Attached files
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8-K - FORM 8-K - Life Technologies Corp | a55993e8vk.htm |
EX-3.2 - EX-3.2 - Life Technologies Corp | a55993exv3w2.htm |
EX-10.2 - EX-10.2 - Life Technologies Corp | a55993exv10w2.htm |
EX-10.3 - EX-10.3 - Life Technologies Corp | a55993exv10w3.htm |
EX-10.1 - EX-10.1 - Life Technologies Corp | a55993exv10w1.htm |
Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
LIFE TECHNOLOGIES CORPORATION,
a Delaware Corporation
OF
LIFE TECHNOLOGIES CORPORATION,
a Delaware Corporation
LIFE TECHNOLOGIES CORPORATION, a corporation organized and existing under the laws of the State of
Delaware (the Corporation), hereby certifies as follows:
ONE: The name of this Corporation is LIFE TECHNOLOGIES CORPORATION. Life Technologies
Corporation was originally incorporated under the name Invitrogen Inc., and the original
Certificate of Incorporation of the Corporation was filed with the Secretary of State of Delaware
on May 21, 1997. The Certificate of Incorporation was later amended and restated pursuant to the
terms of an Agreement and Plan of Merger filed with the Delaware Secretary of State on June 12,
1997. The Corporation filed an Amended and Restated Certificate of Incorporation on September 16,
1997. The Amended and Restated Certificate of Incorporation was further amended pursuant to
resolutions approved by the Board of Directors and Stockholders of the Corporation, and such
amendments were filed with the Delaware Secretary of State on January 29, 1999, and September 14,
2000. The Corporation filed a Certificate of Correction to the September 14, 2000, Amendment to the
Amended and Restated Certificate of Incorporation with the Delaware Secretary of State on February
21, 2001. The Corporation filed a Restated Certificate of Incorporation with the Delaware Secretary
of State on October 20, 2003 and filed a Certificate of Correction to the October 20, 2003 Restated
Certificate of Incorporation with the Delaware Secretary of State on February 18, 2004. The
Corporation filed a Certificate of Amendment to the October 20, 2003 Restated Certificate of
Incorporation with the Delaware Secretary of State on June 1, 2006. The Corporation filed a
Restated Certificate of Incorporation with the Delaware Secretary of State and a Certificate of
Correction to the March 27, 2001 Statement of Designation on September 14, 2006. The Corporation
filed a Restated Certificate of Incorporation with the Delaware Secretary of State on November 20,
2008. The Corporation filed a Restated Certificate of Incorporation with the Delaware Secretary of
State on May 3, 2010.
TWO: Pursuant to Sections 245 of the General Corporation Law of the State of Delaware, this
Restated Certificate of Incorporation restates and integrates and does not further amend the
provisions of the Certificate of Incorporation of this Corporation.
THREE: The text of the Certificate of Incorporation as heretofore in effect is hereby restated
to read in its entirety as follows:
ARTICLE I
The name of the Corporation is Life Technologies Corporation.
ARTICLE II
The address of the Corporations registered office in the State of Delaware is 1209 Orange
Street in the City of Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted by the Corporation is to
engage in any lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
ARTICLE IV
The total number of shares of capital stock which the Corporation shall have authority to
issue is 406,405,884, of which (a) 6,405,884 shares shall be preferred stock, par value $.01 per
share (Preferred Stock), and (b) 400,000,000 shares shall be common stock, par value $.01
per share.
Except as otherwise restricted by this Certificate of Incorporation, the Corporation is
authorized to issue, from time to time, all or any portion of the capital stock of the Corporation
which may have been authorized but not issued, to such person or persons and for such lawful
consideration as it may deem appropriate, and generally in its
absolute discretion to determine the terms and manner of any disposition of such authorized
but unissued capital stock.
In addition, the Preferred Stock authorized by this Certificate of Incorporation may be issued
from time to time in one or more series. The Board of Directors is hereby authorized 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 and the other preferences, powers, rights, qualifications, limitations and restrictions
of any wholly unissued class or series of Preferred Stock, not including any Convertible Preferred
Stock nor Redeemable Preferred Stock, as defined in Article IV. A. and B. below, and the number of
shares constituting any such series and the designation thereof, or any of them.
Any and all such shares issued for which the full consideration has been paid or delivered
shall be deemed fully paid shares of capital stock, and the holder of such shares shall not be
liable for any further call or assessment or any other payment thereon.
The voting powers, designations, preferences, privileges and relative, participating, optional
or other special rights, and the qualifications, limitations or restrictions of each class of
capital stock of the Corporation, shall be as provided in this Article IV.
A. CONVERTIBLE PREFERRED STOCK
1. Designation. A total of 2,202,942 shares of the Corporations Preferred Stock shall be
designated as Series A Convertible Redeemable Preferred Stock, $.01 par value per share (the
Convertible Preferred Stock).
2. Election of Directors; Voting.
(a) Election of Directors. The holders of outstanding shares of Convertible Preferred
Stock shall, voting together as a separate class, be entitled to elect one (1) Director of the
Corporation. Such Director shall be the candidate receiving the highest number of affirmative votes
(with each holder of Convertible Preferred Stock entitled to cast one vote for or against each
candidate with respect to each share of Convertible Preferred Stock held by such holder) of the
outstanding shares of Convertible Preferred Stock (the Convertible Preferred Stock Director
Designee), with votes cast against such candidate and votes withheld having no legal effect.
The election of the Convertible Preferred Stock Director Designee by the holders of the Convertible
Preferred Stock shall occur (i) at the annual meeting of holders of capital stock, (ii) at any
special meeting of holders of capital stock, (iii) at any special meeting of holders of Convertible
Preferred Stock called by holders of a majority of the outstanding shares of Convertible Preferred
Stock or (iv) by the unanimous written consent of holders of the outstanding shares of Convertible
Preferred Stock. If at any time when any share of Convertible Preferred Stock is outstanding the
Convertible Preferred Stock Director Designee should cease to be a Director for any reason, the
vacancy shall only be filled by the vote or written consent of the holders of the outstanding
shares of Convertible Preferred Stock, voting together as a separate class, in the manner and on
the basis specified above. The holders of outstanding shares of Convertible Preferred Stock shall
also be entitled to vote for all other Directors of the Corporation together with holders of all
other shares of the Corporations outstanding capital stock entitled to vote thereon, voting as a
single class, with each outstanding share entitled to the same number of votes specified in Section
A.2(b).
(b) Voting Generally. The holder of each share of Convertible Preferred Stock shall be
entitled to the number of votes equal to the largest number of full shares of Common Stock (as
defined in Section C of this Article IV) into which each share of Convertible Preferred Stock could
be converted pursuant to Section A.6 hereof (other than by means of Section A.6(b)) on the record
date for the vote or for written consent of stockholders, if applicable, multiplied by the number
of shares of Convertible Preferred Stock held of record on such date. The holder of each share of
Convertible Preferred Stock shall be entitled to notice of any stockholders meeting in accordance
with the by-laws of the Corporation and shall vote with holders of the Common Stock, voting
together as single class, upon all matters submitted to a vote of stockholders excluding those
matters required to be submitted to a class or series vote pursuant to the terms hereof (including
without limitation Section A.8) or by law. Fractional votes shall not, however, be permitted and
any fractional voting rights resulting from the above formula (after aggregating all shares of
Common Stock into which shares of Convertible Preferred Stock held by each holder could be
converted) shall be rounded to the nearest whole number (with one-half rounded upward to one).
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3. Dividends. The holders of Convertible Preferred Stock shall be entitled to receive, out of
funds legally available therefor, cumulative (non-compounding) dividends on the Convertible
Preferred Stock in cash, at the rate per annum of six percent (6%) of the Convertible Base
Liquidation Amount (as defined in Section A.4 below), or $.4085 per share of Convertible Preferred
Stock as of the date this Certificate of Incorporation is first filed with the Delaware Secretary
of State (the Convertible Cumulative Dividend). Such dividends will accumulate commencing
as of the date of issuance of the Convertible Preferred Stock and shall be cumulative, to the
extent unpaid, whether or not they have been declared and whether or not there are profits, surplus
or other funds of the Corporation legally available for the payment of dividends. Convertible
Cumulative Dividends shall become due and payable with respect to any share of Convertible
Preferred Stock as provided in Sections A.4, A.5, A.6, B.4 and B.5. So long as any shares of
Convertible Preferred Stock are outstanding and the Convertible Cumulative Dividends have not been
paid in full in cash: (a) no dividend whatsoever shall be paid or declared, and no distribution
shall be made, on any capital stock of the Corporation ranking junior to the Convertible Preferred
Stock; and, (b) except as permitted by Sections A.8(c)(ii) and (iii), no shares of capital stock of
the Corporation ranking junior to the Convertible Preferred Stock shall be purchased, redeemed or
acquired by the Corporation and no monies shall be paid into or set aside or made available for a
sinking fund for the purchase, redemption or acquisition thereof. All numbers relating to the
calculation of dividends pursuant to this Section A.3 shall be subject to equitable adjustment in
the event of any stock split, combination, reorganization, recapitalization, reclassification or
other similar event involving a change in the Convertible Preferred Stock.
