at any time or from time to time after an Issuance Date the
Corporation issues or sells any Options or Convertible Securities (other than
options or rights exercisable for or convertible into shares of Common Stock
referred to in clause (B) of the definition of Additional Shares of Common
Stock), then in each case the Corporation shall be deemed to have issued at the
time of the issuance of such Options or Convertible Securities the maximum
number of Additional Shares of Common Stock (as set forth in the instruments
relating thereto, giving effect to any provision contained therein for a
subsequent adjustment of such number) issuable upon exercise or conversion
thereof and to have received as consideration for the issuance of such shares an
amount equal to the total amount of the consideration, if any, received by the
Corporation for the issuance of such Options or Convertible Securities plus, in
the case of such Options, the minimum amounts of consideration, if any (as set
forth in the instruments relating thereto, giving effect to any provision
contained therein for a subsequent adjustment of such consideration), payable to
the Corporation upon the exercise of such Options and, in the case of
Convertible Securities, the minimum amounts of consideration, if any, payable to
the Corporation (other than by cancellation of liabilities or obligations
evidenced by such Convertible Securities which were deemed to have been received
by the Corporation on issuance of such Convertible Securities). No further
adjustment of the Conversion Price for Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock or Series G Preferred Stock, adjusted
upon the issuance of such Options or Convertible Securities, shall be made as a
result of the actual issuance of Additional Shares of Common Stock on the
exercise of any such Options or the conversion of any such Convertible
Securities; provided, however, that if any such Options or the conversion
privilege represented by any such Convertible Securities shall expire without
having been exercised, or are exercised for a lesser number of Additional Shares
of Common Stock or with a greater consideration paid to the Corporation than was
previously deemed to be issued or received by the Corporation, the Conversion
Price for Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock, Series E Preferred Stock, Series F Preferred
Stock, or Series G Preferred Stock, as the case may be, adjusted upon the
issuance of such Options or Convertible Securities shall be readjusted to the
Conversion Price for Series A Preferred Stock, Series B Preferred Stock, Series
C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock or Series G Preferred Stock, as the case may be, which would
have been in effect had an adjustment been made on the basis that the only
Additional Shares of Common Stock so issued were the Additional Shares of Common
Stock, if any, actually issued or sold on the exercise of such Options or rights
of conversion of such Convertible Securities, and such Additional Shares of
Common Stock, if any, were issued or sold for the consideration actually
received by the Corporation upon such exercise, plus the consideration, if any,
actually received by the Corporation for the granting of all such Options,
whether or not exercised, plus the consideration received for issuing or selling
the Convertible Securities actually converted plus the consideration, if any,
actually received by the Corporation (other than by cancellation of liabilities
or obligations evidenced by such Convertible Securities which were deemed to
have been received by the Corporation on issuance of such Convertible
Securities) on the conversion of such Convertible Securities.
15
<PAGE>
(4) In each case of an adjustment or readjustment of the Conversion
Price for the Series A Preferred Stock, the Series B Preferred Stock, the Series
C Preferred Stock, the Series D Preferred Stock, the Series E Preferred Stock,
the Series F Preferred Stock or the Series G Preferred Stock or the number of
shares of Common Stock or other securities issuable upon conversion of the
Series A Preferred Stock, the Series B Preferred Stock, the Series C Preferred
Stock, the Series D Preferred Stock, the Series E Preferred Stock, the Series F
Preferred Stock or the Series G Preferred Stock, the Corporation, at its
expense, shall cause the chief financial officer of the Corporation to compute
such adjustment or readjustment in accordance with the provisions hereof and
prepare a certificate showing such adjustment or readjustment, and shall mail
such certificate, by first class mail, postage prepaid, to each registered
holder of the Series A Preferred Stock, the Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock or Series G Preferred Stock at the holder's address as shown in
the Corporation's books. The certificate shall set forth such adjustment or
readjustment, showing in detail the facts upon which such adjustment or
readjustment is based including a statement of (a) the consideration received or
deemed to be received by the Corporation for any Additional Shares of Common
Stock issued or sold or deemed to have been issued or sold, (b) the Conversion
Price for Series A Preferred Stock, the Series B Preferred Stock, the Series C
Preferred Stock, the Series D Preferred Stock, the Series E Preferred Stock, the
Series F Preferred Stock or the Series G Preferred Stock at the time in effect
(after giving effect to such adjustment or readjustment), (c) the number of
Additional Shares of Common Stock and (d) the type and amount, if any, of other
property which at the time would be received upon conversion of the Series A
Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock,
Series D Preferred Stock, the Series E Preferred Stock, the Series F Preferred
Stock or the Series G Preferred Stock.
