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EXHIBIT 3.01
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TRINET GROUP, INC.
Martin Babinec and Douglas P. Devlin hereby certify that:
One: They are the duly elected and acting President and Secretary,
respectively, of TriNet Group, Inc., a Delaware corporation (the "Company" or
the "Corporation").
Two: The original Certificate of Incorporation was filed with the
Secretary of State of Delaware on January 26, 2000 under the name of TriNet
Merger Corporation.
Three: The Certificate of Incorporation of the Company is hereby amended
and restated to read in its entirety as follows:
I.
The name of this corporation is TriNet Group, Inc.
II.
The address of the registered office of the corporation in the State of
Delaware is 15 East North Street, City of Dover, County of Kent, and the name
of the registered agent of the corporation in the State of Delaware at such
address is the AmeriSearch Corporate Services Inc.
III.
The purpose of this corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
the State of Delaware.
IV.
A. This Corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares which the Corporation is authorized to issue is 51,000,000 shares,
50,000,000 shares of which shall be Common Stock (the "Common Stock") and
1,000,000 shares of which shall be Preferred Stock (the "Preferred Stock").
B. The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized, within the limitations and
restrictions stated in these Restated Articles, to fix or alter the dividend
rights, dividend rate, conversion rights, voting rights, rights and terms of
redemption (including sinking fund provisions), the redemption price or prices,
the liquidation preferences of any wholly unissued series of Preferred Stock,
and the number of shares constituting any such series and the designation
thereof, or any of them; and to increase or decrease the number of shares of any
series subsequent to the issue of shares of that
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series, but not below the number of shares of such series then outstanding. In
case the number of shares of any series shall be so decreased, the shares
constituting such decrease shall resume the status which they had prior to the
adoption of the resolution originally fixing the number of shares of such
series.
C. 75,000 shares of the authorized shares of Preferred Stock are hereby
designated "Series E Preferred Stock" (the "Series E Preferred"). 150,263 shares
of the authorized shares of Preferred Stock are hereby designated "Series F
Preferred Stock" (the "Series F Preferred" and, together with the "Series E
Preferred," the "Preferred").
D. The rights, preferences, privileges, restrictions and other matters
relating to the Series E Preferred and the Series F Preferred are as follows:
1. Dividend Rights.
a. Holders of Series E Preferred, in preference to the holders
of any other stock of the Company except the Series F Preferred ("Junior
Stock"), shall be paid when and as declared by the Board of Directors, but only
out of funds that are legally available therefor, cash dividends at the rate of
six percent (6%) of the "Series E Original Issue Price" per annum on each
outstanding share of Series E Preferred (as adjusted for any stock dividends,
combinations, splits, recapitalizations and the like with respect to such
shares). The Series E Original Issue Price of the Series E Preferred shall be
$40.00. Such dividends shall be payable on March 31 of each year beginning on
March 31, 1997, but only when and as declared by the Board of Directors and
shall be cumulative beginning on January 1, 1996 whether or not declared.
Accrued but unpaid dividends shall not bear interest. In the event that the
Company does not redeem the Series E Preferred under Section 5 after receipt of
a request for redemption from the holders of at least sixty-six and two-thirds
percent (66 2/3%) of the then outstanding shares of Series E Preferred
subsequent to September 30, 2000, then the dividend rate shall be increased from
six percent (6%) to twelve percent (12%).
b. Holders of Series F Preferred, in preference to the holders
of any Junior Stock and the holders of the Series E Preferred, shall be paid
when and as declared by the Board of Directors, but only out of funds that are
legally available therefor, cash dividends at the rate of $1.61 per annum on
each outstanding share of Series F Preferred (as adjusted for any stock
dividends, combinations, splits, recapitalizations and the like with respect to
such shares). The right to receive dividends on shares of Series F Preferred
shall not be cumulative, and no right to such dividends shall accrue to holders
of Series F Preferred by reason of the fact that dividends on said shares are
not declared or paid in any year.
c. So long as any shares of Series E Preferred and Series F
Preferred shall be outstanding, no dividend, whether in cash or property, shall
be paid or declared, nor shall any other distribution be made, on any Junior
Stock, nor shall any shares of any Junior Stock of the Company be purchased,
redeemed, or otherwise acquired for value by the Company (except for
acquisitions of Common Stock by the Company pursuant to agreements which permit
the Company to repurchase such shares upon termination of services to the
Company or in exercise of any right of first refusal upon a proposed transfer)
until all dividends (set forth in Sections 1(a) and 1(b) above) on the Series E
Preferred and the Series F Preferred shall have been declared and
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paid. The provisions of this Section 1(c) shall not, however, apply to (i) a
dividend payable in Common Stock, or (ii) any repurchase of any outstanding
securities of the Company that is approved by the Company's Board of Directors
and at least one (1) director elected by holders of the shares of Series E
Preferred.
