<PAGE>
FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
TUT SYSTEMS, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 94-2958543
- -------------------------------------- ------------------------------------
(State of incorporation or organization) (I.R.S. Employer Identification No.)
2495 ESTAND WAY
PLEASANT HILL, CA 94523
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(Address of principal executive offices) (Zip Code)
If this Form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective upon filing pursuant to
General Instruction A.(c), check the following box. [_]
If this Form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [X]
Securities Act registration statement file number to which this form
relates: 333-60419
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
--------------------- ------------------------------
None None
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK, $0.001 par value
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(Title of class)
<PAGE>
Item 1. Description of Registrant's Securities to be Registered
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Incorporated by reference to the section entitled "Description of
Capital Stock -- Common Stock" contained in Registrant's Registration
Statement on Form S-1 filed on July 31, 1998 (File No. 333-60419) (the
"S-1 Registration Statement"), as amended by Amendment No.1 to the S-1
Registration Statement, filed on September 10, 1998, Amendment No. 2
to the S-1 Registration Statement, filed on December 21, 1998,
Amendment No. 3 to the S-1 Registration Statement, filed on January 8,
1999, and Amendment No. 4 to the S-1 Registration Statement, filed on
January 14, 1999.
Item 2. Exhibits
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The following exhibits are filed as a part of this registration
statement:
3.1 Restated Certificate of Incorporation of Registrant.
3.2 Form of Second Amended and Restated Certificate of Incorporation
of Registrant to be filed immediately following the closing of
the initial public offering of Common Stock of the Company
pursuant to the S-1 Registration Statement.
3.3 Bylaws of Registrant.
4.1+ Form of Registrant's Common Stock certificate.
______________________
+ Incorporated by reference to the Exhibit of the same number to Amendment
No. 1 to the S-1 Registration Statement of Registrant, File No. 333-60419,
filed with the Securities and Exchange Commission on September 10, 1998.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
Date: January 22, 1999 TUT SYSTEMS, INC.
By: /s/ Nelson Caldwell
________________________________
Nelson Caldwell
Vice President, Finance and Chief
Financial Officer
<PAGE>
FORM 8-A
TUT SYSTEMS, INC.
INDEX TO EXHIBITS
-----------------
Exhibits No.
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3.1 Restated Certificate of Incorporation of Registrant.
3.2 Second Amended and Restated Certificate of Incorporation of
Registrant to be filed immediately following the closing of the
initial public offering of Common Stock of the Company pursuant
to the S-1 Registration Statement.
3.3 Bylaws of Registrant.
4.1+ Form of Registrant's Common Stock certificate.
______________________
+ Incorporated by reference to the Exhibit of the same number to Amendment
No. 1 to the S-1 Registration Statement of Registrant, File No. 333-60419,
filed with the Securities and Exchange Commission on September 10, 1998.
<PAGE>
EXHIBIT 3.1
-----------
RESTATED CERTIFICATE OF INCORPORATION
OF
TUT SYSTEMS, INC.
Stephanie L. Ruby certifies that:
A. She is the sole incorporator of Tut Systems, Inc., a corporation
organized and existing under the laws of the state of Delaware (the
"Corporation").
B. The original Certificate of Incorporation of the Corporation was filed
with the Secretary of State of the State of Delaware on July 6, 1998 (the
"Original Certificate").
C. As of the date hereof, the Corporation has not received any payment
for any of its stock.
D. Pursuant to Sections 241 and 245 of the General Corporation Law of
Delaware, this Restated Certificate of Incorporation restates and integrates and
further amends the provisions of the Original Certificate.
E. The text of the Original Certificate is hereby amended and restated in
its entirety to read as follows:
ARTICLE I
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The name of this Corporation is Tut Systems, Inc. (the "Corporation").
ARTICLE II
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The address of the Corporation's registered office in the State of Delaware
is 1209 Orange Street, Wilmington, County of New Castle. The name of its
registered agent at such office is The Corporation Trust Company.
<PAGE>
ARTICLE III
-----------
The nature of the business or purposes to be conducted or promoted by the
Corporation is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
ARTICLE IV
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This Corporation is authorized to issue two classes of shares of stock
which shall be designated, respectively, "Common Stock" and "Preferred Stock."
The total number of shares that this Corporation is authorized to issue is
Twenty-One Million Seven Hundred Fifty Thousand and Two (21,750,002) shares.
The number of shares of Common Stock authorized is Twelve Million Five Hundred
Thousand (12,500,000) shares, $0.001 par value. The number of shares of
Preferred Stock authorized is Nine Million Two Hundred Fifty Thousand and Two
(9,250,002) shares, $0.001 par value.
The shares of Preferred Stock authorized by this Certificate of
Incorporation may be issued from time to time in one or more series. For any
wholly unissued series of Preferred Stock, the Board of Directors is hereby
authorized to fix and alter the rights, preferences, privileges and restrictions
thereof, including but not limited to the dividend rights, dividend rates,
conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions), redemption prices, and liquidation preferences, the
number of shares constituting any such series and the designation thereof, or
any of them. Without limitation of the generality of the foregoing, the Board
of Directors shall have the power to fix the number of authorized but
undesignated shares comprising any wholly unissued series of Preferred Stock,
and to fix and alter the rights, preferences, privileges and restrictions of any
such unissued series of Preferred Stock (including, but not limited to the
dividend rights, dividend rates, conversion rights, voting rights, rights and
terms of redemption and sinking fund provisions, redemption prices, and
liquidation preferences of such series) in such manner as the Board of Directors
determines, which rights, preferences, privileges and restrictions may, in the
sole discretion of the Board of Directors, subject to Section 8 hereof, be
superior to, on a parity with, or junior to the rights, preferences, privileges
and restrictions of any other series of Preferred Stock.
The Board of Directors is hereby authorized to increase or decrease the
number of shares of any series of Preferred Stock when the number of shares of
such series was originally fixed by designation of the Board of Directors. The
Board of Directors is authorized to decrease the number of shares of any series
of Preferred Stock when the number of shares was not originally fixed by
designation of the Board of Directors. Any such increase or decrease shall be
subject to the limitations and restrictions stated in the resolution of the
Board of Directors originally fixing the number of shares of such series, or in
the Certificate of Incorporation, as the case may be; provided, that the number
of shares of any series shall not be decreased below the number of shares of
such series then outstanding. If the number of shares of any series is so
decreased, then the shares constituting such decrease shall resume the status of
authorized but undesignated shares of Preferred Stock.
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<PAGE>
Section 1. Title of Series and Number of Shares. The first series of
------------------------------------
Preferred Stock shall be comprised of 500,001 shares and shall be designated
Series A Preferred Stock (the "Series A Preferred"). The second series of
Preferred Stock shall be comprised of 89,021 shares and shall be designated
Series B Preferred Stock (the "Series B Preferred"). The third series of
Preferred Stock shall be comprised of 750,000 shares and shall be designated
Series C Preferred Stock (the "Series C Preferred"). The fourth series of
Preferred Stock shall be comprised of 1,718,820 shares and shall be designated
Series D Preferred Stock (the "Series D Preferred"). The fifth series of
Preferred Stock shall be comprised of 1,312,500 shares and shall be designated
Series E Preferred Stock (the "Series E Preferred"). The sixth series of
Preferred Stock shall be comprised of 2,500,000 shares and shall be designated
Series F Preferred Stock (the "Series F Preferred"). The seventh series of
Preferred Stock shall be comprised of 2,000,000 shares and shall be designated
Series G Preferred Stock (the "Series G Preferred"). The Board of Directors
may issue the remaining undesignated Preferred Stock in one or more series as
permitted by the Certificate of Incorporation. As used herein, the term
"Preferred Stock" without designation shall refer to shares of Series A
Preferred, Series B Preferred, Series C Preferred, Series D Preferred, Series
E Preferred, Series F Preferred and Series G Preferred.
Section 2. Dividend Rights of Preferred Stock. The holders of the
----------------------------------
outstanding Series A Preferred, Series B Preferred and Series C Preferred
shall be entitled, when, as and if declared by the Board of Directors of the
Corporation, to noncumulative dividends out of funds legally available
therefor of $0.20 for each share of Series A Preferred, $0.20 for each share
of Series B Preferred, and $0.24 for each share of Series C Preferred held by
them. The right to dividends on shares of Series A Preferred, Series B
Preferred and Series C Preferred under this Section shall not be cumulative,
and no right shall accrue to the holders of Series A Preferred, Series B
Preferred and Series C Preferred under this Section by reason of the fact that
dividends on such shares are not declared in any prior period. The holders of
the outstanding Series D Preferred, Series E Preferred, Series F Preferred and
Series G Preferred shall be entitled, when, as and if declared by the Board of
Directors of the Corporation, to dividends out of funds legally available
therefor of $0.252 for each share of Series D Preferred, $0.324 for each share
of Series E Preferred, $0.352 for each share of Series F Preferred, and $0.84
for each share of Series G Preferred held by them, which dividends shall be
cumulative only in the event of: (i) the mandatory redemption of the Series D
Preferred, Series E Preferred, Series F Preferred and Series G Preferred by
the Corporation pursuant to Section 7 hereof; or (ii) a liquidation,
dissolution or winding up of the Corporation under Section 3 hereof, either
voluntary or involuntary. Except as described in the immediately preceding
sentence, the right to dividends on shares of Series D Preferred, Series E
Preferred, Series F Preferred or Series G Preferred under this Section shall
not be cumulative, and no right shall otherwise accrue to the holders of
Series D Preferred, Series E Preferred, Series F Preferred or Series G
Preferred under this Section by reason of the fact that dividends on such
shares are not declared in any prior period. No dividend or distribution shall
be declared or paid on any shares of Common Stock (other than dividends
payable solely in Common Stock of the Corporation) unless at the same time an
equivalent dividend or distribution is paid or declared and set aside for
payment on the Preferred Stock (on an as-if converted to Common Stock basis).
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<PAGE>
Section 3. Liquidation Preference. In the event of any liquidation,
----------------------
dissolution, or winding up of the Corporation, either voluntary or
involuntary, distributions to the stockholders of the Corporation shall be
made in the following manner:
(a) The holders of the Series B Preferred, Series C Preferred,
Series D Preferred, Series E Preferred, Series F Preferred and Series G
Preferred shall be entitled to receive, prior and in preference to any
distribution of any of the assets or surplus funds of the Corporation to the
holders of the Series A Preferred or Common Stock by reason of their ownership
of such stock, the sum of $2.24 plus declared and unpaid dividends, if any,
for each share of Series B Preferred then held by them, the sum of $2.68 plus
declared and unpaid dividends, if any, for each share of Series C Preferred
then held by them, the sum of $3.60 plus accrued and unpaid dividends, if any,
for each share of Series D Preferred then held by them, the sum of $4.60 plus
accrued and unpaid dividends, if any, for each share of Series E Preferred
then held by them, the sum of $5.00 plus accrued and unpaid dividends, if any,
for each share of Series F Preferred then held by them, and the sum of $12.00
plus accrued and unpaid dividends, if any, for each share of Series G
Preferred then held by them. If upon the occurrence of such event, the assets
and funds available for distribution among the holders of the Series B
Preferred, Series C Preferred, Series D Preferred, Series E Preferred, Series
F Preferred and Series G Preferred shall be insufficient to permit the payment
to such holders of the full preferential amounts, then the entire assets and
funds of the Corporation legally available for distribution to the
stockholders shall be distributed among the holders of the Series B Preferred,
Series C Preferred, Series D Preferred, Series E Preferred, Series F Preferred
and Series G Preferred pro rata to the full preferential amount each such
holder is entitled to receive.
(b) After payment of the full preferential amounts to the
holders of the Series B Preferred, Series C Preferred, Series D Preferred,
Series E Preferred, Series F Preferred and Series G Preferred as aforesaid,
the holders of the Series A Preferred shall be entitled to receive, prior and
in preference to any distribution of any of the assets or surplus funds of the
Corporation to the holders of the Common Stock by reason of their ownership of
such stock, the sum of $2.24 plus declared and unpaid dividends, if any, for
each share of the Series A Preferred then held by them. If upon the occurrence
of such event, the assets and funds available for distribution among the
holders of the Series A Preferred shall be insufficient to permit the payment
to such holders of the full preferential amount, then the entire remaining
assets and funds of the Corporation legally available for distribution to the
stockholders shall be distributed among the holders of the Series A Preferred
pro rata to the full preferential amount each such holder is entitled to
receive.
(c) After payment has been made to the holders of the Preferred
Stock of the full preferential amounts as to which they shall be entitled as
aforesaid, then the holders of Common Stock shall be entitled to share in the
remaining assets and funds of the Corporation legally available for
distribution, pro rata to the number of shares of Common Stock held by each
such holder.
