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Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GENVEC, INC.
The undersigned, Paul H. Fischer, President of GenVec, Inc., a
corporation organized and existing under the laws of the State of Delaware (the
"Corporation") does hereby certify as follows:
1. The name of the Corporation is GenVec, Inc.; the original
certificate of incorporation was filed on December 7, 1992 with the Secretary of
State of the State of Delaware.
2. This Amended and Restated Certificate of Incorporation, the entirety
of which is set forth below, has been duly adopted in accordance with Sections
242 and 245 of the Delaware General Corporation Law and by the stockholders at a
Special Meeting duly called pursuant to Section 222 of the Delaware General
Corporation Law and duly executed and acknowledged by the officers of the
Corporation in accordance with Section 103 of the Delaware General Corporation
Law.
3. The Certificate of Incorporation of the Corporation is hereby
amended and restated in its entirety as follows:
* * *
ARTICLE I
NAME
The name of the Corporation is GENVEC, INC. (the "Corporation").
ARTICLE II
ADDRESS OF REGISTERED OFFICE; NAME OF REGISTERED AGENT
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle,
Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.
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ARTICLE III
PURPOSE AND EXISTENCE
The Corporation may engage in any lawful act or activity for which
corporations may be organized under the Delaware General Corporation Law. The
duration of the Corporation's existence shall be perpetual.
ARTICLE IV
CAPITAL STOCK
Section 4.1. TOTAL NUMBER OF SHARES OF CAPITAL STOCK. The total number
of shares of stock of all classes that the Corporation shall have authority to
issue is 72,736,158 shares of which 60,000,000 shall be designated as Common
Stock, $.001 par value per share (the "Common Stock"), 226,099 shall be
designated as Class A Convertible Series Preferred Stock, par value $0.001 per
share ("Class A Series Preferred Stock"), 1,959,444 shall be designated as Class
B Convertible Series Preferred Stock, par value $0.001 per share ("Class B
Series Preferred Stock"), 3,570,332 shall be designated as Class C Convertible
Series Preferred Stock, par value $0.001 per share ("Class C Series Preferred
Stock"), 96,852 shall be designated as Class D Convertible Series Preferred
Stock, par value $0.001 per share ("Class D Series Preferred Stock"), 75,329
shall be designated as Class E Convertible Series Preferred Stock, par value
$0.001 per share ("Class E Series Preferred Stock"), 154,963 shall be designated
as Class E1 Convertible Series Preferred Stock, par value $0.001 per share
("Class E1 Series Preferred Stock"), 266,666 shall be designated as Class E2
Convertible Series Preferred Stock ("Class E2 Series Preferred Stock"), 386,473
shall be designated as Class E3 Convertible Series Preferred Stock, par value
$0.001 per share ("Class E3 Series Preferred Stock"), 1,000,000 shall be
designated as Class F Convertible Series Preferred Stock, par value $0.001 per
share ("Class F Series Preferred Stock") (the Class A Series Preferred Stock,
Class B Series Preferred Stock, Class C Series Preferred Stock, Class D Series
Preferred Stock, Class E Series Preferred Stock, Class E1 Series Preferred
Stock, Class E2 Series Preferred Stock, the Class E3 Series Preferred Stock and
Class F Series Preferred Stock, unless otherwise indicated, are referred to
collectively as the "Series Preferred Stock"), and 5,000,000 shares shall be
undesignated Preferred Stock, par value $.001 per share.
Upon the closing of a Qualifying Public Offering (as defined below) and
the concurrent Mandatory Conversion (as defined below) of the outstanding Series
Preferred Stock into Common Stock, such Series Preferred Stock shall
automatically be cancelled and retired and cease to exist.
Section 4.2. COMMON STOCK.
(a) Subject to the powers, rights and preferences of any other class of
stock provided by resolution or resolutions of the Board of Directors pursuant
to this Article IV or by the Delaware General Corporation Law, the holders of
the shares of the Common Stock shall be entitled to one vote for each share so
held with respect to all matters voted
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on by the stockholders of the Corporation. The holders of Common Stock shall not
be entitled to any cumulative voting rights with respect to the election of the
Directors of the Corporation.
(b) Subject to the powers, rights and preferences of any other class of
stock, the holders of the Common Stock shall have the right (i) to receive
dividends when, as and if properly declared by the Board of Directors in its
sole discretion and (ii) to receive ratably all the assets of the Corporation
remaining after providing for the payment of the creditors of the Corporation
upon the liquidation, dissolution or winding up of the Corporation.
Section 4.3. UNDESIGNATED PREFERRED STOCK.
(a) The shares of undesignated Preferred Stock of the Corporation may
be issued from time to time in one or more classes or series thereof, the shares
of each class or series thereof to have such voting powers, full or limited, or
no voting powers, and such designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, as are stated and expressed herein or in the resolution
or resolutions providing for the issue of such class or series, adopted by the
Board of Directors as hereinafter provided.
(b) Authority is hereby expressly granted to the Board of Directors of
the Corporation, subject to the provisions of this Article IV and to the
limitations prescribed by the Delaware General Corporation Law, to authorize the
issue of one or more classes, or series thereof, of undesignated Preferred Stock
and with respect to each such class or series to fix by resolution or
resolutions providing for the issue of such class or series the voting powers,
full or limited, if any, of the shares of such class or series and the
designations, preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions thereof. The authority
of the Board of Directors with respect to each class or series thereof shall
include, but not be limited to, the determination or fixing of the following:
(i) the designation of such class or series;
(ii) the number of shares to compose such class or series,
which number the Board of Directors may thereafter
(except where otherwise provided in a resolution
designating a particular class or series) increase
(but not above the total number of authorized shares
of the class or series) or decrease (but not below
the number of shares thereof then outstanding);
(iii) the dividend rate of such class or series, the
conditions and dates upon which such dividends shall
be payable, the relation which such dividends shall
bear to the dividends payable on any other class or
classes of stock or any other series of any class of
stock of
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the Corporation, and whether such dividends shall be
cumulative or noncumulative;
(iv) whether the shares of such class or series shall be
subject to redemption by the Corporation and, if made
subject to such redemption, the times, prices and
other terms and conditions of such redemption;
(v) the terms and amount of any sinking fund provided for
the purchase or redemption of the shares of such
class or series;
(vi) whether or not the shares of such class or series
shall be convertible into or exchangeable for shares
of any other class or classes of any stock or any
other series of any class of stock of the
Corporation, and, if provision is made for conversion
or exchange, the times, prices, rates, adjustments,
and other terms and conditions of such conversion or
exchange;
(vii) the extent, if any, to which the holders of shares of
such class or series shall be entitled to vote with
respect to the election of Directors or otherwise;
(viii) the restrictions, if any, on the issue or reissue of
any additional Series Preferred Stock;
(ix) the rights of the holders of the shares of such class
or series upon the dissolution of, or upon the
distribution of assets of, the Corporation; and
(x) the manner in which any facts ascertainable outside
the resolution or resolutions providing for the issue
of such class or series shall operate upon the voting
powers, designations, preferences, rights and
qualifications, limitations or restrictions of such
class or series.