2. Voting Rights.
a. General Rights. Except as otherwise provided herein or as
required by law, holders of Series E Preferred shall have no right to vote with
respect to matters upon which the shareholders of the Company are entitled to
vote. Except as otherwise provided herein or as required by law, holders of
Series F Preferred shall have the number of votes equal to the number of shares
of Common Stock into which each share of Series F Preferred could be converted
at the record date for determination of the shareholders entitled to vote on
such matters, or, if no such record date is established, at the date such vote
is taken or any written consent of shareholders is solicited, such votes to be
counted together with all other shares of stock of the Company having general
voting power and not separately as a class.
b. Separate Vote of Series E Preferred. For so long as any
shares of Series E Preferred remain outstanding, in addition to any other vote
or consent required herein or by law, the vote or written consent of the holders
of at least sixty-six and two-thirds percent (66 2/3%) of the outstanding Series
E Preferred shall be necessary for effecting or validating the following
actions:
(i) Any amendment, alteration, or repeal of any provision
of the Restated Articles or the Bylaws of the Company that alters or affects the
voting powers, preferences, or other special rights or privileges,
qualifications, limitations, or restrictions of the Series E Preferred;
(ii) Any increase or decrease (other than by redemption or
conversion) in the authorized number of shares of Common Stock or Preferred
Stock, including shares of Series E Preferred and Series F Preferred;
(iii) Any creation, whether by reclassification or
otherwise, of any class of shares or series of equity securities of the Company
ranking on a parity with or senior to the Series E Preferred in right of
redemption, liquidation preference, voting or dividends;
(iv) Any redemption, repurchase, payment of dividends or
other distributions with respect to Junior Stock (except for acquisitions of
Common Stock by the Company pursuant to agreements which permit the Company to
repurchase such shares upon termination of services to the Company or in
exercise of any right of first refusal upon a proposed transfer);
(v) Any sale, lease, assignment, transfer or other
conveyance of all or substantially all of the assets of the Company or any
consolidation or merger involving the Company or any reclassification or other
change of any stock, or any recapitalization, or any dissolution, liquidation or
winding up, of the Company, or any other Acquisition (as defined in Section
3(c)), or any agreement or obligation so to do;
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(vi) Any action that results in the payment or declaration
of a dividend on any shares of Common Stock or Preferred Stock;
(vii) Any increase or decrease in the authorized number of
members of the Company's Board of Directors; or
(viii) Any issuance of any equity security of the Company or
any security convertible into any equity security of the Company or any right or
option for the purchase of any equity security of the Company (other than the
options and shares excluded from the definition of Additional Shares of Common
Stock (as hereafter defined)).
c. Separate Vote of Series F Preferred. For so long as any
shares of Series F Preferred remain outstanding, in addition to any other vote
or consent required herein or by law, the vote or written consent of the holders
of at least a majority of the outstanding Series F Preferred shall be necessary
for effecting or validating the following actions:
(i) Any amendment, alteration, or repeal of any provision
of the Restated Articles or the Bylaws of the Company that alters or affects the
voting powers, preferences, or other special rights or privileges,
qualifications, limitations, or restrictions of the Series F Preferred;
(ii) Any increase or decrease (other than by redemption or
conversion) in the authorized number of shares of Common Stock or Preferred
Stock, including shares of Series E Preferred and Series F Preferred;
(iii) Any creation, whether by reclassification or
otherwise, of any class of shares or series of equity securities of the Company
ranking senior to the Series F Preferred in right of redemption, liquidation
preference, voting or dividends; or
(iv) Any sale, lease, assignment, transfer or other
conveyance of all or substantially all of the assets of the Company or any
consolidation or merger involving the Company or any reclassification or other
change of any stock, or any recapitalization, or any dissolution, liquidation or
winding up, of the Company, or any other Acquisition (as defined in Section
3(c)), or any agreement or obligation so to do.
d. Election of Board of Directors. So long as any shares of
Series E Preferred remain outstanding, then the holders of Series E Preferred
shall be entitled to elect one (1) member of the Board of Directors at each
meeting or pursuant to each consent of the Company's shareholders for the
election of directors, and to remove from office such director and to fill any
vacancy caused by the resignation, death or removal of such director.
3. Liquidation Rights.
a Upon any liquidation, dissolution, or winding up of the
Company, whether voluntary or involuntary, before any distribution or payment
shall be made to the holders of any other outstanding capital stock, (i) the
holders of Series F Preferred shall be entitled to be paid out of the assets of
the Company an amount per share of Series F Preferred equal to $26.62 (the
"Series F Original Issue Price") plus all declared and unpaid dividends on
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such shares of Series F Preferred (as adjusted for any stock dividends,
combinations, splits, recapitalizations and the like with respect to such
shares) for each share of Series F Preferred held by them and (ii) the holders
of Series E Preferred shall be entitled to be paid out of the assets of the
Company an amount per share of Series E Preferred equal to the Series E Original
Issue Price plus all accrued and unpaid, cumulated dividends, whether or not
declared, on such shares of Series E Preferred (as adjusted for any stock
dividends, combinations, splits, recapitalizations and the like with respect to
such shares) for each share of Series E Preferred held by them. If, upon any
liquidation, distribution, or winding up, the assets of the Company shall be
insufficient to make payment in full to all holders of Series F Preferred and
Series E Preferred of the liquidation preferences set forth herein, then such
assets shall be distributed among the holders of shares of Series F Preferred
and Series E Preferred at the time outstanding, ratably in proportion to the
full amounts to which they would otherwise be respectively entitled.
