Attached files
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S-1/A - AMENDMENT NO. 3 TO FORM S-1 - NUPATHE INC. | w78367a3sv1za.htm |
EX-3.4 - EX-3.4 - NUPATHE INC. | w78367a3exv3w4.htm |
EX-5.1 - EX-5.1 - NUPATHE INC. | w78367a3exv5w1.htm |
EX-3.2 - EX-3.2 - NUPATHE INC. | w78367a3exv3w2.htm |
EX-4.1 - EX-4.1 - NUPATHE INC. | w78367a3exv4w1.htm |
EX-1.1 - EX-1.1 - NUPATHE INC. | w78367a3exv1w1.htm |
EX-24.2 - EX-24.2 - NUPATHE INC. | w78367a3exv24w2.htm |
EX-24.3 - EX-24.3 - NUPATHE INC. | w78367a3exv24w3.htm |
EX-23.1 - EX-23.1 - NUPATHE INC. | w78367a3exv23w1.htm |
EX-10.14 - EX-10.14 - NUPATHE INC. | w78367a3exv10w14.htm |
EX-10.13 - EX-10.13 - NUPATHE INC. | w78367a3exv10w13.htm |
EX-10.21 - EX-10.21 - NUPATHE INC. | w78367a3exv10w21.htm |
Exhibit 3.1
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NUPATHE INC.
NuPathe Inc., a corporation organized and existing under the laws of the State of Delaware,
(the Corporation) hereby certifies as follows:
1. The name of the Corporation is NuPathe Inc. The Certificate of Incorporation of the
Corporation was originally filed with the Secretary of State of the State of Delaware on January 7,
2005, as corrected on January 12, 2005, as amended and restated on October 26, 2005, and as further
amended and restated on August 31, 2006 (the Restated Certificate of Incorporation).
2. This Third Amended and Restated Certificate of Incorporation was duly adopted by the board
of directors in accordance with the provisions of Sections 242 and 245 of the General Corporation
Law of the State of Delaware, as the same may be amended from time to time (the Corporation Law)
and by written consent of the stockholders of the Corporation entitled to vote thereon in
accordance with the provisions of Section 228 of the Corporation Law.
3. The Restated Certificate of Incorporation of the Corporation is hereby amended and restated
in its entirety to read in full as follows:
ARTICLE I
The name of the Corporation is NuPathe Inc.
ARTICLE II
The address of the Corporations registered office is 1209 Orange Street, Wilmington, Delaware
19801, County of New Castle. The name of its registered agent at such address is The Corporation
Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the Corporation Law.
ARTICLE IV
A. Authorization. The aggregate number of shares of all classes of stock which the
Corporation shall have authority to issue is One Hundred Thirty Million Two Hundred Ninety Five
Thousand Eighty Six (130,295,086) shares, such shares being designated as follows: (i)
Seventy-Three Million Fifty
Thousand (73,050,000) shares of common stock, par value $0.001 per share (the Common Stock), and
(ii) Fifty-Seven Million Two Hundred Forty Five
Thousand Eighty Six (57,245,086) shares of
preferred stock, par value $0.001 per share (the Preferred Stock), Sixteen Million Nine Hundred
Twenty-Two Thousand Five Hundred Six (16,922,506) shares of which are designated Series A Preferred
Stock (the Series A Preferred Stock) and Forty Million Three Hundred Twenty Two Thousand Five
Hundred Eighty (40,322,580) shares of which are designated Series B Preferred Stock (the Series B
Preferred Stock). The Common Stock and the Preferred Stock shall have the following designations,
preferences, rights, qualifications, limitations and restrictions set forth in Sections B and C,
respectively, of this ARTICLE IV. Subject to ARTICLE IVC.7, the Preferred Stock not otherwise
designated as either Series A Preferred Stock or Series B Preferred Stock may be issued from time
to time in one or more classes or series. Subject to ARTICLE IVC.7, the Board of Directors of the
Corporation (the Board) shall have authority to the fullest extent permitted under the
Corporation Law to adopt by resolution from time to time one or more Certificates of Designation
providing for the designation of one or more classes or series of Preferred Stock and the voting
powers, whether full or limited or no voting powers, and such designations, preferences and
relative, participating, optional, or other special rights and qualifications, limitations or
restrictions thereof, and to fix or alter the number of shares comprising any such class or series,
subject to any requirements of the Corporation Law and this Certificate, as the same may be amended
from time to time.
B. Common Stock.
1. General. Except as required by law or as provided in this Certificate, all shares of
Common Stock shall be identical in all respects and shall entitle the holders thereof to the same
rights and privileges, subject to the same qualifications, limitations and restrictions. The
dividend, voting and liquidation rights of the holders of the Common Stock are subject to and
qualified by the rights, powers and preferences of the holders of Series A Preferred Stock and
Series B Preferred Stock set forth herein, and as may be designated by resolution of the Board and
the Corporation with respect to any series of Preferred Stock as authorized herein.
2. Dividends and Distributions. Subject to the provisions of this Certificate, including
ARTICLE IVC, the holders of shares of Common Stock shall be entitled to receive such dividends and
distributions, payable in cash or otherwise, as may be declared thereon by the Board from time to
time out of assets or funds of the Corporation legally available therefor. The holders of shares
of Common Stock shall be entitled to share equally, on a per share basis, in such dividends or
distributions, subject to the limitations described below.
3. Voting. Each holder of Common Stock shall be entitled to vote on each matter (a)
expressly required by the Corporation Law or (b) otherwise submitted to a vote of the stockholders
of the Corporation, including the election of directors, except for matters subject to a separate
class
vote by one or more classes and/or series of capital stock of the Corporation other than Common
Stock to the extent such separate class vote is required by the Corporation Law or this
Certificate. Each such holder shall be entitled to one vote per share of Common Stock on each
matter to be voted on by such stock.
4. Liquidation. After the payments to holders of Preferred Stock pursuant to ARTICLE
IVC.4.1.1 and ARTICLE IVC.4.1.2 of this Certificate, the holders of Common Stock
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shall be entitled
to liquidation distributions, if any, with holders of Preferred Stock on an as converted basis
pursuant to ARTICLE IVC.4.1.3 of this Certificate.
C. Preferred Stock. A total of Sixteen Million Nine Hundred Twenty-Two Thousand Five
Hundred Six (16,922,506) shares of the Corporations Preferred Stock shall be designated Series A
Preferred Stock and a total of Forty Million Three Hundred Twenty Two Thousand Five Hundred Eighty
(40,322,580) shares of the Corporations Preferred Stock shall be designated Series B Preferred
Stock, which shares have the voting powers, designations, preferences and other special rights, and
qualifications, limitations and restrictions thereof set forth below:
1. Rank. The Series B Preferred Stock shall rank (a) senior to the Series A Preferred
Stock, the Common Stock and any other class or series of capital stock of the Corporation either
specifically ranking by its terms junior to the Series B Preferred Stock or not specifically
ranking by its terms senior to or on parity with the Series B Preferred Stock (the Series B Junior
Stock) and (b) on parity with any class or series of capital stock of the Corporation specifically
ranking by its terms on parity with the Series B Preferred Stock, in each case, as to payment of
dividends, distributions of assets upon a Liquidation or Liquidity Event or otherwise. The Series
A Preferred Stock shall rank (a) junior to the Series B Preferred Stock and any other class or
series of capital stock of the Corporation specifically ranking by its terms senior to the Series A
Preferred Stock, (b) senior to the Common Stock and any other class or series of capital stock of
the Corporation either specifically ranking by its terms junior to the Series A Preferred Stock or
not specifically ranking by its terms senior to or on parity with the Series A Preferred Stock (the
Series A Junior Stock), and (c) on parity with any class or series of capital stock of the
Corporation specifically ranking by its terms on parity with the Series A Preferred Stock, in each
case, as to payment of dividends, distributions of assets upon a Liquidation or Liquidity Event or
otherwise.
2. Dividends.
2.1. Series B Dividends. Commencing on the first date that shares of Series B Preferred
Stock are issued (the Series B Issue Date), the holders of shares of Series B Preferred Stock
(each, a Series B Holder and, collectively, the Series B Holders) shall be entitled to receive
dividends out of any assets legally available therefor, prior and in preference to any declaration
or payment of any dividend on any Series B Junior Stock, at a rate equal to eight percent (8%) per
annum (based upon a 365
day year) of $0.93 (as appropriately adjusted to reflect the effect of any stock dividend, split,
combination, reclassification, recapitalization or other similar event with respect to such shares,
the Series B Issue Price) per share, payable only when, as and if declared by the Board and if so
declared, may be paid in cash only upon the affirmative vote of the holders of at least
662/3% of the outstanding shares of Series B Preferred Stock (the Series B Dividends).
The Series B Dividends shall accrue cumulatively and on a daily basis with respect to each share
of Series B Preferred Stock issued, from and including the date of issuance of such share, whether
or not there are profits, surplus or other funds of the Corporation legally available for the
payment of dividends, until paid.
2.2. Series A Dividends. Commencing on the first date that shares of Series A Preferred
Stock are issued (the Series A Issue Date), the holders of shares of Series
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A Preferred Stock
(each, a Series A Holder and, collectively, the Series A Holders, and together with the Series
B Holders, collectively, the Preferred Holders) shall be entitled to receive dividends out of any
assets legally available therefor, prior and in preference to any declaration or payment of any
dividend on any Series A Junior Stock, at a rate equal to eight percent (8%) per annum (based upon
a 365 day year) of $0.93 (as appropriately adjusted to reflect the effect of any stock dividend,
split, combination, reclassification, recapitalization or other similar event with respect to such
shares, the Series A Issue Price) per share, payable only when, as and if declared by the Board
and if so declared, may be paid in cash only upon the affirmative vote of the holders of at least
662/3% of the then outstanding shares of Series A Preferred Stock (the Series A
Dividends). The Series A Dividends shall accrue cumulatively and on a daily basis with respect to
each share of Series A Preferred Stock issued, from and including the date of issuance of such
share, whether or not there are profits, surplus or other funds of the Corporation legally
available for the payment of dividends, until paid. Except as expressly provided herein, the
Series A Holders shall not be entitled to any dividends or distributions on account of the shares
of Series A Preferred Stock held by them, and no payment of any dividends to the Series A Holders
shall be made unless all accrued and unpaid dividends on the Series B Preferred Stock have been
paid to the holders thereof to the extent required under ARTICLE IVC.2.1 above.