4. Liquidation.
(a) Liquidation Preference. Upon any liquidation, dissolution or winding up of the
Corporation and its subsidiaries, whether voluntary or involuntary (a Liquidation Event),
each holder of outstanding shares of Convertible Preferred Stock shall be entitled to be paid out
of the assets of the Corporation available for distribution to stockholders, whether such assets
are capital, surplus or earnings, and before any amount shall be paid or distributed to the holders
of Common Stock or of any other stock ranking on liquidation junior to the Convertible Preferred
Stock, an amount in cash equal to (i) $6.8091 per share of Convertible Preferred Stock held by such
holder (adjusted appropriately for stock splits, stock dividends, recapitalizations and the like
with respect to the Convertible Preferred Stock) (the Convertible Base Liquidation Preference
Amount) plus (ii) any accumulated but unpaid dividends to which such holder of outstanding
shares of Convertible Preferred Stock is then entitled pursuant to Sections A.3 and A.5(d) hereof,
plus (iii) any interest accrued pursuant to Section A.5(c) to which such holder of Convertible
Preferred Stock is entitled (the Convertible Preferred Liquidation Preference Amount);
provided, however, that if, upon any Liquidation Event, the amounts payable with respect to the
Convertible Preferred Stock are not paid in full, the holders of the Convertible Preferred Stock
shall share ratably in any distribution of assets in proportion to the full respective preferential
amounts to which they are entitled. The provisions of this Section A.4 shall not in any way limit
the right of the holders of Convertible Preferred Stock to elect to convert their shares of
Convertible Preferred Stock into Redeemable Preferred Stock and Common Stock pursuant to Section
A.6 prior to or in connection with any Liquidation Event.
(b) Notice. Prior to the occurrence of any Liquidation Event, the Corporation will
furnish each holder of Convertible Preferred Stock notice in accordance with Section A.9 hereof,
together with a certificate prepared by the chief financial officer of the Corporation describing
in detail the facts of such Liquidation Event, stating in detail the amount(s) per share of
Convertible Preferred Stock each holder of Convertible Preferred Stock would receive pursuant to
the provisions of Section A.4(a) hereof and stating in detail the facts upon which such amount was
determined.
5. Redemption.
(a) Redemption Events.
(i) The holder or holders of not less than sixty-six and two-thirds percent in voting power of
the outstanding Convertible Preferred Stock may require the Corporation to redeem on or after June
18, 2003, 50% of the outstanding shares of Convertible Preferred Stock; provided, however, that
such holder or holders may not require the Corporation to redeem less than 50% of the outstanding
shares of Convertible Preferred Stock.
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(ii) The holder or holders of not less than sixty-six and two-thirds percent in voting power
of the outstanding Convertible Preferred Stock may require the Corporation to redeem on or after
June 18, 2004, all of the outstanding shares of Convertible Preferred Stock; provided, however,
that such holder or holders may not require the Corporation to redeem less than the number of
outstanding shares of Convertible Preferred Stock.
(iii) Notice. An election pursuant to subparagraphs (i) or (ii) of this Section A.5(a)
shall be made by such holders giving the Corporation and each other holder of Convertible Preferred
Stock not less that fifteen (15) days prior written notice, which notice shall set forth the date
for such redemption.
(b) Redemption Date; Redemption Price. Upon the election of the holders of not less
than sixty-six and two-thirds of the voting power of the outstanding Convertible Preferred Stock to
cause the Corporation to redeem the Convertible Preferred Stock pursuant to Section A.5(a)(i) or
(ii), all holders of Convertible Preferred Stock shall be deemed to have elected to cause the
Convertible Preferred Stock to be so redeemed. Any date upon which a redemption shall occur in
accordance with Section A.5(a) shall be referred to as a Convertible Preferred Redemption
Date. The redemption price for each share of Convertible Preferred Stock redeemed pursuant to
Section A.5 shall be an amount in cash equal to (i) the Convertible Base Liquidation Preference
Amount plus (ii) any accumulated but unpaid dividends on such share of Convertible Preferred Stock
pursuant to Sections A.3 and A.5(d) hereof, plus (iii) any interest accrued with respect to such
share of Convertible Preferred Stock pursuant to Section A.5(c) (collectively, the Convertible
Preferred Redemption Price). The Convertible Preferred Redemption Price shall be payable in
cash in immediately available funds to the respective holders of the Convertible Preferred Stock on
the Convertible Preferred Redemption Date and subject to Section A.5(c). Until the full Convertible
Preferred Redemption Price has been paid to such holders for all shares of Convertible Preferred
Stock being redeemed: (A) no dividend whatsoever shall be paid or declared, and no distribution
shall be made, on any capital stock of the Corporation; and (B) no shares of capital stock (other
than shares of capital stock the repurchase of which is required pursuant to the provisions of
ERISA or any like statutory requirement) of the Corporation (other than the Convertible Preferred
Stock in accordance with this Section A.5) shall be purchased, redeemed or acquired by the
Corporation and no monies shall be paid into or set aside or made available for a sinking fund for
the purchase, redemption or acquisition thereof.
(c) Redemption Prohibited. If, at a Convertible Preferred Redemption Date, the
Corporation is prohibited under the General Corporation Law of the State of Delaware from redeeming
all shares of Convertible Preferred Stock for which redemption is required hereunder, then it shall
redeem such shares on a pro-rata basis among the holders of Convertible Preferred Stock in
proportion to the full respective redemption amounts to which they are entitled hereunder to the
extent possible and shall redeem the remaining shares to be redeemed as soon as the Corporation is
not prohibited from redeeming some or all of such shares under the General Corporation Law of the
State of Delaware, subject to the last paragraph of Section A.8. The shares of Convertible
Preferred Stock not redeemed shall remain outstanding and entitled to all of the rights and
preferences provided in this Article IV. In the event that the Corporation fails to redeem shares
for which redemption is required pursuant to this Section A.5, then during the period from the
applicable Convertible Preferred Redemption Date through the date on which such shares are
redeemed, the applicable Convertible Preferred Redemption Price of such shares shall bear interest
at the per annum rate of the greater of (i) 12% or (ii) 5% over the Citibank prime rate published
in the Wall Street Journal on such Convertible Preferred Redemption Date, compounded annually;
provided, however, that in no event shall such interest exceed the maximum permitted rate of
interest under applicable law (the Maximum Permitted Rate). In the event that fulfillment
of any provision hereof results in such rate of interest being in excess of the Maximum Permitted
Rate, the obligation to be fulfilled shall automatically be reduced to eliminate such excess;
provided, however, that any subsequent increase in the Maximum Permitted Rate shall be
retroactively effective to the applicable Convertible Preferred Redemption Date.
(d) Dividend After Convertible Preferred Redemption Date. From and after a Convertible
Preferred Redemption Date, no shares of Convertible Preferred Stock subject to redemption shall be
entitled to dividends, if any, as contemplated by Section A.3; provided, however, that in the event
that shares of Convertible Preferred Stock are unable to be redeemed and continue to be outstanding
in accordance with Section A.5(c), such shares shall continue to be entitled to dividends and
interest thereon as provided in Sections A.3 and A.5(c) until the date on which such shares are
actually redeemed by the Corporation.
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(e) Surrender of Certificates. Upon receipt of the applicable Convertible Preferred
Redemption Price by certified check or wire transfer, each holder of shares of Convertible
Preferred Stock to be redeemed shall surrender the certificate or certificates representing such
shares to the Corporation, duly assigned or endorsed for transfer (or accompanied by duly executed
stock powers relating thereto), or, in the event the certificate or certificates are lost, stolen
or missing, shall deliver an affidavit or agreement satisfactory to the Corporation to indemnify
the Corporation from any loss incurred by it in connection therewith (an Affidavit of
Loss) with respect to such certificates at the principal executive office of the Corporation
or the office of the transfer agent for the Convertible Preferred Stock or such office or offices
in the continental United States of an agent for redemption as may from time to time be designated
by notice to the holders of Convertible Preferred Stock, and each surrendered certificate shall be
canceled and retired; provided, however, that if the holder has exercised its redemption right
pursuant to Section A.5(a)(i) or the Corporation is prohibited from redeeming all shares of
Convertible Preferred Stock as provided in Section A.5(c), the holder shall not be required to
surrender said certificate(s) to the Corporation until said holder has received a new stock
certificate for those shares of Convertible Preferred Stock not so redeemed.
6. Conversion. The holders of the Convertible Preferred Stock shall have the following
conversion rights:
(a) Voluntary Conversion. The holders of shares of Convertible Preferred Stock shall
be entitled at any time, upon the written election of the holder or holders of not less than
sixty-six and two-thirds percent in voting power of the outstanding shares of Convertible Preferred
Stock, without the payment of any additional consideration, to cause each (but not less than all)
of the outstanding shares of Convertible Preferred Stock to be converted into (i) the number of
fully paid and nonassessable shares of Common Stock (as hereinafter defined) which results from
dividing the Conversion Price (as defined in this Section A.6(a)) per share in effect for the
Convertible Preferred Stock at the time of conversion into the per share Conversion Value (as
defined in this Section A.6(a)) of the Convertible Preferred Stock and (ii) one (1) fully paid and
non-assessable share of Redeemable Preferred Stock per share of Convertible Preferred Stock. Upon
the election to so convert in the manner and on the basis specified in the preceding sentence, all
holders of the Convertible Preferred Stock shall be deemed to have elected to voluntarily convert
all outstanding shares of Convertible Preferred Stock pursuant to this Section A.6. Upon the filing
of this Certificate of Incorporation with the Delaware Secretary of State, the Conversion
Price per share of Convertible Preferred Stock shall be $6.8091, and the per share
Conversion Value per share of Convertible Preferred Stock shall be $6.8091. The
Conversion Price per share of Convertible Preferred Stock shall be subject to adjustment from time
to time as provided in Section A.7 hereof. The Conversion Value per share of Convertible Preferred
Stock shall also be subject to adjustment in connection with certain Qualified Public Offerings (as
defined in Section A.6(b) below) as provided in Section A.7 hereof. The number of shares of Common
Stock into which a share of Convertible Preferred Stock is convertible is hereinafter referred to
as the Common Stock Conversion Rate. The number of shares of Redeemable Preferred Stock
into which a share of Convertible Preferred Stock is convertible is hereinafter referred to as the
Redeemable Conversion Rate. If the holders of shares of Convertible Preferred Stock elect
to convert the outstanding shares of Convertible Preferred Stock at a time when there are any
accumulated but unpaid dividends or other amounts due on or in respect of such shares, such
dividends and other amounts shall be paid in full upon a Liquidation Event (as set forth in Section
B.4) or redemption of the Redeemable Preferred Stock (as set forth in Section B.5).