b. After the payment of the full liquidation preference of the
Series F Preferred and the Series E Preferred as set forth in Section 3(a), the
remaining assets of the Company legally available for distribution, if any,
shall be distributed ratably to the holders of any Junior Stock.
c. Upon the election by the holders of at least a majority of
the then outstanding Series F Preferred and at least sixty-six and two-thirds
percent (66 2/3%) of the then outstanding Series E Preferred, the following
events shall be considered a liquidation under this Section 3:
(i) any consolidation or merger of the Company with or into
any other corporation or other entity or person, or any other corporate
reorganization, in which the shareholders of the Company immediately prior to
such consolidation, merger or reorganization, own less than 50% of the Company's
voting power immediately after such consolidation, merger or reorganization, or
any transaction or series of related transactions in which in excess of forty
percent (40%) of the Company's voting power is transferred (an "Acquisition");
or
(ii) a sale, lease or other disposition of all or
substantially all of the assets of the Company (an "Asset Transfer").
4. Conversion Rights.
The holders of the Series E Preferred and the Series F Preferred
shall have the following rights with respect to the conversion of the Series E
Preferred and the Series F Preferred, respectively, into shares of Common Stock
(the "Series E Conversion Rights" and the "Series F Conversion Rights"):
a. Optional Conversion. Subject to and in compliance with the
provisions of this Section 4, any shares of Series E Preferred and Series F
Preferred may, at the option of the holder, be converted at any time into fully
paid and nonassessable shares of Common Stock. The number of shares of Common
Stock to which a holder of Series E Preferred shall be entitled upon conversion
shall be the product obtained by multiplying the "Series E Conversion Rate" then
in effect (determined as provided in Section 4(b)) by the
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number of shares of Series E Preferred being converted. The number of shares of
Common Stock to which a holder of Series F Preferred shall be entitled upon
conversion shall be the product obtained by multiplying the "Series F Conversion
Rate" then in effect (determined as provided in Section 4(b)) by the number of
shares of Series F Preferred being converted.
b. Series E Conversion Rate; Series F Conversion Rate. The
conversion rate in effect at any time for conversion of the Series E Preferred
(the "Series E Conversion Rate") shall be the quotient obtained by dividing the
Series E Original Issue Price of the Series E Preferred by the "Series E
Conversion Price," calculated as provided in Section 4(c). The conversion rate
in effect at any time for conversion of the Series F Preferred (the "Series F
Conversion Rate") shall be the quotient obtained by dividing the Series F
Original Issue Price of the Series F Preferred by the "Series F Conversion
Price," calculated as provided in Section 4(c).
c. Conversion Price. The conversion price for the Series E
Preferred shall initially be $9.45867287571 (the "Series E Conversion Price").
The conversion price for the Series F Preferred shall initially be $10.071594878
(the "Series F Conversion Price"). Such initial Series E Conversion Price and
Series F Conversion Price shall be adjusted from time to time in accordance with
this Section 4. All references to the Series E Conversion Price and the Series
F Conversion Price herein shall mean the applicable conversion price as so
adjusted.
d. Mechanics of Conversion. Each holder of Series E Preferred
or Series F Preferred who desires to convert the same into shares of Common
Stock pursuant to this Section 4 shall surrender the certificate or certificates
therefor, duly endorsed, at the office of the Company or any transfer agent for
the Preferred, and shall give written notice to the Company at such office that
such holder elects to convert the same. Such notice shall state the number of
shares of Series E Preferred or Series F Preferred being converted. Thereupon,
the Company shall promptly issue and deliver at such office to such holder a
certificate or certificates for the number of shares of Common Stock to which
such holder is entitled and shall promptly pay in cash or, to the extent
sufficient funds are not then legally available therefor, in Common Stock (at
the Common Stock's fair market value determined by the Board of Directors in
good faith as of the date of such conversion), with respect to the Series E
Preferred, any accrued but unpaid cumulated dividends, whether or not declared,
on the shares of Series E Preferred being converted and, with respect to the
Series F Preferred, any declared but unpaid dividends on the shares of Series F
Preferred being converted. Such conversion shall be deemed to have been made at
the close of business on the date of such surrender of the certificates
representing the shares of Series E Preferred or Series F Preferred to be
converted, and the person entitled to receive the shares of Common Stock
issuable upon such conversion shall be treated for all purposes as the record
holder of such shares of Common Stock on such date.
e. Adjustment for Stock Splits and Combinations. As to the
Series E Preferred, any reference herein to the "Original Issue Date" shall mean
the date that the first share of Series E Preferred was issued, and as to the
Series F Preferred, any reference herein to the "Original Issue Date" shall mean
the date that the first share of Series F Preferred was issued. If the Company
shall at any time or from time to time after the Original Issue Date effect a
subdivision of the outstanding Common Stock, the Series E Conversion Price and
the Series F Conversion Price in effect immediately before that subdivision
shall be proportionately decreased. Conversely, if the Company shall at any
time or from time to time after the Original
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Issue Date combine the outstanding shares of Common Stock into a smaller number
of shares, the Series E Conversion Price and the Series F Conversion Price in
effect immediately before the combination shall be proportionately increased.