2.3. Participating Dividends. Notwithstanding anything to the contrary contained herein
and other than in the case of dividends or other distributions made with respect to a Liquidation,
in the event the Corporation shall pay, make or Issue a dividend or other distribution with respect
to the Common Stock payable in cash, securities of the Corporation (other than shares of Common
Stock in connection with an Extraordinary Common Stock Event), or other assets, then, and in each
such event, the Preferred Holders shall receive, at the same time such distribution is made with
respect to such Common Stock, the cash, securities or such other assets of the Corporation which
such holders would have received had their shares of Preferred Stock been converted into Common
Stock, in the manner hereinafter set forth.
2.4. Adjustments. All numbers relating to the calculation of dividends pursuant to this ARTICLE IVC.2 shall be
subject to appropriate adjustment whenever there shall occur a stock split, combination,
reclassification, recapitalization or other similar event involving or affecting a change in the
Corporations capital structure to provide to the Preferred Holders the same economic return as
they would have received in the absence of such event.
3. Restrictions On Distributions. For so long as any shares of Series B Preferred Stock
are outstanding, the Corporation shall not declare or pay any dividends or make any other
distributions on, any shares of Series B Junior Stock (or rights to acquire Series B Junior Stock)
now or hereafter outstanding, return any capital or make any distribution to the holders of any
capital stock, or permit any Subsidiary to do any of the foregoing. For so long as any shares of
Series A Preferred Stock are outstanding, the Corporation shall not declare or pay any dividends or
make any other distributions on, any shares of Series A Junior Stock (or rights to acquire Series A
Junior Stock) now or hereafter outstanding, return any capital or make any distribution to the
holders of any capital stock, or permit any Subsidiary to do any of the foregoing. Nothing
contained in this ARTICLE IVC.3 shall prevent the Corporation from: (i) effecting a stock split or
declaring or paying any dividend consisting of shares of any class of capital stock paid to the
holders of shares of such class of capital stock; or (ii) complying with
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any specific provision of
the terms of any subsequently designated series of Preferred Stock in accordance with its terms.
4. Liquidation, Dissolution and Winding Up.
4.1. Treatment at Liquidation, Dissolution or Winding Up.
4.1.1. Series B Liquidation Preference. In the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, or in the event of its
insolvency, whether under the Corporation Law, federal bankruptcy laws, or other applicable federal
or state laws (each such event is referred to herein as a Liquidation), the Series B Holders
shall be entitled to be paid out of the assets of the Corporation available for distribution to
holders of the Corporations capital stock of all classes, whether such assets are capital, surplus
or earnings (Available Assets), before any distribution or payment is made to any holders of
Series B Junior Stock, an amount per share of Series B Preferred Stock equal to the Series B Issue
Price plus, if so elected in writing by the holders of at least 662/3% of the
shares of Series B Preferred Stock outstanding immediately prior to such Liquidation, an amount
equal to all accrued but unpaid dividends (whether or not declared) on such Series B Preferred
Stock (the Series B Liquidation Preference). In no event shall the payment of all or any portion
of the Series B Liquidation Preference be deemed to be a payment of accrued and unpaid dividends on
any shares of Series B Preferred Stock to the extent permitted by applicable law. If, upon
Liquidation, the Available Assets shall be insufficient to pay the full amount of the Series B
Liquidation Preference, the Series B Holders shall share in any distribution of Available Assets
pro rata in proportion to the respective Series B Liquidation Preference which would otherwise be
payable upon a Liquidation with respect to the outstanding shares of the Series B Preferred Stock
if the Series B Liquidation Preference payable with respect to such shares were paid in full.
4.1.2. Series A Liquidation Preference. After payment of all preferential amounts
required to be paid to the Series B Holders pursuant to ARTICLE IVC.4.1.1, in the event of a
Liquidation, the Series A Holders shall be entitled to be paid out of the Available Assets, before
any distribution or payment is made to any holders of Series A Junior Stock, an amount per share of
Series A Preferred Stock equal to the Series A Issue Price plus, if so elected in writing
by the holders of at least 662/3% of the shares of Series A Preferred Stock outstanding
immediately prior to such Liquidation, an amount equal to all accrued but unpaid dividends (whether
or not declared) on such Series A Preferred Stock (the Series A Liquidation Preference). In no
event shall the payment of all or any portion of the Series A Liquidation Preference be deemed to
be a payment of accrued and unpaid dividends on any shares of Series A Preferred Stock to the
extent permitted by applicable law. If, upon Liquidation, the Available Assets available,
following payment in full of the Series B Liquidation Preference, shall be insufficient to pay the
full amount of the Series A Liquidation Preference, the Series A Holders shall share in any
distribution of Available Assets pro rata in proportion to the respective Series A Liquidation
Preference which would otherwise be payable upon a Liquidation with respect to the outstanding
shares of the Series A Preferred Stock if the Series A Liquidation Preference payable with respect
to such shares were paid in full.
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4.1.3. Participation Rights. After the payment in full of the Series B Liquidation
Preference and the Series A Liquidation Preference pursuant to ARTICLE IVC.4.1.1 and ARTICLE
IVC.4.1.2, the remaining Available Assets, if any, shall be distributed among the holders of Common
Stock, Series A Preferred Stock and Series B Preferred Stock in proportion to the number of shares
of Common Stock then held by holders of Common Stock and the number of shares of Common Stock which
the Series A Holders and the Series B Holders would then have the right to receive assuming
conversion of such shares of Series A Preferred Stock and Series B Preferred Stock held by them
into shares of Common Stock pursuant to ARTICLE IVC.6 immediately prior to such Liquidation.
4.1.4. Liquidation Preference Exception. Notwithstanding anything to the contrary in
this ARTICLE IVC.4, in no event shall the aggregate amount that would be payable per share of
Series A Preferred Stock to the Series A Holders pursuant to this ARTICLE IVC.4 exceed an amount
equal to the greater of: (i) four (4) times the Series A Issue Price or (ii) the amount that the
Series A Holders would receive per share of Series A Preferred Stock assuming conversion of such
shares of Series A Preferred Stock held by them into shares of Common Stock pursuant to ARTICLE
IVC.6 immediately prior to such Liquidation.
4.2. Treatment of Liquidity Event.
4.2.1. Transaction Payment. At least ten (10) business days prior to the consummation
of a Liquidity Event, the Corporation, or if the Corporation is not a party to such transaction,
the holders of shares of capital stock of the Corporation that are parties to such transaction,
shall provide the Preferred Holders written notice of such event (the Event Notice). Unless the
holders of at least 662/3% of the then outstanding Preferred Stock deliver a notice to
the Corporation within five (5) business days after receipt of an Event Notice stating that such
Liquidity Event shall not be treated as a Liquidation, a Liquidity Event shall be deemed to have
been elected by such holders to be treated as a Liquidation in which case the Corporation shall,
and each Preferred Holder shall be entitled to require that, prior to or concurrently with
consideration from any such Liquidity Event being paid to the Corporation (if the
consideration is to be received by the Corporation in an asset transaction), or by any third party
to stockholders of the Corporation other than Preferred Holders (if the consideration is to be
received directly by such stockholders in a merger, consolidation, stock purchase or similar
transaction), a payment (the Transaction Payment) shall be made (i) to the Series B Holders in an
amount equal to the amount that the Series B Holders would have received had the entire
consideration in the transaction (with respect to a Liquidity Event involving the sale of all or
substantially all the assets of the Corporation, net of any liabilities of the Corporation not
assumed or otherwise paid by the acquiring entity) been deemed Available Assets for distribution to
the stockholders of the Corporation upon liquidation pursuant to ARTICLE IVC.4.1 and (ii) to the
Series A Holders in an amount equal to the amount that the Series A Holders would have received had
the entire consideration in the transaction (with respect to a Liquidity Event involving the sale
of all or substantially all the assets of the Corporation, net of any liabilities of the
Corporation not assumed or otherwise paid by the acquiring entity) been deemed Available Assets for
distribution to the stockholders of the Corporation upon liquidation pursuant to ARTICLE IVC.4.1.
In no event shall the payment of all or any portion of the Transaction Payment be deemed to be a
payment of accrued and unpaid dividends on any shares of Preferred Stock to the extent permitted by
applicable law.
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4.2.2. Payment of Transaction Payment. If securities of the acquiring entity (the
"Acquiring Entity Stock) or other property are Issued to the holders of the Corporations
Preferred Stock and Common Stock in the Liquidity Event, then, the Transaction Payment shall be
paid to the Preferred Holders in such portions of cash, property or Acquiring Entity Stock, such
that all holders of Preferred Stock and Common Stock shall receive the same proportion of cash,
property and Acquiring Entity Stock in respect of the amounts to which they are entitled pursuant
to ARTICLE IVC.4.1. The Acquiring Entity Stock utilized to make the Transaction Payment, if any,
shall have the same rights, preferences and restrictions (including whether the issuance or sale of
such Acquiring Entity Stock is registered or entitled to registration rights under the Securities
Act) as the Acquiring Entity Stock issued to the holders of Common Stock in the Liquidity Event.
