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Exhibit 3.1
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF SIMPLEX SOLUTIONS, INC.
ARTICLE I
The name of the corporation is Simplex Solutions, Inc.
ARTICLE II
The address of the corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, 19801. The name of its registered agent at
such address is The Corporation Trust Company.
ARTICLE III
The purpose of the corporation is to engage in any lawful act or activity
for which corporations may now or hereafter be organized under the General
Corporation Law of Delaware.
ARTICLE IV
A. Authorized Stock. The 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
Forty-Eight Million (48,000,000) shares. Thirty-Four Million (34,000,000)
shares shall be designated as Common stock and Fourteen Million (14,000,000)
shares shall be designated as Preferred Stock, each with a par value of $0.001.
B. Preferred Stock. The Preferred Stock authorized by this Certificate of
Incorporation may be issued from time to time in series. Of such authorized
Preferred Stock, Four Million Two Hundred Seventy-Eight Thousand Eight Hundred
Fifty-Four (4,278,854) shares shall be designated Series A Preferred Stock
("SERIES A PREFERRED"), One Million Six Hundred Twenty-Five Thousand Nine
Hundred Twenty-Four (1,625,924) shares shall be designated Series B Preferred
Stock ("SERIES B PREFERRED"), One Million Two Hundred Thousand (1,200,000)
shares shall be designated Series C Preferred Stock (the "SERIES C PREFERRED"),
Two Million Two Hundred Fifty Thousand (2,250,000) shares shall be designated
Series D Preferred Stock (the "SERIES D PREFERRED") and Four Million
(4,000,000) shares shall be designated Series E Preferred Stock (the "SERIES E
PREFERRED"). The rights, preferences, privileges and restrictions granted to
and imposed on the Preferred Stock are as set forth below in this Section B of
Article IV.
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Except as to the Series A, Series B, Series C, Series D and Series E
Preferred Stock and except as otherwise provided in this Amended and Restated
Certificate of Incorporation, the Board of Directors is hereby authorized to
fix or alter the rights, preferences, privileges and restrictions granted to or
imposed upon any wholly unissued additional series of Preferred Stock, and the
number of shares constituting any such series and the designation thereof, or
any of them. The Board of Directors, except as otherwise provided in this
Amended and Restated Certificate of Incorporation, is also authorized to
decrease the number of shares of any series, excluding the Series A, Series B,
Series C, Series D and Series E Preferred Stock, subsequent to the issuance of
shares of that 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.
1. Dividend Provisions. The holders of shares of Series A, Series
B, Series C, Series D and Series E Preferred shall be entitled to receive
dividends at a rate of $0.0208, $0.0624, $0.14, $0.2688 and $0.30,
respectively, per share per annum (adjusted to reflect stock splits, stock
dividends and recapitalizations), payable out of funds legally available
therefor. Such dividends shall be payable only when, as, and if declared by the
Board of Directors and shall be noncumulative. No dividends (other than those
payable solely in Common Stock or other securities and rights convertible into
or entitling the holder thereof to receive, directly or indirectly, additional
shares of Common Stock of the corporation) shall be payable on any Common Stock
of the corporation during any fiscal year of the corporation until dividends in
the amount of $0.0208, $0.0624, $0.14, $0.2688 and $0.30 per share (adjusted to
reflect stock splits, stock dividends and recapitalizations) on the Series A,
Series B, Series C, Series D and Series E Preferred, respectively, shall have
been paid or declared and set apart during that fiscal year.
2. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up
of the corporation, either voluntary or involuntary, the holders of Series A,
Series B, Series C, Series D and Series E Preferred shall be entitled to
receive, prior and in preference to any distribution of the assets or surplus
funds of the corporation to the holders of Common Stock by reason of their
ownership thereof, the amount of $0.26 per share for each share of Series A
Preferred then held by them, $0.78 per share for each share of Series B
Preferred then held by them, $1.75 per share for each share of Series C
Preferred then held by them, $3.36 per share for each share of Series D
Preferred then held by them, and $3.75 per share for each share of Series E
Preferred then held by them (each as adjusted to reflect stock splits, stock
dividends and recapitalizations), plus all accrued or declared but unpaid
dividends thereon (respectively, the "SERIES A LIQUIDATION PREFERENCE," the
"SERIES B LIQUIDATION PREFERENCE," the "SERIES C LIQUIDATION PREFERENCE,"
the "SERIES D LIQUIDATION PREFERENCE" and the "SERIES E LIQUIDATION
PREFERENCE"). If, upon the occurrence of such an event, the assets and funds
thus distributed among the holders of the Series A, Series B, Series C, Series
D and Series E Preferred shall be insufficient to permit the payment to such
holders of the full Series A Liquidation Preference, the full Series B
Liquidation
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Preference, the Full Series C Liquidation Preference, the full Series D
Liquidation Preference and the full Series E Liquidation Preference, then the
entire assets and funds of the corporation legally available for distribution
shall be distributed ratably among the holders of the Series A, Series B,
Series C, Series D and Series E Preferred in proportion to the preferential
amount each such holder is entitled to receive.
(b) After the distributions described in subsection (a) above have
been paid in full, the remaining assets of the corporation available for
distribution to stockholders shall be distributed among the holders of Series A
Preferred, Series B Preferred, Series C Preferred, Series D Preferred, Series E
Preferred and Common Stock pro rata based on the number of shares of Common
Stock held by each (assuming conversion of all such Series A, Series B, Series
C, Series D and Series E Preferred).
(c) Notwithstanding the foregoing, in the event that the amount to
be distributed to the holders of Series A, Series B, Series C, Series D and
Series E Preferred pursuant to Sections 2(a) and 2(b) would be greater than
$1.04, $3.12, $7.00, $13.44 and $15.00, respectively, per share (adjusted to
reflect stock splits, stock dividends and recapitalizations) then all remaining
proceeds above such per share amount shall be distributed among the holders of
Common Stock pro rata based on the number of shares of Common Stock held by
each such stockholder.
(d) For purposes of this Section 2, any transaction or series of
related transactions (including, without limitation, any reorganization, merger
or consolidation) that results in the transfer of fifty percent (50%) or more
of the then outstanding voting power of the corporation or in which the
outstanding shares of the corporation are exchanged for securities or other
consideration issued, or caused to be issued, by the acquiring corporation or
other entity or person or its subsidiary (other than a reincorporation
transaction) or a sale of all or substantially all of the assets of the
corporation shall be treated as a liquidation, dissolution or winding up of the
corporation and shall entitle the holders of Series A Preferred, Series B
Preferred, Series C Preferred, Series D Preferred, Series E Preferred and
Common Stock to receive at the closing in cash, securities or other property
amounts as specified in Sections 2(a), 2(b) and 2(c) above.
(e) Any securities to be delivered to the holders of the Series A
Preferred, Series B Preferred, Series C Preferred, Series D Preferred, Series E
Preferred and Common Stock pursuant to Section 2(d) above shall be valued as
follows:
(i) Securities not subject to investment letter or other
similar restrictions on free marketability:
(A) If traded on a securities exchange or The Nasdaq
National Market, the value shall be deemed to be the average of the closing
prices of the securities on such exchange over the 30-day period ending three
(3) days prior to the closing;
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(B) If actively traded over-the-counter, the value
shall be deemed to be the average of the closing bid prices over the 30-day
period ending three (3) days prior to the closing; and
(C) If there is no active public market, the value
shall be the fair market value thereof, as determined in good faith by the
Board of Directors of the corporation.
(ii) The method of valuation of securities subject to
investment letter or other restrictions on free marketability shall be to make
an appropriate discount from the market value determined as above in (i) (A),
(B) or (C) to reflect the approximate fair market value thereof, as determined
in good faith by the Board of Directors of the corporation.
3. Conversion. The holders of the Series A, Series B, Series C,
Series D and Series E Preferred shall have conversion rights as follows (the
"CONVERSION RIGHTS"):
(a) Right to Convert.