Any adjustment under this Section 4(e) shall become effective at the close of
business on the date the subdivision or combination becomes effective.
f. Adjustment for Common Stock Dividends and Distributions. If
the Company at any time or from time to time after the Original Issue Date
makes, or fixes a record date for the determination of holders of Common Stock
entitled to receive, a dividend or other distribution payable in additional
shares of Common Stock, in each such event the Series E Conversion Price and the
Series F Conversion Price that is then in effect shall be decreased as of the
time of such issuance or, in the event such record date is fixed, as of the
close of business on such record date, by multiplying the applicable conversion
price then in effect by a fraction (1) the numerator of which is the total
number of shares of Common Stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record date, and (2) the
denominator of which is the total number of shares of Common Stock 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; provided, however, that if such
record date is fixed and such dividend is not fully paid or if such distribution
is not fully made on the date fixed therefor, the Series E Conversion Price and
the Series F Conversion Price shall be recomputed accordingly as of the close of
business on such record date and thereafter the Series E Conversion Price and
the Series F Conversion Price shall be adjusted pursuant to this Section 4(f) to
reflect the actual payment of such dividend or distribution.
g. Adjustments for Other Dividends and Distributions. If the
Company at any time or from time to time after the Original Issue Date makes, or
fixes a record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in securities of the Company
other than shares of Common Stock, in each such event provision shall be made so
that the holders of the Preferred outstanding on such record date shall receive
upon conversion thereof, in addition to the number of shares of Common Stock
receivable thereupon, the amount of other securities of the Company which they
would have received had their Preferred been converted into Common Stock on the
date of such event and had they thereafter, during the period from the date of
such event to and including the conversion date, retained such securities
receivable by them as aforesaid during such period, subject to all other
adjustments called for during such period under this Section 4 with respect to
the rights of the holders of the Preferred or with respect to such other
securities by their terms.
h. Adjustment for Reclassification, Exchange and Substitution.
If at any time or from time to time after the Original Issue Date, the Common
Stock issuable upon the conversion of the Preferred is changed into the same or
a different number of shares of any class or classes of stock, whether by
recapitalization, reclassification or otherwise (other than an Acquisition or
Asset Transfer as defined in Section 3(c) above or a subdivision or combination
of shares or stock dividend or a reorganization, merger, consolidation or sale
of assets provided for elsewhere in this Section 4), in any such event each
holder of Preferred outstanding on the effective date of such event shall have
the right thereafter to convert such stock into the kind and amount of stock and
other securities and property receivable upon such recapitalization,
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reclassification or other change by holders of the maximum number of shares of
Common Stock into which such shares of Preferred could have been converted
immediately prior to such recapitalization, reclassification or change, all
subject to further adjustment as provided herein or with respect to such other
securities or property by the terms thereof.
i. Reorganizations, Mergers, Consolidations or Sales of Assets.
If at any time or from time to time after the Original Issue Date, there is a
capital reorganization of the Common Stock or a merger or a consolidation or a
sale of assets involving the Company (other than an Acquisition or Asset
Transfer as defined in Section 3(c) above or a recapitalization, subdivision,
combination, reclassification, exchange or substitution of shares provided for
elsewhere in this Section 4), as a part of such capital reorganization or merger
or consolidation or sale of assets involving the Company, provision shall be
made so that the holders of the Preferred outstanding on the effective date of
such event shall thereafter be entitled to receive upon conversion of the
Preferred the number of shares of stock or other securities or property of the
Company to which a holder of the number of shares of Common Stock deliverable
upon conversion would have been entitled on such capital reorganization, subject
to adjustment in respect of such stock or securities by the terms thereof. In
any such case, appropriate adjustment shall be made in the application of the
provisions of this Section 4 with respect to the rights of the holders of
Preferred after the capital reorganization or merger or consolidation or sale of
assets involving the Company to the end that the provisions of this Section 4
(including adjustment of the Series E Conversion Price and the Series F
Conversion Price then in effect and the number of shares issuable upon
conversion of the Preferred) shall be applicable after that event and be as
nearly equivalent as practicable.
j. Sale of Shares.