(d) For purposes of this Section 3, a merger or consolidation
of the Corporation with or into any other corporation as a result of which
consolidation or merger the stockholders of the Corporation hold securities
representing less than fifty percent (50%) of the voting securities of
-4-
<PAGE>
the surviving corporation (a "Merger"), or a sale of all or substantially all of
the assets of the Corporation, shall be treated as a liquidation, dissolution
or winding up of the Corporation.
(e) Any securities to be delivered to the holders of the
Preferred Stock pursuant to Section 3(d) above shall be valued as follows:
(i) Securities not subject to investment letter or other
similar restrictions on free marketability:
(A) If traded on a national securities exchange or
the National Market System of the National Association of Securities Dealers,
Inc. ("NMS"), the value shall be deemed to be the average of the closing
prices of the securities on such exchange or the NMS over the 30-day period
ending three (3) days prior to the closing;
(B) If actively traded over-the-counter (but not
on the NMS), the value shall be deemed to be the average of the closing bid or
sale prices (whichever are applicable) over the 30-day period ending three (3)
days prior to the closing; and
(ii) In all other cases the fair market value of
securities shall be determined by the Board of Directors acting in good faith,
provided that if such value is objected to in writing received by the
Corporation from holders of more than fifty percent (50%) of the outstanding
shares of Preferred Stock within twenty (20) days after written notice is sent
to the holders of Preferred Stock, then the value shall be determined by an
independent appraiser selected by the Board of Directors and paid for by the
Corporation.
(f) In the event the requirements of Section 3(d) are not
complied with, the Corporation shall forthwith either:
(i) cause such closing to be postponed until such time
as the requirements of this Section 3 have been complied with, or
(ii) cancel such transaction, in which event the rights,
preferences and privileges of the holders of the Preferred Stock shall revert to
and be the same as such rights, preferences and privileges existing immediately
prior to the date of the first notice referred to in Section 5(j) hereof.
Section 4. Voting Rights.
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(a) General. Except as otherwise required by law and except as
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required in Sections 4(b) and 8 hereof, the holders of Common Stock and
Preferred Stock shall vote together as a single class. Each holder of shares of
Common Stock shall be entitled to one vote for each share of Common Stock held
by such holder. Each holder of Preferred Stock shall be entitled to such number
of votes for the Preferred Stock held by him on the record date fixed for such
meeting, or on the
-5-
<PAGE>
effective date of such written consent, as shall be equal to the whole number
of shares of the Corporation's Common stock into which his shares of Preferred
Stock are convertible, in accordance with the terms of the Corporation's
Restated Certificate of Incorporation, immediately after the close of business
on the record date fixed for such meeting or the effective date of such
written consent.
(b) Board Seats. The number of directors constituting the Board
-----------
of Directors shall be fixed at ten (10). The holders of the Common Stock,
voting as a separate class, shall be entitled to elect one (1) director of the
Corporation. The holders of the Series A Preferred, voting as a separate class,
shall be entitled to elect one (1) director of the Corporation. The holders of
the Series B Preferred and Series C Preferred, voting together as a single
class, shall be entitled to elect one (1) director of the Corporation. The
holders of the Series D Preferred, voting as a separate class, shall be entitled
to elect two (2) directors of the Corporation. The holders of the Series G
Preferred, voting as a separate class, shall be entitled to elect one (1)
director of the Corporation. The holders of the Common Stock, the Series A
Preferred, the Series B Preferred, the Series C Preferred, the Series D
Preferred, the Series E Preferred, the Series F Preferred, and the Series G
Preferred, voting together as a single class, shall be entitled to elect four
(4) directors of the Corporation.
Section 5. Conversion. The holders of the Preferred Stock shall have
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conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Preferred Stock shall be
----------------
convertible into Common Stock, at the option of the holder thereof, at any time
after the date of issuance of such share at the office of the Corporation or any
transfer agent for the Preferred Stock. Each share of Preferred Stock shall be
convertible into the number of fully paid and nonassessable shares of Common
Stock which results from dividing the Conversion Price (as hereinafter defined)
per share in effect for such series at the time of conversion into the per share
Conversion Value (as hereinafter defined) of such series. The Conversion Values
of the Preferred Stock shall be $2.24 per share of Series A Preferred, $2.24 per
share of Series B Preferred, $2.68 per share of Series C Preferred, $3.60 per
share of Series D Preferred, $4.60 per share of Series E Preferred, $5.00 per
share of Series F Preferred and $12.00 per share of Series G Preferred. The
initial Conversion Prices of the Preferred Stock shall be $2.24 per share of
Series A Preferred, $2.24 per share of Series B Preferred, $2.68 per share of
Series C Preferred, $3.60 per share of Series D Preferred, $4.60 per share of
Series E Preferred, $5.00 per share of Series F Preferred and $12.00 per share
of Series G Preferred The initial Conversion Price of the Preferred Stock shall
be subject to adjustment from time to time as provided below. The number of
shares of Common Stock into which a share of a series of Preferred Stock is
convertible is hereinafter referred to as the "Conversion Rate" of each such
series.
(b) Automatic Conversion. Each share of Preferred Stock shall
--------------------
automatically be converted into shares of Common Stock at its then effective
Conversion Rate immediately prior to the closing of the sale of Common Stock of
the Corporation in an underwritten public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended, covering
the offering and sale of Common Stock for the account of the Corporation to the
public at a price per share (prior to underwriter commissions and offering
expenses) of not less than $12.00
-6-
<PAGE>
(appropriately adjusted for stock splits, combinations and similar events) and
an aggregate offering price to the public of not less than $15,000,000. Each
share of a series of Preferred Stock shall be automatically converted into
shares of Common Stock at its then effective Conversion Rate upon the
affirmative vote of the holders of at least sixty-seven percent (67%) of the
shares of such series of Preferred Stock, voting as a separate series, or at
such time after June 30, 1993 as there are less than 100,000 shares of such
series outstanding. Each share of Series A Preferred, Series B Preferred,
Series C Preferred, Series D Preferred, Series E Preferred and Series F
Preferred shall be automatically converted into shares of Common Stock at the
respective Conversion Rates then in effect upon the affirmative vote of the
holders of at least eighty percent (80%) of the voting power of the Series A
Preferred, Series B Preferred, Series C Preferred, Series D Preferred, Series
E Preferred and Series F Preferred, voting together as a single class. In
addition, each share of Preferred Stock shall be automatically converted into
shares of Common Stock at the respective Conversion Rates then in effect upon
the affirmative vote of the holders of at least ninety-three percent (93%) of
the voting power of the outstanding shares of Preferred Stock, voting together
as a single class. In the event of the automatic conversion of the Preferred
Stock upon a public offering as described above, the person(s) entitled to
receive the Common Stock issuable upon such conversion of Preferred Stock
shall not be deemed to have converted such Preferred Stock until immediately
prior to the closing of such sale of securities.
(c) Mechanics of Conversion. Before any holder of Preferred
-----------------------
Stock shall be entitled to convert the same into shares of Common Stock and
receive certificates therefor, he shall surrender the certificate or
certificates therefor, duly endorsed, at the office of the Corporation or of
any transfer agent for the Preferred Stock and shall give written notice to
the Corporation at such office that such holder elects to convert the same;
provided, however, that in the event of an automatic conversion pursuant to
Section 5(b), the outstanding shares of the series of Preferred Stock so
converted shall be converted automatically without any further action by the
holders of such shares and whether or not the certificates representing such
shares are surrendered to the Corporation or its transfer agent, and provided
further that the Corporation shall not be obligated to issue certificates
evidencing the shares of Common Stock issuable upon such automatic conversion
unless the certificates evidencing such shares of Preferred Stock are either
delivered to the Corporation or its transfer agent as provided above, or the
holder notifies the Corporation or its transfer agent that such certificates
have been lost, stolen or destroyed and executes an agreement satisfactory to
the Corporation to indemnify the Corporation from any loss incurred by it in
connection with such certificates. The Corporation shall, as soon as
practicable after such delivery, or such agreement and indemnification in the
case of a lost certificate, issue and deliver at such office to such holder of
Preferred Stock, a certificate or certificates for the number of shares of
Common Stock to which the holder shall be entitled as aforesaid and a check
payable to the holder in the amount of any cash amounts payable as the result
of a conversion into fractional shares of Common Stock. Such conversion shall
be deemed to have been made immediately prior to the close of business on the
date of such surrender of the shares of Preferred Stock to be converted, or in
the case of automatic conversion as provided in Section 5(b), and the person
or persons entitled to receive the shares of Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder or holders
of such shares of Common Stock on such date.
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<PAGE>
(d) Fractional Shares. In lieu of any fractional shares to
-----------------
which the holder of Preferred Stock would otherwise be entitled, the
Corporation shall pay cash equal to such fraction multiplied by the fair
market value of one share of Common Stock, as determined by the Board of
Directors of the Corporation. Whether or not fractional shares are issuable
upon such conversion shall be determined on the basis of the total number of
shares of Preferred Stock of each holder at the time converting into Common
Stock and the number of shares of Common Stock issuable upon such aggregate
conversion.
(e) Adjustments to the Series C, D, E, F and G Conversion Prices
-------------------------------------------------------------
With Respect to Certain Diluting Issuances.
- ------------------------------------------
(i) Special Definitions. For purposes of this Section
-------------------
5(e) of Article III, the following definitions apply:
(A) "Options" shall mean rights, options or
warrants to subscribe for, purchase or otherwise acquire either Common or
Convertible Securities (defined below).
(B) "Original Issue Date" shall mean the date on
which the first share of Series G Preferred is first issued.
(C) "Convertible Securities" shall mean any
evidences of indebtedness, shares or other securities convertible into or
exchangeable for Common.
(D) "Additional Shares of Common" shall mean all
shares of Common issued (or, pursuant to Section 5(e)(iii) of this Article
III, deemed to be issued) by the Corporation after the Original Issue Date,
other than:
(1) shares of Common Stock issued or
issuable to officers, directors or employees of the Corporation pursuant to
stock option or stock purchase plans or agreements on terms approved by the
Board of Directors of the Corporation, or those independent contractors or
consultants with which the Corporation shall have an agreement approved by a
resolution of the Board of Directors pursuant to which such independent
contractor or consultant shall perform services for the Corporation;
(2) as a dividend or distribution on the
Preferred Stock;
(3) by reason of a stock split, reverse
stock split, stock dividend or other adjustment covered by Section 5(f)
hereof;
(4) by reason of a reorganization,
reclassification, exchange, substitution or other adjustment covered by
Section 5(g) hereof; or
-8-
<PAGE>
(5) which are otherwise excluded by the
affirmative vote or written consent of (i) the holders of at least sixty-seven
percent (67%) of the shares of Series C Preferred then outstanding, with
respect to issuances which would affect the Series C Conversion Price, (ii)
the holders of at least sixty-seven percent (67%) of the shares of Series D
Preferred then outstanding, with respect to issuances which would affect the
Series D Conversion Price, (iii) the holders of at least sixty-seven percent
(67%) of the shares of Series E Preferred then outstanding, with respect to
issuances which would affect the Series E Conversion Price; (iv) the holders
of at least sixty-seven percent (67%) of the shares of Series F Preferred then
outstanding, with respect to issuances which would affect the Series F
Conversion Price; and (v) the holders of at least sixty-seven percent (67%) of
the shares of Series G Preferred then outstanding, with respect to issuances
which would affect the Series G Conversion Price.
(E) "Common" shall mean Common Stock of the
Corporation.
(ii) No Adjustment for Conversion Price. Any provision
----------------------------------
herein to the contrary notwithstanding, no adjustment in the Series C
Conversion Price, the Series D Conversion Price, the Series E Conversion
Price, the Series F Conversion Price or the Series G Conversion Price shall be
made in respect of the issuance of Additional Shares of Common if the
consideration per share for an Additional Share of Common issued or deemed to
be issued by the Corporation is equal to or greater than the Series C
Conversion Price, the Series D Conversion Price, the Series E Conversion
Price, the Series F Conversion Price or the Series G Conversion Price,
respectively, in effect on the date of, and immediately prior to, such issue.
