2.12 Restated Certificate of Incorporation-DelawareDELAWARE
RESTATED CERTIFICATE OF
INCORPORATION OF
_________________________ ___________________, a corporation organized and existing under and by
virtue of the provisions of the General Corporate Law of the State of Delaware
(the "GCLSD"),
DOES HEREBY CERTIFY:
FIRST: That the name of this corporation is ___________________________
and that this corporation was originally incorporated pursuant to the GCLSD on
___________, _______.
SECOND: That the Board of Directors duly adopted resolutions proposing to
amend and restate the Certificate of Incorporation of this corporation,
declaring the amendment and restatement to be in the best interests of this
corporation and its stockholders, and authorizing the appropriate officers of
this corporation to solicit the consent of the stockholders therefor, which
resolution setting forth the proposed amendment and restatement is as follows: RESOLVED, that the Certificate of Incorporation of this corporation be
amended and restated in its entirety as follows:
ARTICLE I
The name of this corporation is _____________________________________.
ARTICLE II The address of the registered office of this corporation in the State of
Delaware is __________, in the City of ______________, County of ____________.
The name of its registered agent at such address is _________________.
ARTICLE III
The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the GCLSD of Delaware.
ARTICLE IV
A. Classes of Stock. This corporation is authorized to issue two classes
of stock to be designated, respectively, "Common Stock" and "Preferred Stock."
The total number of shares that this corporation is authorized to issue is
___________ (_____) shares. ________ (_____) shares shall be Common Stock and
_____________ (_______) shares shall be Preferred Stock, each with a par value
of $______ per share.
B. Rights, Preferences and Restrictions of Preferred Stock. The Preferred
Stock authorized by this Restated Certificate of Incorporation may be issued
from time to time in one or more series. The rights, preferences, privileges,
and restrictions granted to and imposed on the Series A Preferred Stock, which
series shall consist of ____________ shares (the "Series A Preferred Stock"),
are as set forth herein below. The Board of Directors is hereby authorized to
fix or alter the rights, preferences, privileges and restrictions granted to or
imposed upon additional series of Preferred Stock, and the number of shares
constituting any such series and the designation thereof, or of any of them.
Subject to compliance with applicable protective voting rights that have been or
may be granted to the Preferred Stock or series thereof in Certificates of
Designation or this corporation's Certificate of Incorporation ("Protective
Provisions"), but notwithstanding any other rights of the Preferred Stock or any
series thereof, the rights, privileges, preferences and restrictions of any such
additional series may be subordinated to, pari passu with or senior to any of
those of any present or future class or series of Preferred or Common Stock.
Subject to compliance with applicable Protective Provisions, the Board of
Directors is also authorized to increase or decrease the number of shares of any
series (other than the Series A Preferred Stock), prior or subsequent to the
issue of that series, but not below the number of shares of such series then
outstanding. Should the number of shares of any series be so decreased, the
shares constituting such decrease shall resume the status that they had prior to
the adoption of the resolution originally fixing the number of shares of such series.1. Dividends.(a) Subject to the rights of any series of Preferred Stock that may
from time to time come into existence, the holders of shares of Series A
Preferred Stock shall be entitled to receive dividends, out of any assets
legally available therefor, prior and in preference to any declaration or
payment of any dividend (payable other than 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 this corporation) on the
Common Stock of this corporation, at the rate of $ ______ per share per annum
for the Series A Preferred Stock (as adjusted for any stock splits, stock
dividends, recapitalizations or the like), payable when, as, and if declared by
the Board of Directors. Such dividends shall not be cumulative. The holders of
the outstanding Series A Preferred Stock may waive any dividend preference that
such holders shall be entitled to receive under this Section 1 upon the
affirmative vote or written consent of the holders of at least [a majority] of
the Series A Preferred Stock then outstanding.