(i) If at any time or from time to time after the Original
Issue Date of the Series E Preferred and before the Original Issue Date of the
Series F Preferred, the Company issues or sells, or is deemed by the express
provisions of this subsection (j) to have issued or sold, Additional Shares of
Common Stock (as hereinafter defined), other than as a dividend or other
distribution on any class of stock as provided in Section 4(f) above, and other
than a subdivision or combination of shares of Common Stock as provided in
Section 4(e) above, regardless of the price per share, then and in each such
instance the then existing Series E Conversion Price shall be reduced, as of the
opening of business on the date of such issue or sale, to a price equal to the
product obtained by multiplying the existing Series E Preferred Conversion Price
by the quotient obtained by dividing the number of shares of Common Stock deemed
to be outstanding (as defined below) immediately prior to such issue or sale by
the sum of the number of shares of Common Stock deemed to be outstanding (as
defined below) immediately prior to such issue plus the number of Additional
Shares of Common Stock. For the purposes of the preceding sentence, the number
of shares of Common Stock deemed to be outstanding as of a given date shall be
the sum of (A) the number of shares of Common Stock actually outstanding, (B)
the number of shares of Common Stock into which the then outstanding shares of
Preferred Stock other than the Series E Preferred could be converted if fully
converted on the day immediately preceding the given date, and (C) the number of
shares of Common Stock which could be obtained through the exercise or
conversion of all other rights, options and convertible equity securities on the
day immediately preceding the given date.
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(ii) If at any time or from time to time after the Original
Issue Date of the Series F Preferred, the Company issues or sells, or is deemed
by the express provisions of this subsection (j) to have issued or sold,
Additional Shares of Common Stock (as hereinafter defined), other than as a
dividend or other distribution on any class of stock as provided in Section 4(f)
above, and other than a subdivision or combination of shares of Common Stock as
provided in Section 4(e) above, at a price per share less than $18.50 (as
adjusted for any stock dividends, combinations, splits, recapitalizations and
the like with respect to such shares), then and in each such instance the then
existing Series F Conversion Price shall be reduced, as of the opening of
business on the date of such issue or sale, to a price equal to the product
obtained by multiplying the existing Series F Preferred Conversion Price by the
quotient obtained by dividing the number of shares of Common Stock deemed to be
outstanding (as defined below) immediately prior to such issue or sale by the
sum of the number of shares of Common Stock deemed to be outstanding (as defined
below) immediately prior to such issue plus the number of Additional Shares of
Common Stock. For the purposes of the preceding sentence, the number of shares
of Common Stock deemed to be outstanding as of a given date shall be the sum of
(A) the number of shares of Common Stock actually outstanding, (B) the number of
shares of Common Stock into which the then outstanding shares of Preferred Stock
could be converted if fully converted on the day immediately preceding the given
date, (C) the number of shares of Common Stock which could be obtained through
the exercise or conversion of all other rights, options and convertible equity
securities on the day immediately preceding the given date and (D) the number of
shares of Common Stock which the aggregate consideration received (as defined in
(iv) below) by the Company for the total number of Additional Shares of Common
Stock so issued would purchase at the Series F Conversion Price.
If at any time or from time to time after the Original Issue Date of the
Series F Preferred, the Company issues or sells, or is deemed by the express
provisions of this subsection (j) to have issued or sold, Additional Shares of
Common Stock, other than as a dividend or other distribution on any class of
stock as provided in Section 4(f) above, and other than a subdivision or
combination of shares of Common Stock as provided in Section 4(e) above, at a
price per share at or between $18.50 and $26.62 (a "Dilution Price") (as
adjusted for any stock dividends, combinations, splits, recapitalizations and
the like with respect to such shares), then and in each such instance the then
existing Series F Conversion Price shall be reduced, as of the opening of
business on the date of such issue or sale, to a price equal to the Dilution
Price; provided, however, that such adjustment shall be made only if such
adjustment results in a Series F Conversion Price less than the Series F
Conversion Price in effect immediately prior to the taking of such action.
(iii) For the purpose of making any adjustment required
under the above Section D.4(j)(ii), the consideration received by the Company
for any issue or sale of securities shall (A) to the extent it consists of cash,
be computed at the gross amount of cash received by the Company before deduction
of any underwriting or similar commissions, compensation or concessions paid or
allowed by the Company in connection with such issue or sale and before
deduction of any expenses payable by the Company, (B) to the extent it consists
of property other than cash, be computed at the fair value of that property as
determined in good faith by the Board of Directors, and (C) if Additional Shares
of Common Stock, Convertible Securities (as defined in subsection (j)(iv) below)
or rights or options to purchase either Additional Shares of Common Stock or
Convertible Securities are issued or sold together with
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other stock or securities or other assets of the Company for a consideration
which covers both, be computed as the portion of the consideration so received
that may be reasonably determined in good faith by the Board of Directors to be
allocable to such Additional Shares of Common Stock, Convertible Securities or
rights or options
(iv) For the purpose of the adjustment required under this
Section 4(j), if the Company issues or sells any rights or options for the
purchase of, or stock or other securities convertible into, Additional Shares of
Common Stock (such convertible stock or securities being herein referred to as
"Convertible Securities"), in each case the Company shall be deemed to have
issued at the time of the issuance of such rights or options or Convertible
Securities the maximum number of Additional Shares of Common Stock issuable upon
exercise or conversion thereof. No further adjustment of the Series E Conversion
Price or the Series F Conversion Price, as adjusted upon the issuance of such
rights, options or Convertible Securities, shall be made as a result of the
actual issuance of Additional Shares of Common Stock on the exercise of any such
rights or options or the conversion of any such Convertible Securities. If any
such rights or options or the conversion privilege represented by any such
Convertible Securities shall expire without having been exercised, the Series E
Conversion Price and the Series F Conversion Price as adjusted upon the issuance
of such rights, options or Convertible Securities shall be readjusted to the
Series E Conversion Price and the Series F Conversion Price which would have
been in effect had an adjustment been made on the basis that the only Additional
Shares of Common Stock so issued were the Additional Shares of Common Stock, if
any, actually issued or sold on the exercise of such rights or options or rights
of conversion of such Convertible Securities, provided that such readjustment
shall not apply to prior conversions of Preferred.