(iii) Deemed Issue of Additional Shares of Common. In the
-------------------------------------------
event the Corporation at any time or from time to time after the Original
Issue Date shall issue any Options or Convertible Securities or shall fix a
record date for the determination of holders of any class of securities then
entitled to receive any such Options or Convertible Securities, then the
maximum number of shares (as set forth in the instrument relating thereto
without regard to any provisions contained therein designed to protect against
dilution) of Common issuable upon the exercise of such Options or, in the case
of Convertible Securities and Options therefor, the conversion or exchange of
such Convertible Securities, shall be deemed to be Additional Shares of Common
issued as of the time of such issue or, in case such a record date shall have
been fixed, as of the close of business on such record date, provided that in
any such case in which Additional Shares of Common are deemed to be issued:
(A) no further adjustments in the Series C
Conversion Price, the Series D Conversion Price, the Series E Conversion
Price, the Series F Conversion Price or the Series G Conversion Price shall be
made upon the subsequent issue of Convertible Securities or shares of Common
upon the exercise of such Options or conversion or exchange of such
Convertible Securities;
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<PAGE>
(B) if such Options or Convertible Securities by
their terms provide, with the passage of time or otherwise, for any increase
or decrease in the consideration payable to the Corporation, or decrease or
increase in the number of shares of Common issuable, upon the exercise,
conversion or exchange thereof, the Series C Conversion Price, the Series D
Conversion Price, the Series E Conversion Price, the Series F Conversion Price
and the Series G Conversion Price computed upon the original issue thereof (or
upon the occurrence of a record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon any such increase or decrease becoming
effective, be recomputed to reflect such increase or decrease insofar as it
affects such Options or the rights of conversion or exchange under such
Convertible Securities (provided, however, that no such adjustment of the
Series C Conversion Price, the Series D Conversion Price, Series E Conversion
Price, the Series F Conversion Price and the Series G Conversion Price shall
affect Common previously issued upon conversion of the Series C Preferred, the
Series D Preferred, Series E Preferred, Series F Preferred or Series G
Preferred, respectively);
(C) upon the expiration of any such Options or
any rights of conversion or exchange under such Convertible Securities which
shall not have been exercised, the Series C Conversion Price, the Series D
Conversion Price, the Series E Conversion Price, the Series F Conversion Price
and the Series G Conversion Price computed upon the original issue thereof (or
upon the occurrence of a record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon such expiration, be recomputed as if:
(1) in the case of Convertible Securities
or Options for Common, the only Additional Shares of Common issued were the
shares of Common, if any, actually issued upon the exercise of such Options or
the Conversion or exchange of such Convertible Securities and the
consideration received therefor was the consideration actually received by the
Corporation for the issue of all such Options, whether or not exercised, plus
the consideration actually received by the Corporation upon such exercise, or
for the issue of all such Convertible Securities which were actually converted
or exchanged, plus the additional consideration, if any, actually received by
the Corporation upon such conversion or exchange; and
(2) in the case of Options for Convertible
Securities, only the Convertible Securities, if any, actually issued upon the
exercise thereof were issued at the time of issue of such Options, and the
consideration received by the Corporation for the Additional Shares of Common
deemed to have been then issued was the consideration actually received by the
Corporation for the issue of all such Options, whether or not exercised, plus
the consideration deemed to have been received by the Corporation (determined
pursuant to Section 5(e)(v) of this Article III) upon the issue of the
Convertible Securities with respect to which such Options were actually
exercised;
(D) no readjustment pursuant to clause (B) or (C)
above shall have the effect of increasing the Series C Conversion Price, the
Series D Conversion Price, the Series E Conversion Price, the Series F
Conversion Price or the Series G Conversion Price to an amount which exceeds
the lower of (a) the Series C Conversion Price, the Series D Conversion Price,
the
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Series E Conversion Price, the Series F Conversion Price or the Series G
Conversion Price, respectively, on the original adjustment date, or (b) the
Series C Conversion Price, the Series D Conversion Price, Series E Conversion
Price, the Series F Conversion Price or the Series G Conversion Price that
would have resulted from any issuance of Additional Shares of Common between
the original adjustment date and such readjustment date.
(E) in the case of any Options which expire by
their terms not more than 30 days after the date of issue thereof, no
adjustment of the Series C Conversion Price, the Series D Conversion Price,
the Series E Conversion Price, the Series F Conversion Price or the Series G
Conversion Price shall be made until the expiration or exercise of all such
Options, whereupon such adjustment shall be made in the same manner provided
in clause (C) above.
(iv) Adjustment of Conversion Price Upon Issuance of
-----------------------------------------------
Additional Shares of Common.
- ---------------------------
(A) Series C Preferred, Series D Preferred,
---------------------------------------
Series E Preferred, Series F Preferred and Series G Preferred. In the event
- -------------------------------------------------------------
the Corporation, at any time after the Original Issue Date, shall issue
Additional Shares of Common (including Additional Shares of Common deemed to
be issued pursuant to Section 5(e)(iii) of this Article IV) without
consideration or for consideration per share less than the Series C Conversion
Price, Series D Conversion Price, Series E Conversion Price, Series F
Conversion Price or Series G Conversion Price in effect on the date of and
immediately prior to such issue, then and in such event, the Series C
Conversion Price, Series D Conversion Price, the Series E Conversion Price
Series F Conversion Price or Series G Conversion Price, as the case may be,
shall be reduced, concurrently with such issue, to the Conversion Price
(calculated to the nearest one-hundredth of a cent) determined by dividing (X)
an amount equal to the sum of (1) the product derived by multiplying the
Conversion Price of the Series C Preferred, Series D Preferred, Series E
Preferred, Series F Preferred or Series G Preferred, as the case may be, in
effect immediately prior to such issue or sale times the number of shares of
Common Stock Outstanding (as defined below) immediately prior to such issue or
sale, plus (2) the consideration, if any, received by the Corporation upon
such issue or sale, by (Y) an amount equal to the sum of (3) the number of
shares of Common Stock Outstanding immediately prior to such issue or sale,
plus (4) the number of shares of Common Stock issued or deemed to have been
issued in such issue and sale; provided, however, that the application of the
provisions of this Section 5(e)(iv) may be waived by any holder of Series C
Preferred, Series D Preferred, Series E Preferred, Series F Preferred or
Series G Preferred. For the purposes of the calculations set forth in this
Section 5(e)(iv), the number of shares of Common Stock Outstanding at any time
shall be equal to the number of shares of Common Stock outstanding at such
time plus the number of shares of Common Stock issuable upon the conversion of
all Convertible Securities then outstanding.
(v) Determination of Consideration for Options and
----------------------------------------------
Convertible Securities. The consideration per share received by the
- ----------------------
Corporation for Additional Shares of Common deemed to have been issued
pursuant to Section 5(e)(iii) of this Article III, relating to Options and
Convertible Securities shall be determined by dividing:
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<PAGE>
(A) the total amount, if any, received or
receivable by the Corporation as consideration for the issue of such Options
or Convertible Securities, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating thereto, without
regard to any provision contained therein designed to protect against
dilution) payable to the Corporation upon the exercise of such Options or the
conversion or exchange of such Convertible Securities, or in the case of
Options for Convertible Securities, the exercise of such Options for
Convertible Securities and the conversion or exchange of such Convertible
Securities by
(B) the maximum number of shares of Common (as
set forth in the instruments relating thereto, without regard to any provision
contained therein designed to protect against the dilution) issuable upon the
exercise of such Options or conversion or exchange of such Convertible
Securities.
(f) Adjustments for Subdivisions, Combinations or Consolidation
-----------------------------------------------------------
of Preferred Stock and Common Stock. In the event the outstanding shares of
- -----------------------------------
Preferred Stock or Common Stock shall be subdivided (by stock split, stock
dividend, reclassification or otherwise) into a greater number of shares of
Preferred Stock or Common Stock, the Conversion Prices of the affected series
then in effect shall, concurrently with the effectiveness of such subdivision,
be proportionately decreased. In the event the outstanding shares of Preferred
Stock or Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Preferred Stock or Common Stock,
the Conversion Prices of the affected series then in effect shall, concurrently
with the effectiveness of such combination or consolidation, be proportionately
increased.
(g) Adjustments for Reorganization, Reclassification, Exchange
----------------------------------------------------------
and Substitution. If the shares of Common Stock issuable upon conversion of any
- ----------------
shares of Preferred Stock shall be changed into the same or a different number
of shares of any other class or classes of stock or other securities or
property, whether by reorganization, reclassification or otherwise (other than a
subdivision or combination of shares provided for in Section 5(f) of this
Article III), the Conversion Prices of the effected series of Preferred Stock
then in effect shall, concurrently with the effectiveness of such reorganization
or reclassification, be proportionately adjusted such that the shares of
Preferred Stock shall be convertible into, in lieu of the number of shares of
Common Stock which the holders thereof would otherwise have been entitled to
receive upon such conversion, a number of shares of such other class or classes
of stock or other securities or property equivalent to the number of shares of
Common Stock that would have been issuable to the holders of Preferred Stock if
their shares of Preferred Stock had been converted immediately before such
change; and, in any such case, appropriate adjustment (as determined by the
Board of Directors) shall be made in the application of the provisions herein
set forth with respect to the rights and interest thereafter of the holders of
Preferred Stock, to the end that the provisions set forth herein (including the
provisions with respect to changes in and other adjustments of the Conversion
Price) shall thereafter be applicable, as nearly as reasonably may be, in
relation to any shares of stock or other property thereafter deliverable upon
the conversion of the Preferred Stock.
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<PAGE>
(h) No Impairment. The Corporation will not through any
-------------
reorganization, recapitalization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Corporation, but will at all times in good faith
assist in the carrying out of all the provisions of this Section 5 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 Preferred Stock against impairment.
This provision shall not restrict the Corporation's right to amend its
Certificate of Incorporation with the requisite stockholder consent.
(i) Certificate as to Adjustments. Upon the occurrence of each
-----------------------------
adjustment or readjustment of the Conversion Price pursuant to this Section 5,
the Corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and prepare and furnish to each
holder of Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Corporation shall, upon written request at any time
of any holder of Preferred Stock, furnish or cause to be furnished to such
holder a like certificate setting forth (i) all such adjustments and
readjustments, (ii) the Conversion Price at the time in effect, and (iii) the
number of shares of Common Stock and the amount, if any, of other property which
at the time would be received upon the conversion of such holder's shares of
Preferred Stock.
(j) Notices of Record Date. In the event that the Corporation
----------------------
shall propose at any time:
(i) to declare any dividend or distribution upon its
Common Stock, whether in cash, property, stock or other securities, whether or
not a regular cash dividend and whether or not out of earnings or earned
surplus;
(ii) to offer for subscription pro rata to the holders of
any class or series of its stock any additional shares of stock of any class
or series or other rights;
(iii) to effect any reclassification or recapitalization
of its Common Stock outstanding involving a change in the Common Stock; or
(iv) to merge or consolidate with or into any other
corporation, or sell, lease or convey all or substantially all its property or
business, or to liquidate, dissolve or wind up;
then, in connection with each such event, the Corporation shall send to the
holders of the Preferred Stock:
(A) at least 20 days' prior written notice of the
date on which a record shall be taken for such dividend, distribution or
subscription rights (and specifying the date on which the holders of Common
Stock shall be entitled thereto and the amount and character of such
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<PAGE>
dividend, distribution or right) or for determining rights to vote in respect
of the matters referred to in (iii) and (iv) above; and
(B) in the case of the matters referred to in
(iii) and (iv) above, at least 20 days' prior written notice of the date when
the same shall take place (and specifying the date on which the holders of
Common Stock shall be entitled to exchange their Common Stock for securities
or other property deliverable upon the occurrence of such event or the record
date for the determination of such holders if such record date is earlier).
Each such written notice shall be delivered personally or given by first
class mail, postage prepaid, addressed to the holders of the Preferred Stock at
the address for each such holder as shown on the books of the Corporation.
(k) Reservation of Stock Issuable Upon Conversion. The
---------------------------------------------
Corporation shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock solely for the purpose of
effecting the conversion of the shares of Preferred Stock such number of its
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of Preferred Stock; and if at any time
the number of authorized but unissued shares of Common Stock shall not be
sufficient to effect the conversion of all then outstanding shares of
Preferred Stock, the Corporation will take such corporate action as may, in
the opinion of its counsel, be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be
sufficient for such purpose.
(l) Reissuance of Converted Shares. Shares of Preferred Stock
------------------------------
which have been converted into Common Stock after the original issuance
thereof shall be canceled.
Section 6. Redemption of Series A, Series B and Series C Preferred.
-------------------------------------------------------
(a) The Corporation, at the option of the Board of Directors
and with the consent of sixty-seven percent (67%) of the outstanding shares of
Series D Preferred, Series E Preferred, Series F Preferred and Series G
Preferred, voting as a single class, may at any time it may lawfully do so,
but in no event prior to September 30, 1997, redeem in whole but not in part
the Series A Preferred, Series B Preferred and Series C Preferred by paying in
cash for each such share of Series A Preferred, Series B Preferred and Series
C Preferred to be redeemed a price equal to the Conversion Value of each share
of the Series A Preferred, Series B Preferred and Series C Preferred (as
appropriately adjusted for any stock dividends, stock splits, recapitalization
or consolidation of the Series A Preferred, Series B Preferred and Series C
Preferred) together with any declared and unpaid dividend with respect
thereto. The amount payable upon the redemption of the Series A Preferred,
Series B Preferred and Series C Preferred is hereinafter referred to as the
"Redemption Price" of the respective series of Preferred Stock.