Section 4.4. SERIES PREFERRED STOCK.
(a) DIVIDENDS. In the event that the Corporation declares or pays any
dividend on the Common Stock or makes, directly or indirectly, any other
distribution in respect to the Common Stock, the holders of Series Preferred
Stock shall be entitled to participate with the holders of Common Stock in any
such dividends paid or set aside for payment, such that the holders of Series
Preferred Stock shall receive, with respect to each share of Series Preferred
Stock, an amount equal to (a) the dividend payable with respect to each share of
Common Stock multiplied by (b) the number of shares (and fraction of a share, if
any) of Common Stock into which such share of Series Preferred Stock is
convertible as of the record date for such dividend.
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(b) VOTING RIGHTS.
(i) Except as otherwise provided herein or by law, the holders
of Series Preferred Stock shall have full voting rights and powers, they shall
be entitled to vote on all matters as to which holders of the Common Stock shall
be entitled to vote, they shall vote together with the holders of the Common
Stock as a single class, and they shall be entitled to one vote for each share
of Common Stock which would be held by them if all of their shares of Series
Preferred Stock would be converted into shares of Common Stock under Section (e)
of this Section.
(ii) Except as otherwise provided herein or by law, the vote
or consent of at least two-thirds of the outstanding shares of the Class C
Series Preferred Stock voting as a separate class shall be required for the
following actions:
(1) any change in the rights, preferences, or
privileges of the Class C Series Preferred Stock;
(2) any amendment, repeal or addition of any
provision of or to the Bylaws, if such action would adversely affect the
preferences, rights, privileges or powers of, or restrictions provided for the
benefit of, the Class C Series Preferred Stock;
(3) the authorization of any class of equity
securities ranking prior to or having preference over the Class C Series
Preferred Stock with respect to dividends, redemption or assets of the
Corporation;
(4) the reclassification of any shares of
Common Stock into shares of any class of equity securities ranking prior to or
having preference over the Class C Series Preferred Stock with respect to
dividends, redemption or assets of the Corporation;
(5) the merger or consolidation of the
Corporation into or with any other corporation, the sale of all or substantially
all of the Corporation's assets, or the liquidation of the assets of the
Corporation (collectively, a "Major Event"), PROVIDED, HOWEVER, that no such
vote or consent under this Section (b)(ii)(5) shall be required if (i) no
consideration from the Major Event is to be distributed to the stockholders of
the Corporation as a result of the Major Event, or (ii) the aggregate price to
be paid to the Corporation's stockholders as a result of the Major Event is
equal to or greater than an amount determined by multiplying (x) $8.85 per
share, as adjusted to reflect any change in the number of shares of the
Corporation's Common Stock as a result of a stock split, stock dividend,
distribution payable in shares of the Corporation's Common Stock or other
reclassification after June 2, 1998, by (y) the number of outstanding shares of
the Corporation's Common Stock (for purposes of this determination only, a
securityholder holding capital stock of the Corporation convertible into the
Corporation's Common Stock shall be treated as having converted all such
convertible stock into the Corporation's Common Stock at the applicable
conversion rate, pursuant to Section (e) of this Section in effect at the time
of this determination); and
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(6) the acquisition by the Corporation of any
corporation or other business entity if such a transaction involves (A) the
issuance of equity securities of the Corporation resulting in the new
securityholders having more than 25 percent of the voting power pursuant to
Sections 4.2(a) and (b)(i) of this Section or (B) the payment of cash
consideration equivalent to 25% of the product of (x) the sum of the number of
shares of Common Stock and Series Preferred Stock then outstanding and the
number of such shares underlying options and other rights to acquire such shares
(irrespective of whether such shares, options or other rights are conditional or
unvested) times (y) the then most recent price per share at which the
Corporation sold any shares of Series Preferred Stock in an offering that
yielded gross proceeds of not less than $5,000,000 to the Corporation.
(iii) Except as otherwise required by law, the vote or consent
of at least two-thirds of the outstanding shares of the Class F Series Preferred
Stock voting as a separate class shall be required for the following actions:
(1) amend, repeal, or add any provision of or to
the Certificate of Incorporation or Bylaws, if such action would adversely
affect the rights, privileges or powers of the Class F Preferred;
(2) authorize any class of equity securities
with preference or priority to dividends, redemption or assets superior to the
preference of the Class F Series Preferred Stock;
(3) reclassify any Common Stock into shares of any
class of equity securities having preference or priority to dividends,
redemption or assets superior to the preference of Class F Series Preferred
Stock; and
(4) consummate a Major Event; provided however that
no such vote or consent under this Section (b)(iii)(4) shall be required if (i)
the Major Event results in the holders of the Company's voting securities prior
to such Major Event continuing to own at least fifty percent (50%) of the voting
securities of the surviving or resulting entity in substantially the same
proportions, or (ii) if the consideration to be paid to the Corporation's
stockholders as a result of the Major Event is equal to or greater than $10.00
per share (on an as-converted basis and adjusted for any stock split, stock
dividend, distribution payable in shares of the Company's Common stock or other
reclassification).
(c) RIGHTS OF LIQUIDATION.
(i) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation (any such event being hereinafter
referred to as a "Liquidation"), before any distribution of assets of the
Corporation shall be made to or set apart for the holders of the Common Stock,
the holders of the Series Preferred Stock shall be entitled to receive payment
out of such assets of the Corporation in an amount per share equal to $2.95 per
share for each share of Class A Series Preferred Stock held by such holder,
$5.90 per share for each share of Class B Series Preferred Stock or Class
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C Series Preferred Stock held by such holder, $10.325 per share for each share
of Class D Series Preferred Stock held by such holder, $13.275 per share for
each share of Class E Series Preferred Stock held by such holder, $12.90625 per
share for each share of Class E1 Series Preferred Stock held by such holder,
$11.25 per share for each share of Class E2 Series Preferred Stock held by such
holder, $12.9375 per share for each share of Class E3 Preferred held by such
holder and $7.00 per share for each share of Class F Series Preferred Stock held
by such holder (such amounts being referred to herein as "Liquidation
Preference") plus any declared but unpaid dividends on such shares of Series
Preferred Stock. If the assets of the Corporation available for distribution to
the holders of the Series Preferred Stock shall not be sufficient to make in
full the payments required by this Section (c)(i), such assets shall be
distributed ratably among the holders of the Series Preferred Stock based upon
the aggregate Liquidation Preferences of the shares of Series Preferred Stock
held by each such holder.
