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EXHIBIT 3.01
RESTATED CERTIFICATE OF INCORPORATION
OF
INTUIT INC.
(ORIGINALLY INCORPORATED ON FEBRUARY 1, 1993)
INTUIT INC., a Delaware corporation, hereby certifies that the Restated
Certificate of Incorporation of the Company attached hereto as EXHIBIT "A",
which is incorporated herein by this reference, and which restates and
integrates, but does not further amend, the provisions of the certificate of
incorporation of the Company as heretofore amended or supplemented, has been
duly adopted by the Company's Board of Directors in accordance with Section 245
of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the Company has caused this Restated Certificate of
Incorporation to be signed by its duly authorized officer this 19th day of
January, 2000.
INTUIT INC.
By: /s/ VIRGINIA R. COLES
-----------------------------------
VIRGINIA R. COLES
Assistant Secretary
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EXHIBIT "A"
RESTATED CERTIFICATE OF INCORPORATION
OF
INTUIT INC.
ARTICLE I
The name of the corporation is Intuit Inc. (the "Company").
ARTICLE II
The address of the registered office of the corporation in the State of
Delaware is 1013 Centre Road, City of Wilmington, County of New Castle, DE
19805. The name of its registered agent at that address is Corporation Service
Company.
ARTICLE III
The purpose of the Company is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware.
ARTICLE IV
A. AUTHORIZATION OF SHARES.
The total number of shares of all classes of stock which the Company has
authority to issue is 751,344,918 shares, consisting of two classes as follows:
750,000,000 shares of Common Stock, par value $0.01 per share (the "Common
Stock"), and 1,344,918 shares of Preferred Stock, par value $0.01 per share (the
"Preferred Stock").
B. DESIGNATION OF FUTURE SERIES OF PREFERRED STOCK.
The Board of Directors is authorized, subject to any limitations
prescribed by the law of the State of Delaware, to provide for the issuance of
the shares of Preferred Stock in one or more series, and, by filing a
certificate of designation pursuant to the applicable law of the State of
Delaware, to establish from time to time the number of shares to be included in
each such series, to fix the designation, powers, preferences and rights of the
shares of each such series and any qualifications, limitations or restrictions
thereof, and to increase or decrease the number of shares of any such series
(but not below the number of shares of such series then outstanding). The number
of authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative vote of
the holders of a majority of the stock of the Company entitled to vote, unless a
vote of any other holders is required pursuant to a certificate or certificates
establishing a series of Preferred Stock.
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Except as expressly provided in Part C of this Article IV or except as
may be expressly provided in any Certificate of Designation designating any
series of Preferred Stock pursuant to the foregoing provisions of this Article
IV, any new series of Preferred Stock may be designated, fixed and determined as
provided herein by the Board of Directors without approval of the holders of
Common Stock or the holders of Preferred Stock, or any series thereof, and any
such new series may have powers, preferences and rights, including, without
limitation, voting rights, dividend rights, liquidation rights, redemption
rights and conversion rights, senior to, junior to or pari passu with the rights
of the Common Stock, the Preferred Stock, or any future class or series of
Preferred Stock or Common Stock.
C. SERIES A PREFERRED STOCK.
1. Designation. One Hundred Forty-Four Thousand Nine Hundred
Eighteen (144,918) of the shares of Preferred Stock of the Company are hereby
designated Series A Preferred Stock, par value $0.01 per share (hereinafter
referred to as the "Series A Stock"), with the powers, preferences, rights,
limitations and restrictions specified herein.
2. Dividends. Subject to the payment of dividends on senior
series of Preferred Stock which may be created by the Board of Directors
pursuant to this Article IV, the holders of the Series A Stock shall be entitled
to receive, if, as and when declared by the Board of Directors, out of any
assets legally available therefor, dividends at the rate determined by the Board
of Directors. No dividend other than a stock dividend shall be paid on any share
of Common Stock unless a dividend for each share of Series A Stock in an amount
equal to the dividend for each share of Series A Stock in an amount equal to the
dividend for each share of Common Stock multiplied by the number of shares of
Common Stock into which each share of Series A Stock is then convertible is
first declared and paid (or set apart for payment) on the Series A Stock. Such
dividends shall not be cumulative and no right to such dividends shall accrue to
holders of Series A Stock unless declared by the Board of Directors.