(5) Except as expressly provided herein, no adjustment in the
Conversion Price of any share of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred
Stock, Series F Preferred Stock or Series G Preferred Stock shall be made in
respect of the issue of Additional Shares of Common Stock unless the
consideration per share for such Additional Shares of Common Stock issued or
deemed to be issued by the Corporation is less than the Conversion Price in
effect on the date of, and immediately prior to, such issue, for such share of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or
Series G Preferred Stock, respectively.
(B) Adjustment for Stock Splits and Combinations. If the
--------------------------------------------
Corporation at any time or from time to time after an Issuance Date effects a
subdivision of the outstanding Common Stock, the Conversion Price for Series A
Preferred Stock, the Conversion Price for Series B Preferred Stock, the
Conversion Price for Series C Preferred Stock, the Conversion Price for Series D
Preferred Stock, the Conversion Price for the Series E Preferred Stock, the
Conversion Price for the Series F Preferred Stock and the Conversion Price for
Series G Preferred Stock then in effect immediately before that subdivision
shall be proportionately decreased, and conversely, if the Corporation at any
time or from time to time after an Issuance Date combines the outstanding shares
of Common Stock, the Conversion Price for Series A Preferred Stock, the
Conversion Price for Series B Preferred Stock, the Conversion Price for Series C
Preferred Stock, the Conversion Price for Series D Preferred Stock, the
16
<PAGE>
Conversion Price for Series E Preferred Stock, the Conversion Price for Series F
Preferred Stock and the Conversion Price for Series G Preferred Stock then in
effect immediately before the combination shall be proportionately increased.
Any adjustment under this subparagraph (B) shall become effective at the close
of business on the date the subdivision or combination becomes effective.
(C) Adjustment for Certain Dividends and Distributions. In the
--------------------------------------------------
event the Corporation at any time, or from time to time after an Issuance Date
makes, or fixes a record date for the determination of holders of Common Stock
entitled to receive, a dividend or other distribution payable in Additional
Shares of Common Stock or any right to acquire Common Stock for no
consideration, then and in each such event the Conversion Price for Series A
Preferred Stock, the Conversion Price for Series B Preferred Stock, the
Conversion Price for Series C Preferred Stock, the Conversion Price for Series D
Preferred Stock, the Conversion Price for Series E Preferred Stock, the
Conversion Price for Series F Preferred Stock and the Conversion Price for
Series G Preferred Stock then in effect shall be decreased as of the time of
such issuance or, in the event such a record date is fixed, as of the close of
business on such record date, by multiplying the Conversion Price for such
Series of Preferred Stock then in effect by a fraction (a) the numerator of
which is the number of shares of Common Stock Outstanding immediately prior to
the time of such issuance or the close of business on such record date, and (b)
the denominator of which shall be the number of shares of Common Stock
Outstanding immediately prior to the time of such issuance or the close of
business on such record date plus the total number of shares of Common Stock
issuable in payment of such dividend or distribution; provided, however, that if
such record date is fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the Conversion Price
for Series A Preferred Stock, the Conversion Price for Series B Preferred Stock,
the Conversion Price for Series C Preferred, the Conversion Price for Series D
Preferred Stock, the Conversion Price for Series E Preferred Stock, the
Conversion Price for Series F Preferred Stock and the Conversion Price for
Series G Preferred Stock shall be recomputed accordingly as of the close of
business on such record date and thereafter the Conversion Price for Series A
Preferred Stock, the Conversion Price for Series B Preferred Stock, the
Conversion Price for Series C Preferred Stock, the Conversion Price for Series D
Preferred Stock, the Conversion Price for Series E Preferred Stock, the
Conversion Price for Series F Preferred Stock and the Conversion Price for
Series G Preferred Stock shall be adjusted pursuant to this subparagraph
(d)(iv)(C) as of the time of actual payment of such dividends or distributions.