(ii) If the assets of the Corporation available for
distribution to stockholders exceed the aggregate amounts payable pursuant to
Section (c)(i) of this Section above, the remainder of such assets shall be
distributed to the holders of Series Preferred Stock and Common Stock on a pro
rata basis, with the amount distributable to the holders of Series Preferred
Stock to be computed on the basis of the number of shares of Common Stock which
would be held by them if immediately prior to the Liquidation all of the
outstanding shares of such Series Preferred Stock had been converted into shares
of Common Stock under Section (e)(i) of this Section.
(iii) A merger or consolidation involving the Corporation in
which the Corporation is not the surviving entity and a sale, lease or transfer
of all or substantially all of the assets of the Corporation shall, at the
option of holders representing a majority of the Series Preferred Stock voting
as a single class, be deemed a Liquidation, unless in connection with such
transaction, each holder of Series Preferred Stock receives a Series Preferred
Stock having terms and conditions which are no less favorable than the terms and
conditions of the Series Preferred Stock held by such holder prior to the
transaction.
(iv) Notwithstanding the provisions contained in Section
(c)(iii) of this Section above, in the event of a merger or consolidation
involving the Corporation in which the Corporation is not the surviving entity,
or a sale, lease or transfer of all or substantially all of the assets of the
Corporation, in which a holder of Series Preferred Stock would receive cash
and/or marketable securities (I.E., securities registered under the Securities
Act of 1933, as amended, at the time of delivery, or securities committed to be
so registered within 60 days after delivery) in an amount less than the
aggregate Liquidation Preference of the shares of Series Preferred Stock held by
such holder, then holders of a majority of the Series Preferred Stock then
outstanding, voting as a single class, may elect, in lieu of all other rights
under the terms of the transaction or this Section, to receive an amount equal
to their aggregate Liquidation Preference for such shares of Series Preferred
Stock. If the holders make such an election, each such holder shall have a
priority on such holder's pro rata portion of all cash and marketable securities
received in such transaction to the extent of the aggregate Liquidation
Preference for such holder's shares of Series Preferred Stock. Such election
shall be
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made by the holders by written notice to the Corporation within 30 days after
the date of stockholder approval of the transaction (or within 30 days after
receiving notice of such transaction from the Corporation if the transaction is
not submitted for stockholder approval).
(v) In the event that the Corporation shall, at any time after
June 2, 1998, issue any shares of Series Preferred Stock (A) by stock dividend
or any other distribution upon any stock of the Corporation payable in shares of
Series Preferred Stock, or (B) by a subdivision of its shares of outstanding
Series Preferred Stock, by reclassification or otherwise, the Liquidation
Preference then in effect shall be reduced proportionately, and, in like manner,
in the event of any combination of shares of Series Preferred Stock, by
reclassification or otherwise, the Liquidation Preference then in effect shall
be proportionately increased; provided, however, that the Liquidation Preference
shall not be adjusted as a result of the Reverse Split.
(d) ACTIONS REQUIRING THE CONSENT OF THE HOLDERS OF THE SERIES
PREFERRED STOCK. As long as any shares of Series Preferred Stock remain
outstanding, the consent of the holders of at least a majority of the votes
which holders of Series Preferred Stock are entitled to cast, given in person or
by proxy, either in writing without a meeting or by vote at a meeting called for
such purpose, shall be necessary for effecting or validating any amendment,
alteration or repeal of any of the provisions of the Certificate of
Incorporation or the Bylaws of the Corporation which (i) increases the number of
authorized shares of any class of capital stock, (ii) adversely affects the
rights, preferences or powers of any class of Series Preferred Stock or of the
holders thereof or (iii) decreases the required time for the giving of any
notice to which the holders of Series Preferred Stock may be entitled pursuant
to the Certificate of Incorporation.
(e) CONVERSION.
(i) RIGHT TO CONVERT. A holder of record of any share or
shares of Class A Series Preferred Stock shall have the right at any time, at
such holder's option, to convert, without the payment of any additional
consideration, each share of Class A Series Preferred Stock held by such
holder into that number of fully paid and nonassessable shares of Common
Stock as is determined by dividing (y) .50 by (z) the Conversion Factor (as
defined in Section (e)(iv) of this Section below) then in effect for the
Class A Series Preferred Stock. A holder of record of any share or shares of
Class B Series Preferred Stock, Class C Series Preferred Stock, Class D
Series Preferred Stock, Class E Series Preferred Stock, Class E1 Series
Preferred Stock, Class E2 Series Preferred Stock, Class E3 Series Preferred
Stock or Class F Series Preferred Stock shall have the right at any time, at
such holder's option, to convert, without the payment of any additional
consideration, each share of Class B Series Preferred Stock, Class C Series
Preferred Stock, Class D Series Preferred Stock, Class E Series Preferred
Stock, Class E1 Series Preferred Stock, Class E2 Series Preferred Stock,
Class E3 Series Preferred Stock or Class F Series Preferred Stock held by
such holder into that number of fully paid and nonassessable shares of Common
Stock as is determined by dividing (i) 1.00 by (ii) the Conversion Factor (as
defined in Section (e)(iv) of this Section below) then in effect for the
Class B Series Preferred Stock, Class C Series Preferred Stock, Class D
Series
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Preferred Stock, Class E Series Preferred Stock, Class E1 Series Preferred
Stock, Class E2 Series Preferred Stock, Class E3 Series Preferred Stock or
Class F Series Preferred Stock, as applicable. Notwithstanding the foregoing,
the provisions of (e)(iv)(1) of this Section shall not apply to the
Conversion Factor for Class D Series Preferred Stock, Class E Series
Preferred Stock, Class E1 Series Preferred Stock, Class E2 Series Preferred
Stock or Class E3 Series Preferred Stock. No fractional shares or scrip
representing fractional shares shall be issued upon the conversion of any
Series Preferred Stock. With respect to any fraction of a share of Common
Stock called for upon any conversion after completion of the calculation of
the aggregate number of shares of Common Stock to be issued to such holder,
the Corporation shall pay to such holder an amount in cash equal to any
fractional share to which such holder would be entitled, multiplied by the
current market value of a share, as determined in good faith by the Board of
Directors of the Corporation.