3. Liquidation Preference. In the event of any liquidation,
dissolution, or winding up of the Company, either voluntary or involuntary,
distributions to the shareholders of the Company shall be made in the following
manner:
(a) Subject to and after the distribution of the
liquidation preference(s) of all senior series of Preferred Stock which may be
created by the Board of Directors pursuant to this Article IV, the holders of
the Series A Stock shall be entitled to receive, prior and in preference to any
distribution of any of the assets or surplus funds of the Company to the holders
of the Common Stock by reason of their ownership of such stock, the amount of
Seven Dollars and Fifty Cents ($7.50) for each share of Series A Stock then held
by them, adjusted for any combinations, consolidations or stock distributions or
dividends with respect to the shares of Series A Stock (a "Series A Stock
Recapitalization Event"), plus any declared but unpaid dividends on the Series A
Stock. If the assets and funds thus distributed among the holders of the Series
A Stock shall be insufficient to permit the payment to such holders of the full
aforesaid preferential amount, then, subject to the rights of any future series
of Preferred Stock which may be created by the Board of Directors pursuant to
this Article IV, the entire assets and funds of the Company legally available
for distribution shall be distributed among the holders of the Series A Stock in
proportion to the number of shares of Series A Stock then held by them.
(b) After payment to the holders of Series A Stock of the
amounts set forth in paragraph 3(a) hereof, the entire assets and funds of the
Company legally available for distribution, if any, shall be distributed among
the holders of the Common Stock in proportion to the number of shares of Common
Stock then held by them.
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(c) The liquidation rights of the Series A Stock shall not
be participating, and accordingly the holders of Series A Stock shall not be
entitled to any payments on liquidation except as expressly set forth in this
Section 3.
(d) A consolidation or merger of the Company with or into
any other corporation or corporations, or a sale of all or substantially all of
the assets of the Company, shall not be deemed to be a liquidation, dissolution,
or winding up within the meaning of this Section 3.
4. Voting Rights. Except as otherwise required by law, the holder
of each share of the Series A Stock shall be entitled to the number of votes
equal to the number of shares of Common Stock into which such share of Series A
Stock could then be converted, shall have voting rights and powers equal to the
voting rights and powers of the Common Stock, and shall be entitled to notice of
any stockholders' meeting in accordance with the Bylaws of the Company.
Fractional votes shall not, however, be permitted and any fractional voting
rights resulting from the above formula (after aggregating all shares into which
shares of Series A Stock held by each holder could be converted) shall be
rounded to the nearest whole number (with one-half being rounded up).
5. Conversion. The holders of the Series A Stock shall have
conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert.
(i) Each share of Series A Stock shall be
convertible, at the option of the holder, at any time after the date of issuance
of such share, at the office of the Company or any transfer agent of the Series
A Stock, into two (2) fully paid and nonassessable shares of Common Stock. (The
number of shares of Common Stock into which one (1) share of Series A Stock may
be converted is hereinafter referred to as the "Conversion Rate".)
(ii) Each share of Series A Stock shall
automatically be converted into shares of Common Stock at the then effective
Conversion Rate upon the first to occur of (i) August 31, 1993, or (ii) the last
day of the first fiscal year in which the Company has net income after provision
for income taxes, as shown on the Company's audited financial statements, of at
least $9,000,000, or (iii) the closing of an underwritten public offering of the
Company's Common Stock at an aggregate public offering price of at least
$10,000,000 and a per share price equal to or greater than $7.00, (as
appropriately adjusted for any combinations, consolidations, or stock
distributions or dividends with respect to shares of Common Stock (a "Common
Stock Recapitalization Event"), or (iv) the vote or written consent by holders
of at least two-thirds (2/3) of the then outstanding shares of Series A Stock to
convert the Series A Stock into Common Stock or (v) when less than 250,000
shares of Series A Stock (as appropriately adjusted for any Series A Stock
Recapitalization Event) remain outstanding (the "Automatic Conversion Events").