(D) Adjustments for Other Dividends and Distributions. In the
-------------------------------------------------
event the Corporation at any time or from time to time after the Issuance Date
makes, or fixes a record date for the determination of holders of Common Stock
entitled to receive, a dividend or other distribution payable in securities of
the Corporation other than shares of Common Stock, then in each such event
provision shall be made so that the holders of Series A Preferred Stock, the
holders of Series B Preferred Stock, the holders of Series C Preferred Stock,
the holders of Series D Preferred Stock, the holders of Series E Preferred
Stock, the holders of Series F Preferred Stock and the holders of Series G
Preferred Stock shall receive upon conversion thereof, in addition to the number
of shares of Common Stock receivable thereupon, the amount of securities of the
Corporation which they would have received had their Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock or Series G Preferred Stock
17
<PAGE>
been converted into Common Stock on the date of such event and had they
thereafter, during the period from the date of such event to and including the
date of conversion, retained such securities receivable by them as aforesaid
during such period, subject to all other adjustments called for during such
period under this paragraph (d) with respect to the rights of the holders of the
Series A Preferred Stock, the holders of Series B Preferred Stock, the holders
of Series C Preferred Stock, the holders of Series D Preferred Stock, the
holders of Series E Preferred Stock, the holders of Series F Preferred Stock and
the holders of Series G Preferred Stock, as the case may be.
(E) Adjustment for Reclassification Exchange and Substitution. If
---------------------------------------------------------
the Common Stock issuable upon the conversion of Series A Preferred Stock, the
Series B Preferred Stock, the Series C Preferred Stock, the Series D Preferred
Stock, the Series E Preferred Stock, the Series F Preferred Stock or the Series
G Preferred Stock is changed into the same or a different number of shares of
any class or classes of stock, whether by recapitalization, reclassification or
otherwise (other than a subdivision or combination of shares, a stock dividend
or a reorganization, provided for elsewhere in this paragraph (d)), then and in
any such event each holder of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred
Stock, Series F Preferred Stock and Series G Preferred Stock shall have the
right thereafter to convert such stock into the kind and amount of stock and
other securities and property receivable upon such recapitalization,
reclassification or other change, by holders of the number of shares of Common
Stock into which such shares of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred
Stock, Series F Preferred Stock or Series G Preferred Stock might have been
converted immediately prior to such recapitalization, reclassification or
change, all subject to further adjustment as provided herein.
(F) Reorganizations. If at any time or from time to time there is
---------------
a capital reorganization of the Common Stock (other than a recapitalization,
subdivision, combination, reclassification or exchange of shares provided for
elsewhere in this paragraph (d)), then, as a part of such reorganization,
provision shall be made so that the holders of Series A Preferred Stock, the
holders of the Series B Preferred Stock, the holders of the Series C Preferred
Stock, the holders of the Series D Preferred Stock, the holders of the Series E
Preferred Stock, the holders of the Series F Preferred Stock and the holders of
Series G Preferred Stock shall thereafter be entitled to receive, upon
conversion of the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F
preferred Stock or Series G Preferred Stock, as applicable, the number of shares
of stock or cash or other securities or property of the Corporation to which a
holder of Common Stock deliverable upon conversion would have been entitled on
such capital reorganization. In any such case, appropriate adjustment shall be
made in the application of the provisions of this paragraph (d) with respect to
the rights of holders of the Series A Preferred Stock, the holders of the Series
B Preferred Stock, the holders of the Series C Preferred Stock, the holders of
the Series D Preferred Stock, the holders of the Series E Preferred Stock, the
holders of the Series F Preferred Stock and the holders of the Series G
Preferred Stock after the reorganization to the end that the provisions of this
paragraph (d) (including adjustment of the Conversion Price for Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or Series G
Preferred Stock then in effect and the number of shares purchasable upon
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<PAGE>
conversion of Series A Preferred Stock, the Series B Preferred Stock, the Series
C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock or Series G Preferred Stock) shall be applicable after that
event and be as nearly equivalent to the provisions hereof as may be
practicable.
(v) No Impairment. The Corporation will not, by amendment of these
-------------
Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, other than as duly approved by a majority in interest of the
Common Stock and a majority in interest of the Preferred Stock 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 paragraph (d) and in
the taking of all such action as may be necessary or appropriate in order to
protect the Conversion Rights of the holders of the Series A Preferred Stock,
the holders of the Series B Preferred Stock, the holders of the Series C
Preferred Stock, the holders of the Series D Preferred Stock, the holders of the
Series E Preferred Stock, the holders of the Series F Preferred Stock and the
holders of the Series G Preferred Stock against dilution or other impairment.