2. Liquidation Preference and Participation.(a) In the event of any liquidation, dissolution or winding up of
this corporation, either voluntary or involuntary, subject to the rights of
series of Preferred Stock that may from time to time come into existence, the
holders of Series A Preferred Stock shall be entitled to receive, prior and in
preference to any distribution of any of the assets of this corporation to the
holders of Common Stock by reason of their ownership thereof, an amount per
share equal to the sum of (i) $________ for each outstanding share of Series A
Preferred Stock (the "Original Series A Issue Price") and (ii) an amount equal
to ___% of the Original Series A Issue Price for each 12 months that has passed
since the date of issuance of any Series A Preferred Stock, plus declared but
unpaid dividends on such share (subject to adjustment of such fixed dollar
amounts for any stock splits, stock dividends, combinations, recapitalizations
or the like). If upon the occurrence of such event, the assets and funds thus
distributed among the holders of the Series A Preferred Stock shall be
insufficient to permit the payment to such holders of the full aforesaid
preferential amounts, then, subject to the rights of series of Preferred Stock
that may from time to time come into existence, the entire assets and funds of
this corporation legally available for distribution shall be distributed ratably
among the holders of the Series A Preferred Stock in proportion to the amount of
such stock owned by each such holder.(b) Upon completion of the distribution required by Section 2(a) and
any other distribution that may be required with respect to series of Preferred
Stock that may from time to time come into existence, all of the remaining
assets of this corporation available for distribution to stockholders shall be
distributed among the holders of Series A Preferred Stock and Common Stock pro
rata based on the number of shares of Common Stock held by each (assuming full
conversion of all such Series A Preferred Stock).
(i) For purposes hereof, a liquidation, dissolution or winding
up of this corporation shall be deemed to be occasioned by, or to include, (A)
the acquisition of this corporation by another entity by means of 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 outstanding voting power of this corporation;
or (B) a sale of all or substantially all of the assets of this corporation. (ii) In any of such events, if the consideration received by
this corporation is other than cash, its value will be deemed its fair market
value. Any securities shall be valued as follows:
(A) Securities not subject to investment letter or other
similar restrictions on free marketability covered by (B) below: (1) If traded
on a securities exchange or through the Nasdaq National Market, the value shall
be deemed to be the average of the closing prices of the securities on such
exchange or system over the thirty (30) day period ending three (3) days prior
to the closing; (2) If actively traded over-the-counter, the value shall be
deemed to be the average of the closing bid or sale prices (whichever is
applicable) over the thirty (30) day period ending three (3) days prior to the
closing; and (3) If there is no active public market, the value shall be the
fair market value thereof, as mutually determined by this corporation and the
holders of at least a majority of the voting power of all then outstanding
shares of Preferred Stock.
(B) The method of valuation of securities subject to
investment letter or other restrictions on free marketability (other than
restrictions arising solely by virtue of a stockholder's status as an affiliate
or former affiliate) shall be to make an appropriate discount from the market
value determined as above in (A) (1), (2) or (3) to reflect the approximate fair
market value thereof, as mutually determined by this corporation and the holders
of at least a majority of the voting power of all then outstanding shares of
such Preferred Stock.