Upon an Automatic Conversion Event, each outstanding option, warrant or right to
purchase or acquire one (1) share of Series A Stock shall automatically be
converted into an option, warrant or right to purchase or acquire that number of
shares of Common Stock into which each outstanding share of Series A Stock was
converted upon such Automatic Conversion Event.
(b) Mechanics of Conversion. Before any holder of Series A
Stock shall be entitled to convert the same into shares of Common Stock, he
shall surrender the certificate or certificates for such shares, duly endorsed,
at the office of the Company or of any transfer agent for the Series A Stock, or
notify the Company or its transfer agent that such Series A Stock certificates
have been lost,
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stolen or destroyed and execute an agreement satisfactory to the Company to
indemnify the Company from any loss incurred by it in connection with such
certificates, and shall give written notice to the Company at such office that
he elects to convert the same and shall state in the notice the name or names in
which he wishes the certificate or certificates for shares of Common Stock to be
issued. The Company shall then, as soon as is practicable, issue and deliver at
such office to such holder of Series A Stock, or to his nominee or nominees, a
certificate or certificates for the number of shares of Common Stock to which he
shall be entitled. Such conversion shall be deemed to have been made immediately
prior to the close of business on the date of surrender of the shares of Series
A Stock to be converted, and the person or persons entitled to receive the
shares of Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such shares of Common Stock on such
date; provided, however, that in the event of automatic conversion pursuant to
paragraph 5(a)(ii), such conversion shall be deemed to have been made upon the
occurrence of the Automatic Conversion Event triggering such conversion without
any further action by the holders of shares of Series A Stock, though the
Company 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 Series A Stock are delivered to the Company or its
transfer agent as provided above, or the holder notifies the Company or its
transfer agent that such Series A Stock certificates have been lost, stolen or
destroyed and executes an agreement satisfactory to the Company to indemnify the
Company from any loss incurred by it in connection with such certificates.
(c) Mechanics for Combinations or Consolidations of Common
Stock. In the event the Company at any time or from time to time after the date
that a share of Series A Stock is first issued (hereinafter referred to as the
"Original Issue Date") effects a subdivision or combination of its outstanding
Common Stock into a greater or lesser number of shares, then and in each such
event the Conversion Rate shall be increased (in the case of a subdivision) or
decreased (in the case of a combination) proportionately.
(d) Adjustment for Certain Dividends, Distributions and
Common Stock Equivalents. In the event the Company at any time or from time to
time after the Original Issue Date shall make, use or fix a record date for the
determination of holders of Common Stock entitled to receive a dividend or other
distribution payable (hereinafter referred to as "Common Stock Equivalents")
convertible into or entitling the holder to receive additional shares of Common
Stock, without payment of any consideration by such holder for the additional
shares of Common Stock or Common Stock Equivalents (including the additional
shares of Common Stock issuable upon conversion or exercise), then, and in each
such event, the maximum number of shares (as set forth in the instrument
relating thereto without regard to any provisions contained therein for
subsequent adjustment of such number) of Common Stock issuable in payment of
such dividend or distribution or upon conversion or exercise of such outstanding
as of the time of such issuance or, in the event such record date shall have
been fixed, as of the close of business on such record date. In each such event
the Conversion Rate shall be increased as of the time of such issuance or, in
the event such a record date shall have been fixed, as of the close of business
on such record date, by multiplying the Conversion Rate by a fraction.