The Corporation shall at all times reserve and keep available out of its
authorized but unissued Common Stock the full number of shares of Common Stock
deliverable upon the conversion of all the then outstanding shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock and Series G
Preferred Stock and shall take all such action and obtain all such permits or
orders as may be necessary to enable the Corporation lawfully to issue such
Common Stock upon the conversion of Series A Preferred Stock, the Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock or Series G Preferred Stock.
(vi) Notices of Record Date. In the event of 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 (other than a cash dividend which is the same as cash dividends paid in
previous quarters) or other distribution, the Corporation shall mail to each
holder of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock, Series E Preferred Stock, Series F Preferred
Stock and Series G Preferred Stock at least twenty (20) days prior to the date
specified herein, a notice specifying the date on which any such record is to be
taken for the purpose of such dividend or distribution.
(e) Redemption. The Series A Preferred Stock, the Series B Preferred Stock,
----------
the Series C Preferred Stock, the Series D Preferred Stock, the Series E
Preferred Stock, the Series F Preferred Stock and the Series G Preferred Stock
shall, at the election of the holders of the Series A Preferred Stock, the
Series B Preferred Stock, the Series C Preferred Stock, the Series D Preferred
Stock, the Series E Preferred Stock, the Series F Preferred Stock and the Series
G Preferred Stock, as the case may be, be redeemed by the Corporation in two
equal installments in accordance with the following provisions:
(i) Election to Redeem. The Corporation shall redeem the Series A
------------------
Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock, the
Series D Preferred Stock, the Series E Preferred Stock, the Series F Preferred
Stock and the Series G Preferred Stock at the times, and pursuant to the terms,
19
<PAGE>
set forth below, if the Corporation receives written certification (the
"Redemption Certificate") that holders of no less than seventy-five percent
(75%) of the then outstanding shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, the Series
E Preferred Stock, the Series F Preferred Stock and the Series G Preferred Stock
(the "Electing Holders") voting together as a class have elected in favor of
redemption (the "Redemption Election"). The Redemption Certificate shall be
signed by the Electing Holders and shall be delivered to the Corporation at its
principal office, on or before August 30, 2002.
(ii) Redemption Price. The Series A Preferred Stock, the Series B
----------------
Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock, the
Series E Preferred Stock, the Series F Preferred Stock and the Series G
Preferred Stock shall be redeemed by the Corporation paying in cash, out of
funds legally available therefor, an amount equal to (A) the greater of (1) One
Dollar ($1.00) per share in the case of the Series A Preferred Stock, One Dollar
Fifty Cents ($1.50) per share in the case of the Series B Preferred Stock, Two
Dollars ($2.00) per share in the case of the Series C Preferred Stock, Four
Dollars ($4.00) per share in the case of the Series D Preferred Stock, Six
Dollars ($6.00) per share in the case of the Series E Preferred Stock, Two
Dollars ($2.00) per share in the case of the Series F Preferred Stock and Four
Dollars ($4.00) per share in the case of the Series G Preferred Stock (adjusted
for any Recapitalization Events with respect to such shares) or (2) the fair
market value per share (exclusive of the value of any declared or accrued but
unpaid dividends) as of a date within forty-five (45) days after receipt by the
Corporation of the Redemption Certificate, determined as set forth below, plus
(B) a further amount per share equal to dividends, if any, (1) then declared and
unpaid on account of such Series of Preferred Stock and (2) whether or not
declared, then accrued in accordance with the provisions of subparagraph
(b)(iii) hereof to and including the date fixed for redemption (the "Redemption
Price"). The fair market value of the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock, the
Series E Preferred Stock, the Series F Preferred Stock and the Series G
Preferred Stock shall be determined as follows: the Board of Directors shall
determine the fair market value of the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock, the
Series E Preferred Stock, the Series F Preferred Stock and the Series G
Preferred Stock; provided, however, that (A) if the Board of Directors
-------- -------
determines that the fair market value of each share of Series A Preferred Stock
is greater than One Dollar ($1.00), that the fair market value of each share of
the Series B Preferred Stock is greater than One Dollar and Fifty Cents ($1.50),
that the fair market value of each share of the Series C Preferred Stock is
greater than Two Dollars ($2.00), that the fair market value of each share of
the Series D Preferred Stock is greater than Four Dollars ($4.00), that the fair
market value of each share of the Series E Preferred Stock is greater than Six
Dollars ($6.00), that the fair market value of each share of the Series F
Preferred Stock is greater than Two Dollars ($2.00) or that the fair market