(b) At least thirty (30) days prior to the date fixed for any
redemption of Series A Preferred, Series B Preferred and Series C Preferred,
written notice shall be mailed, postage prepaid
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<PAGE>
to each holder of record of Series A Preferred, Series B Preferred and Series
C Preferred to be redeemed at the post office address last shown on the
records of the Corporation, notifying such holder of the election of the
Corporation to redeem such shares, specifying the Redemption Date, the
applicable Redemption Price, and the date on which such holders' Conversion
Rights (as defined in Section 5) as to such shares terminate and calling upon
such holder to surrender to the Corporation, in the manner and at the place
designated, the certificate or certificates representing the shares to be
redeemed (such notice is hereinafter referred to as the "Redemption Notice").
On or after the Redemption Date, each holder of Series A Preferred, Series B
Preferred and Series C Preferred to be redeemed shall surrender the
certificate or certificates representing such shares to the Corporation, in
the manner and at the place designated in the Redemption Notice, and thereupon
the Redemption Price of such shares shall be payable to the order of the
person whose name appears on such certificate or certificates as the owner of
such shares and each surrendered certificate shall be canceled. From and after
the Redemption Date, all rights of the holders of the Series A Preferred,
Series B Preferred and Series C Preferred designated for redemption in the
Redemption Notice as holders of Series A Preferred, Series B Preferred and
Series C Preferred of the Corporation (except the right to receive the
Redemption Price without interest upon surrender of their certificate or
certificates) shall cease and terminate with respect to such shares, and such
shares shall not subsequently be transferred on the books of the Corporation
or be deemed to be outstanding for any purpose whatsoever.
(c) On or prior to the Redemption Date, the Corporation shall
deposit the Redemption Price of all shares of Series A Preferred, Series B
Preferred and Series C Preferred designated for redemption in the Redemption
Notice and not yet redeemed with a bank or trust company having an aggregate
capital and surplus in excess of fifty million ($50,000,000) as a trust fund
for the benefit of the respective holders of the shares designated for
redemption and not yet redeemed, with irrevocable instructions and authority
to the bank or trust company to pay the applicable Redemption Price for such
shares to their respective holders on or after the Redemption Date upon
receipt of notification from the Corporation that such holder has surrendered
his share certificate to the Corporation pursuant to Section 6(b). Such
instructions shall also provide that any funds deposited by the Corporation
pursuant to Section 6(c) for the redemption of shares subsequently converted
into shares of Common Stock pursuant to Section 5 no later than the first day
preceding the Redemption Date shall be returned to the Corporation forthwith
upon such conversion. The balance of any funds deposited by the Corporation
pursuant to this Section 6(c) remaining unclaimed at the expiration of one
year following the Redemption Date shall be returned to the Corporation upon
its request expressed in the resolution of its Board of Directors.
Section 7. Mandatory Redemption of Series D, Series E Preferred Stock,
-----------------------------------------------------------
Series F Preferred and Series G Preferred. On or at any time after June 25,
- ------------------------------------------
2002, upon the election of the holders of at least sixty-seven percent 67% of
the outstanding shares of Series D Preferred, Series E Preferred, Series F
Preferred and Series G Preferred, voting together as a class, such holders may
require the Corporation to redeem their shares to the extent legally
permissible. Such redemption shall be made in two equal installments. One-half
of the number of shares of Series D Preferred, Series E Preferred, Series F
Preferred and Series G Preferred outstanding on the date of the first
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<PAGE>
scheduled redemption (the "First Redemption Date") shall be redeemed on such
date and on the first anniversary thereof (the First Redemption Date and the
first anniversary thereof being referred to herein as a "Redemption Date") to
the extent funds are legally available therefor.
Any such redemption of Series D Preferred shall be effected at a redemption
price equal to $3.60 per share plus any accrued and unpaid dividends (the total
of such amount and such dividends being referred to herein as the "Redemption
Price" applicable to such series). Any such redemption of Series E Preferred
shall be effected at a redemption price equal to $4.60 per share plus any
accrued and unpaid dividends (the total of such amount and such dividends being
referred to herein as the "Redemption Price" applicable to such series). Any
such redemption of Series F Preferred shall be effective at a redemption price
equal to $5.00 per share plus any accrued and unpaid dividends (the total of
such amount and such dividends being referred to herein as the "Redemption
Price" applicable to such series). Any such redemption of Series G Preferred
shall be effective at a redemption price equal to $12.00 per share plus any
accrued and unpaid dividends (the total of such amount and such dividends being
referred to herein as the "Redemption Price" applicable to such series).
At least thirty (30) days but not more than sixty (60) days prior to each
Redemption Date, a notice shall be mailed by the Corporation (the "Redemption
Notice") to the holders of Series D Preferred, Series E Preferred, Series F
Preferred and Series G Preferred by means of first class mail, postage paid,
addressed to the holders of record of the shares to be redeemed, at their
respective addresses then appearing on the books of the Corporation. Each such
notice shall specify (i) the number of shares as to which such holder has the
right to request redemption, (ii) the Redemption Date, and (iii) the Redemption
Price applicable to such series. The number of shares as to which each holder
shall have the right to request redemption on each Redemption Date shall be
determined by multiplying the total number of shares to be redeemed on that
Redemption Date by a fraction, (x) the numerator of which shall be the aggregate
number of shares of Series D Preferred, Series E Preferred, Series F Preferred
Stock and Series G Preferred held by such holder immediately prior to the First
Redemption Date and (y) the denominator of which shall be the aggregate number
of shares of Series D Preferred, Series E Preferred, Series F Preferred and
Series G Preferred outstanding immediately prior to the First Redemption Date.
Each holder who desires to have his or her shares redeemed pursuant to this
Section 7 shall so request by written notice to the Corporation within twenty-
five (25) days after delivery of the Redemption Notice. The holder of any
shares of Series D Preferred, Series E Preferred, Series F Preferred and Series
G Preferred so redeemed shall not be entitled to receive payment of the
Redemption Price for such shares until such holder shall cause to be delivered,
to the place specified in the Redemption Notice, (i) the certificates
representing such shares of Preferred Stock or affidavits of lost certificates
and (ii) transfer instrument(s) satisfactory to the corporation and sufficient
to transfer such shares to the Corporation free of any adverse interest.
Upon the redemption of any share, pursuant to this Section 7, such share
shall (provided the Redemption Price of such shares, plus any accrued and unpaid
dividends to the Redemption Date has
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<PAGE>
been paid or properly provided for) be deemed to cease to be outstanding, and
all rights of any person other than the Corporation in such share shall be
extinguished on the Redemption Date for such share (plus all rights to receive
future dividends with respect to such share), except for the right to receive
the Redemption Price, without interest, in accordance with the provisions of
this Section 7.
Any shares of Series D Preferred, Series E Preferred, Series F Preferred
and Series G Preferred as to which the holder does not affirmatively elect to
have redeemed as set forth herein shall remain outstanding with all rights,
preferences, privileges and restrictions set forth herein.
Section 8. Protective Covenants.
--------------------
(a) So long as there remains outstanding a number of shares of
Series B Preferred and Series C Preferred equal to 20% of the aggregate number
of shares of such series issued by the Corporation, the Corporation shall not,
without the affirmative vote or written consent of the holders of at least
sixty-seven percent (67%) of the voting power of the outstanding shares of
Series B Preferred and Series C Preferred, voting together as a single class,
(i) authorize or issue any shares of capital stock having rights, preferences
and privileges senior to the Series B Preferred or the Series C Preferred
(where, for this purpose, a security equivalent to the Series B Preferred or
Series C Preferred in all respects, other than with respect to the price of
such security and items directly related thereto (including without limitation
a liquidation preference or dividend right calculated as a percentage
thereof), shall not be considered senior to the Series B Preferred or Series C
Preferred, as applicable); or (ii) declare any dividend on the Preferred Stock
or Common Stock.
(b) So long as there remains outstanding a number of shares of
Series B Preferred equal to 20% of the aggregate number of shares of such
series issued by the Corporation, the Corporation shall not increase the
number of shares or alter the rights, preferences, privileges or restrictions
of the Series B Preferred without the affirmative vote or written consent of
the holders of at least sixty-seven percent (67%) of the voting power of the
outstanding shares of Series B Preferred, voting as a separate class.
(c) So long as there remains outstanding a number of shares of
Series C Preferred equal to 20% of the aggregate number of shares of such
series issued by the Corporation, the Corporation shall not increase the
number of shares or alter the rights, preferences, privileges or restrictions
of the Series C Preferred without the affirmative vote or written consent of
the holders of at least sixty-seven percent (67%) of the voting power of the
outstanding shares of Series C Preferred, voting as a separate class.
(d) So long as there remains outstanding a number of shares of
Series D Preferred equal to twenty percent (20%) of the aggregate number of
such series issued by the Corporation, the Corporation shall not, without the
affirmative vote or written consent of the holders of at least sixty-seven
percent (67%) of the voting power of the outstanding shares of Series D
Preferred, voting as a separate class, (i) authorize or issue any shares of
capital stock having rights, preferences and
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<PAGE>
privileges senior to the Series D Preferred (where, for this purpose, a
security equivalent to the Series D Preferred in all respects, other than with
respect to the price of such security and items directly related thereto
(including without limitation a liquidation preference or dividend right
calculated as a percentage thereof), shall not be considered senior to the
Series D Preferred); (ii) increase the number of shares or alter the rights,
preferences, privileges or restrictions of the Series D Preferred; or (iii)
declare any dividend on the Preferred Stock or Common Stock.
(e) So long as there remains outstanding a number of shares of
Series E Preferred equal to twenty percent (20%) of the aggregate number of
such series issued by the Corporation, the Corporation shall not, without the
affirmative vote or written consent of the holders of at least sixty-seven
percent (67%) of the voting power of the outstanding shares of Series E
Preferred, voting as a separate class, (i) authorize or issue any shares of
capital stock having rights, preferences and privileges senior to the Series E
Preferred (where, for this purpose, a security equivalent to the Series E
Preferred in all respects, other than with respect to the price of such
security and items directly related thereto (including without limitation a
liquidation preference or dividend right calculated as a percentage thereof),
shall not be considered senior to the Series E Preferred); (ii) increase the
number of shares or alter the rights, preferences, privileges or restrictions
of the Series E Preferred; or (iii) declare any dividend on the Preferred
Stock or Common Stock.
(f) So long as there remains outstanding a number of shares of
Series F Preferred equal to twenty percent (20%) of the aggregate number of
such series issued by the Corporation, the Corporation shall not, without the
affirmative vote or written consent of the holders of at least sixty-seven
percent (67%) of the voting power of the outstanding shares of Series F
Preferred, voting as a separate class, (i) authorize or issue any shares of
capital stock having rights, preferences and privileges senior to the Series F
Preferred (where, for this purpose, a security equivalent to the Series F
Preferred in all respects, other than with respect to the price of such
security and items directly related thereto (including without limitation a
liquidation preference or dividend right calculated as a percentage thereof),
shall not be considered senior to the Series F Preferred); (ii) increase the
number of shares or alter the rights, preferences, privileges or restrictions
of the Series F Preferred; or (iii) declare any dividend on the Preferred
Stock or Common Stock.
(g) So long as there remains outstanding a number of shares of
Series G Preferred equal to twenty percent (20%) of the aggregate number of
such series issued by the Corporation, the Corporation shall not, without the
affirmative vote or written consent of the holders of at least sixty-seven
percent (67%) of the voting power of the outstanding shares of Series F
Preferred, voting as a separate class, (i) authorize or issue any shares of
capital stock having rights, preferences and privileges senior to the Series G
Preferred (where, for this purpose, a security equivalent to the Series G
Preferred in all respects, other than with respect to the price of such
security and items directly related thereto (including without limitation a
liquidation preference or dividend right calculated as a percentage thereof),
shall not be considered senior to the Series G Preferred); (ii) increase the
number of shares or alter the rights, preferences, privileges or restrictions
of the Series G Preferred; or (iii) declare any dividend on the Preferred
Stock or Common Stock.
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<PAGE>
(h) The Corporation shall not, without the affirmative vote or
written consent of the holders of at least sixty percent (60%) of the voting
power of the outstanding shares of Preferred Stock, voting together as a
single class, (i) authorize or issue any shares of capital stock having
rights, preferences and privileges on a parity with the Series D Preferred,
Series E Preferred, Series F Preferred or Series G Preferred; or (ii) effect
any reclassification or recapitalization of Common Stock outstanding involving
a change in the Common Stock.