(ii) MECHANICS OF CONVERSION. If the holder of shares of
Series Preferred Stock desires to exercise such right of conversion, such holder
must give written notice to the Corporation (the "Conversion Notice") of the
election by such holder to convert a stated number of shares of Series Preferred
Stock (the "Conversion Shares") into shares of Common Stock on the date
specified in the Conversion Notice (which date shall not be earlier than the
date on which the Corporation receives the Conversion Notice (the "Conversion
Date"), and by surrender of the certificate or certificates representing such
Conversion Shares. The Conversion Notice shall also contain a statement of the
name or names (with addresses) in which the certificate or certificates for
Common Stock shall be issued. Promptly after the Conversion Date and the
surrender of the Conversion Shares, the Corporation shall issue and deliver, or
cause to be delivered, to the holder of the Conversion Shares or such holder's
nominee or nominees, a certificate or certificates for the number of shares of
Common Stock issuable upon the conversion of such Conversion Shares. Such
conversion shall be deemed to have been effected as of the close of business on
the Conversion Date, and the person or persons entitled to receive the shares of
Common Stock issuable upon conversion shall be treated for all purposes as the
holder or holders of record of such shares of Common Stock as of the close of
business on such date.
(iii) COMMON STOCK RESERVED. The Corporation shall at all
times reserve and keep available out of its authorized but unissued Common
Stock, solely for issuance upon the conversion of shares of Series Preferred
Stock as herein provided, such number of shares of Common Stock as shall from
time to time be issuable upon the conversion of all of the shares of Series
Preferred Stock at the time outstanding.
(iv) CONVERSION FACTOR. The initial conversion factor for the
Class A Series Preferred Stock shall be .50, the initial conversion factor for
the Class B Series Preferred Stock, the Class C Series Preferred Stock, the
Class D Series Preferred Stock, the Class E Series Preferred Stock, the Class E1
Series Preferred Stock, the Class E2 Series Preferred Stock, the Class E3 Series
Preferred Stock and the Class F Series Preferred Stock shall be 1.00, subject to
adjustment, in each case, in accordance with the provisions in this Section
(e)(iv), except that the provisions of (e)(iv)(1) shall not apply to
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the Conversion Factor for Class D Series Preferred Stock, Class E Series
Preferred Stock, Class E1 Series Preferred Stock, Class E2 Series Preferred
Stock or Class E3 Series Preferred Stock. Such respective conversion factors in
effect from time to time, as adjusted pursuant to the applicable provisions of
this Section (e)(iv), are referred to herein as the "Conversion Factor" for the
Class A Series Preferred Stock, the Class B Series Preferred Stock, the Class C
Series Preferred Stock, the Class D Series Preferred Stock, the Class E Series
Preferred Stock, the Class E1 Series Preferred Stock, Class E2 Series Preferred
Stock, the Class E3 Series Preferred Stock or the Class F Series Preferred
Stock, as applicable. All of the remaining provisions of this Section (e)(iv)
shall apply separately to the respective Conversion Factors in effect from time
to time; PROVIDED, HOWEVER, that the provisions of (e)(iv)(1) shall not apply to
the Conversion Factor for Class D Series Preferred Stock, Class E Series
Preferred Stock, Class E1 Series Preferred Stock, Class E2 Series Preferred
Stock or Class E3 Series Preferred Stock.
(1) In the event that the Corporation shall, at
any time or from time to time, issue or sell any shares of the capital stock of
the Corporation (including treasury shares, but excluding (v) 226,099 shares of
Class A Series Preferred Stock, 3,570,332 shares of Class C Series Preferred
Stock, 96,852 shares of Class D Series Preferred Stock and 75,329 shares of
Class E Series Preferred Stock, (w) an aggregate of 3,588,066 shares of Common
Stock (plus any additional shares reserved under the 1993 Stock Incentive Plan,
as amended, pursuant to its terms) and an aggregate of 1,959,444 shares of Class
B Series Preferred Stock that have been issued, have been reserved for issuance
or will be issued pursuant to options, warrants or other commitments which have
been granted or executed as of November 13, 1998 or will be granted or executed
pursuant to the Corporation's 1993 Stock Incentive Plan, as amended, (x) any
shares of the capital stock of the Corporation issued pursuant to the Stock
Purchase Agreement, dated July 21, 1997, between the Corporation and
Warner-Lambert Company, as the same may be amended from time to time (including
without limitation 154,963 shares of Class E1 Series Preferred Stock, 266,666
shares of Class E2 Series Preferred Stock and 386,473 shares of Class E3 Series
Preferred Stock), (y) any shares of the capital stock of the Corporation issued
in connection with equipment financing, sponsored research (including, but not
limited to, those shares issuable upon exercise of a warrant being granted to
Cornell University in conjunction with its agreement with the Corporation),
collaboration, technology licensing, development agreements or any other
strategic partnerships approved by the Board of Directors, (z) the shares of
Common Stock issuable upon conversion of the Series Preferred Stock and (aa) any
shares of Class F Series Preferred Stock and warrants for Common Stock of the
Corporation issued pursuant to the Class F Convertible Series Preferred Stock
and Warrant Purchase Agreement, dated November 19, 1998, between the
Corporation, Highland Capital Partners IV Limited Partnership and Highland
Entrepreneurs' Fund IV Limited Partnership and any shares of Common Stock
issuable upon exercise of such warrants), then, immediately upon such issuance
or sale, the Conversion Factor shall be reduced as follows:
(A) The Conversion Factor shall be
changed to a number determined by multiplying the Conversion Factor in effect
immediately prior to such issuance by the following fraction:
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A + B
---
C
-----------------------
A + D
wherein:
A =the number of Outstanding Shares (as defined below) immediately
prior to the subject issuance;
B =the aggregate consideration in dollars for the shares then being
issued, expressed as an absolute number;
C =the Conversion Factor in effect immediately prior to the subject
issuance with respect to the applicable class of Series Preferred Stock; and
D =the number of shares then being issued.
The applicable Conversion Factor shall be further reduced from time to
time thereafter whenever any shares are so issued or converted for a price per
share lower than the amount of the applicable Conversion Factor, then in effect,
as adjusted prior to that date.
(B) In the event that any shares shall be
issued or sold for cash, the consideration received therefor shall be deemed to
be the amount received by the Corporation therefor, without deduction of any
expenses incurred or any underwriting commissions or concessions paid or allowed
by the Corporation in connection therewith. In the event that any shares shall
be issued for a consideration other than cash, the amount of the consideration
other than cash received by the Corporation shall be deemed to be the fair value
of such consideration, without deduction of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the Corporation in
connection therewith. Whenever shares are issued upon the exercise of warrants,
options or other conversion rights, the consideration received therefor shall
include both the consideration paid upon the issuance and upon the exercise of
such warrant, option or other right.