(i) Subject to subsection (c), each share of Series A, Series
B, Series C, Series D and Series E Preferred shall be convertible, at the
option of the holder thereof, at any time after the date of issuance of such
share, at the office of the corporation or any transfer agent for the Series A,
Series B, Series C, Series D and Series E Preferred, into such number of fully
paid and nonassessable shares of Common Stock as is determined by dividing
$0.26 for each share of Series A Preferred, $0.78 for each share of Series B
Preferred, $1.75 for each share of Series C Preferred, $3.36 for each share of
Series D Preferred and $3.75 for each share of Series E Preferred by the
conversion price at the time in effect for such share. The initial conversion
price for shares of Series A Preferred (the "SERIES A CONVERSION PRICE"),
SERIES B Preferred (the "SERIES B CONVERSION PRICE"), Series C Preferred (the
"SERIES C CONVERSION PRICE"), Series D Preferred (the "SERIES D CONVERSION
PRICE") and Series E Preferred (the "SERIES E CONVERSION PRICE" and together
with the Series A Conversion Price, the Series B Conversion Price, the Series C
Conversion Price and the Series D Conversion Price, the "CONVERSION PRICE")
shall be $0.26, $0.78, $1.75, $3.36 and $3.75 per share, respectively;
provided, however, that such Conversion Prices shall be subject to adjustment
as set forth in subsection 3(c).
(ii) Each share of Series A, Series B, Series C, Series D and
Series E Preferred shall automatically be converted into shares of Common Stock
at the Conversion Price at the time in effect for such Series A, Series B,
Series C, Series D and Series E Preferred upon the consummation of the
corporation's sale of its Common Stock in a bona fide, firm commitment
underwriting pursuant to a registration statement under the Securities Act of
1933, as amended (the "SECURITIES ACT"), which results in aggregate gross cash
proceeds to the corporation in excess of $7,500,000 and the public offering
price of which is not less than $5.50 per share (adjusted to reflect stock
splits, stock dividends and recapitalizations).
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(b) Mechanics of Conversion. Before any holder of Series A, Series
B, Series C, Series D or Series E Preferred shall be entitled to convert the
same into shares of Common Stock, he shall surrender the certificate or
certificates therefor, duly endorsed, at the office of the corporation or of
any transfer agent for the Series A, Series B, Series C, Series D or Series E
Preferred, and shall give written notice by mail, postage prepaid, to the
corporation at its principal corporate office, of the election to convert the
same and shall state therein the name or names in which the certificate or
certificates for shares of Common Stock are to be issued. The corporation
shall, as soon as practicable thereafter, issue and deliver at such office to
such holder of Series A, Series B, Series C, Series D or Series E Preferred, or
to the nominee or nominees of such holder, a certificate or certificates for
the number of shares of Common Stock to which such holder shall be entitled as
aforesaid. Such conversion shall be deemed to have been made immediately prior
to the close of business on the date of such surrender of the shares of Series
A, Series B, Series C, Series D or Series E Preferred to be converted, and the
person or persons entitled to receive the shares of Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock as of such date. If the conversion is in
connection with an underwritten offer of securities registered pursuant to the
Securities Act, the conversion will be conditioned upon the closing with the
underwriter of the sale of securities pursuant to such offering, unless
otherwise designated in writing by the holders of such Series A, Series B,
Series C, Series D or Series E Preferred, in which event the person(s) entitled
to receive the Common Stock issuable upon such conversion of the Series A,
Series B, Series C, Series D or Series E Preferred shall not be deemed to have
converted such Series A, Series B, Series C, Series D or Series E Preferred
until immediately prior to the closing of such sale of securities.
(c) Conversion Price Adjustments of Preferred Stock. The Conversion
Price of the Series A, Series B, Series C, Series D or Series E Preferred shall
be subject to adjustment from time to time as follows:
(i) (A) If the corporation, at any time or from time to time
after the date of the first issuance of shares of Series A, Series B, Series C,
Series D or Series E Preferred (the "PURCHASE DATE" for such series of
Preferred Stock), shall issue any Additional Stock (as defined below) without
consideration or for a consideration per share less than the Conversion Price
for that particular series of Preferred Stock in effect immediately prior to
the issuance of such Additional Stock, the Conversion Price for such series of
Preferred Stock in effect immediately prior to each such issuance shall
forthwith be adjusted to a price determined by multiplying such Conversion
Price by a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to such issuance plus the number of
shares of Common Stock which the aggregate consideration received by the
corporation for the total number of shares of Additional Stock so issued would
purchase at such Conversion Price, and the denominator of which shall be the
number of shares of Common Stock outstanding immediately prior to such issuance
plus the number of such shares of Additional Stock so issued; provided that for
the purposes of this subsection, all shares of Common Stock issuable upon
conversion of outstanding Preferred Stock shall be deemed to be outstanding,
and immediately
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after any Additional Stock is deemed issued, such Additional Stock shall be
deemed to be outstanding.