(iii) This corporation shall give each holder of record of
Series A Preferred Stock written notice of such impending transaction not later
than twenty (20) days prior to the stockholders' meeting called to approve such
transaction, or twenty (20) days prior to the closing of such transaction,
whichever is earlier, and shall also notify such holders in writing of the final
approval of such transaction. The first of such notices shall describe the
material terms and conditions of the impending transaction and the provisions of
this Section 2, and this corporation shall thereafter give such holders prompt
notice of any material changes. The transaction shall in no event take place
sooner than twenty (20) days after this corporation has given the first notice
provided for herein or sooner than ten (10) days after this corporation has
given notice of any material changes provided for herein; provided, however,
that such periods may be shortened upon the written consent of the holders of
Preferred Stock that are entitled to such notice rights or similar notice rights
and that represent at least a majority of the voting power of all then
outstanding shares of such Preferred Stock.3. Redemption.(a) Subject to the rights of any series of Preferred Stock that may
from time to time come into existence, at any time after ______________, _____,
but within ninety (90) days after the receipt by this corporation of a written
request from the holders of not less than a majority of the then outstanding
Series A Preferred Stock that all or, if less than all, a specified percentage
of such holders' shares of Series A Preferred Stock be redeemed, and
concurrently with surrender by such holders of the certificates representing
such shares, this corporation shall, to the extent it may lawfully do so, redeem
in ________ (____) annual installments (each payment date being referred to
herein as a "Redemption Date") the shares specified in such request by paying in
cash therefor a sum per share equal to $________ per share of Series A Preferred
Stock (as adjusted for any stock splits, stock dividends, recapitalizations or
the like) plus all declared but unpaid dividends on such share (the "Series A
Redemption Price"). The number of shares of Series A Preferred Stock that this
corporation shall be required to redeem on any one Redemption Date shall be
equal to the amount determined by dividing (i) the aggregate number of shares of
Series A Preferred Stock outstanding immediately prior to such Redemption Date
that have been requested to be redeemed pursuant hereto by (ii) the number of
remaining Redemption Dates (including the Redemption Date to which such
calculation applies). Any redemption of Series A Preferred Stock effected
pursuant hereto shall be made on a pro rata basis among the holders of the
Series A Preferred Stock in proportion to the number of shares of Series A
Preferred Stock proposed to be redeemed by such holders. (b) Subject to the rights of any series of Preferred Stock that may
from time to time come into existence, at least fifteen (15) but no more than
thirty (30) days prior to each Redemption Date, written notice shall be mailed,
first class postage prepaid, to each holder of record (at the close of business
on the business day next preceding the day on which notice is given) of the
Series A Preferred Stock to be redeemed, at the address last shown on the
records of this corporation for such holder, notifying such holder of the
redemption to be effected on the applicable Redemption Date, specifying the
number of shares to be redeemed from such holder, the Redemption Date, the
Redemption Price, the place at which payment may be obtained and calling upon
such holder to surrender to this corporation, in the manner and at the place
designated, his, her or its certificate or certificates representing the shares
to be redeemed (the "Redemption Notice"). Except as provided in Section (3)(c),
on or after each Redemption Date, each holder of Series A Preferred Stock to be
redeemed on such Redemption Date shall surrender to this corporation the
certificate or certificates representing such shares, in the manner and at the
place designated in the Redemption Notice, and thereupon the applicable
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 cancelled. In the event less than all the
shares represented by any such certificate are redeemed, a new certificate shall
be issued representing the unredeemed shares. (c) From and after each Redemption Date, unless there shall have
been a default in payment of the Redemption Price, all rights of the holders of
shares of Series A Preferred Stock designated for redemption on such Redemption
Date in the Redemption Notice as holders of Series A Preferred Stock (except the
right to receive the applicable Redemption Price without interest upon surrender
of their certificate or certificates) shall cease with respect to such shares,
and such shares shall not thereafter be transferred on the books of this
corporation or be deemed to be outstanding for any purpose whatsoever. Subject
to the rights of series of Preferred Stock that may from time to time come into
existence, if the funds of this corporation legally available for redemption of
shares of Series A Preferred Stock on a Redemption Date are insufficient to
redeem the total number of shares of Series A Preferred Stock to be redeemed on
such date, those funds that are legally available will be used to redeem the
maximum possible number of such shares ratably among the holders of such shares
to be redeemed such that each holder of a share of Series A Preferred Stock
receives the same percentage of the applicable Series A Redemption Price. The
shares of Series A Preferred Stock not redeemed shall remain outstanding and
entitled to all the rights and preferences provided herein. Subject to the
rights of series of Preferred Stock that may from time to time come into
existence, at any time thereafter when additional funds of this corporation are
legally available for the redemption of shares of Series A Preferred Stock, such
funds will immediately be used to redeem the balance of the shares that this
corporation has become obliged to redeem on any Redemption Date but that it has
not redeemed.(d) On or prior to each Redemption Date, this corporation shall
deposit the Redemption Price of all shares of Series A Preferred Stock