value of each share of the Series G Preferred Stock is greater than Four Dollars
($4.00) (adjusted for any Recapitalization Events with respect to such shares),
the Corporation shall promptly give the shareholders notice thereof and the
holders of a majority of the Corporation's then outstanding Common Stock shall
have the right to contest such determination by giving notice thereof to the
Corporation within fifteen (15) days of the receipt of the Corporation's notice,
and in such event the fair market value of the Series A Preferred Stock, the
Series B Preferred Stock, the Series C Preferred Stock, Series D Preferred
Stock, the Series E Preferred Stock, the Series F Preferred Stock or the Series
20
<PAGE>
G Preferred Stock, as the case may be, shall be determined by an independent
appraiser paid by the Corporation and mutually acceptable to the Corporation,
the holders of a majority of the Common Stock and the holders of a majority of
the then outstanding Preferred Stock or (B) if the holders of a majority of the
then outstanding Series A Preferred Stock, the Series B Preferred Stock, Series
C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock or Series G Preferred Stock contest the determination of the
Board of Directors, then the fair market value of the Series A Preferred Stock,
the Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock, Series E Preferred Stock, Series F Preferred Stock or Series G Preferred
Stock, as the case may be, shall be determined by an independent appraiser
mutually acceptable to the Corporation and the holders of a majority of the then
outstanding Series A Preferred Stock, the Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock or Series G Preferred Stock. In the event that the holders of a
majority of the Series A Preferred Stock, the Series B Preferred Stock, the
Series C Preferred Stock, the Series D Preferred Stock, the Series E Preferred
Stock, the Series F Preferred Stock or the Series G Preferred Stock contest the
Board of Director's fair market value determination with respect to such series
of Preferred Stock, the cost of appraisal shall be borne as follows:
(A) if the fair market value determined by the independent
appraiser is less than or equal to ninety percent (90%) of the fair market value
as determined by the Board of Directors, then cost of appraisal shall be borne
by the holders of such Series of Preferred Stock pro rata based on the number of
shares held;
(B) if the fair market value determined by the appraiser is equal
to or greater than one-hundred and ten percent (110%) of the fair market value
as determined by the Board of Directors, then the cost of appraisal shall be
borne by the Corporation;
(C) if the fair market value of such Series of Preferred Stock as
determined by the independent appraiser is between ninety and one-hundred and
ten percent (90-110%) of the fair market value as determined by the Board of
Directors, then the cost of appraisal shall be borne 50% by the Corporation and
50% by the holders of such Series of Preferred Stock, with each such holder
paying a pro rata portion of such cost based on the number of shares held.
(iii) Mandatory Redemption: Two Installments. The Redemption Election
--------------------------------------
constitutes an election in favor of a mandatory redemption of all shares of such
Series of Preferred Stock. Such Series of Preferred Stock shall be redeemed in
two equal installments, with the Corporation redeeming 50% of each holder's
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or
Series G Preferred Stock, as the case may be, in the first installment and the
remaining Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock, Series E Preferred Stock, Series F Preferred
Stock or Series G Preferred Stock being redeemed in the second installment.
Subject to the Corporation having funds legally available therefor, the closing
of the first installment shall occur on or about January 1, 2003 (the "First
Redemption Date") and the closing of the second installment shall take place on
or about January 1, 2004 (the "Second Redemption Date"). If the Corporation
shall not have sufficient funds legally available for redeeming all Series A
21
<PAGE>
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock and Series G
Preferred Stock at the First Redemption Date or the Second Redemption Date,
respectively, the Corporation shall, (i) subject to the rights of any Series of
Preferred Stock that has redemption rights senior or equal to the Series F
Preferred Stock or the Series G Preferred Stock, first redeem all shares of
Series F Preferred Stock and Series G Preferred Stock (or, in the absence of
funds legally sufficient therefor, a pro rata share in accordance with their
respective aggregate number of shares), and (ii) with any remainder funds,
subject to the rights of any Series of Preferred Stock that has redemption
rights senior or equal to the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock and Series E Preferred
Stock, then redeem a pro rata portion of each holder's shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock and Series E Preferred Stock in accordance with their respective
aggregate number of shares. The Corporation shall make such redemption payments
out of funds legally available therefor and shall redeem the remaining shares to
have been redeemed in such installment as soon as practicable after the
Corporation has funds legally available therefor.