(b) Automatic Conversion Upon QPO or QET. Each share of Convertible Preferred Stock
shall automatically be converted, without the payment of any additional consideration, into shares
of Common Stock and Redeemable Preferred Stock as of, and in all cases subject to, the closing of
the Corporations first QPO or QET (each as defined below in Section A.6(b)); provided that if a
closing of a QPO or QET occurs, all outstanding shares of Convertible Preferred Stock shall be
deemed to have been converted into shares of Common Stock and Redeemable Preferred Stock as
provided herein immediately prior to such closing. Any such conversion shall be at the Common Stock
Conversion Rate and Redeemable Conversion Rate in effect upon (and giving effect to) the closing of
the QPO or QET, as provided in Section A.6(a). QPO and Qualified Public
Offering mean a firm commitment public offering pursuant to an effective registration
statement under Securities Act of 1933, as amended, provided that (i) such registration statement
covers the offer and sale of Common Stock of which the aggregate net proceeds attributable to sales
for the account of the Corporation exceed $20,000,000 at a per share price to public (as set forth
in the final prospectus in connection with such public offering) (the Price to Public)
equal to at least 1.25 times the Conversion Price, and (ii) either all shares of Redeemable
Preferred Stock which are
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outstanding or issuable upon such automatic conversion are redeemed immediately upon and as of
the closing of such offering or contemporaneously with such offering cash, or, as provided in
Section B.5(b), cash and a promissory note in the form attached hereto, in an amount sufficient to
redeem all such shares of Redeemable Preferred Stock is segregated and irrevocably held by the
Corporation for payment to holders of Redeemable Preferred Stock in connection with the redemption
thereof pursuant to Section B.5(a)(i). QET and Qualified Extraordinary
Transaction mean any of the transactions set forth in subparagraphs (A) through (D) below,
provided that (i) at the closing of such transaction the holders of Common Stock that held
Convertible Preferred Stock prior to such automatic conversion upon such QET (the Conversion
Holders) receive per share consideration with a value (as determined in Section A.6(c) below
with respect to securities, and excluding any amount (exceeding five percent (5%) of the total
consideration paid or payable to the Corporations stockholders) held in escrow or otherwise not
actually received as of such closing date) that equals or exceeds three (3) times the Conversion
Price should such transaction close prior to or on December 18, 1998, with such amount increasing
in a linear fashion to four (4) times the Conversion Price should such transaction close on or
after June 18, 2000, (for example, one of the transactions set forth in subparagraphs (A) through
(D) would be a QET if such per share consideration was three and one-half (3.5) times the
Conversion Price and the transaction closed on September 18, 1999, and (ii) such consideration is
in the form of cash and/or unrestricted equity securities of a corporation and such securities have
an average monthly trading volume over the four (4) full trading months prior to the closing date
of the transaction equal to two (2) times the aggregate number of such securities to be issued to
the Conversion Holders in connection with such closing and such securities trade on either the New
York Stock Exchange, the NASDAQ National Market or the American Stock Exchange. The following
transactions (each an Extraordinary Transaction) shall be deemed a QET if the conditions
set forth in clauses (i) and (ii) of the immediately preceding sentence are satisfied:
(A) the sale, lease or other disposition of (whether in one transaction or a series of related
transactions) all or substantially all of the assets or business of the Corporation and its
subsidiaries;
(B) a merger or consolidation of the Corporation with or into another entity or any other
transaction or series of related transactions, in any such case in connection with or as a result
of which the Corporation is not the surviving entity or the owners of the Corporations outstanding
equity securities prior to the transaction or series of related transactions do not own at least a
majority of the outstanding equity securities of the surviving, resulting or consolidated entity;
(C) any purchase by any party of shares of capital stock of the Corporation (either through a
negotiated stock purchase or a tender for such shares), the effect of which is that such party that
did not beneficially own a majority of the voting power of the outstanding shares of capital stock
of the Corporation immediately prior to such purchase beneficially owns at least a majority of such
voting power immediately after such purchase; or
(D) the redemption or repurchase of shares representing a majority of the voting power of the
outstanding shares of capital stock of the Corporation.
If the holders of shares of Convertible Preferred Stock are required to convert the
outstanding shares of Convertible Preferred Stock pursuant to this Section A.6(b) at a time when
there are any accumulated but unpaid dividends or other amounts due on or in respect of such
shares, such dividends and other amounts shall be paid in full in cash by the Corporation in
connection with such conversion.
(c) Valuation of Distribution Securities. In determining whether an Extraordinary
Transaction constitutes a QET, the value of any securities to be delivered to the holders of the
Common Stock shall be deemed to be the average of the closing prices or last sales prices, as
applicable, of the securities on such exchange or system over the 30-day period ending three (3)
business days prior to the closing.
(d) Procedure for Voluntary Conversion; Effective Date. Upon election to convert
pursuant to Section A.6(a), each holder of Convertible Preferred Stock (i) shall provide written
notice of conversion (the Voluntary Conversion Notice) to the Corporation and (ii) shall
surrender the certificate or certificates representing its Convertible Preferred Stock, duly
assigned or endorsed for transfer to the Corporation (or accompanied by duly executed stock powers
relating thereto), at the principal executive office of the Corporation or the offices of the
transfer agent for the Convertible Preferred Stock or such office or offices in the continental
United States of an agent for conversion as may from time to time be designated by notice to the
holders of the Convertible Preferred Stock by the Corporation, or shall deliver an Affidavit of
Loss with respect to such certificates. The Voluntary
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Conversion Notice shall specify (i) the number of shares of Convertible Preferred Stock held
by such holder, (ii) the name or names in which such holder wishes the certificate or certificates
for Common Stock and Redeemable Preferred Stock to be issued upon such conversion and (iii) the
address to which such holder wishes delivery to be made of such new certificates to be issued upon
such conversion. The issuance by the Corporation of shares of Common Stock and Redeemable Preferred
Stock upon a conversion of Convertible Preferred Stock pursuant to Section A.6(a) hereof shall be
effective as of the surrender of the certificate or certificates for the Convertible Preferred
Stock to be converted, duly assigned or endorsed for transfer to the Corporation (or accompanied by
duly executed stock powers relating thereto), or as of the delivery of an Affidavit of Loss. Upon
surrender of a certificate representing Convertible Preferred Stock for conversion, or delivery of
an Affidavit of Loss, the Corporation shall issue and send by hand delivery, by courier or by first
class mail (postage prepaid) to the holder thereof or to such holders designee, at the address
designated by such holder, certificates for the number of shares of Common Stock and Redeemable
Preferred Stock to which such holder shall be entitled upon conversion. The issuance of
certificates for Common Stock and Redeemable Preferred Stock upon conversion of Convertible
Preferred Stock will be made without charge to the holders of such shares for any issuance tax in
respect thereof or other costs incurred by the Corporation in connection with such conversion and
the related issuance of such stock. Notwithstanding anything to the contrary set forth in this
Section A.6(d), in the event that the holders of shares of Convertible Preferred Stock elect to
convert such shares pursuant to Section A.6(a) in connection with any Liquidation Event,
Extraordinary Transaction not constituting a QET or initial public offering not constituting a QPO,
(i) the Voluntary Conversion Notice shall be delivered to the Corporation prior to the effective
date of or record date for (as applicable) such Liquidation Event, Extraordinary Transaction or
initial public offering and such Voluntary Conversion Notice shall be effective as of, and shall in
all cases be subject to, the occurrence of such Liquidation Event or closing of such Extraordinary
Transaction or initial public offering and (ii) if such Liquidation Event, Extraordinary
Transaction or initial public offering occurs, all outstanding shares of Convertible Preferred
Stock shall be deemed to have been converted into shares of Common Stock and Redeemable Preferred
Stock immediately prior thereto, provided that the Corporation shall make appropriate provisions
(x) for the Common Stock issued upon such conversion to be treated on the same basis as all other
Common Stock in such Liquidation Event, Extraordinary Transaction or initial public offering
provided that the foregoing shall not be construed to provide or require the registration of any
shares of Common Stock for sale and (y) for the payment of the Redeemable Liquidation Preference
Amount (as defined in Section B.4) in connection with any Liquidation Event or the redemption of
the Redeemable Preferred Stock (issued upon such conversion) upon election of such redemption in
connection with any Extraordinary Transaction or initial public offering, if applicable, as
provided herein. In the event of any public offering constituting a QPO or an Extraordinary
Transaction constituting a QET, the provisions of Section A.5(e) shall apply.
(e) Procedure for Automatic Conversion. As of, and in all cases subject to, the
closing of a QPO or QET (the Automatic Conversion Date), all outstanding shares of
Convertible Preferred Stock shall be converted automatically into shares of Common Stock and
Redeemable Preferred Stock at the applicable conversion rates specified in Section A.6(a) and
without any further action by the holders of such shares and whether or not the certificates
representing such shares of Convertible Preferred Stock are surrendered to the Corporation or its
transfer agent; provided, however, that all holders of Convertible Preferred Stock shall be given
prior written notice of the occurrence of a QPO or QET in accordance with Section A.9 hereof. The
Corporation shall not be obligated to issue certificates evidencing the shares of Redeemable
Preferred Stock or Common Stock issuable on the Automatic Conversion Date (or the payment for the
shares of Redeemable Preferred Stock which are redeemed immediately after such automatic conversion
as provided below and in Section B.5(a)(i)) unless certificates evidencing such shares of the
Convertible Preferred Stock being converted, or an Affidavit or Affidavits of Loss with respect to
such certificates, are delivered to the Corporation or its transfer agent. On the Automatic
Conversion Date, all rights with respect to the Convertible Preferred Stock so converted shall
terminate, except any of the rights of the holders thereof upon surrender of their certificate or
certificates therefor or delivery of an Affidavit of Loss thereof to receive certificates for the
number of shares of Common Stock and Redeemable Preferred Stock into which such Convertible
Preferred Stock has been converted (or the payment to which such holder is entitled as provided
below and in Section B.5(a)(i)). Certificates surrendered for conversion shall be endorsed or
accompanied by written instrument or instruments of transfer, in form satisfactory to the
Corporation, duly executed by the registered holder or by his or its attorney duly authorized in
writing. Upon surrender of such certificates or Affidavit of Loss the Corporation shall issue and
deliver to such holder, promptly (and in any event in such time as is sufficient to enable such
holder to participate in such QPO or QET) 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 and number of shares of Redeemable Preferred Stock into which the shares of the
Convertible Preferred Stock surrendered were
7
convertible on the Automatic Conversion Date. Notwithstanding anything to the contrary set
forth in this Section A.6(e), the Corporation may deliver, in lieu of certificates for Redeemable
Preferred Stock, a payment in an amount and form determined pursuant to Section B.5(b) hereof on
account of the redemption of such Redeemable Preferred Stock, and upon such payment the Redeemable
Preferred Stock into which such Convertible Preferred Stock would have been converted shall be
deemed to have been issued and redeemed by the Corporation.