(C) In the event that the Corporation shall
in any manner grant (whether directly or by assumption in a merger or otherwise)
any rights to subscribe for or to purchase any Common Stock or securities
convertible into Common Stock ("Convertible Securities"), or any options for the
purchase of any Common Stock or Convertible Securities, whether or not such
rights or options or the right to convert or exchange any such Convertible
Securities are immediately exercisable, and the price per share for which shares
of Common Stock issuable upon the exercise of such rights or options or upon
conversion or exchange of such Convertible Securities (determined by dividing
(I) the total amount, if any, received or receivable by the Corporation as
consideration for the granting of such rights or options, plus the minimum
aggregate amount of additional consideration, if any, payable to the Corporation
upon the exercise of such rights or options, or plus, in the case of any
Convertible Securities or rights or
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options to purchase Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable upon the issue or sale of such
Convertible Securities and upon the conversion or exchange thereof, by (II) the
total maximum number of shares of Common Stock issuable upon the exercise of
such rights or options or upon the conversion or exchange of all such
Convertible Securities issuable upon the exercise of such rights or options)
shall be less than the Conversion Factor in effect immediately prior to the time
of the granting of such rights or options, then the total maximum number of
shares of Common Stock issuable upon the exercise of such rights or options or
upon conversion or exchange of all such Convertible Securities issuable or
issuable upon the exercise of such rights or options shall be deemed to be
outstanding as of the date of the granting of such rights or options and to have
been issued for such price per share, with the effect on the applicable
Conversion Factor specified in Section (e)(iv)(1) of this Section. No further
adjustment of the applicable Conversion Factor shall be made upon the actual
issue of such Common Stock or upon the actual issue of such Convertible
Securities upon exercise of such rights or options or upon the actual issue of
such Common Stock upon conversion or exchange of such Convertible Securities.
(D) If the purchase price provided for in
any right or option referred to in Section (e)(iv)(1)(C) of this Section, or the
additional consideration, if any, payable upon the conversion or exchange of any
Convertible Securities, or the rate at which any Convertible Securities are
convertible into or exchangeable for Common Stock shall change (other than under
or by reason of provisions designed to protect against dilution), the Conversion
Factor then in effect hereunder shall forthwith be readjusted (increased or
decreased, as the case may be) to the Conversion Factor which would have been in
effect at such time had such rights, options or Convertible Securities still
outstanding provided for such changed purchase price, additional consideration
or conversion rate, as the case may be, at the time initially granted, issued or
sold.
(E) Notwithstanding the foregoing, upon
the consent of the holders of two-thirds of the applicable class of Series
Preferred Stock affected and then outstanding, if the Conversion Factor for the
applicable class of Series Preferred Stock, as set forth in this Section
(e)(iv)(1) otherwise would be reduced, no such reduction in the Conversion
Factor for the applicable class of Series Preferred Stock, as set forth in this
Section (e)(iv)(1), shall occur.
(F) Notwithstanding the foregoing, if
any holder of shares of Series Preferred Stock is entitled to exercise the
preemptive rights (the "Preemptive Right") set forth in Section 3 of the
Preemptive and Other Rights Agreement dated April 22, 1998, and amended and
restated as of November 1998 (the "Preemptive Rights Agreement"), which would,
absent the provisions of this subsection (F), result in a reduction of the
Conversion Factor applicable to shares of such holder's Series Preferred Stock
pursuant to Section (e)(iv)(1) of this Section, and if such holder (a
"Non-Participating Holder") does not, by exercise of such holder's Preemptive
Right, acquire not less than such holder's "Proportionate Percentage" (as
defined in Section 3.1 of the Preemptive Rights Agreement) of the Issuance, then
all of such holder's shares of Class A Series Preferred Stock, Class B Series
Preferred Stock, Class C Series Preferred Stock and Class F Series Preferred
Stock shall automatically, and without further action on the
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part of such holder, be converted effective upon, subject to and concurrently
with consummation of the Issuance (the "Issuance Date") as follows: each share
of Class A Series Preferred Stock held by such Non-Participating Holder shall be
converted into one share of a newly created series of Series Preferred Stock
(having such number of shares as the Board of Directors may by resolution fix)
which such class shall be identical in all respects to the Class A Series
Preferred Stock, except that the Conversion Factor of such class shall be fixed
immediately prior to the Issuance Date and shall be subject to no further
adjustments pursuant to Section (e)(iv)(1) of this Section; each share of Class
B Series Preferred Stock held by such Non-Participating Holder shall be
converted into one share of a newly created class of Series Preferred Stock
(having such number of shares as the Board of Directors may by resolution fix)
which such class shall be identical in all respects to the Class B Series
Preferred Stock, except that the Conversion Factor of such class shall be fixed
immediately prior to the Issuance Date and shall be subject to no further
adjustments pursuant to Section (e)(iv)(1) of this Section; each share of Class
C Series Preferred Stock held by such Non-Participating Holder shall be
converted into one share of a newly created class of Series Preferred Stock
(having such number of shares as the Board of Directors may by resolution fix)
which such class shall be identical in all respects to the Class C Series
Preferred Stock, except that the Conversion Factor of such class shall be fixed
immediately prior to the Issuance Date and shall be subject to no further
adjustments pursuant to Section (e)(iv)(1) of this Section; and each share of
Class F Series Preferred Stock held by such Non-Participating Holder shall be
converted into one share of a newly created class of Series Preferred Stock
(having such number of shares as the Board of Directors may by resolution fix)
which such class shall be identical in all respects to the Class F Series
Preferred Stock, except that the Conversion Factor of such class shall be fixed
immediately prior to the Issuance Date and shall be subject to no further
adjustments pursuant to Section (e)(iv)(1) of this Section. The Board of
Directors of the Corporation shall take all necessary actions to designate each
such new class. Upon such conversion, the shares of Class A Series Preferred
Stock, Class B Series Preferred Stock, Class C Series Preferred Stock and Class
F Series Preferred Stock so converted shall be canceled and not subject to
reissuance, but instead shall be redesignated by the Board of Directors of the
Corporation in accordance with the terms of this Section (e)(iv)(1)(F).
(2) Each adjustment in a Conversion Factor shall
be calculated to the nearest tenth of a cent.
(3) As used in this Section (e)(iv), the term
"Outstanding Shares" shall be deemed to include the number of issued and
outstanding shares of Common Stock, plus the number of shares of Common Stock
issuable upon the conversion of the issued and outstanding shares of Series
Preferred Stock, but shall not include the new shares of Common Stock then being
issued by the Corporation.