(i) The Corporation shall not, without the affirmative vote or
written consent of the holders of at least seventy percent (70%) of the voting
power of the outstanding shares of Preferred Stock, voting together as a
single class, effect any sale of all or substantially all of the assets of the
Corporation or any Merger (as defined in Section 3 above) of the Corporation
with or into another corporation.
ARTICLE V
---------
The Corporation is to have perpetual existence.
ARTICLE VI
----------
Section 1. The management of the business and the conduct of the
affairs of the Corporation shall be vested in the Board of Directors. The
number of directors which shall constitute the whole Board of Directors shall
be fixed in the manner designated in the Bylaws of the Corporation.
Section 2. In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to make,
alter, amend or repeal the Bylaws of the Corporation.
Section 3. Elections of directors need not be by written ballot unless a
stockholder demands election by written ballot at the meeting and before voting
begins or unless the Bylaws of the Corporation shall so provide.
ARTICLE VII
-----------
Section 1. To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or as may hereafter be amended, a director
of the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
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Section 2. The Corporation may indemnify to the fullest extent
permitted by law any person made or threatened to be made a party to an action
or proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that he, his testator or intestate is or was a director,
officer, employee or agent of the Corporation or any predecessor of the
Corporation or serves or served at any other enterprise as a director,
officer, employee or agent at the request of the Corporation or any
predecessor to the Corporation.
Section 3. Neither any amendment nor repeal of this Article VII, nor
the adoption of any provision of this Corporation's Restated Certificate of
Incorporation inconsistent with this Article VII, shall eliminate or reduce
the effect of this Article VII, in respect of any matter occurring, or any
action or proceeding accruing or arising or that, but for this Article VII,
would accrue or arise, prior to such amendment, repeal or adoption of an
inconsistent provision.
ARTICLE VIII
------------
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside of the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of the Corporation.
ARTICLE IX
----------
Vacancies created by newly created directorships, created in accordance
with the Bylaws of this Corporation, may be filled by the vote of a majority,
although less than a quorum, of the directors then in office, or by a sole
remaining director.
ARTICLE X
---------
Section 1. At any time following the closing of the first sale of
Common Stock of the Corporation pursuant to a registration statement declared
effective by the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Initial Public Offering"), stockholders of the
Corporation may not take any action by written consent in lieu of a meeting
and any action contemplated by stockholders after such time must be taken at a
duly called annual or special meeting of stockholders.
Section 2. Effective upon the Company's Initial Public Offering, the
number of directors which constitute the whole Board of Directors of the
Corporation shall be fixed exclusively by one or more resolutions adopted from
time to time by the Board of Directors. Upon the closing of the first sale of
Common Stock of the Corporation pursuant to a registration statement declared
effective by the Securities and Exchange Commission pursuant to the Securities
Act of 1933, as amended, the
-20-
<PAGE>
Board of Directors shall be divided into three classes designated as Class I,
Class II, and Class III, respectively. Directors shall be assigned to each
class in accordance with a resolution or resolutions adopted by the Board of
Directors. At the first annual meeting of stockholders following the date
thereof, the term of office of the Class I directors shall expire and Class I
directors shall be elected for a full term of three years. At the second
annual meeting of stockholders following the date thereof, the term of office
of the Class II directors shall expire and Class II directors shall be elected
for a full term of three years. At the third annual meeting of stockholders
following the date thereof, the term of office of the Class III directors
shall expire and Class III directors shall be elected for a full term of three
years. At each succeeding annual meeting of stockholders, directors shall be
elected for a full term of three years to succeed the directors of the class
whose terms expire at such annual meeting.
Section 3. Advance notice of new business and stockholder nominations
for the election of directors shall be given in the manner and to the extent
provided in the Bylaws of the Corporation.
ARTICLE XI
----------
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
-21-
<PAGE>
IN WITNESS WHEREOF, the corporation has caused this Certificate to be
signed by Stephanie L. Ruby, its incorporator, this August 10, 1998.
TUT SYSTEMS, INC.
By:_______________________________________
Stephanie L. Ruby, Incorporator
-22-
<PAGE>
EXHIBIT 3.2
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
TUT SYSTEMS, INC.
Tut Systems, Inc., a corporation organized and existing under the laws of
the State of Delaware ("the Corporation"), hereby certifies as follows:
A. That the Corporation was originally incorporated on July 6, 1998 under
the name Tut Systems, Inc., pursuant to the General Corporation Law of Delaware.
On August , 1998, the Corporation's Restated Certificate of Incorporation was
filed with the Secretary of State.
B. Pursuant to Sections 228, 242 and 245 of the General Corporation Law
of Delaware, this Second Amended and Restated Certificate of Incorporation
restates and integrates and further amends the provisions of the Restated
Certificate of Incorporation of this corporation.
C. The text of the Restated Certificate of Incorporation as heretofore
amended or supplemented is hereby amended and restated in its entirety to read
as follows:
ARTICLE I
---------
The name of this Corporation is Tut Systems, Inc. (the "Corporation").
ARTICLE II
----------
The address of the Corporation's registered office in the State of Delaware
is 1209 Orange Street, Wilmington, County of New Castle. The name of its
registered agent at such office is The Corporation Trust Company.
ARTICLE III
-----------
The nature of the business or purposes to be conducted or promoted by the
Corporation is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
<PAGE>
ARTICLE IV
----------
This Corporation is authorized to issue two classes of shares of stock
which shall be designated, respectively, "Common Stock" and "Preferred Stock."
The total number of shares that this Corporation is authorized to issue is One
Hundred and Five Million (105,000,000) shares. The number of shares of Common
Stock authorized is One Hundred Million (100,000,000) shares, $0.001 par value.
The number of shares of Preferred Stock authorized is Five Million (5,000,000)
shares, $0.001 par value.
The shares of Preferred Stock authorized by this Certificate of
Incorporation may be issued from time to time in one or more series. For any
wholly unissued series of Preferred Stock, the Board of Directors is hereby
authorized to fix and alter the rights, preferences, privileges and restrictions
thereof, including but not limited to the dividend rights, dividend rates,
conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions), redemption prices, and liquidation preferences, the
number of shares constituting any such series and the designation thereof, or
any of them. Without limitation of the generality of the foregoing, the Board
of Directors shall have the power to fix the number of authorized but
undesignated shares comprising any wholly unissued series of Preferred Stock,
and to fix and alter the rights, preferences, privileges and restrictions of any
such unissued series of Preferred Stock (including, but not limited to the
dividend rights, dividend rates, conversion rights, voting rights, rights and
terms of redemption and sinking fund provisions, redemption prices, and
liquidation preferences of such series) in such manner as the Board of Directors
determines, which rights, preferences, privileges and restrictions may, in the
sole discretion of the Board of Directors, be superior to, on a parity with, or
junior to the rights, preferences, privileges and restrictions of any other
series of Preferred Stock.
The Board of Directors is hereby authorized to increase or decrease the
number of shares of any series of Preferred Stock when the number of shares of
such series was originally fixed by designation of the Board of Directors. The
Board of Directors is authorized to decrease the number of shares of any series
of Preferred Stock when the number of shares was not originally fixed by
designation of the Board of Directors. Any such increase or decrease shall be
subject to the limitations and restrictions stated in the resolution of the
Board of Directors originally fixing the number of shares of such series, or in
the Certificate of Incorporation, as the case may be; provided, that the number
of shares of any series shall not be decreased below the number of shares of
such series then outstanding. If the number of shares of any series is so
decreased, then the shares constituting such decrease shall resume the status of
authorized but undesignated shares of Preferred Stock.
ARTICLE V
---------
The Corporation is to have perpetual existence.
-2-
<PAGE>
ARTICLE VI
----------
Section 1. The management of the business and the conduct of the affairs
of the Corporation shall be vested in the Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be fixed in
the manner designated in the Bylaws of the Corporation.
Section 2. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter, amend or
repeal the Bylaws of the Corporation.
Section 3. Elections of directors need not be by written ballot unless a
stockholder demands election by written ballot at the meeting and before voting
begins or unless the Bylaws of the Corporation shall so provide.
ARTICLE VII
-----------
Section 1. To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or as may hereafter be amended, a director of
the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
Section 2. The Corporation may indemnify to the fullest extent permitted
by law any person made or threatened to be made a party to an action or
proceeding, whether criminal, civil, administrative or investigative, by reason
of the fact that he, his testator or intestate is or was a director, officer,
employee or agent of the Corporation or any predecessor of the Corporation or
serves or served at any other enterprise as a director, officer, employee or
agent at the request of the Corporation or any predecessor to the Corporation.
Section 3. Neither any amendment nor repeal of this Article VII, nor the
adoption of any provision of this Corporation's Certificate of Incorporation
inconsistent with this Article VII, shall eliminate or reduce the effect of this
Article VII, in respect of any matter occurring, or any action or proceeding
accruing or arising or that, but for this Article VII, would accrue or arise,
prior to such amendment, repeal or adoption of an inconsistent provision.
-3-
<PAGE>
ARTICLE VIII
------------
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside of the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of the Corporation.
ARTICLE IX
----------
Vacancies created by newly created directorships, created in accordance
with the Bylaws of this Corporation, may be filled by the vote of a majority,
although less than a quorum, of the directors then in office, or by a sole
remaining director.
ARTICLE X
---------
Section 1. Stockholders of the Corporation may not take any action by
written consent in lieu of a meeting and any action contemplated by stockholders
after such time must be taken at a duly called annual or special meeting of
stockholders.
Section 2. The number of directors which constitute the whole Board of
Directors of the Corporation shall be fixed exclusively by one or more
resolutions adopted from time to time by the Board of Directors. Upon the
closing of the first sale of Common Stock of the Corporation pursuant to a
registration statement declared effective by the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, the Board of
Directors shall be divided into three classes designated as Class I, Class II,
and Class III, respectively. Directors shall be assigned to each class in
accordance with a resolution or resolutions adopted by the Board of Directors.
At the first annual meeting of stockholders following the date thereof, the term
of office of the Class I directors shall expire and Class I directors shall be
elected for a full term of three years. At the second annual meeting of
stockholders following the date thereof, the term of office of the Class II
directors shall expire and Class II directors shall be elected for a full term
of three years. At the third annual meeting of stockholders following the date
thereof, the term of office of the Class III directors shall expire and Class
III directors shall be elected for a full term of three years. At each
succeeding annual meeting of stockholders, directors shall be elected for a full
term of three years to succeed the directors of the class whose terms expire at
such annual meeting.
Section 3. Advance notice of new business and stockholder nominations for
the election of directors shall be given in the manner and to the extent
provided in the Bylaws of the Corporation.
-4-
<PAGE>
ARTICLE XI
----------
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
-5-
<PAGE>
IN WITNESS WHEREOF, the corporation has caused this Second Amended and
Restated Certificate of Incorporation to be signed by Salvatore D'Auria, its
President, and attested by Matthew Taylor, its Secretary, this ________ day of
________, 1998.
TUT SYSTEMS, INC.
By:_____________________________________
Salvatore D'Auria, President
ATTEST:
___________________________________
Matthew Taylor, Secretary
-6-
<PAGE>
EXHIBIT 3.3
BYLAWS
OF
TUT SYSTEMS, INC.