Notwithstanding the foregoing, neither the Corporation nor the acquiring entity shall be obligated
to deliver certificates evidencing the Acquiring Entity Stock or other property deliverable to a
Preferred Holder as a result of the Liquidity Event unless and until the certificates representing
shares of Preferred Stock held by such Preferred Holder are either delivered to the Corporation or
the acquiring entity, or their respective transfer agents, as the Corporation and the acquiring
entity may require, duly endorsed in blank for transfer, or the holder certifies in writing to the
Corporation or the acquiring entity, or their respective transfer agents, as the Corporation and
the acquiring entity may require, that such certificates have been lost, stolen or destroyed and
executes an agreement satisfactory to the Corporation or such acquiring entity to indemnify the
Corporation and/or such acquiring entity from any loss incurred by it in connection with such
certificates. The value of the Acquiring Entity Stock or other property determined as follows
shall be used for purposes of determining the amount of the entire consideration in the
transaction, the Transaction Payment and the payment thereof:
(a) If the consideration received by the Corporation or its stockholders (Proceeds) is other
than cash or evidences of indebtedness (for which the value thereof shall be deemed to be the
principal amount thereof), its value will be deemed its fair market value, determined as follows:
(i) Any securities (including any Acquiring Entity Stock) included in the Proceeds shall be
valued as follows:
a) If traded on a securities exchange or through the Nasdaq National Market, the value shall
be deemed to be the average of the closing prices of the securities on such exchange or system over
the twenty (20) trading-day period ending three (3) trading days prior to the closing of the
Acquisition or Asset Transfer;
b) If actively traded over-the-counter, the value shall be deemed to be the average of the
closing bid or sale prices (whichever is applicable) over the twenty (20) trading-day period ending
three (3) trading days prior to the closing of the Acquisition or Asset Transfer; and
c) If there is no active public market, the value shall be the fair market value thereof, as
determined in good faith, by the Board on the date such determination is made.
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(ii) Any Proceeds other than cash, evidences of indebtedness, and securities shall have the
fair market value of such Proceeds as determined in good faith, by the Board on the date such
determination is made.
(b) The foregoing methods for valuing Proceeds to be distributed or delivered in connection
with a Liquidity Event shall, upon approval by the shareholders of the definitive agreements
governing the Liquidity Event, be superseded by any determination of such value set forth in the
definitive agreements governing such Liquidity Event.
4.2.3. Contingent Consideration. In the event of a Liquidity Event, if any portion of
the consideration payable to the stockholders of the Corporation is placed into escrow or is
payable to the stockholders of the Corporation subject to contingencies, the definitive acquisition
agreement relating thereto shall provide that (i) the portion of such consideration that is not
placed in escrow and not subject to any contingencies (the Initial Consideration) shall be
allocated among the holders of capital stock of the Corporation in accordance with this ARTICLE
IVC.4.2 as if the Initial Consideration were the only consideration payable in connection with such
Liquidity Event and (ii) any additional consideration which becomes payable to the stockholders of
the Corporation upon release from escrow or satisfaction of contingencies shall be allocated among
the holders of capital stock of the Corporation in accordance with this ARTICLE IVC.4.2 after
taking into account the previous payment of the Initial Consideration as part of the same
transaction.
5. Voting Rights.
5.1. General. In addition to the specific voting rights of the Preferred Stock provided in
this ARTICLE IVC.5 and in ARTICLE IVC.7, each Preferred Holder shall be entitled to vote together
with the Common Stock and all other series and classes of stock permitted to vote with the Common
Stock on all matters submitted to a vote of the holders of the Common Stock (including election
of directors) in accordance with the provisions of this ARTICLE IVC.5, except with respect to
matters in respect of which one or more other classes of Common Stock is entitled to vote as a
separate class under the Corporation Law or the provisions of this Certificate. Each Preferred
Holder shall be entitled to notice of any stockholders meeting in accordance with the bylaws of
the Corporation at the same time and in the same manner as notice is given to all other
stockholders entitled to vote at such meetings. For each vote in which the Preferred Holders are
entitled to participate, each Preferred Holder shall be entitled to that number of votes per share
to which such Preferred Holder would have been entitled had each share of Preferred Stock held by
such Preferred Holder then been converted into shares of Common Stock pursuant to the provisions of
ARTICLE IVC.6.1 (assuming that no Preferred Holder elected to receive cash for any accrued and
unpaid dividends upon such conversion), at the record date for the determination of those holders
entitled to vote on such matters or, if no such record date is established, at the date such vote
is taken or any written consent of stockholders is solicited.
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5.2. Election of Directors.
5.2.1. Series B Directors. For so long as the Series B Preferred Stock is
outstanding, the Series B Holders voting as a separate class shall be entitled to elect two (2)
members (the Series B Directors) of the Board at each meeting or pursuant to each consent of the
Corporations stockholders for the election of directors, and to remove from office any directors
elected pursuant to this ARTICLE IVC.5.2.1 and to fill any vacancy caused by the death, resignation
or removal of such directors
5.2.2. Series A Directors. For so long as the Series A Preferred Stock is
outstanding, the Series A Holders voting as a separate class shall be entitled to elect two (2)
members (the Series A Directors) of the Board at each meeting or pursuant to each consent of the
Corporations stockholders for the election of directors, and to remove from office any directors
elected pursuant to this ARTICLE IVC.5.2.2 and to fill any vacancy caused by the death, resignation
or removal of such directors.
5.2.3. Remaining Directors. The holders of a majority of the Preferred Stock and of
the Common Stock, voting together as one class, shall be entitled to elect all members of the Board
not specified in ARTICLE IVC.5.2.1 and ARTICLE IVC.5.2.2 at each meeting or pursuant to each
consent of the Corporations stockholders, for the election of directors, and to remove from
office, any directors elected pursuant to this ARTICLE IVC.5.2.3 and to fill any vacancy caused by
the death, resignation or removal of such directors.
5.3. Additional Voting Rights. The Preferred Stock shall have the additional voting rights
specified in ARTICLE IVC.7.
6. Conversion. The Preferred Holders shall have the following rights and be subject to the
following obligations with respect to the conversion of such shares into shares of Common Stock.
6.1. Right to Convert.
6.1.1. Subject to and in compliance with the provisions of this ARTICLE IVC.6, each share of
Preferred Stock may, at the option of the holder thereof, be converted at any time and from time to
time, and without the payment of additional consideration by the holder thereof, into fully-paid
and non-assessable shares of Common Stock. The number of shares of Common Stock which a Preferred
Holder shall be entitled to receive upon conversion shall be equal to the product obtained by
multiplying (a) the number of shares of Preferred Stock being converted at any time by (b) either
the Series B Conversion Rate or the Series A Conversion Rate (each as defined in ARTICLE IVC.6.1.2)
then in effect, as applicable. Upon conversion, and upon the election of the holders of at least
662/3% of the then outstanding shares of Series A Preferred Stock or Series B Preferred
Stock, as applicable, holders of Series A Preferred Stock or Series B Preferred Stock, as
applicable, shall be entitled to receive a cash payment in an amount equal to the accrued and
unpaid Series A Dividends or Series B Dividends, as applicable, on each share of Series A Preferred
Stock or Series B Preferred Stock held by such holder immediately prior to such conversion.
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6.1.2. The Series B Conversion Rate in effect at any time shall be the quotient obtained by
dividing (a) an amount equal to the sum of (i) the Series B Issue Price, plus (ii) all
accrued and unpaid Series B Dividends per share, by (b) the Series B Conversion Price then in
effect; provided, however, that if the holders of at least 662/3% of the then
outstanding Series B Preferred Stock elect to receive all or a portion of an amount equal to the
accrued and unpaid Series B Dividends (A) as part of the Series B Liquidation Preference pursuant
to ARTICLE IVC.4.1.1 or (B) in cash upon the conversion of the Series B Preferred Stock, then the
portion of the Series B Dividends included in the Series B Liquidation Preference or paid in cash
upon conversion shall not be added to the Series B Issue Price in determining the Conversion Rate.
The initial Series B Conversion Price, subject to adjustment in accordance with this ARTICLE
IVC.6, shall be equal to $0.93. The Series A Conversion Rate in effect at any time shall be the
quotient obtained by dividing (a) an amount equal to the sum of (i) the Series A Issue Price,
plus (ii) all accrued and unpaid Series A Dividends per share, by (b) the Series A
Conversion Price then in effect; provided, however, that if the holders of at least
662/3% of the then outstanding Series A Preferred Stock elect to receive all or a
portion of an amount equal to the accrued and unpaid Series A Dividends (A) as part of the Series A
Liquidation Preference pursuant to ARTICLE IVC.4.1.2 or (B) in cash upon the conversion of the
Series B Preferred Stock, then the portion of the Series A Dividends included in the Series A
Liquidation Preference or paid in cash upon conversion shall not be added to the Series A Issue
Price in determining the Conversion Rate. The initial Series A Conversion Price, subject to
adjustment in accordance with this ARTICLE IVC.6, shall be equal to $0.93. The Series B Conversion
Price, with respect to the Series B Preferred Stock, and the Series A Conversion Price, with
respect to the Series A Preferred Stock, may each hereinafter be referred to as the Applicable
Conversion Price.
6.2. Automatic Conversion.
6.2.1. All outstanding shares of Preferred Stock shall automatically convert to shares of
Common Stock in accordance with the terms set forth in ARTICLE IVC.6.1(i) immediately prior to the
consummation of a Qualified Public Offering or (ii) upon the affirmative vote of, and written
notice to, the Corporation by the holders of at least 662/3% of the then outstanding
Preferred Stock (each a Mandatory Conversion Event).