(v) "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued by the Company or deemed to be issued pursuant to
this Section 4(j), whether or not subsequently reacquired or retired by the
Company other than (1) shares of Common Stock issued upon conversion of the
Preferred; (2) with respect to the Series E Preferred, up to Thirty Thousand
(30,000) shares of Common Stock and/or options, warrants or other Common Stock
purchase rights, and the Common Stock issued pursuant to such options, warrants
or other rights (as adjusted for any stock dividends, combinations, splits,
recapitalizations and the like) issued after the Original Issue Date of the
Series E Preferred to employees, officers or directors of the Company or any
subsidiary pursuant to stock purchase or stock option plans or other
arrangements that are approved by the Board; (3) with respect to the Series F
Preferred, up to Nine Hundred Sixty Five Thousand Thirty Three (965,033) shares
of Common Stock and/or options, warrants or other Common Stock purchase rights,
and the Common Stock issued pursuant to such options, warrants or other rights
(as adjusted for any stock dividends, combinations, splits, recapitalizations
and the like) issued after the Original Issue Date of the Series F Preferred to
employees, officers or directors of the Company or any subsidiary pursuant to
stock purchase or stock option plans or other arrangements that are approved by
the Board; (4) with respect to the Series E Preferred, shares of Common Stock
issued pursuant to the exercise of options, warrants or convertible securities
outstanding as of the Original Issue Date of the Series E Preferred; and (4)
with respect to the Series F Preferred, shares of Common Stock issued pursuant
to the exercise of options, warrants or convertible securities outstanding as of
the Original Issue Date of the Series F Preferred.
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k. No Impairment. Except as provided for in Section 2(b) and
(c) above, the Company will not, by amendment of its Articles of Incorporation
or through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Company but will at all times in good faith assist
in the carrying out of all the provisions of this Section 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 Preferred against impairment.
l. Certificate of Adjustment. In each instance of an adjustment
or readjustment of the Series E Conversion Price or the Series F Conversion
Price or the number of shares of Common Stock or other securities issuable upon
conversion of any series of the Preferred, if such Preferred is then convertible
pursuant to this Section 4, the Company, at its expense, shall compute such
adjustment or readjustment in accordance with the provisions hereof and prepare
a certificate showing such adjustment or readjustment, and shall mail such
certificate, by first class mail, postage prepaid, to each registered holder of
such Preferred at the holder's address as shown in the Company's books. The
certificate shall set forth such adjustment or readjustment, showing in detail
the facts upon which such adjustment or readjustment is based, including a
statement of (1) the Series E Conversion Price or the Series F Conversion Price,
as applicable, at the time in effect, (2) the number of Additional Shares of
Common Stock and (3) the type and amount, if any, of other property which at the
time would be received upon conversion of such Preferred.
m. Notices of Record Date. Upon (i) any taking by the Company
of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend or
other distribution, or (ii) any Acquisition (as defined in Section 3(c)) or
other capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company, any merger or
consolidation of the Company with or into any other corporation, or any Asset
Transfer (as defined in Section 3(c)), or any voluntary or involuntary
dissolution, liquidation or winding up of the Company, the Company shall give
notice to each holder of Preferred at least thirty (30) days prior to the record
date specified therein specifying (1) the date on which any such record is to be
taken for the purpose of such dividend or distribution and a description of such
dividend or distribution, (2) the date on which any such Acquisition,
reorganization, reclassification, transfer, consolidation, merger, Asset
Transfer, dissolution, liquidation or winding up is expected to become
effective, and (3) the date, if any, that is to be fixed as to when the holders
of record of Common Stock (or other securities) shall be entitled to exchange
their shares of Common Stock (or other securities) for securities or other
property deliverable upon such Acquisition, reorganization, reclassification,
transfer, consolidation, merger, Asset Transfer, dissolution, liquidation or
winding up.
n. Automatic Conversion.
(i) Each share of Series E Preferred shall automatically be
converted into shares of Common Stock, based on the then-effective Series E
Conversion Price, (A) at any time upon the affirmative election of the holders
of at least a majority of the
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outstanding shares of the Series E Preferred, or (B) immediately upon the
closing of a firmly underwritten public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended, covering
the offer and sale of Common Stock for the account of the Company in which (i)
the per share price of each existing share of Common Stock is valued at a
minimum of $50.00 (as adjusted for any stock dividends, combinations, splits,
recapitalizations and the like), and (ii) the gross cash proceeds to the Company
(before underwriting discounts, commissions and fees) are at least $20,000,000.