(B) No adjustment of the Conversion Price for the Series
A, Series B, Series C, Series D or Series E Preferred shall be made in an
amount less than one cent per share, provided that any adjustments which are
not required to be made by reason of this sentence shall be carried forward and
shall be either taken into account in any subsequent adjustment made prior to
three years from the date of the event giving rise to the adjustment being
carried forward, or shall be made at the end of three years from the date of
the event giving rise to the adjustment being carried forward. Except to the
limited extent provided for in subsections 3(c)(i)(E)(3) and 3(c)(i)(E)(4), no
adjustment of such Conversion Price pursuant to this subsection 3(c)(i) shall
have the effect of increasing the Conversion Price above the Conversion Price
in effect immediately prior to such adjustment.
(C) In the case of the issuance of Common Stock for cash,
the consideration shall be deemed to be the amount of cash paid therefor before
deducting any reasonable discounts, commissions or other expenses allowed, paid
or incurred by the corporation for any underwriting or otherwise in connection
with the issuance and sale thereof.
(D) In the case of the issuance of the Common Stock for a
consideration in whole or in part other than cash, the consideration other than
cash shall be deemed to be the fair value thereof as determined by the Board of
Directors irrespective of any accounting treatment.
(E) In the case of the issuance, whether before, on or
after the Purchase Date of the Series A, Series B, Series C, Series D or Series
E Preferred, of options to purchase or rights to subscribe for Common Stock,
securities by their terms convertible into or exchangeable for Common Stock or
options to purchase or rights to subscribe for such convertible or exchangeable
securities (which are not excluded from the definition of Additional Stock),
the following provisions shall apply:
1. The aggregate maximum number of shares of Common
Stock deliverable upon exercise of such options to purchase or rights to
subscribe for Common Stock shall be deemed to have been issued at the time such
options or rights were issued and for a consideration equal to the
consideration (determined in the manner provided in subsections 3(c)(i)(C) and
3(c)(i)(D)), if any, received by the corporation upon the issuance of such
options or rights plus the minimum purchase price provided in such options or
rights for the Common Stock covered thereby.
2. The aggregate maximum number of shares of Common
Stock deliverable upon conversion of or in exchange for any such convertible or
exchangeable securities or upon the exercise of options to purchase or rights
to subscribe for such convertible or exchangeable securities and subsequent
conversion or exchange thereof shall be deemed to have been issued at the time
such securities were issued or such options or rights were issued and for a
consideration equal to the consideration, if any, received by the corporation
for
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any such securities and related options or rights (excluding any cash received
on account of accrued interest or accrued dividends), plus the additional
consideration, if any, to be received by the corporation upon the conversion or
exchange of such securities or the exercise of any related options or rights
(the consideration in each case to be determined in the manner provided in
subsections 3(c)(i)(C) and 3(c)(i)(D)).
3. In the event of any change in the number of shares of Common
Stock deliverable or any increase in the consideration payable to the
corporation upon exercise of such options or rights or upon conversion of or in
exchange for such convertible or exchangeable securities, including, but not
limited to, a change resulting from the antidilution provisions thereof, the
Conversion Prices of the Series A, Series B, Series C, Series D or Series E
Preferred obtained with respect to the adjustment which was made upon the
issuance of such options, rights or securities, and any subsequent adjustments
based thereon, shall be recomputed to reflect such change, but no further
adjustment shall be made for the actual issuance of Common Stock or any payment
of such consideration upon the exercise of any such options or rights or the
conversion or exchange of such securities.
4. Upon the expiration of any such options or rights, the
termination of any such rights to convert or exchange or the expiration of any
options or rights related to such convertible or exchangeable securities, the
Conversion Prices of the Series A, Series B, Series C, Series D or Series E
Preferred obtained with respect to the adjustment which was made upon the
issuance of such options, rights or securities or options or rights related to
such securities, and any subsequent adjustments based thereon, shall be
recomputed to reflect the issuance of only the number of shares of Common Stock
actually issued upon the exercise of such options or rights, upon the conversion
or exchange of such securities or upon the exercise of the options or rights
related to such securities. Upon the expiration of any such options or rights,
the termination of any such rights to convert or exchange or the expiration of
any options or rights related to such convertible or exchangeable securities,
only the number of shares of Common Stock actually issued upon the exercise of
such options or rights, upon the conversion or exchange of such securities or
upon the exercise of the options or rights related to such securities shall
continue to be deemed to be issued.