designated for redemption on such Redemption Date in the Redemption Notice, and
not yet redeemed or converted, with a bank or trust corporation having aggregate
capital and surplus in excess of $100,000,000 as a trust fund for the benefit of
the respective holders of the shares designated for redemption and not yet
redeemed, with irrevocable instructions and authority to the bank or trust
corporation to publish the notice of redemption thereof and pay the Redemption
Price for such shares to their respective holders on or after the Redemption
Date, upon receipt of notification from this corporation that such holder has
surrendered his, her or its share certificate to this corporation pursuant to
Section (3)(b) above. As of the date of such deposit (even if prior to the
Redemption Date), the deposit shall constitute full payment of the shares to
their holders, and from and after the date of the deposit the shares so called
for redemption shall be redeemed and shall be deemed to be no longer
outstanding, and the holders thereof shall cease to be stockholders with respect
to such shares and shall have no rights with respect thereto except the rights
to receive from the bank or trust corporation payment of the Redemption Price of
the shares, without interest, upon surrender of their certificates therefor, and
the right to convert such shares as provided in Article III(B)(4) hereof. Such
instructions shall also provide that any moneys deposited by this corporation
pursuant hereto for the redemption of shares thereafter converted into shares of
this corporation's Common Stock pursuant to Article III(B)(4) hereof prior to
the Redemption Date shall be returned to this corporation forthwith upon such
conversion. The balance of any moneys deposited by this corporation pursuant
hereto remaining unclaimed at the expiration of [two (2) years] following the
Redemption Date shall thereafter be returned to this corporation upon its
request expressed in a resolution of its Board of Directors.
4. Conversion.
The holders of the Series A Preferred Stock shall have conversion
rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series A Preferred Stock 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 this corporation or any transfer
agent for such stock, into such number of fully paid and nonassessable shares of
Common Stock as is determined by dividing the Original Series A Issue Price by
the Conversion Price applicable to such share, determined as hereafter provided,
in effect on the date the certificate is surrendered for conversion. The initial
Conversion Price per share for shares of Series A Preferred Stock shall be the
Original Series A Issue Price; provided, however, that the Conversion Price for
the Series A Preferred Stock shall be subject to adjustment as set forth in
Section 4(d).(b) Automatic Conversion. Each share of Series A Preferred Stock
shall automatically be converted into shares of Common Stock at the Conversion
Price at the time in effect for such Series A Preferred Stock immediately upon
the earlier of (i) this corporation's sale of its Common Stock in a firm
commitment underwritten public offering pursuant to a registration statement on
Form S-1 or Form SB-2 under the Securities Act of 1933, as amended, the public
offering price of which was not less than $________ per share (as adjusted for
any stock splits, stock dividends, recapitalizations or the like) and $_______
in the aggregate or (ii) the date specified by written consent or agreement of
the holders of a majority of the then outstanding shares of Series A Preferred Stock. (c) Mechanics of Conversion. Before any holder of Series A
Preferred Stock shall be entitled to convert the same into shares of Common
Stock, he or she shall surrender the certificate or certificates therefor, duly
endorsed, at the office of this corporation or of any transfer agent for the
Series A Preferred Stock, and shall give written notice to this 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. This corporation shall, as soon as
practicable thereafter, issue and deliver at such office to such holder of
Series A Preferred Stock, 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 Preferred Stock to be converted, and the
person or persons entitled to receive the shares of Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock as of such date. If the conversion is in
connection with an underwritten offering of securities registered pursuant to
the Securities Act of 1933, the conversion may, at the option of any holder
tendering Series A Preferred Stock for conversion, be conditioned upon the
closing with the underwriters of the sale of securities pursuant to such
offering, in which event the persons entitled to receive the Common Stock upon
conversion of the Series A Preferred Stock shall not be deemed to have converted
such Series A Preferred Stock until immediately prior to the closing of such
sale of securities. (d) Conversion Price Adjustments of Preferred Stock for Certain
Dilutive Issuances, Splits and Combinations. The Conversion Price of the Series
A Preferred Stock shall be subject to adjustment from time to time as follows:
(i) (A) If this corporation shall issue, after the date upon
which any shares of Series A Preferred Stock were first issued (the "Purchase
Date"), any Additional Stock (as defined below) without consideration or for a
consideration per share less than the Conversion Price for such series in effect
immediately prior to the issuance of such Additional Stock, the Conversion Price
for such series in effect immediately prior to each such issuance shall
forthwith (except as otherwise provided in this clause (i)) be adjusted
[weighted average provision/see also full and partial "ratchet" alternatives] 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
that the aggregate consideration received by this corporation for such issuance
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 shares of such Additional Stock. However, the
foregoing calculation shall not take into account shares deemed issued on
account of options, rights or convertible or exchangeable securities (or the
actual or deemed consideration therefor), except to the extent (i) such options,
rights or convertible or exchangeable securities have been exercised, converted
or exchanged or (ii) the consideration to be paid upon such exercise, conversion
or exchange per share of underlying Common Stock is less than or equal to the