6.2.2. If any Purchaser (as defined in the Purchase Agreement) fails to purchase from the
Corporation such Purchasers applicable number of Second Tranche Shares (as defined in the Purchase
Agreement) that it is required to purchase at the Second Tranche Closing (as defined in the
Purchase Agreement) pursuant to the terms of the Purchase Agreement (any such Purchaser, referred
to herein as a Nonparticipating Investor), then upon the consummation of the Second Tranche
Closing, at which such Purchaser became a Nonparticipating Investor, all of such Nonparticipating
Investors shares of Series B Preferred Stock shall automatically convert as of the Second Tranche
Closing into shares of Common Stock without any further action by such Nonparticipating Investor
and whether or not the certificate or certificates representing such shares are surrendered to the
Corporation. Upon the conversion of the shares of Series B Preferred Stock held by a
Nonparticipating Investor pursuant to this ARTICLE IVC.6.2.2, such shares of Series B Preferred
Stock shall no longer be outstanding on the books of the Corporation and may not be reissued.
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6.3. Anti-Dilution Adjustments.
6.3.1. Adjustment of Conversion Price Upon Issuance of Shares of Common Stock. Except
as provided in ARTICLE IVC.6.3.1(f) and ARTICLE IVC.6.3.2, for so long as there are any shares of
Preferred Stock outstanding, if and whenever the Corporation shall Issue, or is, in accordance with
ARTICLE IVC.6.3.1(a) through ARTICLE IVC.6.3.1(f) below, deemed to have Issued, any shares of
Common Stock for no consideration or a consideration per share less than the Applicable Conversion
Price in effect immediately prior to the time of such Issuance or, as to Common Stock Equivalents
(as defined below), Net Consideration Per Share (as defined below) less than the Applicable
Conversion Price in effect immediately prior to the time of such Issuance, then, forthwith upon
such Issue or sale, the Applicable Conversion Price shall be reduced to the price determined by
multiplying such Conversion Price by the following fraction:
N(0) + N(1) | |||
Where:
N(0) = the number of shares of Common Stock outstanding (calculated on a Fully Diluted Basis)
immediately prior to the Issuance of such additional shares of Common Stock or Common Stock
Equivalents.
N(1) = the number of shares of Common Stock which the aggregate consideration, if any,
(including the aggregate Net Consideration Per Share with respect to the issuance of Common Stock
Equivalents) received or receivable by the Corporation for the total number of such additional
shares of Common Stock so Issued or deemed to be Issued would purchase at the Applicable Conversion
Price in effect immediately prior to such issuance.
N(2) = the number of such additional shares of Common Stock so Issued or deemed to be Issued.
The provisions of this ARTICLE IVC.6.3.1 may be waived as to (i) all shares of Series B
Preferred Stock in any instance upon the written agreement of the holders of at least
662/3% of the then outstanding Series B Preferred Stock and (ii) all shares of Series A
Preferred Stock in any instance upon the written agreement of the holders of at least
662/3% of the then outstanding Series A Preferred Stock.
For purposes of this ARTICLE IVC.6.3.1, the following ARTICLE IVC.6.3.1(a) to ARTICLE
IVC.6.3.1(f) shall be applicable:
(a) Consideration for Shares. In case any shares of Common Stock or Common Stock
Equivalents shall be Issued or sold for cash, the consideration received therefor shall be deemed
to be the amount received by the Corporation therefor, without deduction therefrom of any expenses
incurred or any underwriting commissions or concessions paid or allowed by the Corporation in
connection therewith. In case any shares of Common Stock or Common Stock Equivalents shall be
Issued or sold for a consideration other than cash, the amount of the consideration other than cash
received by the Corporation shall be deemed to be the fair value of such consideration as
determined in the manner provided in ARTICLE IVC.4.2.2(a) and ARTICLE IVC.4.2.2(b), without
deduction of any expenses incurred or any
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underwriting commissions or concessions paid or allowed
by the Corporation in connection therewith. In case Common Stock Equivalents shall be Issued in
connection with the Issue of other securities of the Corporation, together comprising one integral
transaction in which no special consideration is allocated to such Common Stock Equivalents by the
parties thereto, the allocation of the aggregate consideration between such other securities and
the Common Stock Equivalents shall be as determined in good faith by the Board.
(b) Issuance of Common Stock Equivalents, Expiration of Common Stock Equivalents. The
Issuance of any Common Stock Equivalents shall be deemed an Issuance of shares of Common Stock, and
no further adjustments shall be made upon exercise, conversion or exchange of such Common Stock
Equivalents. If, as, and when a Common Stock Equivalent expires or is canceled without being
exercised, the Applicable Conversion Price effective immediately upon such cancellation or
expiration shall be equal to the Applicable Conversion Price that would have been in effect (i) had
the expired or canceled Common Stock Equivalent not been Issued, and (ii) had the adjustments made
to the Applicable Conversion Price since the date of Issuance of such Common Stock Equivalent been
made to the Applicable Conversion Price which would have been in effect had the expired or canceled
Common Stock Equivalent not been Issued.
(c) Net Consideration Per Share. The Net Consideration Per Share which shall be
receivable by the Corporation for any shares of Common Stock Issued upon the exercise, exchange or
conversion of any Common Stock Equivalents shall mean the amount equal to the total amount of
consideration, if any, received by the Corporation for the issuance of such Common Stock
Equivalents, plus the minimum amount of consideration, if any, payable to the Corporation
upon exercise, exchange or conversion thereof, divided by the aggregate number of shares of Common
Stock that would be Issued if such Common Stock Equivalents were exercised, exchanged or converted
assuming satisfaction
of all vesting or similar requirements and achievements of all thresholds or other criteria
which would increase the number of shares of Common Stock ultimately issuable upon exercise,
exchange or conversion.
(d) Change in Net Consideration Per Share of Common Stock Equivalents. Should the Net
Consideration Per Share of any such Common Stock Equivalents be decreased from time to time other
than as a result of the application of anti-dilution provisions triggered by the
price/consideration of a subsequent Issuance of Common Stock or Common Stock Equivalents by the
Corporation, then, commencing upon, and with respect to, a conversion occurring after the
effectiveness of each such change, the Applicable Conversion Price shall be that which would have
been obtained (i) had the adjustments made pursuant to ARTICLE IVC.6.3.1(b) upon the Issuance of
such Common Stock Equivalents been made upon the basis of the new Net Consideration Per Share of
such securities, and (ii) had the adjustments made to the Applicable Conversion Price since the
date of issuance of such Common Stock Equivalent been made to such Applicable Conversion Price as
adjusted pursuant to clause (i) above.
(e) Record Date. In case the Corporation shall establish a record date with respect
to the holders of its shares of Common Stock for the purpose of entitling them (i) to receive an
allocation or other distribution payable in shares of Common
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Stock or Common Stock Equivalents or
(ii) to subscribe for or purchase shares of Common Stock or Common Stock Equivalents, then such
record date shall be deemed to be the date of the Issuance of the shares of Common Stock deemed to
have been Issued upon the declaration of such dividend or the making of such other distribution or
the date of the granting of such right of subscription or purchase, as the case may be.
(f) Exceptions to Anti-Dilution Adjustments; Basket for Reserved Employee Shares. The
anti-dilution adjustments set forth in this ARTICLE IVC.6.3.1 shall not apply under any of the
circumstances contemplated in ARTICLE IVC.6.3.2. Further, the anti-dilution adjustments set forth
in this ARTICLE IVC.6.3.1 shall not apply with respect to (collectively referred to herein as the
Excluded Securities):
(i) Common Stock Issuable upon conversion of any of the Preferred Stock, or as a dividend or
distribution on the Preferred Stock;
(ii) securities Issued upon the conversion of any debenture, warrant, option, or other
convertible security outstanding as of the date hereof;
(iii) Common Stock Issuable upon a stock split, stock dividend, or any subdivision of shares
of Common Stock;
(iv) Common Stock (or options to purchase such shares of Common Stock) Issued or Issuable to
employees or directors of, or consultants to, the Corporation not to exceed 8,800,000 shares of
Common Stock, or options to acquire Common Stock, pursuant to an equity incentive plan approved by
the Board;
(v) shares of Common Stock or Common Stock Equivalents Issued or Issuable to commercial
financing sources and equipment lessors pursuant
to a debt financing, equipment leasing or real property leasing transaction approved by the
Board;
(vi) shares of Common Stock or Common Stock Equivalents Issued or Issuable in connection with
strategic transactions involving the Corporation and which have been approved by the Board,
provided the primary propose of such Issuance is not to raise capital and such Issuances in the
aggregate do not exceed 10% of the outstanding Common Stock (after giving effect to the initial
issuance of Series B Preferred Stock) on a Fully Diluted Basis; and
(vii) Issuances of equity securities in connection with a Qualified Offering (as hereinafter
defined).
6.3.2. Adjustment Upon Extraordinary Common Stock Event. Upon the happening of an
Extraordinary Common Stock Event (as hereinafter defined), the Applicable Conversion Price of each
share of Preferred Stock shall, simultaneously with the happening of such Extraordinary Common
Stock Event, be adjusted by multiplying such Applicable Conversion Price by a fraction, the
numerator of which shall be the number of shares of Common Stock (outstanding immediately prior to
such Extraordinary Common Stock Event and the denominator of which shall be the number of shares of
Common Stock outstanding
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immediately after such Extraordinary Common Stock Event and the product so
obtained shall thereafter be the Applicable Conversion Price of the Preferred Stock, which, as so
adjusted, shall be readjusted in the same manner upon the happening of any successive Extraordinary
Common Stock Event or Events. An Extraordinary Common Stock Event shall mean (a) the Issue of
additional shares of Common Stock as a dividend or other distribution on outstanding shares of
Common Stock, (b) a subdivision of outstanding shares of Common Stock, or (c) a combination or
reverse stock split of outstanding shares of Common Stock into a smaller number of shares of Common
Stock.