(a Delaware corporation)
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I CORPORATE OFFICES............................................. 1
1.1 REGISTERED OFFICE............................................. 1
1.2 OTHER OFFICES................................................. 1
ARTICLE II MEETINGS OF STOCKHOLDERS...................................... 1
2.1 PLACE OF MEETINGS............................................. 1
2.2 ANNUAL MEETING................................................ 1
2.3 SPECIAL MEETING............................................... 1
2.4 NOTICE OF STOCKHOLDERS' MEETINGS.............................. 2
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.................. 2
2.6 QUORUM........................................................ 2
2.7 ADJOURNED MEETING; NOTICE..................................... 2
2.8 VOTING........................................................ 3
2.9 WAIVER OF NOTICE.............................................. 3
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT
WITHOUT A MEETING........................................... 3
2.11 RECORD DATE FOR STOCKHOLDER NOTICE;
VOTING; GIVING CONSENTS..................................... 4
2.12 PROXIES....................................................... 5
2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE......................... 5
2.14 NOMINATIONS AND PROPOSALS..................................... 5
ARTICLE III DIRECTORS..................................................... 6
3.1 POWERS........................................................ 6
3.2 NUMBER OF DIRECTORS........................................... 7
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS....... 7
3.4 RESIGNATION AND VACANCIES..................................... 7
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE...................... 8
3.6 FIRST MEETINGS................................................ 8
3.7 REGULAR MEETINGS.............................................. 8
3.8 SPECIAL MEETINGS; NOTICE...................................... 9
3.9 QUORUM........................................................ 9
3.10 WAIVER OF NOTICE.............................................. 9
3.11 ADJOURNED MEETING; NOTICE..................................... 10
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING............. 10
3.13 FEES AND COMPENSATION OF DIRECTORS............................ 10
3.14 APPROVAL OF LOANS TO OFFICERS................................. 10
3.15 REMOVAL OF DIRECTORS.......................................... 10
</TABLE>
-i-
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE IV COMMITTEES..................................................... 11
4.1 COMMITTEES OF DIRECTORS........................................ 11
4.2 COMMITTEE MINUTES.............................................. 11
4.3 MEETINGS AND ACTION OF COMMITTEES.............................. 11
ARTICLE V OFFICERS....................................................... 12
5.1 OFFICERS....................................................... 12
5.2 ELECTION OF OFFICERS........................................... 12
5.3 SUBORDINATE OFFICERS........................................... 12
5.4 REMOVAL AND RESIGNATION OF OFFICERS............................ 12
5.5 VACANCIES IN OFFICES........................................... 13
5.6 CHAIRMAN OF THE BOARD.......................................... 13
5.7 PRESIDENT...................................................... 13
5.8 VICE PRESIDENT................................................. 13
5.9 SECRETARY...................................................... 13
5.10 TREASURER...................................................... 14
5.11 ASSISTANT SECRETARY............................................ 14
5.12 ASSISTANT TREASURER............................................ 14
5.13 AUTHORITY AND DUTIES OF OFFICERS............................... 14
ARTICLE VI INDEMNITY...................................................... 15
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS...................... 15
6.2 INDEMNIFICATION OF OTHERS...................................... 15
6.3 INSURANCE...................................................... 15
ARTICLE VII RECORDS AND REPORTS............................................. 16
7.1 MAINTENANCE AND INSPECTION OF RECORDS.......................... 16
7.2 INSPECTION BY DIRECTORS........................................ 16
7.3 ANNUAL STATEMENT TO STOCKHOLDERS............................... 16
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS................. 17
</TABLE>
-ii-
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE VIII GENERAL MATTERS................................................ 17
8.1 CHECKS........................................................... 17
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS................. 17
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES........................... 17
8.4 SPECIAL DESIGNATION ON CERTIFICATES.............................. 18
8.5 LOST CERTIFICATES................................................ 18
8.6 CONSTRUCTION; DEFINITIONS........................................ 19
8.7 DIVIDENDS........................................................ 19
8.8 FISCAL YEAR...................................................... 19
8.9 SEAL............................................................. 19
8.10 TRANSFER OF STOCK................................................ 19
8.11 STOCK TRANSFER AGREEMENTS........................................ 19
8.12 REGISTERED STOCKHOLDERS.......................................... 20
ARTICLE IX AMENDMENTS....................................................... 20
ARTICLE X DISSOLUTION...................................................... 20
ARTICLE XI CUSTODIAN........................................................ 21
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES...................... 21
11.2 DUTIES OF CUSTODIAN.............................................. 21
</TABLE>
-iii-
<PAGE>
BYLAWS
------
OF
--
TUT SYSTEMS, INC.
-----------------
(a Delaware corporation)
ARTICLE I
CORPORATE OFFICES
-----------------
1.1 REGISTERED OFFICE
-----------------
The address of the corporation's registered office in the State of Delaware
is 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
1.2 OTHER OFFICES
-------------
The board of directors may at any time establish other offices at any place
or places where the corporation is qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
------------------------
2.1 PLACE OF MEETINGS
-----------------
Meetings of stockholders shall be held at any place, within or outside the
State of Delaware, designated by the board of directors. In the absence of any
such designation, stockholders' meetings shall be held at the registered office
of the corporation.
2.2 ANNUAL MEETING
--------------
The annual meeting of stockholders shall be held each year on a date and at
a time designated by the board of directors. At the meeting, directors shall be
elected and any other proper business may be transacted.
2.3 SPECIAL MEETING
---------------
A special meeting of the stockholders may be called at any time by the
board of directors, or by the chairman of the board, or by the president.
<PAGE>
2.4 NOTICE OF STOCKHOLDERS' MEETINGS
--------------------------------
All notices of meetings with stockholders shall be in writing and shall be
sent or otherwise given in accordance with Section 2.5 of these bylaws not less
than ten (10) nor more than sixty (60) days before the date of the meeting to
each stockholder entitled to vote at such meeting. The notice shall specify the
place, date, and hour of the meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
--------------------------------------------
Written notice of any meeting of stockholders, if mailed, is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the corporation. An
affidavit of the secretary or an assistant secretary or of the transfer agent of
the corporation that the notice has been given shall, in the absence of fraud,
be prima facie evidence of the facts stated therein.
2.6 QUORUM
------
The holders of a majority of the stock issued and outstanding and entitled
to vote thereat, present in person or represented by proxy, shall constitute a
quorum at all meetings of the stockholders for the transaction of business
except as otherwise provided by statute or by the certificate of incorporation.
If, however, such quorum is not present or represented at any meeting of the
stockholders, then the stockholders entitled to vote thereat, present in person
or represented by proxy, shall have power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum is
present or represented. At such adjourned meeting at which a quorum is present
or represented, any business may be transacted that might have been transacted
at the meeting as originally noticed.
2.7 ADJOURNED MEETING; NOTICE
-------------------------
When a meeting is adjourned to another time or place, unless these bylaws
otherwise require, notice need not be given of the adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the corporation may transact any business that
might have been transacted at the original meeting. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
-2-
<PAGE>
2.8 VOTING
------
The stockholders entitled to vote at any meeting of stockholders shall be
determined in accordance with the provisions of Section 2.11 of these bylaws,
subject to the provisions of Sections 217 and 218 of the General Corporation Law
of Delaware (relating to voting rights of fiduciaries, pledgors and joint owners
of stock and to voting trusts and other voting agreements).
2.9 WAIVER OF NOTICE
----------------
Whenever notice is required to be given under any provision of the General
Corporation Law of Delaware or of the certificate of incorporation or these
bylaws, a written waiver thereof, signed by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders need be specified in any written waiver of notice unless so
required by the certificate of incorporation or these bylaws.
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
-------------------------------------------------------
Unless otherwise provided in the certificate of incorporation, any action
required by this chapter to be taken at any annual or special meeting of
stockholders of the corporation, or any action that may be taken at any annual
or special meeting of such stockholders, may be taken without a meeting, without
prior notice, and without a vote if a consent in writing, setting forth the
action so taken, is signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted.
Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing. If the action which is consented to is such as
would have required the filing of a certificate under any section of the General
Corporation Law of Delaware if such action had been voted on by stockholders at
a meeting thereof, then the certificate filed under such section shall state, in
lieu of any statement required by such section concerning any vote of
stockholders, that written notice and written consent have been given as
provided in Section 228 of the General Corporation Law of Delaware.
In the event of the delivery, in the manner provided hereby, to the
corporation of the requisite written consent or consents to take corporate
action and/or any related revocation or revocations, the corporation may engage
independent inspectors of elections for the purpose of performing promptly a
ministerial review of the validity of the consents and revocations. For the
purpose of permitting the inspectors to perform such review, in the event such
inspectors are appointed, no action by written consent without a meeting shall
be effective until such date as such appointed independent inspectors certify to
the corporation that the consents delivered to the corporation in accordance
-3-
<PAGE>
herewith represent at least the minimum number of votes that would be necessary
to take the corporate action. Nothing contained in these Bylaws shall in any
way be construed to suggest or imply that the board of directors or any
stockholder shall not be entitled to contest the validity of any consent or
revocation thereof, whether before or after any certification by any independent
inspectors, or to take any other action (including, without limitation, the
commencement, prosecution or defense of any litigation with respect thereto, and
the seeking of injunctive relief in such litigation).
Every written consent shall bear the date of signature of each stockholder
who signs the consent and no written consent shall be effective to take the
corporate action referred to therein unless, within sixty (60) days of the
earliest dated written consent received in accordance herewith, a written
consent or consents signed by a sufficient number of holders to take such action
are delivered to the corporation in the manner prescribed herein.
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS
-----------------------------------------------------------
(a) Actions other than Written Consent. For the purpose of
----------------------------------
determining the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or the allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion, or exchange of stock,
or other lawful purpose (other than the expression of consent to corporate
action in writing without a meeting) the directors may fix, in advance, a record
date, which, in the case of a meeting of stockholders, shall not be more than 60
days nor less than 10 days before the date of such meeting. If no record date is
fixed, the record date for determining stockholders entitled to notice of or to
vote at a meeting of stockholders shall be at the close of business on the day
next preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is held
and the record date for determining stockholders for any other purpose pursuant
to this Section 2.11(a) shall be at the close of business on the day on which
the board of directors adopts the resolution relating thereto. A determination
of stockholders of record entitled to notice of or to vote at any meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the board of directors may fix a new record date for the adjourned meeting.
(b) Action by Written Consent. In order that the corporation may
-------------------------
determine the stockholders entitled to consent to corporate action in writing
without a meeting, the board of directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the board of directors. Any stockholder of record seeking to have
the stockholders authorize or take corporate action by written consent shall, by
written notice to the secretary, request the board of directors to fix a record
date. The board of directors may, at any time within ten (10) days after the
date on which such a request is received, adopt a resolution fixing the record
date (unless a record date has previously been fixed by the first sentence of
this Section 2.11(b)). If no record date has been fixed by the board of
directors pursuant to the first sentence of this Section 2.11(b) or otherwise
within ten (10) days of the date on which such a request is received, the record
date for determining stockholders entitled to consent to
-4-
<PAGE>
corporate action in writing without a meeting, when no prior action by the board
of directors is required by applicable law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the corporation by delivery to its registered office in Delaware,
its principal place of business, or to any officer or agent of the corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery shall be by hand or by certified or registered mail, return
receipt requested. If no record date has been fixed by the board of directors
and prior action by the board of directors is required by applicable law, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting shall be at the close of business on the date on
which the board of directors adopts the resolution taking such prior action.
2.12 PROXIES
-------
Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for him by a written proxy, signed by
the stockholder and filed with the secretary of the corporation, but no such
proxy shall be voted or acted upon after three (3) years from its date, unless
the proxy provides for a longer period. A proxy shall be deemed signed if the
stockholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission or otherwise) by the stockholder or the
stockholder's attorney-in-fact. The revocability of a proxy that states on its
face that it is irrevocable shall be governed by the provisions of Section
212(c) of the General Corporation Law of Delaware.
2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE
-------------------------------------
The officer who has charge of the stock ledger of the corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
2.14 NOMINATIONS AND PROPOSALS
-------------------------
Nominations of persons for election to the board of directors of the
corporation and the proposal of business to be considered by the stockholders
may be made at any meeting of stockholders only (a) pursuant to the
corporation's notice of meeting, (b) by or at the direction of the board of
directors or (c) by any stockholder of the corporation who was a stockholder of
record at the time of giving of notice provided for in these bylaws, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Section 2.14.
-5-
<PAGE>
For nominations or other business to be properly brought before a
stockholders meeting by a stockholder pursuant to clause (c) of the preceding
sentence, the stockholder must have given timely notice thereof in writing to
the secretary of the corporation and such other business must otherwise be a
proper matter for stockholder action. To be timely, a stockholder's notice
shall be delivered to the secretary at the principal executive offices of the
corporation not later than the close of business on the 60th day nor earlier
than the close of business on the 90th day prior to the meeting; provided,
however, that in the event that less than 65 days notice of the meeting is given
to stockholders, notice by the stockholder to be timely must be so delivered not
earlier than the close of business on the seventh (7th) day following the day on
which the notice of meeting was mailed. In no event shall the public
announcement of an adjournment of a stockholders meeting commence a new time
period for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (or any successor thereto) and Rule 14a-11 thereunder
(or any successor thereto) (including such person's written consent to being
named in the proxy statement as a nominee and to serving as a director if
elected); (b) as to any other business that the stockholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (c) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (I) the name and address of such stockholder,
as they appear on the corporation's books, and of such beneficial owner, and
(ii) the class and number of shares of the corporation which are owned
beneficially and of record by such stockholder and such beneficial owner.
Notwithstanding any provision herein to the contrary, no business shall be
conducted at a stockholders meeting except in accordance with the procedures set
forth in this Section 2.14.
ARTICLE III
DIRECTORS
---------
3.1 POWERS
------
Subject to the provisions of the General Corporation Law of Delaware and
any limitations in the certificate of incorporation or these bylaws relating to
action required to be approved by the stockholders or by the outstanding shares,
the business and affairs of the corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the board of directors.