(4) In the event that the Corporation shall, at any
time after June 2, 1998, issue any shares of Common Stock (A) by stock dividend
or any other distribution upon any stock of the Corporation payable in shares of
Common Stock or in shares of Series Preferred Stock, or (B) by subdivision of
its shares of outstanding Common Stock, by reclassification or otherwise, the
Conversion Factor then in effect
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shall be reduced proportionately, and, in like manner, in the event of any
combination of shares of Common Stock, by reclassification or otherwise, the
Conversion Factor then in effect shall be proportionately increased; provided,
however, that the Conversion Factor shall not be adjusted as a result of the
Reverse Split. The term "Reverse Split" refers to the 5.9 for one reverse stock
split that occurred on June 2, 1998.
(5) If any capital reorganization or
reclassification of the Common Stock of the Corporation, or consolidation or
merger of the Corporation with or into another corporation, or the sale or
conveyance of all or substantially all of its assets to another corporation
shall be effected, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provision
shall be made whereby the holders of the Series Preferred Stock shall thereafter
have the right to receive, in lieu of the shares of Common Stock of the
Corporation immediately theretofore receivable with respect to such shares of
Series Preferred Stock upon the exercise of their conversion rights, such shares
of stock, securities or assets as would have been issued or payable with respect
to or in exchange for the number of outstanding shares of such Common Stock
immediately theretofore receivable with respect to such shares of Series
Preferred Stock upon the exercise of such rights had such reorganization,
reclassification, consolidation, merger or sale not taken place. In any such
case, appropriate provision shall be made with respect to the rights and
interests of the holders of the Series Preferred Stock to the end that such
conversion rights (including, without limitation, provisions for adjustment of
the applicable Conversion Factor) shall thereafter be applicable, as nearly as
may be practicable in relation to any shares of stock, securities or assets
thereafter deliverable upon the exercise thereof. The Corporation shall not
effect any such consolidation, merger or sale, unless it provides the holders of
the Series Preferred Stock at least 30 days advance notice thereof, and prior to
or simultaneously with the consummation thereof the successor corporation (if
other than the Corporation) resulting from such consolidation or merger or the
corporation purchasing such assets, shall assume by written instrument, executed
and mailed or delivered to the holders of the Series Preferred Stock, the
obligation to deliver to such holders the shares of stock, securities or assets
as, in accordance with the foregoing provisions, such holders may be entitled to
receive upon conversion of the shares of Series Preferred Stock held by such
holder.
(6) If any event occurs as to which the other
provisions of this Section (e)(iv) are not strictly applicable, or if strictly
applicable would not fairly protect the conversion rights of the Series
Preferred Stock in accordance with the intent and principles of such provisions,
then the Board of Directors shall make an adjustment in the application of such
provisions, in accordance with such intent and principles, so as to protect such
conversion rights as aforesaid, but in no event shall any such adjustment have
the effect of increasing the applicable Conversion Factor as otherwise
determined pursuant to this Section (e)(iv).
(v) STOCK TRANSFER TAXES. The issuance of stock certificates
upon the conversion of the Series Preferred Stock shall be made without charge
to the converting holder for any tax in respect of such issuance. The
Corporation shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the
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issuance and delivery of shares in any name other than that of the holder of
such shares of Series Preferred Stock converted, and the Corporation shall not
be required to issue or deliver any such stock certificate unless and until the
person or persons requesting the issuance thereof shall have paid to the
Corporation the amount of such tax or shall have established to the satisfaction
of the Corporation that such tax has been paid.
(vi) CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of
each adjustment or readjustment of the Conversion Factor, the Corporation, at
its expense, promptly shall compute such adjustment or readjustment in
accordance with the terms hereof and prepare and furnish to each holder of
Series 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 the written request at any
time of any holder of Series Preferred Stock, furnish or cause to be furnished
to such holder a like certificate setting forth (a) such adjustments and
readjustments, (b) the Conversion Factor at the time in effect for the Series
Preferred Stock, and (c) 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 Series Preferred Stock owned by such holder.
(vii) NOTICES OF RECORD DATE. In the event of any fixing by
the Corporation of a record date for the holders of any class of securities for
the purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any shares of
Common Stock or other securities, or any right to subscribe for, purchase or
otherwise acquire, or any option for the purchase of, any shares of stock of any
class or any other securities or property, or to receive any other right, the
Corporation shall mail to each holder of Series Preferred Stock at least 30 days
prior to the date specified therein, a notice specifying the date on which any
such record is to be taken for the purpose of such dividend, distribution or
right, and the amount and character of such dividend, distribution or right.
(viii) NOTICES. Any notice required by the provisions of this
Section (e) to be given to the holders of shares of Series Preferred Stock shall
be deemed given if deposited in the United States mail, first class postage
prepaid, and addressed to each holder of record at such holder's address
appearing on the books of the Corporation.
(f) MANDATORY CONVERSION.
(i) The Corporation shall cause the conversion ("Mandatory
Conversion") of all of the shares of Series Preferred Stock into fully paid and
nonassessable shares of Common Stock, at the conversion rate then in effect,
upon the occurrence of the Corporation's underwritten public offering of its
Common Stock pursuant to a registration statement (other than a registration
statement relating to an offer and sale of securities to employees of, or other
persons providing services to, the Corporation pursuant to an employee or
similar benefit plan, registered on Form S-8 or a comparable or successor form)
filed under the Securities Act of 1933, as amended, which yields to the
Corporation not less than $15,000,000 with a per share price of at least $8.85,
as adjusted for stock splits, stock dividends, and the like, before deducting
any
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underwriters' or brokers' discounts, fees or commissions (a "Qualifying Public
Offering").
(ii) The Mandatory Conversion shall occur upon the closing of
a Qualifying Public Offering.
(iii) Upon Mandatory Conversion, all rights of the holders of
shares of the Series Preferred Stock as such holders shall cease except their
right to receive payment of any dividends declared and unpaid to such time; such
shares shall no longer be deemed to be outstanding; and the holders thereof
shall on and after such date be conclusively deemed for all purposes to be
holders of the shares of Common Stock into which their shares of Series
Preferred Stock were converted.
(iv) The Corporation shall promptly give all holders of record
of shares of Series Preferred Stock written notice of the date that a Qualifying
Public Offering will occur or is anticipated to occur. Such notice shall also
specify the place designated for exchanging the shares of Series Preferred Stock
for shares of Common Stock. Such notice shall be sent by first class mail,
postage prepaid, to each holder of record of shares of Series Preferred Stock at
such holder's address as shown in the records of the Corporation. Each holder of
shares of Series Preferred Stock shall surrender its certificate or certificates
for all such shares to the Corporation or the transfer agent at the place
designated in such notice and shall, upon surrender, receive certificates for
the number of shares of Common Stock to which such holder is entitled.
(v) For the purpose of calculating the conversion ratio of
Series Preferred Stock into Common Stock in the event of a Mandatory Conversion,
such calculation shall be made in accordance with paragraph (e) of this Section.
ARTICLE V
STOCKHOLDER ACTIONS
Section 5.1. WRITTEN CONSENT.