per share consideration for the Additional Stock that has given rise to the
Conversion Price adjustment being calculated.(B) No adjustment of the Conversion Price for the Series
A Preferred Stock shall be made in an amount less than one cent per share,
provided that any adjustments that 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 (3) years from the date of the event
giving rise to the adjustment being carried forward, or shall be made at the end
of three (3) years from the date of the event giving rise to the adjustment
being carried forward. (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 this 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 applicable Purchase Date) 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, the following provisions shall
apply for all purposes hereof:
(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, if any, received by this corporation upon the issuance of such
options or rights plus the minimum exercise 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
this corporation for any such securities and related options or rights
(excluding any cash received on account of accrued interest or accrued
dividends), plus the minimum additional consideration, if any, to be received by
this corporation upon the conversion or exchange of such securities or the
exercise of any related options or rights.
(3) In the event of any change in the number of
shares of Common Stock deliverable or in the consideration payable to this
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 Price of the Series A Preferred Stock, to the extent in any way
affected by or computed using such options, rights or securities, 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 Price of the Series A Preferred Stock, to the extent
in any way affected by or computed using such options, rights or securities or
options or rights related to such securities, shall be recomputed to reflect the
issuance of only the number of shares of Common Stock (and convertible or
exchangeable securities that remain in effect) 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.
(ii) "Additional Stock" shall mean any shares of Common Stock
issued by this corporation after the Purchase Date other than:
(A) Common Stock issued pursuant to a transaction
described in subsection 4(d)(iii) hereof; or
(B) Shares of Common Stock issuable or issued to
employees, consultants, directors or vendors of this corporation directly or
pursuant to a stock option plan or restricted stock plan approved by the Board
of Directors of this corporation, not to exceed in the aggregate ______ shares
(iii) In the event this 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
Price of the Series A Preferred Stock 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 the aggregate
of shares of Common Stock outstanding and those issuable with respect to such
Common Stock Equivalents. (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 Price for the Series A Preferred Stock 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.
(a) Other Distributions. In the event this corporation shall declare
a distribution payable in securities of other persons, evidences of indebtedness
issued by this corporation or other persons, assets (excluding cash dividends)
or options or rights not referred to in Section 4(d)(iii), then, in each such
case for purposes hereof, the holders of the Series A Preferred Stock shall be
entitled to a proportionate share of any such distribution as though they were
the holders of the number of shares of Common Stock of this corporation into
which their shares of Series A Preferred Stock are convertible as of the record
date fixed for the determination of the holders of Common Stock of this
corporation entitled to receive such distribution.(b) 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
this Section 4 or Section 2) provision shall be made so that the holders of the
Series A Preferred Stock shall thereafter be entitled to receive upon conversion
of the Series A Preferred Stock 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. (c) No Impairment. This 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 this
corporation, but will at all times in good faith assist in the carrying out of
all the provisions hereof 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 Preferred Stock against impairment. (d) No Fractional Shares and Certificate as to Adjustments. No
fractional shares shall be issued upon the conversion of any share or shares of
the Series A Preferred Stock, and the number of shares of Common Stock to be
issued 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 Preferred Stock the holder is at the time
converting into Common Stock and the number of shares of Common Stock issuable
upon such aggregate conversion. Upon the occurrence of each adjustment or
readjustment of the Conversion Price of Series A Preferred Stock pursuant to
this Section 4, this 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 Preferred Stock a certificate setting forth
such adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. This corporation shall, upon the written
request at any time of any holder of Series A Preferred Stock, furnish or cause
to be furnished to such holder a like certificate setting forth (A) such
adjustment and readjustment, (B) the Conversion Price for such series of
Preferred Stock at the time in effect, and (C) the number of shares of Common
Stock and the amount, if any, of other property that at the time would be
received upon the conversion of a share of Series A Preferred Stock. (e) Notices of Record Date. In the event of any taking by this
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, this
corporation shall mail to each holder of Series A Preferred Stock, at least
twenty (20) 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. (f) Reservation of Stock Issuable Upon Conversion. This 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 Preferred Stock, such number of its shares of Common
Stock as shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Series A Preferred Stock.(g) Notices. Any notice required by the provisions hereof to be
given to the holders of shares of Series A Preferred Stock shall be deemed given
if deposited in the United States mail, postage prepaid, and addressed to each
holder of record at his address appearing on the books of this corporation.