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<PAGE>
3.2 NUMBER OF DIRECTORS
-------------------
The authorized number of directors shall be nine (9). This number may be
changed by a duly adopted amendment to the certificate of incorporation or by an
amendment to this bylaw adopted by the vote or written consent of the holders of
a majority of the stock issued and outstanding and entitled to vote or by
resolution of a majority of the board of directors.
No reduction of the authorized number of directors shall have the effect of
removing any director before that director's term of office expires.
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
-------------------------------------------------------
Except as provided in the certificate of incorporation and Section 3.4 of
these bylaws, directors shall be elected at each annual meeting of stockholders
to hold office until the next annual meeting. Directors need not be
stockholders unless so required by the certificate of incorporation or these
bylaws, wherein other qualifications for directors may be prescribed. Each
director, including a director elected to fill a vacancy, shall hold office
until his successor is elected and qualified or until his earlier resignation or
removal.
Elections of directors need not be by written ballot.
3.4 RESIGNATION AND VACANCIES
-------------------------
Any director may resign at any time upon written notice to the corporation.
When one or more directors so resigns and the resignation is effective at a
future date, a majority of the directors then in office, including those who
have so resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as provided in this
section in the filling of other vacancies.
Unless otherwise provided in the certificate of incorporation or these
bylaws:
(a) Vacancies and newly created directorships resulting from any
increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director.
(b) Whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more directors by the provisions of the
certificate of incorporation, vacancies and newly created directorships of such
class or classes or series may be filled by a majority of the directors elected
by such class or classes or series thereof then in office, or by a sole
remaining director so elected.
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<PAGE>
If at any time, by reason of death or resignation or other cause, the
corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
of a stockholder, may call a special meeting of stockholders in accordance with
the provisions of the certificate of incorporation or these bylaws, or may apply
to the Court of Chancery for a decree summarily ordering an election as provided
in Section 211 of the General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created directorship,
the directors then in office constitute less than a majority of the whole board
(as constituted immediately prior to any such increase), then the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least ten (10) percent of the total number of the shares at the time outstanding
having the right to vote for such directors, summarily order an election to be
held to fill any such vacancies or newly created directorships, or to replace
the directors chosen by the directors then in office as aforesaid, which
election shall be governed by the provisions of Section 211 of the General
Corporation Law of Delaware as far as applicable.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
----------------------------------------
The board of directors of the corporation may hold meetings, both regular
and special, either within or outside the State of Delaware.
Unless otherwise restricted by the certificate of incorporation or these
bylaws, members of the board of directors, or any committee designated by the
board of directors, may participate in a meeting of the board of directors, or
any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
3.6 FIRST MEETINGS
--------------
The first meeting of each newly elected board of directors shall be held at
such time and place as shall be fixed by the vote of the stockholders at the
annual meeting and no notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting, provided a quorum
shall be present. In the event of the failure of the stockholders to fix the
time or place of such first meeting of the newly elected board of directors, or
in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
board of directors, or as shall be specified in a written waiver signed by all
of the directors.
3.7 REGULAR MEETINGS
----------------
Regular meetings of the board of directors may be held without notice at
such time and at such place as shall from time to time be determined by the
board.
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<PAGE>
3.8 SPECIAL MEETINGS; NOTICE
------------------------
Special meetings of the board of directors for any purpose or purposes may
be called at any time by the chairman of the board, the president, any vice
president, the secretary or any two (2) directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
telegram, charges prepaid, addressed to each director at that director's address
as it is shown on the records of the corporation. If the notice is mailed, it
shall be deposited in the United States mail at least four (4) days before the
time of the holding of the meeting. If the notice is delivered personally or by
telephone or by telegram, it shall be delivered personally or by telephone or to
the telegraph company at least forty-eight (48) hours before the time of the
holding of the meeting. Any oral notice given personally or by telephone may be
communicated either to the director or to a person at the office of the director
who the person giving the notice has reason to believe will promptly communicate
it to the director. The notice need not specify the purpose or the place of the
meeting, if the meeting is to be held at the principal executive office of the
corporation.
3.9 QUORUM
------
At all meetings of the board of directors, a majority of the authorized
number of directors shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the board of directors, except as may be
otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum is not present at any meeting of the board of
directors, then the directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
is present.
3.10 WAIVER OF NOTICE
----------------
Whenever notice is required to be given under any provision of the General
Corporation Law of Delaware or of the certificate of incorporation or these
bylaws, a written waiver thereof, signed by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the directors, or members of a committee of directors, need be specified in
any written waiver of notice unless so required by the certificate of
incorporation or these bylaws.
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<PAGE>
3.11 ADJOURNED MEETING; NOTICE
-------------------------
If a quorum is not present at any meeting of the board of directors, then
the directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum is present.
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
-------------------------------------------------
Unless otherwise restricted by the certificate of incorporation or these
bylaws, any action required or permitted to be taken at any meeting of the board
of directors, or of any committee thereof, may be taken without a meeting if all
members of the board or committee, as the case may be, consent thereto in
writing and the writing or writings are filed with the minutes of proceedings of
the board or committee.
3.13 FEES AND COMPENSATION OF DIRECTORS
----------------------------------
Unless otherwise restricted by the certificate of incorporation or these
bylaws, the board of directors shall have the authority to fix the compensation
of directors.
3.14 APPROVAL OF LOANS TO OFFICERS
-----------------------------
The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the corporation or of its
subsidiary, including any officer or employee who is a director of the
corporation or its subsidiary, whenever, in the judgment of the directors, such
loan, guaranty or assistance may reasonably be expected to benefit the
corporation. The loan, guaranty or other assistance may be with or without
interest and may be unsecured, or secured in such manner as the board of
directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing contained in this section shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute.
3.15 REMOVAL OF DIRECTORS
--------------------
Unless otherwise restricted by statute, by the certificate of incorporation
or by these bylaws, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors.
No reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of such director's term of office.
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<PAGE>
ARTICLE IV
COMMITTEES
----------
4.1 COMMITTEES OF DIRECTORS
-----------------------
The board of directors may, by resolution passed by a majority of the whole
board, designate one or more committees, with each committee to consist of one
or more of the directors of the corporation. The board may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the board of
directors to act at the meeting in the place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
board of directors or in the bylaws of the corporation, shall have and may
exercise all the powers and authority of the board of directors in the
management of the business and affairs of the corporation, and may authorize the
seal of the corporation to be affixed to all papers that may require it; but no
such committee shall have the power or authority to (I) amend the certificate of
incorporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the board of directors as provided in Section 151(a) of the General
Corporation Law of Delaware, fix any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution of assets of
the corporation or the conversion into, or the exchange of such shares for,
shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation), (ii) adopt an agreement of
merger or consolidation under Sections 251 or 252 of the General Corporation Law
of Delaware, (iii) recommend to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, (iv)
recommend to the stockholders a dissolution of the corporation or a revocation
of a dissolution, or (v) amend the bylaws of the corporation; and, unless the
board resolution establishing the committee, the bylaws or the certificate of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger pursuant to Section 253 of the General
Corporation Law of Delaware.
4.2 COMMITTEE MINUTES
-----------------
Each committee shall keep regular minutes of its meetings and report the
same to the board of directors when required.
4.3 MEETINGS AND ACTION OF COMMITTEES
---------------------------------
Meetings and actions of committees shall be governed by, and held and taken
in accordance with, the provisions of Article III of these bylaws, Section 3.5
(place of meetings and meetings by telephone), Section 3.7 (regular meetings),
Section 3.8 (special meetings and notice), Section 3.9 (quorum), Section 3.10
(waiver of notice), Section 3.11 (adjournment and notice of adjournment), and
Section 3.12 (action without a meeting), with such changes in the context of
those bylaws as are
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<PAGE>
necessary to substitute the committee and its members for the board of directors
and its members; provided, however, that the time of regular meetings of
committees may also be called by resolution of the board of directors and that
notice of special meetings of committees shall also be given to all alternate
members, who shall have the right to attend all meetings of the committee. The
board of directors may adopt rules for the government of any committee not
inconsistent with the provisions of these bylaws.
ARTICLE V
OFFICERS
--------
5.1 OFFICERS
--------
The officers of the corporation shall be a president, one or more vice
presidents, a secretary, and a treasurer. The corporation may also have, at the
discretion of the board of directors, a chairman of the board, one or more
assistant vice presidents, assistant secretaries, assistant treasurers, and any
such other officers as may be appointed in accordance with the provisions of
Section 5.3 of these bylaws. Any number of offices may be held by the same
person.
5.2 ELECTION OF OFFICERS
--------------------
The officers of the corporation, except such officers as may be appointed
in accordance with the provisions of Sections 5.3 or 5.5 of these bylaws, shall
be chosen by the board of directors, subject to the rights, if any, of an
officer under any contract of employment.
5.3 SUBORDINATE OFFICERS
--------------------
The board of directors may appoint, or empower the president to appoint,
such other officers and agents as the business of the corporation may require,
each of whom shall hold office for such period, have such authority, and perform
such duties as are provided in these bylaws or as the board of directors may
from time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS
-----------------------------------
Subject to the rights, if any, of an officer under any contract of
employment, any officer may be removed, either with or without cause, by an
affirmative vote of the majority of the board of directors at any regular or
special meeting of the board or, except in the case of an officer chosen by the
board of directors, by any officer upon whom such power of removal may be
conferred by the board of directors.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
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5.5 VACANCIES IN OFFICES
--------------------
Any vacancy occurring in any office of the corporation shall be filled by
the board of directors.
5.6 CHAIRMAN OF THE BOARD
---------------------
The chairman of the board, if such an officer be elected, shall, if
present, preside at meetings of the board of directors and exercise and perform
such other powers and duties as may from time to time be assigned to him by the
board of directors or as may be prescribed by these bylaws. If there is no
president, then the chairman of the board shall also be the chief executive
officer of the corporation and shall have the powers and duties prescribed in
Section 5.7 of these bylaws.
5.7 PRESIDENT
---------
Subject to such supervisory powers, if any, as may be given by the board of
directors to the chairman of the board, if there be such an officer, the
president shall be the chief executive officer of the corporation and shall,
subject to the control of the board of directors, have general supervision,
direction, and control of the business and the officers of the corporation. He
shall preside at all meetings of the stockholders and, in the absence or
nonexistence of a chairman of the board, at all meetings of the board of
directors. He shall have the general powers and duties of management usually
vested in the office of president of a corporation and shall have such other
powers and duties as may be prescribed by the board of directors or these
bylaws.
5.8 VICE PRESIDENT
--------------
In the absence or disability of the president, the vice presidents, if any,
in order of their rank as fixed by the board of directors or, if not ranked, a
vice president designated by the board of directors, shall perform all the
duties of the president and when so acting shall have all the powers of, and be
subject to all the restrictions upon, the president. The vice presidents shall
have such other powers and perform such other duties as from time to time may be
prescribed for them respectively by the board of directors, these bylaws, the
president or the chairman of the board.
5.9 SECRETARY
---------
The secretary shall keep or cause to be kept, at the principal executive
office of the corporation or such other place as the board of directors may
direct, a book of minutes of all meetings and actions of directors, committees
of directors, and stockholders. The minutes shall show the time and place of
each meeting, whether regular or special (and, if special, how authorized and
the notice given), the names of those present at directors' meetings or
committee meetings, the number of shares present or represented at stockholders'
meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal executive
office of the corporation or at the office of the corporation's transfer agent
or registrar, as determined by resolu-
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tion of the board of directors, a share register, or a duplicate share register,
showing the names of all stockholders and their addresses, the number and
classes of shares held by each, the number and date of certificates evidencing
such shares, and the number and date of cancellation of every certificate
surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings of
the stockholders and of the board of directors required to be given by law or by
these bylaws. He shall keep the seal of the corporation, if one be adopted, in
safe custody and shall have such other powers and perform such other duties as
may be prescribed by the board of directors or by these bylaws.
5.10 TREASURER
---------
The treasurer shall keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of accounts of the properties and
business transactions of the corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, retained earnings,
and shares. The books of account shall at all reasonable times be open to
inspection by any director.
The treasurer shall deposit all money and other valuables in the name and
to the credit of the corporation with such depositaries as may be designated by
the board of directors. He shall disburse the funds of the corporation as may be
ordered by the board of directors, shall render to the president and directors,
whenever they request it, an account of all of his transactions as treasurer and
of the financial condition of the corporation, and shall have such other powers
and perform such other duties as may be prescribed by the board of directors or
these bylaws.
5.11 ASSISTANT SECRETARY
-------------------
The assistant secretary, or, if there is more than one, the assistant
secretaries in the order determined by the stockholders or board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the secretary or in the event of his or her inability
or refusal to act, perform the duties and exercise the powers of the secretary
and shall perform such other duties and have such other powers as the board of
directors or the stockholders may from time to time prescribe.