(f) 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 and Redeemable
Preferred Stock solely for the purpose of effecting the conversion of the shares of Convertible
Preferred Stock such number of its shares of Common Stock and Redeemable Preferred Stock as shall
from time to time be sufficient to effect the conversion of all outstanding shares of Convertible
Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock
and Redeemable Preferred Stock shall not be sufficient to effect the conversion of all then
outstanding shares of Convertible Preferred Stock, the Corporation will take such corporate action
as may be necessary to increase its authorized but unissued shares of Common Stock and Redeemable
Preferred Stock to such number of shares as shall be sufficient for such purpose.
(g) No Closing of Transfer Books. The Corporation shall not close its books against
the transfer of shares of Convertible Preferred Stock in any manner which would interfere with the
timely conversion of any shares of Convertible Preferred Stock.
7. Adjustments. The Conversion Price and Conversion Value in effect from time to time shall be
subject to adjustment from and after June 18, 1997, and regardless of whether any shares of
Convertible Preferred Stock are then issued and outstanding as follows:
(a) Adjustments to Conversion Price.
(i) Stock Dividends, Subdivisions and Combinations. Upon the issuance of additional
shares of Common Stock as a dividend or other distribution on outstanding Common Stock, the
subdivision of outstanding shares of Common Stock into a greater number of shares of Common Stock,
or the combination of outstanding shares of Common Stock into a smaller number of shares of the
Common Stock, the Conversion Price shall, simultaneously with the happening of such dividend,
subdivision or split be adjusted by multiplying the then effective Conversion Price by a fraction,
the numerator of which shall be the number of shares of Common Stock outstanding immediately prior
to such event and the denominator of which shall be the number of shares of Common Stock
outstanding immediately after such event. An adjustment made pursuant to this Section A.7(a)(i)
shall be given effect, upon payment of such a dividend or distribution, as of the record date for
the determination of stockholders entitled to receive such dividend or distribution (on a
retroactive basis) and in the case of a subdivision or combination shall become effective
immediately as of the effective date thereof.
(ii) Sale of Common Stock. In the event the Corporation shall at any time, or from
time to time, issue, sell or exchange any shares of Common Stock including shares held in the
Corporations treasury but excluding up to an aggregate 3,735,479 shares of Common Stock (as
appropriately adjusted for stock splits, stock dividends and the like) issued to officers,
Directors, employees of, or consultants, advisors, independent contractors to the Corporation or
the Corporations Employee Stock Ownership Plan (the ESOP) (collectively, Eligible
Employees) pursuant to the Corporations 1995 Stock Option Plan, 1997 Stock Option Plan or
ESOP (collectively, the Plans) or upon the exercise of options or other rights issued to
such Eligible Employees pursuant to the Plans (collectively, the Excluded Shares), for a
consideration per share less than the Conversion Price in effect immediately prior to the issuance,
sale or exchange of such shares, then, and thereafter successively upon each such issuance, sale or
exchange, the Conversion Price in effect immediately prior to the issuance, sale or exchange of
such shares shall forthwith be reduced to an amount determined by multiplying such Conversion Price
by a fraction:
(A) the numerator of which shall be (X) the number of shares of Common Stock of all classes
outstanding immediately prior to the issuance of such additional shares of Common Stock (excluding
treasury shares but including all shares of Common Stock issuable upon conversion or exercise of
any outstanding Convertible Preferred Stock, options, warrants, rights or convertible securities),
plus (Y) the number of shares of Common Stock which the net aggregate consideration received by the
Corporation for the total number of such additional shares of Common Stock so issued would purchase
at the Conversion Price (prior to adjustment), and
8
(B) the denominator of which shall be (X) the number of shares of Common Stock of all classes
outstanding immediately prior to the issuance of such additional shares of Common Stock (excluding
treasury shares but including all shares of Common Stock issuable upon conversion or exercise of
any outstanding Convertible Preferred Stock, options, warrants, rights or convertible securities),
plus (Y) the number of such additional shares of Common Stock so issued.
(iii) Sale of Options, Rights or Convertible Securities. In the event the Corporation
shall at any time or from time to time, issue options, warrants or rights to subscribe for shares
of Common Stock, or issue any securities convertible into or exchangeable for shares of Common
Stock (other than any options or warrants for Excluded Shares), for a consideration per share
(determined by dividing the Net Aggregate Consideration (as determined below) by the aggregate
number of shares of Common Stock that would be issued if all such options, warrants, rights or
convertible securities were exercised or converted to the fullest extent permitted by their terms)
less than the Conversion Price in effect immediately prior to the issuance of such options or
rights or convertible or exchangeable securities, the Conversion Price in effect immediately prior
to the issuance of such options, warrants or rights or securities shall be reduced to an amount
determined by multiplying such Conversion Price by a fraction:
(A) the numerator of which shall be (X) the number of shares of Common Stock of all classes
outstanding immediately prior to the issuance of such options, rights or convertible securities
(excluding treasury shares but including all shares of Common Stock issuable upon conversion or
exercise of any outstanding Convertible Preferred Stock, options, warrants, rights or convertible
securities), plus (Y) the number of shares of Common Stock which the total amount of consideration
received by the Corporation for the issuance of such options, warrants, rights or convertible
securities plus the minimum amount set forth in the terms of such security as payable to the
Corporation upon the exercise or conversion thereof (the Net Aggregate Consideration)
would purchase at the Conversion Price prior to adjustment, and
(B) the denominator of which shall be (X) the number of shares of Common Stock of all classes
outstanding immediately prior to the issuance of such options, warrants, rights or convertible
securities (excluding treasury shares but including all shares of Common Stock issuable upon
conversion or exercise of any outstanding Convertible Preferred Stock, options, warrants, rights or
convertible securities), plus (Y) the aggregate number of shares of Common Stock that would be
issued if all such options, warrants, rights or convertible securities were exercised or converted.
(iv) Expiration or Change in Price. If the consideration per share provided for in any
options or rights to subscribe for shares of Common Stock or any securities exchangeable for or
convertible into shares of Common Stock changes at any time, the Conversion Price in effect at the
time of such change shall be readjusted to the Conversion Price which would have been in effect at
such time had such options or convertible securities provided for such changed consideration per
share (determined as provided in Section A.7(a)(iii) hereof), at the time initially granted, issued
or sold; provided, that such adjustment of the Conversion Price will be made only as and to the
extent that the Conversion Price effective upon such adjustment remains less than or equal to the
Conversion Price that would be in effect if such options, rights or securities had not been issued.
No adjustment of the Conversion Price shall be made under this Section A.7(a) upon the issuance of
any additional shares of Common Stock which are issued pursuant to the exercise of any warrants,
options or other subscription or purchase rights or pursuant to the exercise of any conversion or
exchange rights in any convertible securities if an adjustment shall previously have been made upon
the issuance of such warrants, options or other rights. Any adjustment of the Conversion Price
shall be disregarded if, as, and when the rights to acquire shares of Common Stock upon exercise or
conversion of the warrants, options, rights or convertible securities which gave rise to such
adjustment expire or are canceled without having been exercised, so that the Conversion Price
effective immediately upon such cancellation or expiration shall be equal to the Conversion Price
in effect at the time of the issuance of the expired or canceled warrants, options, rights or
convertible securities, with such additional adjustments as would have been made to that Conversion
Price had the expired or canceled warrants, options, rights or convertible securities not been
issued.
(b) Adjustment to Conversion Value upon Certain QPOs. As set forth below, upon a QPO
in which the Price to Public (as defined in Section A.6(b)) is 1.25 times or greater but less than
two (2) times the Conversion Price, for the purpose of determining the number of shares of Common
Stock to be issued upon conversion of the Convertible Preferred Stock in connection therewith, the
Conversion Value shall be adjusted prior
9
to the closing and conversion by multiplying the Conversion Value then in effect by the
applicable Conversion Value Multiplier set forth below. The Conversion Value Multiplier is
determined according to (i) the closing date of such offering and (ii) the Price to Public
expressed as a multiple of the Conversion Price. The Conversion Value Multiplier with respect to
any multiple of the Conversion Price between any of the data points in any column below shall be
determined by linear interpolation (for example, given a QPO on July 1, 1997 with a Price to Public
equal to 1.625 times the Conversion Price, the Conversion Value Multiplier would be 1.0355).