(h) Pay-to-Play; Mandatory Conversion.
(i) At any time following the Purchase Date, if (a) the
holders of shares of Series A Preferred Stock are entitled to exercise the right
of first offer (the "Right of First Offer") set forth in Section __________ of
the Investors' Rights Agreement, dated __________ _______, by and among this
corporation and certain investors, as amended from time to time (the "Rights
Agreement"), with respect to an equity financing of this corporation (the
"Equity Financing"), (b) this corporation has complied with its notice
obligations, or such obligations have been waived, under the Right of First
Offer with respect to such Equity Financing and this corporation thereafter
proceeds to consummate the Equity Financing, and (c) such holder (a "Non-
Participating Holder") does not by exercise of such holder's Right of First
Offer acquire his, her or its Pro Rata Share (as defined in Section ____ of the
Rights Agreement) offered in such Equity Financing (a "Mandatory Offering"),
then all of such Non-Participating Holder's shares of Series A Preferred Stock
shall automatically and without further action on the part of such holder be
converted effective upon, subject to, and concurrently with, the consummation of
the Mandatory Offering (the "Mandatory Offering Date") into an equivalent number
of shares of Series A-1 Preferred Stock; provided, however, that no such
conversion shall occur in connection with a particular Equity Financing if,
pursuant to the written request of this corporation, such holder agrees in
writing to waive his, her or its Right of First Offer with respect to such
Equity Financing. Upon conversion pursuant hereto, the shares of Series A
Preferred Stock so converted shall be cancelled and not subject to reissuance. (ii) The holder of any shares of Series A Preferred Stock
converted pursuant hereto shall deliver to this corporation during regular
business hours at the office of any transfer agent of this corporation for the
Series A Preferred Stock, or at such other place as may be designated by this
corporation, the certificate or certificates for the shares so converted, duly
endorsed or assigned in blank or to this corporation. As promptly as
practicable thereafter, this corporation shall issue and deliver to such holder,
at the place designated by such holder, a certificate or certificates for the
number of full shares of the Series A-1 Preferred Stock to be issued and such
holder shall be deemed to have become a shareholder of record of Series A-1
Preferred Stock on the Mandatory Offering Date unless the transfer books of this
corporation are closed on that date, in which event he, she or it shall be
deemed to have become a shareholder of record of Series A-1 Preferred Stock on
the next succeeding date on which the transfer books are open. (iii) In the event that any Series A-1 Preferred Stock shares
are issued, concurrently with such issuance, this corporation shall use its best
efforts to take all such action as may be required, including amending its
Certificate of Incorporation, (a) to cancel all authorized shares of Series A-1
Preferred Stock that remain unissued after such issuance, (b) to create and
reserve for issuance upon Special Mandatory Conversion of any Series A Preferred
Stock a new series of Preferred Stock equal in number to the number of shares of
Series A-1 Preferred Stock so cancelled and designated Series A-2 Preferred
Stock, with the designations, powers, preferences and rights and the
qualifications, limitations and restrictions identical to those then applicable
to the Series A-1 Preferred Stock, except that the Conversion Price for such
shares of Series A-2 Preferred Stock once initially issued shall be the Series A
Conversion Price in effect immediately prior to such issuance and (c) to amend
the provisions hereof to provide that any subsequent Special Mandatory
Conversion will be into shares of Series A-2 Preferred Stock rather than Series
A-1 Preferred Stock. This corporation shall take the same actions with respect
to the Series A-2 Preferred Stock and each subsequently authorized series of
Preferred Stock upon initial issuance of shares of the last such series to be
authorized. The right to receive any dividend declared but unpaid at the time
of conversion on any shares of Preferred Stock converted pursuant to the
provisions hereof shall accrue to the benefit of the new shares of Preferred
Stock issued upon conversion thereof.5. Voting Rights.(a) General Voting Rights. The holder of each share of Series A