6.3.3. Adjustment Upon Reorganization or Reclassification. If the Common Stock shall
be changed into the same or different number of shares of any other class or classes of capital
stock, whether by capital reorganization, recapitalization, reclassification or otherwise (other
than pursuant to a stock split or combination of the Common Stock), then in each such event, each
Preferred Holder shall have the right thereafter to receive, and in lieu of the shares of Common
Stock immediately theretofore receivable upon the conversion of such shares of Preferred Stock,
such shares or securities as may be Issued or payable with respect to or in exchange for a number
of outstanding shares of Common Stock equal to the number of shares of Common Stock immediately
receivable upon such conversion had such reorganization or reclassification not taken place, and in
any such case appropriate provisions shall be made with respect to the rights and interests of such
holder to the end that the provisions hereof (including, without limitation, provisions for
adjustments of the Applicable Conversion Price) shall thereafter be applicable in relation to any
shares or securities thereafter deliverable upon the exercise of such conversion rights. The
provision for such conversion right to the Preferred Holders shall be a condition precedent to the
consummation by the Corporation of any such transaction, unless the election described in the
following sentence is made. In the case of a transaction which constitutes a Liquidity Event, the
shares of Preferred Stock shall be treated in the manner provided in ARTICLE IVC.4.2, unless the
holders of at least 662/3% of the
then outstanding Preferred Stock provide notice to the Corporation in accordance with ARTICLE
IVC.4.2 of their election to not treat such Liquidity Event as a Liquidation. If such election is
made, however, the provisions of this ARTICLE IVC.6.3.3, and not ARTICLE IVC.4.2, shall apply.
6.3.4. Notice of Adjustment. Upon any adjustment of the Applicable Conversion Price,
then in each such case the Corporation shall give written notice thereof to each Preferred Holder
which notice shall state the Applicable Conversion Price resulting from such adjustment, setting
forth in reasonable detail the method upon which such calculation is based.
6.3.5. Status of Converted or Repurchased Preferred Stock. Any shares of Preferred
Stock cancelled pursuant to ARTICLE IVC.4.2, converted into Common Stock or acquired by the
Corporation by reason of redemption, purchase or otherwise shall be cancelled and shall not be
subject to reissuance and the capital of the Corporation shall be automatically reduced by a
corresponding amount. Upon the cancellation of all outstanding shares of Series B Preferred Stock,
the provisions of the designation of Series B Preferred Stock shall terminate and have no further
force and effect, and upon the cancellation of all outstanding shares of Series A Preferred Stock,
the provisions of the designation of Series A Preferred Stock shall terminate and have no further
force and effect.
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6.3.6. Issue Tax. The issuance of certificates for shares of Common Stock upon
conversion of shares of Preferred Stock shall be made without charge to the holders thereof for any
issuance tax in respect thereof, provided that the Corporation shall not be required to pay any tax
that may be payable in respect of any transfer involved in the issuance and delivery of any
certificate in a name other than that of the holder of the shares of Preferred Stock which is being
converted.
6.3.7. Closing of Books. The Corporation will at no time close its transfer books
against the transfer of any shares of Preferred Stock or of any shares of Common Stock Issued or
Issuable upon the conversion of any shares of Preferred Stock in any manner which interferes with
the timely conversion of such shares of Preferred Stock, except as may otherwise be required to
comply with applicable securities or tax laws.
6.3.8. Exercise Of Conversion Privilege; Delivery of Certificates. To exercise its
conversion privilege, a Preferred Holder shall surrender the certificate or certificates
representing the shares being converted to the Corporation at its principal office, or, if such
certificate has been lost, stolen or destroyed, a Preferred Holder shall deliver a certificate
executed by such Preferred Holder certifying to such fact, along with an agreement satisfactory to
the Corporation to indemnify the Corporation from any loss incurred by the Corporation in
connection with such certificate, and shall give written notice to the Corporation at that office
that such holder elects to convert such shares. The date when such written notice of exercise of
the conversion privilege is received by the Corporation, together with the certificate or
certificates representing the shares of Preferred Stock being converted, shall be the Conversion
Date. Following a Mandatory Conversion Event, each Preferred Holder shall, upon receipt of notice
of such event from the Corporation, surrender the certificate or certificates (or certification and
indemnity agreement as described above) to the Corporation at the principal office of the
Corporation, together with a notice containing the information specified below. The notice
given with respect to any conversion exercise or Mandatory Conversion Event shall also state the
name or names (with address or addresses) in which the certificate or certificates for shares of
Common Stock issuable upon such conversion shall be issued. The certificate or certificates for
shares of Preferred Stock surrendered for conversion shall be accompanied by proper assignment
thereof to the Corporation or in blank. As promptly as practicable after the Conversion Date for
the Preferred Stock being converted, or the date on which the Corporation receives a holders
certificate(s) (or certification and indemnity agreement as described above) with respect to a
Mandatory Conversion Event, the Corporation shall issue and deliver to the holder of the shares of
Preferred Stock being converted, or on its written order, such certificate or certificates as it
may request for the number of whole shares of Common Stock issuable upon the conversion of such
shares of Preferred Stock in accordance with the provisions of ARTICLE IVC.6, and cash, as provided
in ARTICLE IVC.6.3.9 in respect of any fraction of a share of Common Stock issuable upon such
conversion. At such time as any conversion of shares of Preferred Stock is effective, the rights
of the holder as holder of the converted shares of Preferred Stock shall cease and the person(s) in
whose name(s) any certificate(s) for shares of Common Stock shall be issuable upon such conversion
shall be deemed to have become the holder or holders of record of the shares of Common Stock
represented thereby, regardless of whether the certificates that represented the converted shares
of Preferred Stock have been surrendered by the holder thereof.
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6.3.9. Fractional Shares; Distributions; Partial Conversion. No fractional shares of
Common Stock shall be Issued upon conversion of shares of Preferred Stock into shares of Common
Stock and no payment or adjustment shall be made upon any conversion on account of any cash
distributions on the shares of Common Stock Issued upon such conversion. In case the number of
shares of Preferred Stock represented by the certificate or certificates surrendered pursuant to
ARTICLE IVC.6.1 exceeds the number of shares of Preferred Stock converted, the Corporation shall,
upon such conversion, execute and deliver to the holder, at the expense of the Corporation, a new
certificate or certificates for the number of shares of Preferred Stock represented by the
certificate or certificates surrendered that are not to be converted. If any fractional shares of
Common Stock would, except for the provisions of the first sentence of this ARTICLE IVC.6.3.9, be
delivered upon such conversion, the Corporation, in lieu of delivering such fractional share, shall
pay to the holder surrendering the shares of Preferred Stock for conversion an amount in cash equal
to the fair market value of such fractional share as determined in good faith by the Board.
7. Restriction and Limitation On Corporate Action. For so long as not less than 5% of the
Preferred Stock remains outstanding, the Preferred Holders shall vote as a single class on, and the
affirmative vote of the holders of at least 662/3% of the then outstanding shares of
Preferred Stock shall be required to authorize any action by the Corporation or its Subsidiaries,
whether directly or indirectly through a merger, reorganization, consolidation or other means, to:
(a) cause a Liquidity Event;
(b) sell, lease, license (whether as licensee or licensor), transfer or dispose of any
material asset, including any of the Corporations material intellectual property;
(c) make any investment in one or more persons or entities or acquire any other entity
(whether by merger, stock purchase or otherwise) or all or substantially all of the assets of
another person, including the license of any material intellectual property;
(d) pay or make any dividends or distributions to its equity holders, other than distributions
by Subsidiaries of the Corporation to the Corporation;
(e) make any payment on account of, or set aside any assets for a sinking or other analogous
fund for, the purchase redemption, defeasance, retirement or other acquisition of any equity
interest of the Corporation or any Subsidiary, except other redemptions from officers, directors,
employees or consultants to the Corporation upon termination of their employment or association
with the Corporation pursuant to agreements between such persons and the Corporation approved by
the Board;
(f) authorize, issue or agree to issue any equity securities (including convertible and
exchangeable securities) of the Corporation or any Subsidiary, other than Common Stock (or options
to purchase such shares of Common Stock) Issued or Issuable to employees or directors of, or
consultants to, the Corporation not to exceed
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8,800,000 shares of Common Stock, or options to
acquire Common Stock, pursuant to an equity incentive plan approved by the Board or any
compensation committee thereof;
(g) increase the number of shares of Common Stock (or options to purchase such shares of
Common Stock) reserved for issuance pursuant to an equity incentive plan approved by the Board or
any compensation committee thereof;
(h) increase the size of the Board beyond seven (7) directors;
(i) amend or modify the certificate of incorporation, by-laws or similar governing
instrument(s) of the Corporation or any of its Subsidiaries;
(j) voluntarily liquidate, wind-up, dissolve or commence any bankruptcy, insolvency,
reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law
or make a general assignment for the benefit of creditors;
(k) undertake any public offering of its securities, other than a Qualified Public Offering;
(l) incur any indebtedness for borrowed money or grant, create or permit the imposition of any
lien, charge, security interest or other encumbrance upon any of the assets or properties of the
Corporation or any Subsidiary or guaranty or provide surety for the obligations of any third party,
other than (i) ordinary course trade payables, (ii)
financings of budgeted capital expenditures reflected in annual budgets approved by the Board
and (iii) not more than $1,000,000 of traditional working capital financing, excluding, in all
cases, any venture debt financing;
(m) form, create or invest in, or make any loan or advance to, any non-wholly owned
subsidiary, or any joint venture or similar business entity; and
(n) alter, modify, change or waive any right, preference or privilege of the holders of shares
of Preferred Stock.