Price to Public Per Share Expressed | ||||||||||||
as Multiple of Conversion Price | Conversion Value Multiplier | |||||||||||
On or Before | After | On or Before | After | |||||||||
June 18, 1998 | June 18, 1998 | June 18, 1999 | June 18, 1999 | |||||||||
1.75X | 2.0X | 1.0 | 1.0 | |||||||||
1.5X | 1.75X | 1.071 | 1.086 | |||||||||
1.25X | 1.5X | 1.167 | 1.20 | |||||||||
1.25X | 1.30 | 1.36 |
(c) Other Adjustments. In the event the Corporation shall make or issue, or fix a
record date for the determination of holders of Common Stock entitled to receive, a dividend or
other distribution payable in securities of the Corporation other than shares of Common Stock, then
and in each such event lawful and adequate provision shall be made so that the holders of
Convertible Preferred Stock shall receive upon conversion thereof in addition to the number of
shares of Common Stock receivable thereupon, the number of securities of the Corporation which they
would have received had their Convertible Preferred Stock been converted into Common Stock and
Redeemable Preferred Stock on the date of such event and had they thereafter, during the period
from the date of such event to and including the date of conversion, retained such securities
receivable by them as aforesaid during such period, giving application to all adjustments called
for during such period under this Section A.7 as applied to such distributed securities.
If the Common Stock issuable upon the conversion of the Convertible Preferred Stock shall be
changed into the same or different number of shares of any class or classes of stock, whether by
reclassification or otherwise (other than a subdivision or combination of shares or stock dividend
provided for above, or a reorganization, merger, consolidation or sale of assets provided for
elsewhere in this Section A.7), then and in each such event the holder of each share of Convertible
Preferred Stock shall have the right thereafter to convert such share into the kind and amount of
shares of stock and other securities and property receivable upon such reorganization,
reclassification or other change, by holders of the number of shares of Common Stock into which
such shares of Convertible Preferred Stock might have been converted immediately prior to such
reorganization, reclassification or change, all subject to further adjustment as provided herein.
(d) Mergers and Other Reorganizations. Unless such transaction is a QET (in which case
Section A.6(b) shall apply and this subsection shall not apply), if at any time or from time to
time there shall be a capital reorganization of the Common Stock (other than a subdivision,
combination, reclassification or exchange of shares provided for elsewhere in this Section A.7) or
a merger or consolidation of the Corporation with or into another Corporation or the sale of all or
substantially all of the Corporations properties and assets to any other person, then, as a part
of and as a condition to the effectiveness of such reorganization, merger, consolidation or sale,
lawful and adequate provision shall be made so that the holders of the Convertible Preferred Stock
shall thereafter be entitled to receive upon conversion of the Convertible Preferred Stock the
number of shares of stock or other securities or property of the Corporation or of the successor
Corporation resulting from such merger or consolidation or sale, to which a holder of Common Stock
deliverable upon conversion would have been entitled on such capital reorganization, merger,
consolidation, or sale. In any such case, appropriate provisions shall be made with respect to the
rights of the holders of the Convertible Preferred Stock after the reorganization, merger,
consolidation or sale to the end that the provisions of this Section A.7 (including without
limitation provisions for adjustment of the Conversion Price and the number of shares purchasable
upon conversion of the Convertible Preferred Stock) shall thereafter be applicable, as nearly as
may be, with respect to any shares of stock, securities or assets to be deliverable thereafter upon
the conversion of the Convertible Preferred Stock.
(e) All calculations under this Section A.7 shall be made to the nearest cent or to the
nearest one hundredth (1/100) of a share, as the case may be.
10
(f) Upon the occurrence of each adjustment or readjustment pursuant to this Section A.7, 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 Convertible Preferred Stock a
certificate setting forth such adjustment or readjustment and showing in detail the facts upon
which such adjustment or readjustment is based. The Corporation shall, upon written request at any
time of any holder of Convertible Preferred Stock, furnish or cause to be furnished to such holder
a like certificate setting forth (i) such adjustments and readjustments, (ii) the Conversion Prices
before and after such adjustment or readjustment, and (iii) the number of shares of Common Stock
and Redeemable Preferred Stock and the amount, if any, of other property which at the time would be
received upon the conversion of such holders shares of Convertible Preferred Stock.
8. Covenants. So long as any shares of Convertible Preferred Stock (or Redeemable Preferred
Stock, as applicable) shall be outstanding, the Corporation shall not, without first having
provided the written notice of such proposed action to each holder of outstanding shares of
Convertible Preferred Stock (or Redeemable Preferred Stock, as applicable) and having obtained the
affirmative vote or written consent of the holders of not less than sixty-six and two-thirds
percent in voting power of the outstanding shares of Convertible Preferred Stock (or Redeemable
Preferred Stock, as applicable), voting as a single class, with each share of Convertible Preferred
Stock (or Redeemable Preferred Stock, as applicable) entitling the holder thereof to one vote per
share of Convertible Preferred Stock held by such holder:
(a) unless such transaction is a QET, effect (I) any Extraordinary Transaction or other sale
or transfer of all or substantially all of the properties and assets of any subsidiary of the
Corporation, (II) any recapitalization of the Corporation or (III) any other transaction or series
of related transactions in which more than 50% of the voting power of the Corporation is
transferred;
(b) dissolve, liquidate or wind up its operations;
(c) directly or indirectly redeem, purchase, or otherwise acquire for consideration any shares
of its Common Stock or any other class of its capital stock except for (i) redemption of
Convertible Preferred Stock or Redeemable Preferred Stock pursuant to and as provided in this
Certificate of Incorporation, (ii) repurchase of up to 1,101,471 shares of Common Stock from the
stockholders of the Company pursuant to a Repurchase Agreement dated June 18, 1997, or (iii)
redemption or repurchase of Common Stock issued pursuant to the Plans from Eligible Employees (as
defined in Section A.7(a)(ii)) pursuant to an agreement containing vesting and/or repurchase
provisions approved by the Board of Directors of the Corporation or a committee thereof;
(d) propose or adopt any amendment to this Article IV, or any other amendment to this
Certificate of Incorporation or the Corporations By-Laws that eliminates, amends or restricts or
otherwise adversely affects the rights and preferences of the Convertible Preferred Stock or the
Redeemable Preferred Stock, or increase the authorized shares of Convertible Preferred Stock or
Redeemable Preferred Stock;
(e) declare or make dividend payments on any shares of Common Stock or any other class of the
Corporations capital stock;
(f) create, or obligate itself to create, any class or series of shares having preference over
or being on a parity with the Convertible Preferred Stock or the Redeemable Preferred Stock;
(g) increase the size of the Board of Directors to more than seven (7) members; or
(h) except as provided in the Corporations 1997 Management Bonus Plan, pay any bonuses to the
Corporations executive officers unless any such bonus shall have been unanimously approved by the
compensation committee of the Board of Directors.
Further, the Corporation and each subsidiary of the Corporation shall not, by amendment of
this Certificate of Incorporation or through any Extraordinary Transaction or other 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 Corporation and each subsidiary of
11
the Corporation but shall at all times in good faith assist in the carrying out of all the
provisions of this Article IV and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the holders of the Convertible Preferred Stock and
the Redeemable Preferred Stock set forth in this Certificate against impairment. Any successor to
the Corporation or any subsidiary of the Corporation shall agree, as a condition to such
succession, to carry out and observe the obligations of the Corporation hereunder with respect to
the Convertible Preferred Stock and the Redeemable Preferred Stock.
9. Notice.
(a) Liquidation Events, Extraordinary Transactions, Etc. In the event (i) the
Corporation establishes a record date to determine the holders of any class of securities who are
entitled to receive any dividend or other distribution or who are entitled to vote at a meeting (or
by written consent) in connection with any of the transactions identified in clause (ii) hereof, or
(ii) any Liquidation Event (as defined in Section A.4), any Extraordinary Transaction, QET or QPO
(each as defined in Section A.6) or any other public offering becomes reasonably likely to occur,
the Corporation shall mail or cause to be mailed by first class mail (postage prepaid) to each
holder of Convertible Preferred Stock (or each holder of Redeemable Preferred Stock, as applicable)
at least twenty (20) business days prior to such record date specified therein or the expected
effective date of any such transaction, whichever is earlier, a notice specifying (A) the date of
such record date for the purpose of such dividend or distribution or meeting or consent and a
description of such dividend or distribution or the action to be taken at such meeting or by such
consent, (B) the date on which any such Liquidation Event, Extraordinary Transaction, QET, QPO or
other public offering is expected to become effective, and (C) the date on which the books of the
Corporation shall close or a record shall be taken with respect to any such event.
(b) Waiver of Notice. The holder or holders of not less than sixty-six and two-thirds
percent in voting power of the outstanding shares of Convertible Preferred Stock (or Redeemable
Preferred Stock, as applicable) may, at any time upon written notice to the Corporation, waive any
notice provisions specified herein for the benefit of such holders, and any such waiver shall be
binding upon the holders of all such securities.
(c) General. In the event that the Corporation provides any notice, report or
statement to any holder of Common Stock, the Corporation shall at the same time provide a copy of
any such notice, report or statement to each holder of outstanding shares of Convertible Preferred
Stock (or Redeemable Preferred Stock, as applicable).
10. No Reissuance of Convertible Preferred Stock. No share or shares of Convertible Preferred
Stock acquired by the Corporation by reason of redemption, purchase, conversion or otherwise shall
be reissued, and all such shares shall be canceled, retired and eliminated from the shares which
the Corporation shall be authorized to issue.
B. REDEEMABLE PREFERRED STOCK
1. Designation; Ranking. A total of 2,202,942 shares of the Corporations Preferred Stock
shall be designated as Redeemable Preferred Stock, $.01 par value per share (the Redeemable
Preferred Stock).