Preferred Stock shall have the right to one vote for each share of Common Stock
into which such Series A Preferred Stock could then be converted, 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 this corporation, and shall be entitled
to vote, together with holders of Common Stock, with respect to any question
upon which holders of Common Stock have the right to vote. Fractional votes
shall not, however, be permitted and any fractional voting rights available on
an as-converted basis (after aggregating all shares into which shares of Series
A Preferred Stock held by each holder could be converted) shall be rounded to
the nearest whole number (with one-half being rounded upward).
(b) Voting for the Election of Directors. So long as at least a
majority of the shares of Series A Preferred Stock originally issued remain
outstanding, the holders of such shares of Series A Preferred Stock shall be
entitled to elect _________(_____) directors of this corporation at each annual
election of directors. The holders of outstanding Common Stock shall be
entitled to elect ___________ (______) directors of this corporation at each
annual election of directors. The holders of Series A Preferred Stock and
Common Stock (voting together as a single class and not as separate series, and
on an as-converted basis) shall be entitled to elect any remaining directors of
this corporation.
In the case of any vacancy (other than a vacancy caused by removal)
in the office of a director occurring among the directors elected by the holders
of a class or series of stock pursuant hereto, the remaining directors so
elected by that class or series may by affirmative vote of a majority thereof
(or the remaining director so elected if there be but one, or if there are no
such directors remaining, by the affirmative vote of the holders of a majority
of the shares of that class or series), elect a successor or successors to hold
office for the unexpired term of the director or directors whose place or places
shall be vacant. Any director who shall have been elected by the holders of a
class or series of stock or by any directors so elected as provided in the
immediately preceding sentence hereof may be removed during the aforesaid term
of office, either with or without cause, by, and only by, the affirmative vote
of the holders of the shares of the class or series of stock entitled to elect
such director or directors, given either at a special meeting of such
stockholders duly called for that purpose or pursuant to a written consent of
stockholders, and any vacancy thereby created may be filled by the holders of
that class or series of stock represented at the meeting or pursuant to
unanimous written consent.
6. Certain Protective Provisions. Subject to the rights of any series of
Preferred Stock that may from time to time come into existence, so long as any
shares of Series A Preferred Stock are outstanding, this 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
Series A Preferred Stock:
(a) 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 fifty percent
(50%) of the voting power of this corporation is disposed of; (b) alter or change the rights, preferences or privileges of the
shares of Series A Preferred Stock so as to affect adversely the shares; (c) increase or decrease (other than by redemption or conversion)
the total number of authorized shares of Series A Preferred Stock;
(d) authorize or issue, or obligate itself to issue, any other
equity security, including any other security convertible into or exercisable
for any equity security having a preference over, or being on a parity with, the
Series A Preferred Stock with respect to dividends, liquidation, redemption or voting;
(e) redeem, purchase or otherwise acquire (or pay into or set aside
for a sinking fund for such purpose) any share or shares of Preferred Stock or
Common Stock; provided, however, that this restriction shall not apply to (i)
the repurchase of shares of Common Stock from employees, officers, directors,
consultants or other persons performing services for this corporation or any
subsidiary pursuant to agreements under which this corporation has the option to
repurchase such shares at cost or at cost upon the occurrence of certain events,
such as the termination of employment or (ii) the redemption of any share or
shares of Preferred Stock in accordance with Section 3; (f) amend this corporation's Certificate of Incorporation or bylaws;
or (g) change the authorized number of directors of this corporation.