(i) the numerator of which shall be the total
number of shares of Common Stock issued and outstanding or deemed to be issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date plus the number of shares of Common Stock issuable
in payment of such dividend or distribution or upon conversion or exercise of
such Common Stock Equivalents; and
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(ii) the denominator of which shall be the total
number of shares of Common Stock issued and outstanding or deemed to be issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date; provided, however, (A) if such record date shall
have been fixed and such dividend is not fully paid or if such distribution is
not fully made on the date fixed for such distribution, then the Conversion Rate
shall be recomputed accordingly as of the close of business on such record date
and the Conversion Rate shall be adjusted pursuant to this paragraph 5(d) as of
the time of actual payment of such dividend or distribution; (B) if such Common
Stock Equivalents provide, with the passage of time or otherwise, for any
decrease in the number of shares of Common Stock issuable upon conversion or
exercise thereof (or upon the occurrence of a record date with respect thereto),
then the Conversion Rate, and any subsequent adjustments based thereon, shall,
upon any such decrease becoming effective, be recomputed to reflect such
decrease insofar as it affects the rights of conversion or exercise of the
Common Stock Equivalents then outstanding; (C) upon the expiration of any rights
of conversion or exercise under any unexercised Common Stock Equivalents, the
Conversion Rate computed upon the original issue (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 the only additional shares of
Common Stock issued were the shares of such stock, if any, that were actually
issued upon the conversion or exercise of such Common Stock Equivalents; and (D)
in the case of Common Stock Equivalents that expire by their terms not more than
sixty (60) days after the date of issuance, no adjustment of the Conversion Rate
shall be made until the expiration or exercise of all such Common Stock
Equivalents, whereupon such adjustment shall be made in the manner provided in
clause (C).
(e) Adjustments for Other Reclassifications, Dividends and
Distributions. In the event the Company at any time or from time to time after
the Original Issue Date shall effect a reclassification of its Common Stock
(other than one resulting in the issue of additional shares of Common Stock) or
shall make, issue, or fix a record date for the determination of holders of
Common Stock entitled to receive a dividend or other distribution payable in
securities of the Company other than shares of Common Stock, then, and in each
such event, provision shall be made so that the holders of Series A Stock shall
receive upon conversion of each share of Series A Stock the number of shares of
stock or other securities to which a holder of the number of shares of Common
Stock of the Company deliverable upon conversion of such Series A Stock would
have been entitled in such reclassification, dividend or distribution.
(f) Adjustments for Merger or Reorganization, etc. In the
event of any consolidation or merger of the Company with or into another
corporation (other than a merger in which the Company is the surviving
corporation) or the conveyance of all or substantially all of the assets of the
Company to another corporation, such share of Series A Stock shall thereafter be
convertible into the number of shares of stock or other securities or property
to which a holder of the number of shares of Common Stock of the Company
deliverable upon conversion of such Series A Stock would have been entitled upon
such consolidation, merger or conveyance; 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 the Series A Stock, to the end that the
provisions set forth herein (including provisions with respect to changes in and
other adjustments of the Conversion Rate) 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 Series A Stock.
(g) No Impairment. The Company will not, by amendment of
its Certificate of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution,
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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 under this Article IV by the Company, 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 the Series A Stock against
impairment.
(h) Certificate as to Adjustment. Upon the occurrence of
each adjustment or readjustment of the Conversion Rate pursuant to this Section
5, the Company at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms of this Section 5 and prepare and
furnish to each holder of Series A Stock a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Company shall, upon the written request
at any time of any holder of Series A Stock, furnish or cause to be furnished to
such holder a like certificate setting forth (i) such adjustments and
readjustments, (ii) the Conversion Rate in effect at the time, and (iii) the
number of shares of Common Stock and the amount, if any, of other property that
at the time would be received upon the conversion of the Series A Stock.
(i) Notices of Record Date. In the event of any taking by
the Company of a record of the holders of any class of securities for the
purpose of determining the holders of such securities who are entitled to
receive any dividend (other than a cash dividend) or other distribution, any
Common Stock Equivalents or any right to subscribe for, purchase, or otherwise
acquire any shares of stock of any class or any other securities or property, or
to receive any other right, the Company shall mail to each holder of Series A
Stock at least twenty (20) days prior to the record date specified in such
notice, a notice specifying the date on which any such record is to be taken for
the purpose of such dividend, distribution, or rights, and the amount and
character of such dividend, distribution, or right.
(j) Issue Taxes. The Company shall pay any and all issue
and other taxes that may be payable in respect of any issue or delivery of
shares of Common Stock on conversion of shares of Series A Stock.