(a) Subject to the provisions of Section 5.1(b), whenever holders of
the Series Preferred Stock or Common Stock, separately or as a single class, are
required or permitted to take action, such action may be taken without a
meeting, without prior written notice and without a vote, if a consent or
consents in writing, setting forth the actions so taken, shall be 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.
(b) Effective upon the closing of a Qualifying Public Offering, and
except as may be provided in a resolution or resolutions providing for any class
or series of undesignated Preferred Stock pursuant to Article IV hereof, no
action that is required or permitted to be taken by the stockholders may be
effected by written consent in lieu of a meeting of stockholders.
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<PAGE>
Section 5.2. STOCKHOLDER MEETINGS. Meetings of stockholders may be held
within or without the State of Delaware, as the Bylaws may provide.
Section 5.3. SPECIAL STOCKHOLDER MEETINGS. Special Meetings of
stockholders of the Corporation may be called only by the President of the
Corporation or by the Board of Directors pursuant to a resolution adopted by a
majority of the members of the Board of Directors then in office.
Section 5.4. FORM OF BALLOT. Elections of Directors need not be by
written ballot unless the Bylaws of the Corporation so provide.
ARTICLE VI
BOARD OF DIRECTORS
Section 6.1. MANAGEMENT OF THE CORPORATION. The business and affairs of
the Corporation shall be managed by or under the direction of the Board of
Directors.
Section 6.2. MEETINGS OF THE BOARD. Meetings of the Board of Directors
may be held within or without the State of Delaware, as the Bylaws may provide.
Section 6.3. NUMBER OF DIRECTORS. The number of Directors constituting
the Board of Directors shall be as specified in or determined pursuant to the
Bylaws of the Corporation.
Section 6.4. ELECTION AND TERM OF OFFICE OF DIRECTORS.
Directors shall be elected at each annual meeting of stockholders to
hold office until the next annual meeting. Each director, including a director
elected or appointed to fill a vacancy, shall hold office until the expiration
of the term for which elected and until a successor has been elected and
qualified.
Notwithstanding the foregoing, effective upon the closing of a firm
commitment underwritten public offering of Common Stock of the Corporation, the
Board of Directors shall be divided into three classes, with each class to be as
nearly equal in number as reasonably possible, and with the initial term of
office of the first class of Directors to expire at the first annual meeting of
stockholders following the closing of such firm commitment underwritten public
offering, the initial term of office of the second class of Directors to expire
at the second annual meeting following such date and the initial term of office
of the third class of Directors to expire at the third annual meeting following
such date. At such annual meetings of stockholders and all subsequent annual
meetings of stockholders, Directors elected to succeed those Directors whose
terms have thereupon expired shall be elected for a term of office to expire at
the third succeeding annual meeting of stockholders after their election, and
upon the election and qualification of their successors. If the number of
Directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain or attain, if possible, the number of Directors in
each class as nearly equal as reasonably possible, but in no
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case will a decrease in the number of Directors shorten the term of any
incumbent Director.
Section 6.5. VACANCIES. Any vacancies in the Board of Directors for any
reason and any newly created directorships resulting by reason of any increase
in the number of Directors may be filled only by the Board of Directors, acting
by a majority of the remaining Directors then in office, although less than a
quorum, or by a sole remaining Director, and any Directors so appointed shall
hold office until the next election of the class for which such Directors have
been chosen and until their successors are elected and qualified.
Section 6.6. REMOVAL. Except as may be provided in a resolution or
resolutions providing for any class or series of Series Preferred Stock pursuant
to Article IV hereof with respect to any Directors elected by the holders of
such class or series, any Director, or the entire Board of Directors, may be
removed from office at any time, but only for cause by the affirmative vote of
the holders of at least 80% of the voting power of all of the shares of capital
stock of the Corporation then entitled to vote generally in the election of
Directors, voting together as a single class.
ARTICLE VII
INDEMNIFICATION
Section 7.1. RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact:
(a) that he or she is or was a director or officer of the Corporation,
or
(b) that he or she, being at the time a director or officer of the
Corporation, is or was serving at the request of the Corporation as a director,
trustee, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (collectively, "another enterprise" or "other
enterprise"), whether either in case (a) or in case (b) the basis of such
proceeding is alleged action or inaction (x) in an official capacity as a
director or officer of the Corporation, or as a director, trustee, officer,
employee or agent of such other enterprise, or (y) in any other capacity related
to the Corporation or such other enterprise while so serving as a director,
trustee, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent not prohibited by Section 145 of the
Delaware General Corporation Law (or any successor provision or provisions) as
the same exists or may hereafter be amended (but, in the case of any such
amendment, with respect to actions taken prior to such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than permitted prior thereto), against all expense,
liability and loss (including, without limitation, attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid in settlement) incurred
or suffered by such person in connection therewith.
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The persons indemnified by this Article VII are hereinafter referred to as
"indemnitees." Such indemnification as to such alleged action or inaction shall
continue as to an indemnitee who has after such alleged action or inaction
ceased to be a director or officer of the Corporation, or director, officer,
employee or agent of another enterprise; and shall inure to the benefit of the
indemnitee's heirs, executors, administrators, and personal or legal
representatives, provided, however, that except for proceedings to enforce
rights to indemnification, the Corporation shall not be obligated to indemnify
any director of officer (or his or her heirs, executors, administrators, or
personal or legal representatives) in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of Directors. The right to
indemnification conferred in this Article VII: (i) shall be a contract right;
(ii) shall not be affected adversely as to any indemnitee by any amendment of
this Certificate with respect to any action or inaction occurring prior to such
amendment; and (iii) shall, subject to any requirements imposed by law, this
Article VII, or the Bylaws, include the right to have paid by the Corporation
the expenses incurred in defending any such proceeding in advance of its final
disposition.
Section 7.2. AGENTS AND EMPLOYEES. The Corporation may, to the extent
authorized from time to time by the Board of Directors, grant rights to
indemnification, and to the advancement of expenses, to any employee or agent of
the Corporation (or any person serving at the Corporation's request as a
director, trustee, officer, employee or agent of another enterprise) or to
persons who are or were a director, officer, employee or agent of any of the
Corporation's affiliates, predecessor or subsidiary corporations or of a
constituent corporation absorbed by the Corporation in a consolidation or merger
or who is or was serving at the request of such affiliate, predecessor or
subsidiary corporation or of such constituent corporation as a director,
officer, employee or agent of another enterprise, in each case as determined by
the Board of Directors to the fullest extent of the provisions of this Article
VII in cases of the indemnification and advancement of expenses of directors and
officers of the Corporation, or to any lesser extent (or greater extent, if
permitted by law) determined by the Board of Directors.