Upon such automatic conversion, any accrued but unpaid cumulated dividends,
whether or not declared, shall be paid in accordance with the provisions of
Section 4(d).
(ii) Each share of Series F Preferred shall automatically
be converted into shares of Common Stock, based on the then-effective Series F
Conversion Price, (A) at any time upon the affirmative election of the holders
of at least a majority of the outstanding shares of the Series F Preferred, or
(B) immediately upon the closing of a firmly underwritten public offering
pursuant to an effective registration statement under the Securities Act of
1933, as amended, covering the offer and sale of Common Stock for the account of
the Company in which (i) the per share price of each existing share of Common
Stock is valued at a minimum of $26.62 (as adjusted for any stock dividends,
combinations, splits, recapitalizations and the like), and (ii) the gross cash
proceeds to the Company (before underwriting discounts, commissions and fees)
are at least $20,000,000. Upon such automatic conversion, any declared but
unpaid dividends shall be paid in accordance with the provisions of Section
4(d).
(iii) Upon the occurrence of the event specified in
paragraph (i) or (ii) above, the outstanding shares of the applicable series of
Preferred shall be converted automatically without any further action by the
holders of such shares and whether or not the certificates representing such
shares are surrendered to the Company or its transfer agent; provided, however,
that the Company shall not be obligated to issue certificates evidencing the
shares of Common Stock issuable upon such conversion unless the certificates
evidencing such shares of Preferred are either delivered to the Company or its
transfer agent as provided below, or the holder notifies the Company or its
transfer agent that such 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. Upon the
occurrence of such automatic conversion of the Preferred, the holders of the
applicable series of Preferred shall surrender the certificates representing
such shares at the office of the Company or any transfer agent for the
Preferred. Thereupon, there shall be issued and delivered to such holder
promptly at such office and in its name as shown on such surrendered certificate
or certificates, a certificate or certificates for the number of shares of
Common Stock into which the shares of Preferred surrendered were convertible on
the date on which such automatic conversion occurred, and, with respect to the
Series E Preferred, any accrued but unpaid cumulated dividends, whether or not
declared, shall be paid in accordance with the provisions of Section 4(d) and,
with respect to the Series F Preferred, any declared but unpaid dividends shall
be paid in accordance with the provisions of Section 4(d).
o. Fractional Shares. No fractional shares of Common Stock
shall be issued upon conversion of Preferred. All shares of Common Stock
(including fractions thereof) issuable upon conversion of more than one share of
Preferred by a holder thereof shall be aggregated for purposes of determining
whether the conversion would result in the issuance of
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any fractional share. If, after the aforementioned aggregation, the conversion
would result in the issuance of any fractional share, the Company shall, in lieu
of issuing any fractional share, pay cash equal to the product of such fraction
multiplied by the Common Stock's fair market value (as determined by the Board)
on the date of conversion.
p. 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 Preferred, such number of its shares of Common Stock as shall
from time to time be sufficient to effect the conversion of all outstanding
shares of the Preferred. 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 Preferred, 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.
q. Notices. Any notice required by the provisions of this
Section 4 shall be in writing and shall be deemed effectively given: (i) upon
personal delivery to the party to be notified, (ii) when sent by confirmed telex
or facsimile if sent during normal business hours of the recipient; if not, then
on the next business day, (iii) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid, or (iv)
one (1) day after deposit with an internationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All notices
shall be addressed to each holder of record at the address of such holder
appearing on the books of the Company.
r. Payment of Taxes. The Company will pay all taxes (other than
taxes based upon income) and other governmental charges that may be imposed with
respect to the issue or delivery of shares of Common Stock upon conversion of
shares of Preferred, excluding any tax or other charge imposed in connection
with any transfer involved in the issue and delivery of shares of Common Stock
in a name other than that in which the shares of Preferred so converted were
registered.
5. Redemption.
a. The Company shall be obligated to redeem the Series E
Preferred as follows:
(i) At any time after September 30, 2000, the holders of at
least sixty-six and two-thirds percent (66 2/3%) of the then outstanding shares
of Series E Preferred, voting together as a separate class, may require the
Company, to the extent it may lawfully do so, to redeem the Series E Preferred
(beginning on the first calendar quarter commencing at least 30 days after such
notice) (the "Redemption Date"). The Company shall effect such redemption on the
Redemption Date by paying in cash in exchange for the shares of Series E
Preferred to be redeemed a sum equal to the Original Issue Price per share of
Series E Preferred (as adjusted for any stock dividends, combinations, splits,
recapitalizations and the like) plus accrued but unpaid cumulated dividends,
whether or not declared, with respect to such shares. The total amount to be
paid for the Series E Preferred is hereinafter referred to as the "Redemption
Price."