(k) Reservation of Stock Issuable Upon Conversion. The
Company shall at all times reserve and keep available out of its authorized but
unissued shares of Common Stock solely for the purpose of effecting the
conversion of the shares of the Series A 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 Series A Stock. If at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to effect
the conversion of all then outstanding shares of the Series A Stock, the Company
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) Fractional Shares. No fractional shares shall be
issued upon the conversion of any share or shares (including fractional shares)
of Series A Stock. All shares of Common Stock (including fractions) issuable
upon conversion of shares of Series A Stock by a holder of such stock shall be
aggregated for purposes of determining whether the conversion would result in
the issuance of any fractional share. If, after aggregation, the conversion
would result in the issuance of a fractional share of Common Stock, the Company
shall, in lieu of issuing any fractional share, pay the holder otherwise
entitled to such fraction a sum in cash equal to the fair market value of such
fraction on the date of conversion (as determined in good faith by the Board of
Directors of the Company).
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(m) Notices. Any notice required by the provisions of this
Section 5 to be given to the holders of shares of Series A Stock shall be deemed
given if deposited in the United States mail, postage prepaid, and addressed to
each holder of record at his address appearing on the books of the Company.
6. Amendment. Any of the rights of the Series A Stock specified
in this Certificate may be reduced, restricted, or eliminated (either generally
or in a particular instance and either retrospectively or prospectively) with
the written consent of (a) the Company and (b) the holders of a majority of the
Series A Stock then outstanding. All other amendments to this Part C of this
Article IV and any waiver of the observance of any form hereof, shall be made in
accordance with the provisions of the General Corporation Law of the State of
Delaware, as in effect from to time. Any such reduction, restriction,
elimination, amendment, or waiver so effected shall be binding upon the Company
and any holder of Series A Stock or Common Stock.
7. Status of Converted Shares. Upon the conversion of all
outstanding shares of Series A Stock into shares of Common Stock pursuant to an
Automatic Conversion Event, such converted shares of Series A Stock shall be
cancelled and shall not thereafter be issuable by the Company.
D. SERIES B JUNIOR PARTICIPATING PREFERRED STOCK.
The powers, preferences and relative participating, optional and other
special rights, and qualifications, limitations, and restrictions of the
Company's Series B Junior Participating Preferred Stock, as designated pursuant
to a Certificate of Designation filed in the Office of the Secretary of State of
the State of Delaware on May 5, 1998, as amended by a Certificate of Increase
filed in the Office of the Secretary of State of the State of Delaware on
November 9, 1999, are as follows:
Section 1. Designation and Amount. The shares of such series
shall be designated as "Series B Junior Participating Preferred Stock"
(the "Series B Preferred Stock") and the number of shares constituting
the Series B Preferred Stock shall be 250,000. Such number of shares may
be increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of Series B
Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the Corporation
convertible into Series B Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of
any series of Preferred Stock (or any other stock) ranking prior and
superior to the Series B Preferred Stock with respect to dividends, the
holders of shares of Series B Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds
legally available for the purpose, quarterly dividends payable in cash
on the first day of March, June, September and December in each year
(each such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share of Series B
Preferred Stock, in an amount (if any) per
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share (rounded to the nearest cent), subject to the provision for
adjustment hereinafter set forth, equal to 1000 times the aggregate per
share amount of all cash dividends, and 1000 times the aggregate per
share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock,
par value $0.01 per share (the "Common Stock"), of the Company or a
subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect
to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of Series B Preferred Stock. In the
event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to which
holders of shares of Series B Preferred Stock were entitled immediately
prior to such event under the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or
distribution on the Series B Preferred Stock as provided in paragraph
(A) of this Section immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in
shares of Common Stock).