Section 7.3. PARTIAL INDEMNIFICATION. If the indemnitee is entitled
under any provision of this Article VII to indemnification by the Corporation
for some or a portion of the expenses, liabilities, losses, judgments, fines,
penalties or ERISA excise taxes actually and reasonably incurred by him or her
in the investigation, defense, appeal or settlement of any proceeding but not,
however, for the total amount thereof, the Corporation shall nevertheless
indemnify the indemnitee for the portion of such expenses, liabilities, losses,
judgments, fines, penalties or ERISA excise taxes to which the indemnitee is
entitled.
Section 7.4. REPEAL OR MODIFICATION BY STOCKHOLDERS. Any repeal or
modification of this Article VII by the stockholders of the Corporation shall
not adversely affect any rights to indemnification and to the advancement of
expenses or other protection of a director, officer, employee or agent of the
Corporation existing at the time of such repeal or modification with respect to
any acts or omissions occurring prior to such repeal or modification.
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<PAGE>
Section 7.5. REPEAL OR MODIFICATION OF LAW. Any repeal or modification
of the laws of the State of Delaware, as now or hereafter in effect, shall not
adversely affect any rights to indemnification and to the advancement of
expenses or other protection of a director, officer, employee or agent of the
Corporation existing at the time of such repeal or modification with respect to
any acts or omissions occurring prior to such repeal or modification.
Section 7.6. INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, trustee, officer, employee or agent
of the Corporation or another enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware General Corporation
Law.
Section 7.7. BINDING EFFECT; SUCCESSORS AND ASSIGNS. The
indemnification and advance of expenses provided by or granted pursuant to this
Article VII shall continue as to a person who has ceased to be a Director or
officer, and shall inure to the benefit of the heirs, executors and
administrators of such Director or officer.
Section 7.8. SEVERABILITY. In the event that any of the provisions of
this Article VII (including any provision within a single section, paragraph or
sentence) is held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, the remaining provisions are severable and shall remain
enforceable to the full extent permitted by law.
Section 7.9. RELATIONSHIP TO OTHER RIGHTS AND PROVISIONS CONCERNING
INDEMNIFICATION. The rights to indemnification and to the advancement of
expenses conferred in this Article VII shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, this Amended
and Restated Certificate of Incorporation, By-laws, agreement, vote of
stockholders or disinterested directors or otherwise. The By-laws may contain
such other provisions concerning indemnification, including provisions
specifying reasonable procedures relating to and conditions to the receipt by
indemnitees of indemnification, provided that such provisions are not
inconsistent with the provisions of this Article VII.
ARTICLE VIII
LIMITATION ON LIABILITY OF DIRECTORS
As to any act or omission occurring after this provision becomes
effective, a Director of the Corporation shall, to the maximum extent permitted
by the laws of Delaware, have no personal liability to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that this Article VIII shall not eliminate or reduce the liability of a
director in any case where such elimination or reduction is not permitted by
law.
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ARTICLE IX
BOOKS OF THE CORPORATION
The books of the Corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such place or places
as may be designated from time to time by the Board of Directors or in the
Bylaws of the Corporation.
ARTICLE X
COMPROMISE
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of section 291 of Title 8 of the Delaware Code, as that section
may read from time to time, or any successor provision, or on the application of
trustees in dissolution or of any receiver or receivers appointed for this
Corporation under the provisions of section 279 of Title 8 of the Delaware Code,
as that section may read from time to time, or any successor provision, order a
meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of this Corporation, as the case may be, to be summoned in
such manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
ARTICLE XI
AMENDMENT OF BYLAWS
Section 11.1. GENERAL RIGHT TO AMEND BYLAWS.
Except as provided in Section 11.2 of this Article, the Bylaws of the
Corporation may be adopted, consistent with law and the provisions of this
Certificate of Incorporation (including any a resolution or resolutions
providing for any class or series of undesignated Preferred Stock or Series
Preferred Stock pursuant to Article IV hereof and which relate to such class or
series of undesignated Preferred Stock or Series Preferred Stock) the terms of
any undesignated Preferred Stock or Series Preferred Stock pursuant to Article
IV hereof), and once adopted, any Bylaw may be altered or repealed by: (a) the
affirmative vote of at least a majority of the Board of Directors then in office
or (b) the affirmative vote of at least a majority of the voting power of all
shares of
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capital stock of the Corporation then entitled to vote generally in the election
of Directors voting as a single class.
Section 11.2. CERTAIN BYLAW AMENDMENTS.
Any proposed amendment, alteration, change or repeal of, or any
proposed adoption of any Bylaw inconsistent with any of Sections 2.3, 2.9, 2.11,
3.2, or 3.3 or Article VIII of the Bylaws shall require the affirmative vote of
at least eighty percent (80%) of the voting power of all shares of capital stock
of the Corporation then entitled to vote generally in the election of Directors
voting as a single class
ARTICLE XII
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation hereby 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 are granted subject to this reservation. Except as may be provided
in a resolution or resolutions providing for any class or series of undesignated
Preferred Stock or Series Preferred Stock pursuant to Article IV hereof and
which relate to such class or series of undesignated Preferred Stock or Series
Preferred Stock, any amendment, alteration, change or repeal of Articles V, VI,
XI, XII and XIII hereof shall require the affirmative vote of the holders of at
least 80% of the voting power of all of the shares of capital stock of the
Corporation then entitled to vote generally in the election of Directors, voting
together as a single class. Except as may be provided in a resolution or
resolutions providing for any class or series of undesignated Preferred Stock or
Series Preferred Stock pursuant to Article IV hereof and which relate to such
class or series, any other amendment, alteration, change or repeal of any other
provision of this Amended and Restated Certificate Incorporation shall require
the affirmative vote of both (a) a majority of the members of the Board of
Directors then in office and (b) a majority of the voting power of all of the
shares of capital stock of the Corporation entitled to vote generally in the
election of Directors, voting together as a single class.
ARTICLE XIII
SEVERABILITY
In the event that any of the provisions of this Certificate of
Incorporation (including any provision within a single section, paragraph or
sentence) is held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, the remaining provisions are severable and shall remain
enforceable to the full extent permitted by law.
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* * *
I, THE UNDERSIGNED, being the duly elected President of the
Corporation, do on behalf of the Corporation make this Amended and Restated
Certificate of Incorporation of the Corporation, hereby declaring and
certifying, under penalties of perjury, that this is the act and deed of the
Corporation and that the facts herein stated are true, and accordingly have
hereunto set my hand this ___ day of November, 2000.
By:
-----------------------------
Paul H. Fischer
President
ATTEST:
By:
----------------------------
Jeffrey W. Church
Secretary
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