2. Election of Directors; Voting.
(a) Election of Directors. The holders of outstanding shares of Redeemable Preferred
Stock shall, voting together as a separate class, be entitled to elect one (1) Director. Such
Director shall be the candidate receiving the highest number of affirmative votes (with each holder
of Redeemable Preferred Stock entitled to cast one vote for or against each candidate with respect
to each share of Redeemable Preferred Stock held by such holder) of the outstanding shares of
Redeemable Preferred Stock (the Redeemable Preferred Stock Director Designee), with votes
cast against such candidate and votes withheld having no legal effect. The election of the
Redeemable Preferred Stock Director Designee by the holders of the Redeemable Preferred Stock shall
occur (i) at the annual meeting of holders of capital stock, (ii) at any special meeting of holders
of capital stock, (iii) at any special meeting of holders of Redeemable Preferred Stock called by
holders of a majority of the outstanding shares of Redeemable Preferred Stock or (iv) by the
unanimous written consent of holders of the outstanding shares of Redeemable Preferred Stock. Upon
conversion of the Convertible Preferred Stock, the Convertible Preferred Stock
12
Director Designee then serving on the Corporations board of directors shall continue in such
capacity as the Redeemable Preferred Stock Designee. If at any time when any share of Redeemable
Preferred Stock is outstanding the Redeemable Preferred Stock Director Designee should cease to be
a Director for any reason, the vacancy shall only be filled by the vote or written consent of
holders of the outstanding shares of Redeemable Preferred Stock, voting together as a separate
class, in the manner and on the basis specified above.
(b) Voting Generally. Except as set forth above with respect to the election of the
Redeemable Preferred Stock Director Designee, the holders of Redeemable Preferred Stock shall not
be entitled to vote on any matters except to the extent otherwise required under the General
Corporation Law of the State of Delaware.
3. Dividends. The holders of outstanding shares of Redeemable Preferred Stock shall be entitled to
receive, out of any funds legally available therefor, cumulative (non-compounding) dividends on the
Redeemable Preferred Stock in cash, at the rate per annum of three percent (3%) of $6.8091 per
share (adjusted appropriately for stock splits, stock dividends, recapitalizations and the like
with respect to the Redeemable Preferred Stock), or $.2043 per share of Redeemable Preferred Stock
as of the date this Certificate of Incorporation is first filed with the Delaware Secretary of
State (a Redeemable Cumulative Dividend). Such dividends will accrue commencing as of the
date of issuance of the Redeemable Preferred Stock and be cumulative, to the extent unpaid, whether
or not they have been declared and whether or not there are profits, surplus or other funds of the
Corporation legally available for the payment of dividends. Redeemable Cumulative Dividends shall
become due and payable with respect to any share of Redeemable Preferred Stock as provided in
Section B.4 and Section B.5. So long as any shares of Redeemable Preferred Stock are outstanding
and the Redeemable Cumulative Dividends have not been paid in full in cash: (A) no dividend
whatsoever shall be paid or declared, and no distribution shall be made, on any capital stock of
the Corporation ranking junior to the Redeemable Preferred Stock; and (B) no shares of capital
stock of the Corporation ranking junior to the Redeemable Preferred Stock shall be purchased,
redeemed or acquired by the Corporation and no monies shall be paid into or set aside or made
available for a sinking fund for the purchase, redemption or acquisition thereof. All numbers
relating to the calculation of dividends pursuant to this Section B.3 shall be subject to equitable
adjustment in the event of any stock split, combination, reorganization, recapitalization,
reclassification or other similar event involving a change in the Redeemable Preferred Stock.
4. Liquidation.
(a) Upon any Liquidation Event, each holder of outstanding shares of Redeemable Preferred
Stock shall be entitled to be paid out of the assets of the Corporation available for distribution
to stockholders, whether such assets are capital, surplus, or earnings as follows, and before any
amount shall be paid or distributed to the holders of Common Stock or of any other stock ranking on
liquidation junior to the Redeemable Preferred Stock, an amount in cash equal to the sum of (i) the
Redeemable Base Liquidation Amount (as determined in Section B.4(b) below) multiplied by the number
of shares of Redeemable Preferred Stock held by such holder, plus (ii) any accumulated but unpaid
dividends to which such holder of outstanding shares of Redeemable Preferred Stock is entitled
pursuant to Section B.3 and B.5(d) hereof, plus (iii) any interest accrued pursuant to Section
B.5(c) to which such holder of outstanding shares of Redeemable Preferred Stock is entitled, plus
(iv) any accumulated but unpaid dividends or other amounts due on or in respect of the shares of
Convertible Preferred Stock held by such holder prior to the conversion of such Convertible
Preferred Stock (the Redeemable Liquidation Preference Amount); provided, however, that
if, upon any Liquidation Event, the amounts payable with respect to the Redeemable Preferred Stock
are not paid in full, the holders of the Redeemable Preferred Stock shall share ratably in any
distribution of assets in proportion to the full respective preferential amounts to which they are
entitled.
(b) The per share Redeemable Base Liquidation Amount shall be determined according
to (i) the closing date of the Liquidation Event, QPO, QET, Extraordinary Transaction or public
offering (each a Measurement Event) and (ii) (A) in connection with a QPO or public
offering, the Price to Public (as defined in Section A.6(b)) expressed as a multiple of the
Conversion Price or, (B) in connection with a Liquidation Event, QET, or Extraordinary Transaction,
the value (as determined in Section B.4(c) below, and excluding any amount held in escrow or
otherwise not actually received as of such closing date), expressed as a multiple of the Conversion
Price, of the cash, securities or other consideration distributed, paid or delivered at closing
with respect to each share of Common Stock. The following schedule sets forth the Redeemable Base
Liquidation Amount at various data points. Between data points, the Redeemable Base Liquidation
Amount reduces in a linear fashion corresponding to linear increases in either time (with a day
being the smallest unit of measurement), multiple or both. For example, if on June 18, 1999 the
Price to Public or per share value of such consideration were 2.5 times the Conversion Price,
13
the Redeemable Base Liquidation Amount per share would be $5.6743. By way of further example,
if on December 18, 1998 the Price to Public or per share value of such consideration were 3.5 times
the Conversion Price, the Redeemable Base Liquidation Amount per share would be $0.00, and each
holder would be entitled to receive the amounts due under clauses (ii) through (iv) of Section
B.4(a) above.
Closing Date of Measurement Event | ||||||||||||
Price to Public or Value of Consideration | On or prior to | On or after | ||||||||||
Expressed as Multiple of Conversion Price | December 18, 1998 | September 18, 1999 | June 18, 2000 | |||||||||
2.0X |
$ | 6.8091 | $ | 6.8091 | $ | 6.8091 | ||||||
2.5X |
$ | 3.4046 | $ | 6.8091 | $ | 6.8091 | ||||||
3.0X |
$ | 0.00 | $ | 3.4046 | $ | 6.8091 | ||||||
3.5X |
$ | 0.00 | $ | 0.00 | $ | 3.4046 | ||||||
4.0X |
$ | 0.00 | $ | 0.00 | $ | 0.00 |
(c) Valuation of Distribution Securities. For purposes of determining the Redeemable
Base Liquidation Amount, any securities or other consideration to be delivered to the holders of
the Common Stock upon completion of any Measurement Event shall be valued as follows:
(i) If traded on a nationally recognized securities exchange or inter-dealer quotation system,
the value shall be deemed to be the average of the closing prices of the securities on such
exchange or system over the 30-day period ending three (3) business days prior to the closing;
(ii) If 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) business days prior to the closing; and
(iii) If there is no active public market, the value shall be the fair market value thereof,
as mutually determined by the Corporation and the holders of not less than sixty-six and two-thirds
percent in voting power of the outstanding shares of Convertible Preferred Stock, provided that if
the Corporation and the holders of sixty-six and two-thirds percent in voting power of the
outstanding shares of Convertible Preferred Stock are unable to reach agreement, then by
independent appraisal by an investment banker hired and paid by the Corporation, but reasonably
acceptable to the holders of sixty-six and two-thirds percent in voting power of the outstanding
shares of Convertible Preferred Stock.
5. Redemption.
(a) Redemption Events.
(i) Automatic. Immediately upon and as of, and in all cases subject to, the closing of a QPO
or QET, the Corporation shall redeem all (and not less than all) of the outstanding shares of
Redeemable Preferred Stock at the Redemption Price specified in Section B.5(b); provided that if
the Corporation shall receive the proceeds from such QPO or QET in next-day available funds, such
redemption shall occur on the first business day following such closing.
(ii) Optional.
(A) Upon Certain Transactions. Upon the election of the holder or holders of not less
than sixty-six and two-thirds percent in voting power of the outstanding Redeemable Preferred Stock
(or Convertible Preferred Stock, as applicable, proposing to convert the same in order to effect a
redemption of the Redeemable Preferred Stock received upon such conversion hereunder), the
Corporation shall redeem all (and not less than all, other than pursuant to Section B.5(c) below)
of the outstanding shares of Redeemable Preferred Stock upon the occurrence of an Extraordinary
Transaction (as defined in Section A.6) not constituting a QET or, other than a public offering
initiated by the holders of Convertible Preferred Stock or Redeemable Preferred stock, a public
offering not constituting a QPO.
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(B) Notice. An election pursuant to subparagraph (A) of this Section B.5(a)(ii) shall
be made by such holders giving the Corporation and each other holder of Redeemable Preferred Stock
(or Convertible Preferred Stock, as applicable) not less that five (5) days prior written notice,
which notice shall set forth the date for such redemption.
(b) Redemption Date; Redemption Price. Upon the election of the holders of not less
than sixty-six and two-thirds percent in voting power of the outstanding Redeemable Preferred Stock
to cause the Corporation to redeem the Redeemable Preferred Stock pursuant to Section B.5(a)(ii),
all holders of Redeemable Preferred Stock shall be deemed to have elected to cause the Redeemable
Preferred Stock to be so redeemed. Any date upon which a redemption shall occur in accordance with
Section B.5(a) shall be referred to as a Redemption Date. The redemption price for each
share of Redeemable Preferred Stock redeemed pursuant to this Section B.5 shall be the sum of (i)
the Redeemable Base Liquidation Amount (as set forth in Section B.4(b) above), plus (ii) any
accumulated but unpaid dividends on such share of Redeemable Preferred Stock pursuant to Section
B.3 and Section B.5(d) hereof, plus (iii) any interest accrued with respect to such share of
Convertible Preferred Stock pursuant to Section B.5(c), plus (iv) any accumulated but unpaid
dividends or other amounts due on or in respect of the share of Convertible Preferred Stock from
which such share of Redeemable Preferred Stock was converted (the Redemption Price).