(C) Dividends due pursuant to paragraph (A) of this
Section shall begin to accrue and be cumulative on outstanding shares of
Series B Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record
date for the determination of holders of shares of Series B Preferred
Stock entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series B Preferred Stock in an amount less than
the total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share basis among
all such shares at the time outstanding. The Board of Directors may fix
a record date for the determination of holders of shares of Series B
Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more than
60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series B
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter
set forth, each share of Series B Preferred Stock shall entitle the
holder thereof to 1000 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
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reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the number of votes per share to which holders of
shares of Series B Preferred Stock were entitled immediately prior to
such event shall be adjusted by multiplying such number by a fraction,
the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) Except as otherwise provided herein, in any other
Certificate of Designation creating a series of Preferred Stock or any
similar stock, or by law, the holders of shares of Series B Preferred
Stock and the holders of shares of Common Stock and any other
capital stock of the Corporation having general voting rights shall vote
together as one class on all matters submitted to a vote of stockholders
of the Corporation.
(C) Except as set forth herein, or as otherwise provided
by law, holders of Series B Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series B Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of
Series B Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series
B Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series B Preferred Stock, except dividends paid ratably on the Series B
Preferred Stock and all such parity stock on which dividends are payable
or in arrears in proportion to the total amounts to which the holders of
all such shares are then entitled; or
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Series B
Preferred Stock, provided that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such junior stock in
exchange for shares of any stock of the Corporation ranking junior (as
to dividends and upon dissolution, liquidation or winding up) to the
Series B Preferred Stock.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
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Section 5. Reacquired Shares. Any shares of Series B Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized
but unissued shares of Preferred Stock and may be reissued as part of a
new series of Preferred Stock subject to the conditions and restrictions
on issuance set forth herein, in the Certificate of Incorporation, or in
any other Certificate of Designation creating a series of Preferred
Stock or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation, dissolution or winding up of the
Corporation, the holders of shares of Series B Preferred Stock shall be
entitled to receive, prior and in preference to any distribution of any
assets of the Corporation to the holders of Common Stock, the amount of
$10.00 per share for each share of Series B Preferred Stock then held by
them. Thereafter, the holders of shares of Series B Preferred Stock
shall be entitled to receive an aggregate amount per share, subject to
the provision for adjustment hereinafter set forth, equal to 1000 times
the aggregate amount to be distributed per share to holders of shares of
Common Stock plus an amount equal to any accrued and unpaid dividends.
In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment
of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount
to which holders of shares of Series B Preferred Stock were entitled
immediately prior to such event under the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which
is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
(B) If the assets of the Corporation legally available for
distribution to the holders of shares of Series B Preferred Stock upon
liquidation, dissolution or winding up of the Corporation are
insufficient to pay the full preferential amount set forth in the first
sentence of paragraph (A) above, then the entire assets of the
Corporation legally available for distribution to the holders of Series
B Preferred Stock shall be distributed among such holders in proportion
to the shares of Series B Preferred Stock then held by them.
(C) The foregoing rights upon liquidation, dissolution or
winding up provided to the holders of Series B Preferred Stock shall be
subject to the rights of the holders of any other series of Preferred
Stock (or any other stock) ranking prior and superior to the Series B
Preferred Stock upon liquidation, dissolution or winding up.
Section 7. Consolidation, Merger, etc. In case the Corporation
shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or other property, then
in any such case each share of Series B Preferred Stock shall at the
same time be similarly exchanged or changed into an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to
1000 times the aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged. In the event
the Corporation shall at any time declare
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or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the exchange
or change of shares of Series B Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series B Preferred Stock
shall not be redeemable.
ARTICLE V
To the fullest extent permitted by law, no director of the Company shall
be personally liable for monetary damages for breach of fiduciary duty as a
director. Without limiting the effect of the preceding sentence, if the Delaware
General Corporation Law is hereafter amended to authorize the further
elimination or limitation of the liability of a director, then the liability of
a director of the Company shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
Neither any amendment nor repeal of this Article V, nor the adoption of
any provision of this Certificate of Incorporation inconsistent with this
Article V, shall eliminate, reduce or otherwise adversely affect any limitation
on the personal liability of a director of the Company existing at the time of
such amendment, repeal or adoption of such an inconsistent provision.
ARTICLE VI
The Board of Directors of the Company shall have the power to adopt,
amend or repeal Bylaws of the Company.
ARTICLE VII
Election of directors need not be by written ballot, unless the Bylaws
of the Company shall so provide.
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