(iv) Redemption Notice. If the Redemption Election has been received,
-----------------
the Corporation shall mail, postage prepaid, not less than thirty (30) days nor
more than sixty (60) days prior to the First and Second Redemption Dates,
written notice thereof (the "Redemption Notice"), to each holder of record of
the Series of Preferred Stock as to which the Redemption Election has been
exercised with a copy thereof to each other holder of Preferred Stock, in each
case at its post office address last shown on the records of the Corporation.
Each such Redemption Notice shall state:
(A) The number of shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock or Series G Preferred Stock held by
the holder that the Corporation shall redeem on the Redemption Date specified in
the Redemption Notice;
(B) The Redemption Date and Redemption Price;
(C) The date upon which the holder's conversion rights (as set
forth in paragraph (d) above) as to such shares terminate, which termination
shall be five days before the Redemption Date; and
(D) That the holder is to surrender to the Corporation, in the
manner and at the place designated, its certificate or certificates representing
the shares of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock or Series G Preferred Stock to be redeemed.
(v) Surrender of Certificates: Payment. On or before each Redemption
----------------------------------
Date, each holder of shares of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred
Stock, Series F Preferred Stock or Series G Preferred Stock to be redeemed on
such Redemption Date, unless such holder has exercised its right to convert the
shares as provided in paragraph (d) hereof, shall surrender the certificate or
22
<PAGE>
certificates representing such shares to the Corporation, in the manner and at
the place designated in the Redemption Notice, and thereupon the Redemption
Price for such shares shall be payable to the order of the person whose name
appears on such certificate or certificates as the owner thereof, and each
surrendered certificate shall be cancelled and retired. In the event that fewer
than all of the shares represented by such certificate are redeemed, a new
certificate representing the unredeemed shares shall be issued forthwith.
(vi) Rights Subsequent to Redemption. If the Redemption Notice shall
-------------------------------
have been duly given, and if on each Redemption Date the Redemption Price
therefor is either paid or made available for payment through the deposit
arrangement specified in subparagraph (e)(vii) below, then notwithstanding that
the certificates evidencing any of the shares of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock or Series G Preferred Stock
so called for redemption shall not have been surrendered, the dividends with
respect to such shares shall cease to accrue after the applicable Redemption
Date and all rights with respect to such shares shall forthwith terminate after
such Redemption Date, except only the right of the holders to receive the
Redemption Price without interest upon surrender of their certificate or
certificates therefor.
(vii) Deposit of Funds. On or prior to each Redemption Date, the
----------------
Corporation shall deposit as a trust fund with any bank or trust company, having
a capital and surplus of at least $100,000,000, a sum equal to the aggregate
Redemption Price of all shares of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred
Stock, Series F Preferred Stock and Series G Preferred Stock called for
redemption on such Redemption Date and not yet redeemed or converted, with
irrevocable instructions and authority to the bank or trust company to pay, on
and after each such Redemption Date, the Redemption Price to the respective
holders upon the surrender of their stock certificates. From and after the date
of such deposit (but not prior to each Redemption Date), the shares so called
for redemption on such Redemption Date shall be deemed to have been redeemed.
The deposit shall constitute full payment of the shares to their holders, and
from and after each Redemption Date the shares redeemed on such Redemption Date
shall be deemed to be no longer outstanding, and the holders thereof shall cease
to be shareholders with respect to such shares and shall have no rights with
respect thereto except the rights to receive, from the bank or trust company,
payment of the Redemption Price of the shares, without interest, upon surrender
of their certificates therefor. Any funds so deposited and unclaimed at the end
of one year from the Second Redemption Date shall be released or repaid to the
Corporation, after which the holders of shares called for redemption shall be
entitled to receive payment of the Redemption Price only from the Corporation.