8. Redemption.
8.1. Series B Redemption Rights.
8.1.1. If, and only to the extent, so elected by the holders of at least 662/3% of
the then outstanding Series B Preferred Stock, and provided all of the Series B Preferred Stock has
not been converted to Common Stock or a Qualified Offering has not occurred, at any time on or
after July 8, 2013, upon receipt by the Corporation of written notice thereof (the Series B
Redemption Notice), the Corporation shall, to the extent it may lawfully do so, redeem all but not
less than all of the shares of Series B Preferred Stock. The Corporation shall redeem each share
of Series B Preferred Stock from any source of funds legally available therefor, by paying in cash
therefor an amount equal to the greater of (a) Series B Issue Price, plus any accrued but
unpaid dividends or (b) the fair market value for such share of Series B
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Preferred Stock as agreed
upon by the Board (excluding any Series B Directors (the Series B Disinterested Directors)) and
the holders of at least 662/3% of the then outstanding Series B Preferred
Stock or, if the Series B Disinterested Directors and the holders of the Series B Preferred Stock
can not agree upon such fair market value, then such fair market value shall be determined in good
faith by an independent appraiser mutually selected by a the Series B Holders and the Series B
Disinterested Directors (the total amount of such payment is hereafter referred to as the Series B
Redemption Price). If the requisite Series B Holders and the Series B Disinterested Directors can
not agree upon an independent appraiser to determine the fair market value of a share of Series B
Preferred Stock, then the requisite Series B Holders, on the one hand, and the Series B
Disinterested Directors, on the other hand, may each engage their own independent appraisers. The
appraisers selected by the requisite holders of Series B Preferred Stock, on the one hand, and the
Series B Disinterested Directors, on the other hand, will then select a mutually acceptable
independent appraiser who will make a final determination as to the fair market value of a share of
Series B Preferred Stock. The Series B Redemption Price shall be paid by the Corporation in three
(3) equal annual installments, the first of which shall be paid by the Corporation on the date that
is ninety (90) calendar days following the receipt of the Series B Redemption Notice by the
Corporation (or the next day which is a business day if the ninetieth day is not a business day)
(the Series B Redemption Date). The Corporation shall give written notice within ten (10)
calendar days after receipt of a Series B Redemption Notice to all other stockholders holding
shares of Series B Preferred Stock, enclosing a copy of the Series B Redemption Notice and
informing them of the number of shares the Corporation is required to redeem.
8.1.2. If the funds of the Corporation legally available for redemption of shares of Series B
Preferred Stock on the Series B Redemption Date are insufficient to redeem the total number of
shares of Series B Preferred Stock to be redeemed on any such date, those funds that are legally
available will be used to redeem the maximum possible number of such shares ratably among the
stockholders holding such shares to be redeemed based upon the number of shares of Series B
Preferred Stock owned by each such holder. The shares of Series B Preferred Stock not redeemed
shall remain outstanding and entitled to all the rights and preferences provided herein. At any
time thereafter when additional funds of the Corporation are legally available for the redemption
of shares of Series B Preferred Stock, such funds will immediately be used to redeem the balance of
the shares that the Corporation was obligated to redeem on the Series B Redemption Date, but that
it has not redeemed.
8.1.3. Except as provided herein, on or after the Series B Redemption Date, the Series B
Holders holding the shares of Series B Preferred Stock to be redeemed at such time shall surrender
to the Corporation the certificate or certificates representing such shares or, if such certificate
has been lost, stolen or destroyed, a certificate executed by the Series B Holder holding such
shares to such fact, along with an agreement satisfactory to the Corporation to indemnify the
Corporation from any loss incurred by the Corporation in connection with such certificate, and
thereupon the Series B Redemption Price of such shares shall be payable to the order of the person
whose name appears on such certificate or certificates as the owner thereof and each surrendered
certificate shall be canceled. In the event fewer than all of the shares represented by any such
certificate are redeemed, a new certificate shall be issued representing the unredeemed shares.
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8.1.4. From and after the Series B Redemption Date, unless there shall have been a default in
payment of the Series B Redemption Price, all rights of the holders of shares of Series B Preferred
Stock designated for redemption (except the right to receive the Series B Redemption Price without
interest upon surrender of their certificate or certificates) shall cease with respect to such
shares at such time, and such shares shall not thereafter be transferred on the books of the
Corporation or be deemed to be outstanding for any purpose whatsoever.
8.2. Series A Redemption Rights.
8.2.1. If, and only to the extent, so elected by the holders of at least 662/3% of
the then outstanding Series A Preferred Stock, and provided all of the Series A Preferred Stock has
not been converted to Common Stock or a Qualified Offering has not occurred, at any time on or
after July 8, 2013, upon receipt by the Corporation of written notice thereof (the Series A
Redemption Notice), the Corporation shall, to the extent it may lawfully do so, redeem all but not
less than all of the shares of Series A Preferred Stock. The Corporation shall redeem each share
of Series A Preferred Stock from any source of funds legally available therefor, by paying in cash
therefor an amount equal to the greater of (a) Series A Issue Price, plus any accrued but
unpaid dividends or (b) the fair market value for such share of Series A Preferred Stock as agreed
upon by the Board (excluding any Series A Directors (the Series A Disinterested Directors)) and
the holders of at least 662/3% of the then outstanding Series A Preferred
Stock or, if the Series A Disinterested Directors and the holders of the Series A
Preferred Stock can not agree upon such fair market value, then such fair market value shall
be determined in good faith by an independent appraiser mutually selected by a the Series A Holders
and the Series A Disinterested Directors (the total amount of such payment is hereafter referred to
as the Series A Redemption Price). If the requisite Series A Holders and the Series A
Disinterested Directors can not mutually agree upon an independent appraiser to determine the fair
market value of a share of Series A Preferred Stock, then the requisite Series A Holders, on the
one hand, and the Series A Disinterested Directors, on the other hand, may each engage their own
independent appraisers. The appraisers selected by the requisite holders of Series A Preferred
Stock, on the one hand, and the Series A Disinterested Directors, on the other hand, will then
select a mutually acceptable independent appraiser who will make a final determination as to the
fair market value of a share of Series A Preferred Stock. The Series A Redemption Price shall be
paid by the Corporation in three (3) equal annual installments, the first of which shall be paid by
the Corporation on the date that is ninety (90) calendar days following the receipt of the Series A
Redemption Notice by the Corporation (or the next day which is a business day if the ninetieth day
is not a business day) (the Series A Redemption Date). The Corporation shall give written notice
within ten (10) calendar days after receipt of a Series A Redemption Notice to all other
stockholders holding shares of Series A Preferred Stock, enclosing a copy of the Series A
Redemption Notice and informing them of the number of shares the Corporation is required to redeem.
8.2.2. If the funds of the Corporation legally available for redemption of shares of Series A
Preferred Stock on the Series A Redemption Date are insufficient to redeem the total number of
shares of Series A Preferred Stock to be redeemed on any such date, those funds that are legally
available will be used to redeem the maximum possible number of such shares ratably among the
stockholders holding such shares to be
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redeemed based upon the number of shares of Series A
Preferred Stock owned by each such holder. The shares of Series A Preferred Stock not redeemed
shall remain outstanding and entitled to all the rights and preferences provided herein. At any
time thereafter when additional funds of the Corporation are legally available for the redemption
of shares of Series A Preferred Stock, such funds will immediately be used to redeem the balance of
the shares that the Corporation was obligated to redeem on the Series A Redemption Date, but that
it has not redeemed.
8.2.3. Except as provided herein, on or after the Series A Redemption Date, the Series A
Holders holding the shares of Series A Preferred Stock to be redeemed at such time shall surrender
to the Corporation the certificate or certificates representing such shares or, if such certificate
has been lost, stolen or destroyed, a certificate executed by the Series A Holder holding such
shares to such fact, along with an agreement satisfactory to the Corporation to indemnify the
Corporation from any loss incurred by the Corporation in connection with such certificate, and
thereupon the Series A Redemption Price of such shares shall be payable to the order of the person
whose name appears on such certificate or certificates as the owner thereof and each surrendered
certificate shall be canceled. In the event fewer than all of the shares represented by any such
certificate are redeemed, a new certificate shall be issued representing the unredeemed shares.
8.2.4. From and after the Series A Redemption Date, unless there shall have been a default in
payment of the Series A Redemption Price, all rights of the holders
of shares of Series A Preferred Stock designated for redemption (except the right to receive
the Series A Redemption Price without interest upon surrender of their certificate or certificates)
shall cease with respect to such shares at such time, and such shares shall not thereafter be
transferred on the books of the Corporation or be deemed to be outstanding for any purpose
whatsoever.
8.2.5. Notwithstanding anything to the contrary in this ARTICLE IVC.8.2, no request for the
redemption of any shares of Series A Preferred Stock may be made, and no payments for the
redemption of any shares of Series A Preferred Stock may be made or set aside, unless and until the
entire Series B Preferred Redemption Price has been paid to the holders of Series B Preferred Stock
with respect to all outstanding shares of Series B Preferred Stock for a redemption pursuant to
ARTICLE IVC.8.1.
8.3. Acceleration. If there is a material breach or material default by the Corporation,
of any covenant or agreement contained in the Purchase Agreement (as defined below), the Investor
Rights Agreement (as defined below), the Stockholders Agreement (as defined below), or of any
provision of this Certificate, and such breach or default, is not cured within any applicable time
period provided for in any such agreements or this Certificate (or, if no such time period is
provided, within thirty (30) days following notice of such breach or default by the holders of at
least 662/3% of the then outstanding Series B Preferred Stock), then, in addition to
being entitled to exercise any and all remedies available at law, in equity or otherwise, upon
written demand to the Corporation by the holders of at least 662/3% of the then
outstanding Series B Preferred Stock specifying a date for redemption not fewer than thirty (30)
days from the date of such notice, the Series B Holders may require the Corporation to redeem all
outstanding shares of Series B Preferred Stock and Series A Preferred Stock at a Redemption
-20-
Price
determined as of the date the Corporation redeems such shares and otherwise pursuant to the
provisions of ARTICLE IVC.8.1 and ARTICLE IVC.8.2.