7. Status of Redeemed or Converted Stock. In the event any shares of
Series A Preferred Stock shall be redeemed or converted pursuant to Section 3 or
Section 4 hereof, the shares so redeemed or converted shall be cancelled and
shall not be issuable by this corporation. The Restated Certificate of
Incorporation of this corporation shall be appropriately amended to effect the
corresponding reduction in this corporation's authorized capital stock.
C. Common Stock. The rights, preferences, privileges and
restrictions granted to and imposed on the Common Stock are as set forth below.
(a) 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 this corporation
legally available therefor, such dividends as may be declared from time to time
by the Board of Directors. (b) Liquidation Rights. Upon the liquidation, dissolution or
winding up of this corporation, the assets of this corporation shall be
distributed as provided in Article IV hereof. (c) Redemption. The Common Stock is not redeemable.
(d) Voting Rights. The holder of each share of Common Stock
shall have the right to one vote for each such share, and shall be entitled to
notice of any stockholders' meeting in accordance with the bylaws of this
corporation, and shall be entitled to vote upon such matters and in such manner
as may be provided by law.
ARTICLE V Except as otherwise provided in this Certificate of Incorporation, in
furtherance and not in limitation of the powers conferred by statute, the Board
of Directors is expressly authorized to make, repeal, alter, amend and rescind
any or all of the Bylaws of this corporation.
ARTICLE VI
The number of directors of this corporation shall be fixed from time to
time by a bylaw or amendment thereof duly adopted by the Board of Directors or
by the stockholders.
ARTICLE VII
Elections of directors need not be by written ballot unless the Bylaws of
this corporation shall so provide.
ARTICLE VIII
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of this 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 this corporation.
ARTICLE IX
A director of this corporation shall, to the fullest extent permitted by
the GCLSD as it now exists or as it may hereafter be amended, not be personally
liable to this corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to this corporation or its stockholders, (ii) for
acts or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the GCLSD, or (iv) for any
transaction from which the director derived any improper personal benefit. If
the GCLSD is amended, after approval by the stockholders of this Article, to
authorize corporation action further eliminating or limiting the personal
liability of directors, then the liability of a director of this corporation
shall be eliminated or limited to the fullest extent permitted by the GCLSD, as
so amended. Any amendment, repeal or modification of this Article IX, or the adoption
of any provision of this Amended and Restated Certificate of Incorporation
inconsistent with this Article IX, by the stockholders of this corporation shall
not apply to or adversely affect any right or protection of a director of this
corporation existing at the time of such amendment, repeal, modification or adoption.
ARTICLE X
This corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ARTICLE XI To the fullest extent permitted by applicable law, this corporation is
authorized to provide indemnification of (and advancement of expenses to) agents
of this corporation (and any other persons to which GCLSD permits this
corporation to provide indemnification) through bylaw provisions, agreements
with such agents or other persons, vote of stockholders or disinterested
directors or otherwise, in excess of the indemnification and advancement
otherwise permitted by Section 145 of the GCLSD, subject only to limits created
by applicable GCLSD (statutory or non-statutory), with respect to actions for
breach of duty to this corporation, its stockholders, and others. Any amendment, repeal or modification of the foregoing provisions of this
Article XI shall not adversely affect any right or protection of a director,
officer, agent, or other person existing at the time of, or increase the
liability of any director of this corporation with respect to any acts or
omissions of such director, officer or agent occurring prior to, such amendment,
repeal or modification. * * *
THIRD: The foregoing amendment and restatement was approved by the
holders of the requisite number of shares of said corporation in accordance with
Section 228 of the GCLSD. FOURTH: That said amendment and restatement was duly adopted in
accordance with the provisions of Section 242 and 245 of the GCLSD.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation has been executed
by the President and the Secretary of this corporation on this ____ day of
_____________, ____.
________________________
_____________, President
________________________
_____________, Secretary