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<PAGE>
ARTICLE V
(a) The liability of the directors of the Corporation for monetary damages
shall be eliminated to the fullest extent permissible under California law as it
now exists or may hereafter be amended in a manner more favorable for directors.
(b) The Corporation is authorized to provide indemnification of agents (as
defined in Section 317 of the California Corporations Code) through bylaw
provisions, agreements with agents, vote of shareholders or disinterested
directors, or otherwise, to the fullest extent permissible under California law.
(c) Any amendment, repeal or modification of any provision of this Article
V shall not adversely affect any right or protection of an agent of the
Corporation existing at the time of such amendment, repeal or modification.
THREE: The foregoing amendment and restatement has been approved by the
Board of Directors of the Corporation.
FOUR: The foregoing amendment and restatement has been duly approved by the
requisite number of shares of the Corporation in accordance with Sections 902
and 903 of the California Corporations Code. The total number of outstanding
shares of Common Stock of the Corporation is 5,791,589, the total number of
outstanding shares of Series A Preferred Stock of the Corporation is 6,570,000,
the total number of outstanding shares of Series B Preferred Stock is 3,333,334,
the total number of outstanding shares of Series C Preferred Stock of the
Corporation is 7,655,018, the total number of outstanding shares of Series D
Preferred Stock of the Corporation is 3,125,000, the total number of outstanding
shares of Series E Preferred Stock of the Corporation is 10,664,111 and the
total number of outstanding shares of Series F Preferred Stock of the
Corporation is 11,204,246. The number of shares voting in favor of the amendment
and restatement equaled or exceeded the vote required, which was more than 50%
of the Common Stock and more than 50% of each of the Series A Preferred Stock,
the Series B Preferred Stock, the Series C Preferred Stock, the Series D
Preferred Stock, the Series E Preferred Stock and the Series F Preferred Stock,
each voting as a separate class.
* * * * *
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<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this certificate on
, 2000.
- -------------- --
------------------------------------
Ake Almgren
President and Chief Executive Officer
------------------------------------
Jeffrey R. Watts
Secretary and Chief Financial Officer
25
<PAGE>
VERIFICATION
------------
The undersigned certify under penalty of perjury that they have read the
foregoing Amended and Restated Articles of Incorporation and know the contents
thereof, and that the statements therein are true and correct.
Executed at Woodland Hills, California, on , 2000.
------------- --
------------------------------------
Ake Almgren
President and Chief Executive Officer
------------------------------------
Jeffrey R. Watts
Secretary and Chief Financial Officer
26
EXHIBIT F
March 1, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Alliant Energy Corporation ("Alliant Energy"), et al. -
Statement on Form U-1, as amended - File No. 70-9617
----------------------------------------------------------
Dear Ladies and Gentlemen:
I have read the Statement on Form U-1, as amended, in the
above-referenced proceeding (the "Application") and am furnishing this opinion
with respect to the proposed transaction described therein, which relates to the
purchase by Alliant Energy Resources ("Resources"), directly or through a
subsidiary, of up to 5 million shares of Series G Senior Preferred Stock
("Preferred Stock") to be issued by Capstone Turbine Corporation ("Capstone"), a
California corporation. Capstone designs, fabricates and markets microturbines
incorporating Capstone's proprietary technology.
I am of the opinion that, upon the issuance of your order or orders in
this proceeding granting or permitting the Application to become effective with
respect to the proposed transaction, and in the event that the proposed
transaction is consummated in accordance with said Application and your order or
orders in respect thereto:
(a) all state laws applicable to the proposed transaction will
have been complied with;
(b) Capstone is (i) validly organized and duly existing, and
(ii) the Preferred Stock will be validly issued, fully paid,
and nonassessable, and Resources will be entitled to all of
the rights and privileges of a holder of Preferred Stock as
set forth in Capstone's amended and restated articles of
incorporation;
(c) Resources will legally acquire the Preferred Stock; and
(d) the consummation of the proposed transaction will not
violate the legal rights of the holders of any securities
issued by Alliant Energy or any associate company thereof.
<PAGE>
I am an attorney licensed to practice in the State of Wisconsin and
have acted as counsel to Alliant Energy and Resources in connection with the
proposed transaction. I express no opinion with respect to the laws of any other
State or jurisdiction.
I hereby give my written consent to the use of this opinion in
connection with the Application.
Very truly yours,
/s/ Barbara J. Swan
2