9. No Impairment. The Corporation will not, by amendment of this Certificate or through
any reorganization, transfer of capital stock or assets, consolidation, merger, dissolution, Issue
of securities or any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of the Preferred Stock set forth herein, but will at all times in good faith
assist in the carrying out of all such terms. Without limiting the generality of the foregoing,
the Corporation (a) will not increase the par value of any shares of stock receivable on the
conversion of the Series B Preferred Stock above the Series B Issue Price, (b) will not increase
the par value of any shares of stock receivable on the conversion of the Series A Preferred Stock
above the Series A Issue Price, and (c) will take such action as may be necessary or appropriate in
order that the Corporation may validly and legally Issue fully-paid and nonassessable shares of
stock on the conversion of the Preferred Stock from time to time outstanding.
10. Notices of Record Date. In the event of (a) any taking by the Corporation of a record of the holders of any class of
securities for the purpose of determining the holders thereof who are entitled to receive any
dividends or other distribution, or any right to subscribe for, purchase or otherwise acquire any
shares of capital stock of any class or any other securities or property, or to receive any other
right; (b) any capital reorganization of the Corporation, any reclassification or recapitalization
of the capital stock of the Corporation, any merger or consolidation of the Corporation, or any
transfer of all or substantially all of the assets of the Corporation to any other corporation, or
any other entity or person; or (c) any voluntary or involuntary dissolution, liquidation or winding
up of the Corporation; then and in each such event the Corporation shall mail or cause to be mailed
to each Preferred Holder a notice specifying (i) the date on which any such record is to be taken
for the purpose of such dividend, distribution or right and a description of such dividend,
distribution or right, (ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or winding up is
expected to become effective, and (iii) the time, if any, that is to be fixed, as to when the
holders of record of Common Stock (or other securities) shall be entitled to exchange their shares
of Common Stock (or other securities) for securities or other property deliverable upon such
reorganization, reclassification, recapitalization, transfer, consolidation, merger, dissolution,
liquidation or winding up. Such notice shall be mailed by first class mail, postage prepaid, at
least fifteen (15) days prior to the date specified in such notice on which action is being taken.
11. Reservation Of Capital Stock. The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares of Common Stock solely for the purpose of
effecting the conversion of the shares of the Preferred Stock, such number of its shares of Common
Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares
of the Preferred Stock (including any shares of Preferred Stock represented by any warrants,
options, subscription or purchase rights for Preferred Stock), and if at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of
all then outstanding shares of the Preferred Stock (including any shares of Preferred Stock
represented by any warrants, options, subscriptions or purchase rights for such Preferred Stock),
the Corporation shall take such action as may be necessary to increase its
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authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such purpose.
12. Notices to Holders of Preferred Stock. Whenever written notice is required to be given
by the Corporation to the Preferred Holders, such notice shall be in writing and given by delivery
by registered or certified mail, return receipt requested, postage prepaid, or by deposit with a
nationally recognized overnight courier, specifying next day delivery, with written verification of
receipt. All communications to be sent to a Preferred Holder shall be sent to such Preferred
Holder at the address of such Preferred Holder as shown on the books of the Corporation.
13. Preemptive Rights. The Preferred Holders shall have the preemptive rights to subscribe
to additional issues of stock of the Corporation of any or all classes or series thereof, or to any
securities of the
Corporation convertible into or exercisable or exchangeable for such stock if, and only to the
extent such right is granted to such holders, in the Investor Rights Agreement (as defined below).
14. Miscellaneous.
14.1. Definitions. For purposes of this Certificate, the following terms used herein shall
have the meanings ascribed below:
Acquiring Entity Stock has the meaning set forth in ARTICLE IVC.4.2.2.
Affiliates means any person that is an affiliate as defined in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as amended.
Applicable Conversion Price has the meaning set forth in ARTICLE IVC.6.1.2.
Available Assets has the meaning set forth in ARTICLE IVC.4.1.1.
Board has the meaning set forth in ARTICLE IVA.
Certificate means this Second Amended and Restated Certificate of Incorporation.
Common Stock has the meaning set forth in ARTICLE IVA.
Common Stock Equivalents means warrants, options, subscription or other rights to purchase
or otherwise obtain Common Stock, any securities or other rights convertible into or exchangeable
for Common Stock and any warrants, options, subscription or other rights to purchase or otherwise
obtain such convertible or exchangeable securities or other rights.
Competing Businesses has the meaning set forth in ARTICLE XIII.
Conversion Date has the meaning set forth in ARTICLE IVC.6.3.8.
Corporation has the meaning set forth in the Preamble hereto.
Corporation Law has the meaning set forth in the Preamble hereto.
Excluded Securities has the meaning set forth in ARTICLE IVC.6.3.1(f).
Extraordinary Common Stock Event has the meaning set forth in ARTICLE IVC.6.3.2.
Event Notice has the meaning set forth in ARTICLE IVC.4.2.1.
-22-
Fully Diluted Basis means as to any class of capital stock the number of shares of such
class of capital stock which would then be outstanding, assuming the exercise or conversion of all
then exercisable or convertible Common Stock Equivalents which, directly or indirectly, on
exercise, exchange or conversion result in the issuance of shares of such class of capital stock,
assuming in each instance that the holder thereof receives the maximum number of shares of capital
stock or securities issuable at such time under the terms of the respective instrument.
Governing Board has the meaning set forth in ARTICLE XIII.
Initial Consideration has the meaning set forth in ARTICLE IVC.4.2.3.
Interested Transaction has the meaning set forth in Article XIV.
Investor Rights Agreement means that certain Amended and Restated Investor Rights Agreement,
dated July 8, 2008, by and among the Corporation and the parties listed on the signature pages
thereto in connection with the issuance of the Series B Preferred Stock, as may be amended from
time to time.
Issue or Issuance in any of its forms, means to sell, grant or otherwise issue in any
manner or any agreement or commitment to do any of the foregoing.
Issue Price means, with respect to the Series A Preferred Stock, the Series A Issue Price
and, with respect to the Series B Preferred Stock, the Series B Issue Price.
Liquidation has the meaning set forth in ARTICLE IVC.4.1.1.
Liquidity Event means any acquisition, lease, license or transfer of all or substantially
all of the assets of the Corporation, or transaction or series of transactions involving the
Corporation, or its securities, whether by consolidation, merger, purchase of shares of capital
stock or other reorganization or combination or otherwise, in which the holders of the
Corporations outstanding shares of capital stock immediately prior to such transaction own,
immediately after such transaction, securities representing less than fifty percent (50%) of the
voting power of the entity surviving such transaction.
Mandatory Conversion Event has the meaning set forth in ARTICLE IVC.6.2.1.
Net Consideration Per Share has the meaning set forth in ARTICLE IVC.6.3.1(c).
Preferred Holders has the meaning set forth in ARTICLE IVC.2.2.
Preferred Stock has the meaning set forth in ARTICLE IVA.
Proceeds has the meaning set forth in ARTICLE IVC.4.2.2(a).
Purchase Agreement means that certain Series B Preferred Stock Purchase Agreement, dated
July 8, 2008, by and between the Corporation and the purchasers listed on the signature pages
thereto in connection with the issuance of the Series B Preferred Stock, as may be amended from
time to time.
Qualified Public Offering means an underwritten public offering on a firm commitment basis
pursuant to an effective registration statement (other than on Form S-4 or S-8 on any successor
forms thereto) filed pursuant to the Securities Act, covering the offer and sale of Common Stock
for the account of the Corporation in which the Corporation actually receives gross proceeds equal
to or greater than $40,000,000, calculated after deducting underwriters discounts and commissions
and other offering expenses, and in which the public offering price
-23-
per share of Common Stock
(calculated after deducting underwriters discounts and commissions) is equal to or exceeds three
(3) times the Series B Conversion Price then in effect and following which the Common Stock of the
Corporation is traded or listed for quotation on a nationally recognized United States stock
exchange.
Restated Certificate of Incorporation has the meaning set forth in the Preamble hereto.
Securities Act means the Securities Act of 1933, as amended.
Series A Conversion Price has the meaning set forth in ARTICLE IVC.6.1.2.
Series A Conversion Rate has the meaning set forth in ARTICLE IVC.6.1.2.
Series A Directors has the meaning set forth in ARTICLE IVC.5.2.2.
Series A Disinterested Directors has the meaning set forth in ARTICLE IVC.8.2.1.
Series A Dividends has the meaning set forth in ARTICLE IVC.2.2.
Series A Holder and Series A Holders have the meaning set forth in ARTICLE IVC.2.2.
Series A Issue Date has the meaning set forth in ARTICLE IVC.2.2.
Series A Issue Price has the meaning set forth in ARTICLE IVC.2.2.
Series A Junior Stock has the meaning set forth in ARTICLE IVC.1.
Series A Liquidation Preference has the meaning set forth in ARTICLE IVC.4.1.2.
Series A Preferred Stock has the meaning set forth in ARTICLE IVA.
Series A Redemption Date has the meaning set forth in ARTICLE IVC.8.2.1.
Series A Redemption Notice has the meaning set forth in ARTICLE IVC.8.2.1.
Series A Redemption Price has the meaning set forth in ARTICLE IVC.8.2.1.
Series B Conversion Price has the meaning set forth in ARTICLE IVC.6.1.2.
Series B Conversion Rate has the meaning set forth in ARTICLE IVC.6.1.2.
Series B Directors has the meaning set forth in ARTICLE IVC.5.2.1.