Except as holders of sixty-six and two-thirds percent of the Redeemable Preferred Stock shall
otherwise agree, the Redemption Price shall be payable in cash in immediately available funds to
the respective holders of the Redeemable Preferred Stock on the Redemption Date; provided, however,
that upon a QPO in which the Price to Public (as defined in Section A.6(b)) is 1.25 times or
greater but less than two (2) times the Conversion Price, the portion of the Redemption Price
representing the Redeemable Base Liquidation Amount shall be payable in a combination of cash and
promissory notes, which promissory notes will have a maturity date equal to one year after the
Redemption Date, shall bear interest at the per annum rate equal to the greater of (x) 12% or (y)
5% over the Citibank prime rate published in the Wall Street Journal on the Redemption Date and
shall contain other customary terms and provisions (Promissory Notes), as set forth
below, and the remaining portions of the Redemption Price set forth in clause (ii) through (iv) of
this Section B.5(b) shall be paid in cash. The per share amount of cash and amount of Promissory
Notes is determined according to (i) the closing date of such offering and (ii) the Price to Public
expressed as a multiple of the Conversion Price. The per share amount of cash and amount of
Promissory Notes with respect to any multiple of the Conversion Price between any of the data
points in any column below shall be determined by linear interpolation (for example, given a QPO on
July 1, 1997 with a Price to Public equal to 1.625 times the Conversion Price, the Redemption Price
shall be payable $6.2417 in cash and $.5674 in Promissory Notes).
Price to Public as Multiple of | Combination of Cash | |||||||||||
Conversion Price | and Promissory Notes | |||||||||||
On or Before | After | Cash Payment | Promissory Note | |||||||||
June 18, 1998 | June 18, 1998 | Amount Per Share | Amount Per Share | |||||||||
1.75X | 2.0X | $ | 6.8091 | $ | 0.00 | |||||||
1.5X | 1.75X | $ | 5.6743 | $ | 1.1348 | |||||||
1.25X | 1.5X | $ | 4.5394 | $ | 2.2697 | |||||||
1.25X | $ | 4.5394 | $ | 2.2697 |
Until the full Redemption Price, including any interest thereon, has been paid to such holders
in cash (or cash and Promissory Notes, as provided above) for all shares of Redeemable Preferred
Stock redeemed as of the applicable Redemption Date: (A) no dividend whatsoever shall be paid or
declared, and no distribution shall be made, on any capital stock of the Corporation; and (B) no
shares of capital stock of the Corporation (other than the Redeemable Preferred Stock in accordance
with this Section B.5 or shares of capital stock the repurchase of which is required pursuant to
the provisions of ERISA or any like statutory requirement) shall be purchased, redeemed or acquired
by the Corporation and no monies shall be paid into or set aside or made available for a sinking
fund for the purchase, redemption or acquisition thereof.
(c) Redemption Prohibited. If, at a Redemption Date, the Corporation is prohibited
under the General Corporation Law of the State of Delaware from redeeming all shares of Redeemable
Preferred Stock for which redemption is required hereunder, then it shall redeem such shares on a
pro-rata basis among the holders of Redeemable Preferred Stock in proportion to the full respective
redemption amounts to which they are entitled
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hereunder to the extent possible and shall redeem the remaining shares to be redeemed as soon
as the Corporation is not prohibited from redeeming some or all of such shares under the General
Corporation Law of the State of Delaware, subject to the last paragraph of Section A.8. The shares
of Redeemable Preferred Stock not redeemed shall remain outstanding and entitled to all of the
rights and preferences provided in this Article IV. In the event that the Corporation fails to
redeem shares for which redemption is required pursuant to Section B.5, then during the period from
the applicable Redemption Date through the date on which such shares are redeemed, the applicable
Redemption Price of such shares plus additional dividends that accumulate in respect of such shares
under Section B.5(d) shall bear interest at the per annum rate of the greater of (i) 12% or (ii) 5%
over the Citibank prime rate published in the Wall Street Journal on such Convertible Preferred
Redemption Date, compounded annually; provided, however, that in no event shall such interest
exceed the maximum permitted rate of interest under applicable law (the Maximum Permitted
Rate). In the event that fulfillment of any provision hereof results in such rate of interest
being in excess of the Maximum Permitted Rate, the obligation to be fulfilled shall automatically
be reduced to eliminate such excess; provided, however, that any subsequent increase in the Maximum
Permitted Rate shall be retroactively effective to the applicable Preferred Redemption Date.
(d) Dividend After Redemption Date. From and after a Redemption Date, no shares of
Redeemable Preferred Stock subject to redemption shall be entitled to any further dividends
pursuant to Section B.3 hereof; provided, however, that in the event that shares of Redeemable
Preferred Stock are unable to be redeemed and continue to be outstanding in accordance with Section
B.5(c), such shares shall continue to be entitled to dividends and interest thereon as provided in
Sections B.3 and B.5(c) until the date on which such shares are actually redeemed by the
Corporation.
(e) Surrender of Certificates. Upon receipt of the applicable Redemption Price by
certified check or wire transfer, each holder of shares of Redeemable Preferred Stock to be
redeemed shall surrender the certificate or certificates representing such shares to the
Corporation, duly assigned or endorsed for transfer (or accompanied by duly executed stock powers
relating thereto), or shall deliver an Affidavit of Loss with respect to such certificates at the
principal executive office of the Corporation or the office of the transfer agent for the
Redeemable Preferred
Stock or such office or offices in the continental United States of an agent for redemption as may
from time to time be designated by notice to the holders of Redeemable Preferred Stock (or the
holders of Convertible Preferred Stock, as applicable), and each surrendered certificate shall be
canceled and retired; provided, however, that if the holder has exercised its redemption right
pursuant to Section B.5(a)(ii)(A), the holder shall not be required to surrender said
certificate(s) to the Corporation until said holder has received a new stock certificate for those
shares of Redeemable Preferred Stock not so redeemed.
6. Notice. In the event that the Corporation provides or is required to provide notice to any
holder of Convertible Preferred Stock or any holder of Common Stock in accordance with the
provisions of this Certificate of Incorporation (including the provisions of Section A.9) and/or
the Corporations by-laws, the Corporation shall at the same time provide a copy of any such notice
to each holder of outstanding shares of Redeemable Preferred Stock.
7. No Reissuance of Redeemable Preferred Stock. No share or shares of Redeemable Preferred
Stock acquired by the Corporation by reason of redemption, purchase, conversion or otherwise shall
be reissued, and all such shares shall be canceled, retired and eliminated from the shares which
the Corporation shall be authorized to issue.
8. Covenants. So long as any shares of Redeemable Preferred Stock shall be outstanding the
provisions of Section A.8 shall apply to all shares of Redeemable Preferred Stock as if such shares
were shares of Convertible Preferred Stock.
C. SERIES B PREFERRED STOCK
1. Designation and Amount. The shares of such series shall be designated as Series B Preferred
Stock (the Series B Preferred Stock); $0.01 par value per share, and the number of shares
constituting such series shall be 1,000,000.
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2. Dividends and Distributions.
(A) The dividend rate on the shares of Series B Preferred Stock shall be for each quarterly
dividend (hereinafter referred to as a quarterly dividend period), which quarterly
dividend periods shall commence on January 1, April 1, July 1 and October 1 each year (each such
date being referred to herein as a Quarterly Dividend Payment Date) (or in the case of
original issuance, from the date of original issuance) and shall end on and include the day next
preceding the first date of the next quarterly dividend period, at a rate per quarterly dividend
period (rounded to the nearest cent) equal to the greater of (a) 625.00 or (b) subject to the
provisions for adjustment hereinafter set forth, 100 times the aggregate per share amount of all
cash dividends, and 100 times the aggregate share amount (payable in cash, based upon the fair
market value at the time the non-cash dividend or other distribution is declared as determined in
good faith by the Board of Directors) of all non-cash dividends or other distributions other than a
dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared (but not withdrawn) on the Common Stock, par
value $0.001 Par value of Common Stock per share, of the Corporation (the Common Stock)
during the immediately preceding quarterly dividend period, or, with respect to the first quarterly
dividend period, since the first issuance of any share or fraction of a share of Series B Preferred
Stock. In the event this Company shall at any time after February 28, 2001 (the Rights
Declaration Date) (i) declare any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) Dividends shall begin to accrue and be cumulative on outstanding shares of Series B
Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such
shares of Series B Preferred Stock, unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the determination of holders of shares
of Series B Preferred Stock entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series B Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata
on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may
fix a record date for the determination of holders of shares of Series B Preferred Stock entitled
to receive payment of a dividend or distribution declared thereon, which record date shall be no
more than 45 days prior to the date fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series B Preferred Stock shall have the following
voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each share of Series B
Preferred Stock shall entitle the holder thereof to 100 votes on all matters submitted to a vote of
the stockholders of the Corporation. In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the number of votes per share to which holders of
shares of Series B Preferred Stock were entitled immediately prior to such event shall be adjusted
by multiplying such number by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in the Certificate of Incorporation or by law, the
holders of shares of Series B Preferred Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of stockholders of the Corporation.
17
(C) Except as set forth herein, in the Certificate of Incorporation and in the By-laws,
holders of Series B Preferred Stock shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote with holders of Common Stock as set
forth herein) for taking any corporate action.