5. All Common Stock deemed issued pursuant to this subsection
3(c)(i)(E) shall be considered issued only at the time of its deemed issuance
and any actual issuance of such stock shall not be an actual issuance or a
deemed issuance of the corporation's Common Stock under the provisions of this
Section 3, provided however, that in the case of any options to purchase or
rights to subscribe for Common Stock which expire by their terms not more than
30 days after the date of issue thereof, no adjustment of the Conversion Price
shall be made until the expiration or exercise of all such options or rights,
whereupon such adjustment shall be made in the same manner provided in
subsection (E)(4) above.
(ii) "ADDITIONAL STOCK" shall mean any shares of Common Stock issued
(or deemed to have been issued pursuant to subsection 3(c)(i)(E)) by the
corporation on or after the Purchase Date other than shares of Common Stock
issued or issuable;
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(A) pursuant to a transaction described in subsection
3(c)(iii) hereof;
(B) to officers, directors, employees and consultants of the
corporation directly or pursuant to a stock option plan or restricted stock plan
approved by the stockholders and directors of the corporation;
(C) in connection with a capital equipment lease, technology
acquisition, or similar transaction approved by the Board of Directors of the
corporation;
(D) for which adjustment of the Conversion Price is made
pursuant to this Section 3; or
(E) upon conversion of the Series A, Series B, Series C,
Series D or Series E Preferred.
(iii) In the event the corporation should at any time or from time
to time after the Purchase Date fix a record date for the effectuation of a
split or subdivision of the outstanding shares of Common Stock or the
determination of holders of Common Stock entitled to receive a dividend or
other distribution payable in additional shares of Common Stock or other
securities or rights convertible into, or entitling the holder thereof to
receive directly or indirectly, additional shares of Common Stock (hereinafter
referred to as "COMMON STOCK EQUIVALENTS") without payment of any consideration
by such holder for the additional shares of Common Stock or the Common Stock
Equivalents (including the additional shares of Common Stock issuable upon
conversion or exercise thereof), then, as of such record date (or the date of
such dividend distribution, split or subdivision if no record date is fixed),
the Conversion Prices of the Series A, Series B, Series C, Series D and Series
E Preferred shall be appropriately decreased so that the number of shares of
Common Stock issuable on conversion of each share of such series shall be
increased in proportion to such increase of outstanding shares determined in
accordance with subsection 3(c)(i)(E).
(iv) If the number of shares of Common Stock outstanding at any
time after the Purchase Date is decreased by a combination of the outstanding
shares of Common Stock, then, following the record date of such combination,
the Conversion Prices for the Series A, Series B, Series C, Series D and Series
E Preferred shall be appropriately increased so that the number of shares of
Common Stock issuable on conversion of each share of such series shall be
decreased in proportion to such decrease in outstanding shares.
(d) Other Distributions. In the event the corporation shall declare a
distribution payable in securities of other persons, evidences of indebtedness
issued by the corporation or other persons, assets (excluding cash dividends)
or options or rights not referred to in subsection 3(c)(iii), then, in each
such case for the purpose of this subsection 3(d), the holders of the Series A,
Series B, Series C, Series D and Series E Preferred shall be entitled to a
proportionate share of any such distribution as though they were the holders of
the number of
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shares of Common Stock of the corporation into which their shares of Series A,
Series B, Series C, Series D and Series E Preferred are convertible as of the
record date fixed for the determination of the holders of Common Stock of the
corporation entitled to receive such distribution.