5.12 ASSISTANT TREASURER
-------------------
The assistant treasurer, or, if there is more than one, the assistant
treasurers, in the order determined by the stockholders or board of directors
(or if there be no such determination, then in the order of their election),
shall, in the absence of the treasurer or in the event of his or her inability
or refusal to act, perform the duties and exercise the powers of the treasurer
and shall perform such other duties and have such other powers as the board of
directors or the stockholders may from time to time prescribe.
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<PAGE>
5.13 AUTHORITY AND DUTIES OF OFFICERS
--------------------------------
In addition to the foregoing authority and duties, all officers of the
corporation shall respectively have such authority and perform such duties in
the management of the business of the corporation as may be designated from time
to time by the board of directors or the stockholders.
ARTICLE VI
INDEMNITY
---------
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
The corporation shall, to the maximum extent and in the manner permitted by
the General Corporation Law of Delaware, indemnify each of its directors and
officers against expenses (including attorneys' fees), judgments, fines,
settlements, and other amounts actually and reasonably incurred in connection
with any proceeding, arising by reason of the fact that such person is or was an
agent of the corporation. For purposes of this Section 6.1, a "director" or
"officer" of the corporation includes any person (I) who is or was a director or
officer of the corporation, (ii) who is or was serving at the request of the
corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, or (iii) who was a director or officer of a
corporation which was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation.
6.2 INDEMNIFICATION OF OTHERS
-------------------------
The corporation shall have the power, to the extent and in the manner
permitted by the General Corporation Law of Delaware, to indemnify each of its
employees and agents (other than directors and officers) against expenses
(including attorneys' fees), judgments, fines, settlements, and other amounts
actually and reasonably incurred in connection with any proceeding, arising by
reason of the fact that such person is or was an agent of the corporation. For
purposes of this Section 6.2, an "employee" or "agent" of the corporation (other
than a director or officer) includes any person (I) who is or was an employee or
agent of the corporation, (ii) who is or was serving at the request of the
corporation as an employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, or (iii) who was an employee or agent of a
corporation which was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation.
6.3 INSURANCE
---------
The corporation may purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
corporation would have the
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power to indemnify him against such liability under the provisions of the
General Corporation Law of Delaware.
ARTICLE VII
RECORDS AND REPORTS
-------------------
7.1 MAINTENANCE AND INSPECTION OF RECORDS
-------------------------------------
The corporation shall, either at its principal executive office or at such
place or places as designated by the board of directors, keep a record of its
stockholders listing their names and addresses and the number and class of
shares held by each stockholder, a copy of these bylaws as amended to date,
accounting books, and other records.
Any stockholder of record, in person or by attorney or other agent, shall,
upon written demand under oath stating the purpose thereof, have the right
during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its principal place of
business.
The officer who has charge of the stock ledger of the corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
7.2 INSPECTION BY DIRECTORS
-----------------------
Any director shall have the right to examine the corporation's stock
ledger, a list of its stockholders, and its other books and records for a
purpose reasonably related to his position as a director. The Court of Chancery
is hereby vested with the exclusive jurisdiction to determine whether a director
is entitled to the inspection sought. The Court may summarily order the
corporation to permit the director to inspect any and all books and records, the
stock ledger, and the stock list and to make copies or extracts therefrom. The
Court may, in its discretion, prescribe any
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limitations or conditions with reference to the inspection, or award such other
and further relief as the Court may deem just and proper.
7.3 ANNUAL STATEMENT TO STOCKHOLDERS
--------------------------------
The board of directors shall present at each annual meeting, and at any
special meeting of the stockholders when called for by vote of the stockholders,
a full and clear statement of the business and condition of the corporation.
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
----------------------------------------------
The chairman of the board, the president, any vice president, the
treasurer, the secretary or assistant secretary of this corporation, or any
other person authorized by the board of directors or the president or a vice
president, is authorized to vote, represent, and exercise on behalf of this
corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of this corporation. The authority granted
herein may be exercised either by such person directly or by any other person
authorized to do so by proxy or power of attorney duly executed by such person
having the authority.
ARTICLE VIII
GENERAL MATTERS
---------------
8.1 CHECKS
------
From time to time, the board of directors shall determine by resolution
which person or persons may sign or endorse all checks, drafts, other orders for
payment of money, notes or other evidences of indebtedness that are issued in
the name of or payable to the corporation, and only the persons so authorized
shall sign or endorse those instruments.
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
------------------------------------------------
The board of directors, except as otherwise provided in these bylaws, may
authorize any officer or officers, or agent or agents, to enter into any
contract or execute any instrument in the name of and on behalf of the
corporation; such authority may be general or confined to specific instances.
Unless so authorized or ratified by the board of directors or within the agency
power of an officer, no officer, agent or employee shall have any power or
authority to bind the corporation by any contract or engagement or to pledge its
credit or to render it liable for any purpose or for any amount.
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES
--------------------------------------
The shares of the corporation shall be represented by certificates,
provided that the board of directors of the corporation may provide by
resolution or resolutions that some or all of any or all classes or series of
its stock shall be uncertificated shares. Any such resolution shall not apply to
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shares represented by a certificate until such certificate is surrendered to the
corporation. Notwithstanding the adoption of such a resolution by the board of
directors, every holder of stock represented by certificates and upon request
every holder of uncertificated shares shall be entitled to have a certificate
signed by, or in the name of the corporation by the chairman or vice-chairman of
the board of directors, or the president or vice-president, and by the treasurer
or an assistant treasurer, or the secretary or an assistant secretary of such
corporation representing the number of shares registered in certificate form.
Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate has ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
The corporation may issue the whole or any part of its shares as partly
paid and subject to call for the remainder of the consideration to be paid
therefor. Upon the face or back of each stock certificate issued to represent
any such partly paid shares, upon the books and records of the corporation in
the case of uncertificated partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
Upon the declaration of any dividend on fully paid shares, the corporation shall
declare a dividend upon partly paid shares of the same class, but only upon the
basis of the percentage of the consideration actually paid thereon.
8.4 SPECIAL DESIGNATION ON CERTIFICATES
-----------------------------------
If the corporation is authorized to issue more than one class of stock or
more than one series of any class, then the powers, the designations, the
preferences, and the relative, participating, optional or other special rights
of each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate that the corporation shall
issue to represent such class or series of stock; provided, however, that,
except as otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements there may be set forth on the
face or back of the certificate that the corporation shall issue to represent
such class or series of stock a statement that the corporation will furnish
without charge to each stockholder who so requests the powers, the designations,
the preferences, and the relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
8.5 LOST CERTIFICATES
-----------------
Except as provided in this Section 8.5, no new certificates for shares
shall be issued to replace a previously issued certificate unless the latter is
surrendered to the corporation and cancelled at the same time. The corporation
may issue a new certificate of stock or uncertificated shares in the place of
any certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the corporation may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the corporation a
bond sufficient to indemnify it against any claim that may be made
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against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate or uncertificated shares.
8.6 CONSTRUCTION; DEFINITIONS
-------------------------
Unless the context requires otherwise, the general provisions, rules of
construction, and definitions in the Delaware General Corporation Law shall
govern the construction of these bylaws. Without limiting the generality of this
provision, the singular number includes the plural, the plural number includes
the singular, and the term "person" includes both a corporation and a natural
person.
8.7 DIVIDENDS
---------
The directors of the corporation, subject to any restrictions contained in
the certificate of incorporation, may declare and pay dividends upon the shares
of its capital stock pursuant to the General Corporation Law of Delaware.
Dividends may be paid in cash, in property, or in shares of the corporation's
capital stock.
The directors of the corporation may set apart out of any of the funds of
the corporation available for dividends a reserve or reserves for any proper
purpose and may abolish any such reserve. Such purposes shall include but not be
limited to equalizing dividends, repairing or maintaining any property of the
corporation, and meeting contingencies.
8.8 FISCAL YEAR
-----------
The fiscal year of the corporation shall be fixed by resolution of the
board of directors and may be changed by the board of directors.
8.9 SEAL
----
This corporation may have a corporate seal, which may be adopted or altered
at the pleasure of the board of directors, and may use the same by causing it or
a facsimile thereof, to be impressed or affixed or in any other manner
reproduced.
8.10 TRANSFER OF STOCK
-----------------
Upon surrender to the corporation or the transfer agent of the corporation
of a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate, and record the transaction in its books.
8.11 STOCK TRANSFER AGREEMENTS
-------------------------
The corporation shall have power to enter into and perform any agreement
with any number of stockholders of any one or more classes of stock of the
corporation to restrict the transfer of shares
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of stock of the corporation of any one or more classes owned by such
stockholders in any manner not prohibited by the General Corporation Law of
Delaware.
8.12 REGISTERED STOCKHOLDERS
-----------------------
The corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends and
to vote as such owner, shall be entitled to hold liable for calls and
assessments the person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of another person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE IX
AMENDMENTS
----------
The original or other bylaws of the corporation may be adopted, amended or
repealed by the stockholders entitled to vote; provided, however, that the
corporation may, in its certificate of incorporation, confer the power to adopt,
amend or repeal bylaws upon the directors. The fact that such power has been so
conferred upon the directors shall not divest the stockholders of the power, nor
limit their power to adopt, amend or repeal bylaws.
ARTICLE X
DISSOLUTION
-----------
If it should be deemed advisable in the judgment of the board of directors
of the corporation that the corporation should be dissolved, the board, after
the adoption of a resolution to that effect by a majority of the whole board at
any meeting called for that purpose, shall cause notice to be mailed to each
stockholder entitled to vote thereon of the adoption of the resolution and of a
meeting of stockholders to take action upon the resolution.
At the meeting a vote shall be taken for and against the proposed
dissolution. If a majority of the outstanding stock of the corporation entitled
to vote thereon votes for the proposed dissolution, then a certificate stating
that the dissolution has been authorized in accordance with the provisions of
Section 275 of the General Corporation Law of Delaware and setting forth the
names and residences of the directors and officers shall be executed,
acknowledged, and filed and shall become effective in accordance with Section
103 of the General Corporation Law of Delaware. Upon such certificate's becoming
effective in accordance with Section 103 of the General Corporation Law of
Delaware, the corporation shall be dissolved.
Whenever all the stockholders entitled to vote on a dissolution consent in
writing, either in person or by duly authorized attorney, to a dissolution, no
meeting of directors or stockholders shall be necessary. The consent shall be
filed and shall become effective in accordance with Section 103
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of the General Corporation Law of Delaware. Upon such consent's becoming
effective in accordance with Section 103 of the General Corporation Law of
Delaware, the corporation shall be dissolved. If the consent is signed by an
attorney, then the original power of attorney or a photocopy thereof shall be
attached to and filed with the consent. The consent filed with the Secretary of
State shall have attached to it the affidavit of the secretary or some other
officer of the corporation stating that the consent has been signed by or on
behalf of all the stockholders entitled to vote on a dissolution; in addition,
there shall be attached to the consent a certification by the secretary or some
other officer of the corporation setting forth the names and residences of the
directors and officers of the corporation.
ARTICLE XI
CUSTODIAN
---------
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES
-------------------------------------------
The Court of Chancery, upon application of any stockholder, may appoint one
or more persons to be custodians and, if the corporation is insolvent, to be
receivers, of and for the corporation when:
(a) at any meeting held for the election of directors the
stockholders are so divided that they have failed to elect successors to
directors whose terms have expired or would have expired upon qualification of
their successors; or
(b) the business of the corporation is suffering or is threatened
with irreparable injury because the directors are so divided respecting the
management of the affairs of the corporation that the required vote for action
by the board of directors cannot be obtained and the stockholders are unable to
terminate this division; or
(c) the corporation has abandoned its business and has failed within
a reasonable time to take steps to dissolve, liquidate or distribute its assets.
11.2 DUTIES OF CUSTODIAN
-------------------
The custodian shall have all the powers and title of a receiver appointed
under Section 291 of the General Corporation Law of Delaware, but the authority
of the custodian shall be to continue the business of the corporation and not to
liquidate its affairs and distribute its assets, except when the Court of
Chancery otherwise orders and except in cases arising under Sections 226(a)(3)
or 352(a)(2) of the General Corporation Law of Delaware.
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CERTIFICATE OF ADOPTION OF BYLAWS
OF
TUT SYSTEMS, INC.
(a Delaware corporation)
Adoption by Incorporation
-------------------------
The undersigned person appointed in the Certificate of Incorporation to act
as the Incorporator of Tut Systems, Inc. hereby adopts the foregoing bylaws,
comprising twenty-two pages, as the Bylaws of the corporation.
Executed this ___ day of July, 1998.
_________________________________
Matt Taylor, Secretary
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