4. Reacquired Shares. Any shares of Series B Preferred Stock purchased or otherwise acquired
by the Corporation in any manner whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock to be
created by resolution or resolutions of the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
5. Liquidation, Dissolution or Winding Up. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders of the Series B Preferred
Stock shall be entitled to receive the greater of (a) $25,000.00 per share, plus accrued dividends
to the date of distribution, whether or not earned or declared, or (b) an amount per share, subject
to the provision for adjustment hereinafter set forth, equal to 100 times the aggregate amount to
be distributed per share to holders of Common Stock. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the amount to which holders of shares
of Series B Preferred Stock were entitled immediately prior to such event pursuant to clause (b) of
the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
6. Consolidation, Merger, Etc. In case the Corporation shall enter into any consolidation,
merger, combination or other transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property, then in any such case the
shares of Series B Preferred Stock shall at the same time be similarly exchanged or changed in an
amount per share (subject to the provision for adjustment hereinafter set forth) equal to 100 times
the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is changed or exchanged. In the
event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend
on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case
the amount set forth in the preceding sentence with respect to the exchange or change of shares of
Series B Preferred Stock shall be adjusted by multiplying such amount by a fraction the numerator
of which is the number of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
7. No Redemption. The shares of Series B Preferred Stock shall not be redeemable.
8. Fractional Shares. Series B Preferred Stock may be issued in fractions of a share which
shall entitle the holder, in proportion to such holders fractional shares, to exercise voting
rights, receive dividends, participate in distributions and have the benefit of all other rights of
holders of Series B Preferred Stock. All payments made with respect to fractional shares hereunder
shall be rounded to the nearest whole cent.
9. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions payable on the Series B
Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Series B Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends on, make any other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series B Preferred Stock;
18
(ii) declare or pay dividends on or make any other distributions on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with
the Series B Preferred Stock, except dividends paid ratably on the Series B Preferred Stock and all
such parity stock on which dividends are payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking on
a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series B
Preferred Stock, provided that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such parity stock in exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the
Series B Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of Series B Preferred Stock,
or any shares of stock ranking on a parity with the Series B Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as determined by the Board of Directors)
to all holders of such shares upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and preferences of the respective series
and classes shall determine in good faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation
could, under paragraph (A) of this Section 9, purchase or otherwise acquire such shares at such
time and in such manner.
10. Ranking. The Series B Preferred Stock shall be junior to all other Series of the
Corporations preferred stock as to the payment of dividends and the distribution of assets, unless
the terms of any series shall provide otherwise.
11. Amendment. The Certificate of Incorporation of the Corporation shall not be amended in any
manner which would materially alter or change the powers, preferences or special rights of the
Series B Preferred Stock so as to affect them adversely without the affirmative vote of the holders
of two-thirds or more of the outstanding shares of Series B Preferred Stock voting together as a
single class.
D. COMMON STOCK
1. Designation; Ranking. A total of 400,000,000 shares of the Corporations common stock shall
be designated as Common Stock, $.01 par value per share (the Common Stock).
2. Voting.
(a) Election of Directors. The holders of Common Stock voting together with the
holders of outstanding Convertible Preferred Stock as a single class, shall be entitled to elect
all of the Directors of the Corporation, other than the Directors who are subject to election by
the holders of Convertible Preferred Stock or Redeemable Preferred Stock as a separate class for so
long as any shares of Convertible Preferred Stock or Redeemable Preferred Stock remain outstanding,
and thereafter shall be entitled to elect all of the Directors of the Corporation. The election of
such Directors shall occur at the annual meeting of holders of capital stock or at any special
meeting called and held in accordance with the by-laws of the Corporation. Subject to the rights of
the holders of any series of Preferred Stock then outstanding, newly created directorships
resulting from any increase in the authorized number of Directors or any vacancies in the Board of
Directors resulting from death, resignation or other cause (other than the removal from office by a
vote of the stockholders) may be filled only by a majority vote of the Directors then in office,
though less than a quorum. Directors so chosen shall hold office for a term expiring at the next
annual meeting of the stockholders at which the term of office to which they have been elected
expires and until their respective successors are elected, except that in the case of death or
resignation of any Director, in which case the Director so chosen shall hold office for a term
expiring at the next annual meeting of stockholders. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent Director.
19
(b) Other Voting. The holder of each share of Common Stock shall be entitled to one
vote for each such share as determined on the record date for the vote or consent of stockholders
and shall vote together with the holders of the Convertible Preferred Stock as a single class upon
any items submitted to a vote of stockholders, except as otherwise provided herein.
3. Dividends. Subject to the payment in full of all preferential dividends to which the
holders of the Convertible Preferred Stock and the Redeemable Preferred Stock are entitled
hereunder, the holders of Common Stock shall be entitled to receive dividends out of funds legally
available therefor at such times and in such amounts as the Board of Directors may determine in its
sole discretion. The Board of Directors shall give the holders of Convertible Preferred Stock
twenty (20) days prior written notice of the declaration of any such dividends, and the record date
for such dividends shall not precede the expiration of such twenty (20) day period.
4. Liquidation. Upon any Liquidation Event, after the payment or provision for payment of all
debts and liabilities of the Corporation and all preferential amounts to which the holders of
Convertible Preferred Stock or Redeemable Preferred Stock, as applicable, are entitled with respect
to the distribution of assets in liquidation, the holders of Common Stock (and, to the extent
applicable under Section A.4(a), Convertible Preferred Stock) shall be entitled to share ratably in
the remaining assets of the Corporation available for distribution.
5. Fractional Shares; Uncertificated Shares. The Corporation may issue fractional shares (up
to five decimal places) of Common Stock. Fractional shares shall be entitled to dividends (on a pro
rata basis), and the holders of fractional shares shall be entitled to all rights as stockholders
of the Corporation to the extent provided herein and under applicable law in respect of such
fractional shares. Shares of Common Stock, or fractions thereof, may, but need not be represented
by share certificates. Such shares, or fractions thereof, not represented by share certificates
(the Uncertificated Common Shares) shall be registered in the stock records book of the
Corporation. The Corporation at any time at its sole option may deliver to any registered holder of
such shares share certificates to represent Uncertificated Common Shares previously issued (or
deemed issued) to such holder.
ARTICLE V
In furtherance of and not in limitation of powers conferred by statute, it is further provided:
1. Board of Directors.
(a) Election of Directors need not be by written ballot unless the by-laws of the Corporation
so provide.
(b) Subject to Section A.8(g) hereof, the number of directors shall be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution adopted by a majority of the total
number of authorized directors (whether or not there exist any vacancies in previously authorized
directorships at the time any such resolution is presented to the Board for adoption). Following
the Corporations first QPO, the directors shall be divided into three classes with the term of
office of the first class to expire at the annual meeting of the stockholders held in 2000; the
term of office of the second class to expire at the meeting of the stockholders held in 2001; the
term of office of the third class to expire at the annual meeting of the stockholders in 2002; and
thereafter for each such term to expire at each third succeeding annual meeting of stockholders
after such election. Subject to the rights of the holders of any series of Preferred Stock then
outstanding, a vacancy resulting from the removal of a director by the stockholders as provided in
Article V, Section 3 below may be filled at a special meeting of the stockholders held for that
purpose.
2. Bylaws. Except as set forth in Section A.8(c), the Board of Directors is expressly
authorized to adopt, amend, or repeal the by-laws of the Corporation to the extent specified
therein. Following the Corporations first QPO, the by-laws of the Corporation may be amended or
repealed, and new by-laws may be adopted, by the affirmative vote of the holders of at least a
majority of the outstanding voting power of all the then outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of directors, voting together as a
single class, or by a vote of at least a majority of the number of directors of the Corporation
then authorized, in the manner prescribed by the laws of the State of Delaware.
20
3. Removal. Following the Corporations first QPO any director or the entire Board of
Directors may be removed from office before the expiration of the applicable term of office only
with cause.
ARTICLE VI
Meetings of stockholders may be held within or without the State of Delaware, as the by-laws
may provide. Any action taken by the written consent of the stockholders of the Corporation must
include the consent of the holder or holders of not less than a majority in voting power of the
outstanding shares of Convertible Preferred Stock (or Redeemable Preferred Stock, as applicable).
Following the closing of the Corporations first QPO, the stockholders may no longer take action by
written consent and may act only at an annual or special meeting.
ARTICLE VII
To the extent permitted by law, the books of the Corporation may be kept outside the State of
Delaware at such place or places as may be designated in the by-laws of the Corporation or from
time to time by its Board of Directors.
ARTICLE VIII
No person shall be personally liable to the Corporation or its stockholders for monetary
damages for breach of his or her fiduciary duty as a Director of the Corporation, except for
liability (a) for any breach of the Directors duty of loyalty to the Corporation or its
stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (c) under Section 174 of the General Corporation Law of the State of
Delaware, or (d) for any transaction from which the Director derived an improper personal benefit.
If the General Corporation Law of the State of Delaware is amended after the effective date of this
Restated Certificate of Incorporation to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of each past or present Director of the
Corporation shall be eliminated or limited to the fullest extent permitted by the General
Corporation Law of the State of Delaware, as so amended.
Any repeal or modification of this Article VIII by (a) the stockholders of the Corporation or
(b) an amendment to the General Corporation Law of the State of Delaware (unless such statutory
amendment specifically provides to the contrary) shall not adversely affect any right or protection
existing at the time of such repeal or modification with respect to any acts or omissions occurring
either before or after such repeal or modification, of a person serving as a Director prior to or
at the time of such repeal or modification.
ARTICLE IX
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,
provided, however, that following the Corporations first QPO the affirmative vote of a majority of
the voting power of all the then outstanding shares of the capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a single class, shall
be required to amend or repeal Article V, Article VI, Article VIII, or this Article IX. All rights
conferred upon stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation has been executed by the
undersigned duly authorized officer of the Corporation on this 29th day of April, 2010.
LIFE TECHNOLOGIES CORPORATION |
||||
By: | /s/ John A. Cottingham | |||
John A. Cottingham | ||||
Chief Legal Officer and Secretary | ||||
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