(e) Recapitalizations. If at any time or from time to time there
shall be a recapitalization of the Common Stock (other than a subdivision,
combination or merger or sale of assets transaction provided for elsewhere in
Sections 2 or 3) provision shall be made so that the holders of the Series A,
Series B, Series C, Series D and Series E Preferred shall thereafter be entitled
to receive upon conversion of the Series A, Series B, Series C, Series D and
Series E Preferred the number of shares of stock or other securities or property
of the Corporation or otherwise, to which a holder of Common Stock deliverable
upon conversion would have been entitled on such recapitalization. In any such
case, appropriate adjustment shall be made in the application of the provisions
of this Section 3 with respect to the rights of the holders of the Series A,
Series B, Series C, Series D and Series E Preferred after the recapitalization
to the end that the provisions of this Section 3 (including adjustment of the
Conversion Price then in effect and the number of shares purchasable upon
conversion of the Series A, Series B, Series C, Series D and Series E Preferred)
shall be applicable after that event as nearly equivalent as may be practicable.
(f) No Impairment. The corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by the
corporation, but will at all times in good faith assist in the carrying out of
all the provisions of this Section 3 and in the taking of all such action as
may be necessary or appropriate in order to protect the Conversion Rights of
the holders of the Series A, Series B, Series C, Series D and Series E
Preferred against impairment.
(g) No Fractional Shares and Certificate as to Adjustments.
(i) No fractional shares shall be issued upon conversion of the
Series A, Series B, Series C, Series D or Series E Preferred, and the number of
shares of Common Stock to be issued upon conversion shall be rounded to the
nearest whole share. Whether or not fractional shares are issuable upon such
conversion shall be determined on the basis of the total number of shares of
Series A, Series B, Series C, Series D or Series E Preferred the holder is at
the time converting into Common Stock and the number of shares of Common Stock
issuable upon such aggregate conversion.
(ii) Upon the occurrence of each adjustment or readjustment of
any Conversion Price of Series A, Series B, Series C, Series D or Series E
Preferred pursuant to this Section 3, the corporation, at its expense, shall
promptly compute such adjustment or readjustment in accordance with the terms
hereof and prepare and furnish to each holder of Series A, Series B, Series C,
Series D or Series E Preferred a certificate setting forth such
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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 A, Series B, Series C, Series D or
Series E Preferred, furnish or cause to be furnished to such holder a like
certificate setting forth (A) such adjustment and readjustment, (B) the
Conversion Prices at the time in effect, 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 a share of Series A, Series B, Series C,
Series D or Series E Preferred.
(h) Notices of Record Date. In the event of any taking by the
corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, the corporation
shall mail to each holder of Series A, Series B, Series C, Series D and Series E
Preferred, at least 10 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.
(i) Reservation of Stock Issuable Upon Conversion. The
corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock solely for the purpose of effecting the
conversion of the shares of the Series A, Series B, Series C, Series D and
Series E 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
Series A, Series B, Series C, Series D and Series E Preferred; and if at any
time the number of authorized but unissued shares of Common Stock shall not be
sufficient to effect the conversion of all then outstanding shares of the Series
A, Series B, Series C, Series D and Series E Preferred, in addition to such
other remedies as shall be available to the holders of such Series A, Series B,
Series C, Series D and Series E Preferred, the corporation will take such
corporate action as may, in the opinion of its counsel, be necessary to increase
its authorized but unissued shares of Common Stock to such number of shares as
shall be sufficient for such purposes.
(j) Notices. Any notice required by the provisions of this
Section 3 to be given to the holders of shares of Series A, Series B, Series C,
Series D and Series E Preferred shall be deemed given if deposited in the United
States mail, postage prepaid, and addressed to each holder of record at his
address appearing on the books of the corporation.
4. Voting Rights. Each holder of shares of Series A, Series B,
Series C, Series D and Series E Preferred shall have the right to one vote for
each share of Common stock into which such Series A, Series B, Series C,
Series D or Series E Preferred could then be converted (with any fractional
share determined on an aggregate conversion basis being rounded to the nearest
whole share), and with respect to such vote, such holder shall have full voting
rights and powers equal to the voting rights and powers of the holders of
Common Stock, and shall be entitled, notwithstanding any provision hereof, to
notice of any stockholders' meeting in accordance with the Bylaws of the
corporation, and shall be entitled to vote, together with
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holders of Common Stock, with respect to any question upon which holders of
Common Stock have the right to vote.