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(ii) At least thirty (30) days but no more than sixty (60)
days prior to the Redemption Date, the Company shall send a notice (a
"Redemption Notice") to all holders of Series E Preferred to be redeemed setting
forth (a) the Redemption Price for the shares to be redeemed; and (b) the place
at which such holders may obtain payment of the Redemption Price upon surrender
of their share certificates. If the Company does not have sufficient funds
legally available to redeem all shares to be redeemed at the Redemption Date
then it shall redeem such shares pro rata (based on the portion of the aggregate
Redemption Price payable to them) to the extent possible and shall redeem the
remaining shares to be redeemed as soon as sufficient funds are legally
available.
b. On or after such Redemption Date, each holder of shares of
Series E Preferred to be redeemed shall surrender such holder's certificates
representing such shares to the Company in the manner and at the place
designated in the Redemption Notice, and thereupon the Redemption Price of such
shares shall be payable to the order of the person whose name appears on such
certificate or certificates as the owner thereof and each surrendered
certificate shall be canceled. In the event less than all the shares
represented by such certificates are redeemed, a new certificate shall be issued
representing the unredeemed shares. From and after such Redemption Date, unless
there shall have been a default in payment of the Redemption Price or the
Company is unable to pay the Redemption Price due to not having sufficient
legally available funds, all dividends on the shares of Series E Preferred to be
redeemed shall cease to accrue and all rights of the holders of such shares as
holders of Series E Preferred (except the right to receive the Redemption Price
without interest upon surrender of their certificates), shall cease and
terminate with respect to such shares, provided that in the event that shares of
Series E Preferred are not redeemed due to a default in payment by the Company
or because the Company does not have sufficient legally available funds, such
shares of Series E Preferred shall remain outstanding and shall be entitled to
all of the rights and preferences provided herein.
c. In the event of a call for redemption of any shares of
Series E Preferred, the Series E Conversion Rights (as defined in Section 4) for
such Series E Preferred shall terminate as to the shares designed for redemption
at the close of business on the second (2nd) day preceding the Redemption Date,
unless default is made in payment of the Redemption Price.
6. No Reissuance of Series E Preferred. No share or shares of Series
E Preferred acquired by the Company by reason of redemption, purchase,
conversion or otherwise shall be reissued.
7. No Preemptive Rights. Shareholders shall have no preemptive
rights except as granted by the Company pursuant to written agreements.
8. Status of Converted or Redeemed Stock. If any shares of
Preferred are converted or redeemed pursuant to Section 4 or Section 5 above,
then the shares so converted or redeemed shall resume the status of authorized
but undesignated and unissued shares of Preferred Stock.
V.
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A. The authorized number of members of the Board of Directors of the
Company shall be as set forth in the Bylaws of this Company. So long as any
shares of Series E Preferred remain outstanding, one (1) director shall be
elected by the holders of shares of Series E Preferred outstanding voting
together as a separate class. The remaining directors shall be elected by the
shares of Series F Preferred and Common Stock outstanding, voting together as a
single class. In the case of any vacancy in the office of a director, the
holders that previously elected a director to that office, at a duly held
meeting or by written consent, may elect a successor to fill the vacancy. Any
director may be removed either with or without cause by, and only by, the
holders that elected that director at a duly held meeting or by unanimous
written consent, and any vacancy thereby created may be filled by such holders
in the same manner. The director previously elected by holders of shares of
Series E Preferred shall continue as a director until the expiration of the term
for which such director was elected and until a successor has been elected and
qualified as if such director was elected by shares of Common Stock outstanding,
except as otherwise provided in the Bylaws.
B. In addition to any other vote or consent required herein or by law,
the vote or written consent of the holders of at least sixty-six and two-thirds
percent (66 2/3%) of the outstanding shares of Common Stock shall be necessary
for effecting or validating any agreement by the Company or its shareholders
regarding an Asset Transfer or Acquisition (each as defined in Article
III.D.3(d))
VI.
A. The liability of the directors for monetary damages shall be
eliminated to the fullest extent under applicable law.
B. Any repeal or modification of this Article VI shall be prospective and
shall not affect the rights under this Article VI in effect at the time of the
alleged occurrence of any act or omission to act giving rise to liability or
indemnification.
VII.
The corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, except as provided in paragraph B. of this
Article VII, and all rights conferred upon the stockholders herein are granted
subject to this reservation.
Four: This Amended and Restated Certificate of Incorporation has been duly
approved by the Board of Directors of the Company, in accordance with Section
241 of the Delaware General Corporation Law.
Five: This Amended and Restated Certificate of Incorporation has been duly
adopted in accordance with the provisions of Sections 241 and 245 of the General
Corporation Law of the State of Delaware by a majority vote of the Board of
Directors of the Corporation. The Corporation has not yet received any payment
for any of its stock.
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In Witness Whereof, TriNet Group, Inc. has caused this Amended and Restated
Certificate of Incorporation to be signed by the President and the Secretary in
San Leandro, California on this 30th day of March, 2000.
By: /s/ Martin Babinec
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Martin Babinec, President
By: /s/ Douglas P. Devlin
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Douglas P. Devlin, Secretary
16.