5. Protective Provisions. So long as shares of Preferred Stock are
outstanding, the corporation shall not without first obtaining the approval (by
vote or written consent, as provided by law) of the holders of at least a
majority of the then outstanding shares of Preferred Stock, voting together as
one class except where otherwise required by law;
(a) create or issue any new class or series of stock or any other
securities convertible into equity securities of the corporation having a
preference over, or being on a parity with, the Series A, Series B, Series C,
Series D or Series E Preferred;
(b) sell, convey, or otherwise dispose of all or substantially all
of its property or business or merge into or consolidate with any other
corporation (other than a wholly owned subsidiary corporation) or effect any
transaction or series of related transactions in which more than 50% of the
voting power of the corporation is disposed of; or
(c) engage in any act which would result in taxation of the holders
of shares of the Preferred Stock under Section 305 of the Internal Revenue Code
of 1986, as amended (or any comparable provision of the Internal Revenue Code
of 1986, as hereafter from time to time amended).
So long as shares Series E Preferred are outstanding, the corporation
shall not without first obtaining the approval (by vote or written consent, as
provided by law) of the holders of at least Sixty-Six and Two-Thirds Percent
(66-2/3%) of the then outstanding Series E Preferred, voting together as one
class:
(a) amend or change the rights, preferences, privileges or powers
of, or the restrictions provided for the benefit of, the Series E Preferred;
(b) create or issue any new class or series of stock or any other
securities convertible into equity securities of the corporation having a
preference over the Series E Preferred;
(c) reclassify any outstanding shares into shares having a
preference over, or being on parity with, as to dividends or liquidation
rights, the Series E Preferred;
(d) amend the corporation's Certificate of Incorporation in a manner
that adversely affects the rights, preferences or privileges of the Series E
Preferred; or
(e) declare or pay a dividend on the Common Stock (other than a
dividend payable solely in shares of Common Stock).
6. Status of Converted Stock. In the event any shares of Series A,
Series B, Series C, Series D or Series E Preferred shall be converted pursuant
to Section 3 hereof, the shares so converted shall be canceled and shall not be
issuable by the corporation, and the
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Certificate of Incorporation of the corporation shall be appropriately amended
to effect the corresponding reduction in the corporation's authorized capital
stock.
C. Common Stock.
1. Dividend Rights. Subject to the prior rights of holders of
all classes of stock at the time outstanding having prior rights as to
dividends, the holders of the Common Stock shall be entitled to receive, when
and as declared by the Board of Directors, out of any assets of the corporation
legally available therefor, such dividends as may be declared from time to time
by the Board of Directors.
2. Liquidation Rights. Upon the liquidation, dissolution or
winding up of the corporation, the assets of the corporation shall be
distributed as provided in Section B.2.
3. Redemption. The Common Stock is not redeemable.
4. Voting Rights. The holder of each share of Common Stock shall
have the right to one vote, and shall be entitled to notice of any stockholders
meeting in accordance with the Bylaws of the corporation, and shall be entitled
to vote upon such matters and in such manner as may be provided by law.
ARTICLE V
The corporation shall have perpetual existence.
ARTICLE VI
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to adopt, alter, amend or repeal
the Bylaws of the corporation without any action on the part of the
stockholders.
ARTICLE VII
The number of directors which will constitute the whole Board of
Directors of the Corporation shall be as specified in the Bylaws of the
corporation.
ARTICLE VIII
The election of directors need not be by written ballot unless the Bylaws
of the corporation shall so provide.
ARTICLE IX
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the corporation may be kept
(subject to any statutory
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provision) 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
To the fullest extent permitted by the Delaware General Corporation Law as
the same exists or as may hereafter be amended, a director of the corporation
shall not be liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director. The corporation shall indemnify to
the fullest extent permitted by law any person made or threatened to be made a
party to an action or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that he, his testator or intestate is or
was a director, officer or employee of the corporation or any predecessor of
the corporation, or serves or served at any other enterprise as a director,
officer or employee at the request of the corporation or any predecessor to the
corporation. Neither any amendment nor repeal of this Article X, nor the
adoption of any provision of this Certification of Incorporation inconsistent
with this Article X, shall eliminate or reduce the effect of this Article X in
respect of any matter occurring, or any cause of action, suit or claim that,
but for this Article X, would accrue or arise, prior to such amendment, repeal
or adoption of an inconsistent provision.
ARTICLE XI
Advance notice of new business and stockholder nominations for the
election of directors shall be given in the manner and to the extent provided
in the Bylaws of the corporation.
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