Series B Disinterested Directors has the meaning set forth in ARTICLE IVC.8.1.1.
Series B Dividends has the meaning set forth in ARTICLE IVC.2.1.
Series B Holder and Series B Holders have the meaning set forth in ARTICLE IVC.2.1
Series B Issue Date has the meaning set forth in ARTICLE IVC.2.1.
Series B Issue Price has the meaning set forth in ARTICLE IVC.2.1.
Series B Junior Stock has the meaning set forth in ARTICLE IVC.1.
Series B Liquidation Preference has the meaning set forth in ARTICLE IVC.4.1.1.
Series B Preferred Stock has the meaning set forth in ARTICLE IVA.
Series B Redemption Date has the meaning set forth in ARTICLE IVC.8.1.1.
Series B Redemption Notice has the meaning set forth in ARTICLE IVC.8.1.1.
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Series B Redemption Price has the meaning set forth in ARTICLE IVC.8.1.1.
Series Parties has the meaning set forth in ARTICLE XIII.
Stockholders Agreement means that certain Amended and Restated Stockholders Agreement,
dated July 8, 2008, by and among the Corporation and the parties listed on the signature pages
thereto in connection with the issuance of the Series B Preferred Stock, as may be amended from
time to time.
Subsidiary and Subsidiaries means any corporation, partnership, or joint venture or other
entity of which the Corporation and/or any of its other Subsidiaries (as herein defined) directly
or indirectly owns at the time at least fifty percent (50%) of the outstanding voting shares or
similar interests. Notwithstanding the foregoing, Subsidiaries may declare and make payment of
cash and stock dividends, return capital and make distributions of assets to the Corporation.
Transaction Payment has the meaning set forth in ARTICLE IVC.4.2.1.
14.2. Interpretation. Definitions contained in this Certificate apply to singular as well
as the plural forms of such terms and to the masculine as well as to the feminine and neuter
genders of such terms. Words in the singular shall be held to include the plural and vice versa,
and words of one gender shall be held to include the other gender as the context requires. The
terms hereof, herein, hereby and herewith and words of similar import shall, unless
otherwise stated, be construed to refer to this Certificate as a whole and not to any particular
provision of this Certificate. The terms includes and the word including and words of similar
import shall be deemed to be followed by the words without limitation. ARTICLE, Section and
paragraph references are to the Articles, Sections and paragraphs of this Certificate unless
otherwise specified.
ARTICLE V
The Corporation is to have perpetual existence.
ARTICLE VI
In furtherance of and not in limitation of the powers conferred by statute, the Board is
expressly authorized to make, alter or repeal the bylaws of the Corporation and to designate the
terms of any authorized but unissued shares of the Corporations Preferred Stock, subject to the
provisions of ARTICLE IVC.7.
As permitted by Section 242(b)(2) of the Corporation Law, the number of authorized shares of
Common Stock of the Corporation may be increased or decreased (but not below the number of shares
thereof then outstanding) by the affirmative vote or written consent of a majority in voting power
of the stock of the Corporation entitled to vote on an as converted to Common Stock basis, voting
together as a single class without the approval of the holders of the Common Stock voting as a
separate class.
ARTICLE VII
The directors of the Corporation shall be entitled to the benefits of all limitations on the
liability of directors generally that are now or hereafter become available under the Corporation
Law. Without limiting the generality of the foregoing, no director of the Corporation shall be
personally liable to the corporation or to any stockholder of the Corporation for monetary
-25-
damages
for breach of fiduciary duty as a director, provided that this provision shall not limit the
liability of a director (i) for any breach of the directors duty of loyalty to the Corporation or
its stockholders, (ii) for acts of omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the Corporation Law, or (iv)
for any transaction from which the director derived an improper personal benefit. Any repeal or
modification of this ARTICLE VII shall only be prospective and shall not affect the rights under
this ARTICLE VII in effect at the time of the alleged occurrence of any action or omission to act
giving rise to liability.
ARTICLE VIII
Elections of directors need not be by written ballot except and to the extent provided in the
bylaws of the Corporation.
ARTICLE IX
Meetings of stockholders may be held within or without the State of Delaware, as the bylaws
may provide.
ARTICLE X
The books of the Corporation may be kept (subject to any provision contained in the applicable
statutes) outside the State of Delaware, at such place or places as may be designated from time to
time by the Board or in the bylaws of the Corporation.
ARTICLE XI
The Corporation shall, to the maximum extent permitted from time to time under the laws of the
State of Delaware, indemnify and hold harmless, and upon request shall advance expenses to any
person who is or was a party or is threatened to be made a party to any threatened, pending or
completed action, suit, proceeding or claim, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was or has agreed to be a director or
officer of the Corporation or while a director or officer is or was serving at the request of the
Corporation as a director, officer, employee or agent of any other corporation, partnership, joint
venture, trust or other enterprise, including service with respect to employee benefit plans,
against any and all expenses (including attorneys fees and expenses), judgments, fines, penalties
and amounts paid in settlement or incurred in connection with the investigation, preparation to
defend or defense of such action, suit, proceeding or claim; provided, however, that the foregoing
shall not require the Corporation to indemnify or advance expenses to any person in connection with
any action, suit, proceeding, claim or counterclaim initiated by or on behalf of such person. Such
rights arising under any bylaw, agreement, vote of directors or stockholders or otherwise and shall
inure to the benefit of the heirs and legal representatives of such person. Any repeal or
modification of the foregoing provisions of this ARTICLE XI shall not adversely affect any right or
protection of a director or officer of this Corporation existing at the time of such repeal or
modification
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ARTICLE XII
Subject to the provisions of ARTICLE IVC.7, the Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute.
ARTICLE XIII
Pursuant to Section 122(17) of the Corporation Law, the Corporation hereby renounces any
interest or expectancy of the Corporation or any of its Subsidiaries in, or in being offered an
opportunity to participate in, any and all business opportunities that are presented to the holders
of Preferred Stock or their affiliates (including, without limitation, any representative or
Affiliate of such holders of Preferred Stock serving on the Board or the board of directors or
other governing body of any Subsidiary of the Corporation (a Governing Board) (collectively, the
Series Parties). Without limiting the foregoing renunciation, the Corporation on behalf of
itself and its Subsidiaries (i) acknowledges that the Series Parties are in the business of making
investments in, and have or may have investments in, other businesses similar to and that may
compete with the businesses of the Corporation and its Subsidiaries (Competing Businesses)
and (ii) agrees that the Series Parties shall have the unfettered right to make investments in or
have relationships with other Competing Businesses independent of their investments in the
Corporation. By virtue of a Series Party holding capital stock of the Corporation or by having
persons designated by or affiliated with such Series Party serving on or observing at meetings of
any Governing Board or otherwise, no Series Party shall have any obligation to the Corporation, any
of its Subsidiaries or any other holder of capital stock or securities of the Corporation to
refrain from competing with the Corporation and any of its Subsidiaries, making investments in or
having relationships with Competing Businesses, or otherwise engaging in any commercial activity
and none of the Corporation, any of its Subsidiaries or any other holder of capital stock or
securities of the Corporation shall have any right with respect to any investment or activities
undertaken by such Series Party. Without limitation of the foregoing, each Series Party may engage
in or possess any interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Corporation or any of its
Subsidiaries, and none of the Corporation, any of its Subsidiaries or any other holder of capital
stock or securities of the Corporation shall have any rights or expectancy by virtue of such Series
Parties relationships with the Corporation, or otherwise in and to such independent ventures or
the income or profits derived therefrom; and the pursuit of any such ventures, even if such
investment is in a Competing Business, shall not for any purpose be deemed wrongful or improper.
No Series Party shall be obligated to present any particular investment opportunity to the
Corporation or its Subsidiaries even if such opportunity is of a character that, if presented to
the Corporation or such Subsidiary, could be taken by the Corporation or such Subsidiary, and each
Series Party shall continue to have the right for its own respective account or to recommend to
others any such particular investment opportunity. The provisions of this ARTICLE XIII in no way
limit any applicable duties of the Series Parties with respect to the protection of any proprietary
information of the Corporation and any of its Subsidiaries, including any applicable duty to not
disclose or use such proprietary information improperly and except as expressly set forth herein
with respect to business opportunities in no way limit any fiduciary or other duty of any Series
Party. Nothing contained in this ARTICLE XIII shall in any way expand any
-27-
fiduciary or other duty
of any Series Party beyond such duties as may be imposed under the Corporation Law.
ARTICLE XIV
In the event any stockholder of the Corporation has a direct or indirect interest (other than
as a security holder of the Corporation) in any license, Liquidity Event or any other transaction
in which the Corporation transfers all or substantially all of its intellectual property or assets
(an Interested Transaction), then any member of the Board appointed or designated by such
stockholder shall be excluded from the discussions and resolutions of the Board regarding such
Interested Transaction; provided that in the event such stockholders interest in any such
Interested Transaction terminates then any such director appointed or designated by such
stockholder shall again be permitted to participate in all discussions and resolutions of the
Board; provided further such exclusion shall be limited to only those portions of discussions and
actions limited to the Interested Transaction.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned has caused this Third Amended and Restated Certificate of
Incorporation to be signed by its duly authorized representative, on the 7th day of July, 2008.
NUPATHE INC. |
||||
By: | /s/ Jane H. Hollingsworth | |||
Name: | Jane H. Hollingsworth | |||
Title: | Chief Executive Officer | |||
CERTIFICATE OF AMENDMENT
OF
THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NUPATHE INC.
OF
THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NUPATHE INC.
Pursuant to Section 242 of the
General Corporation Law of the State of Delaware
General Corporation Law of the State of Delaware
NuPathe Inc. (the Corporation), a corporation duly organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, as amended (the DGCL), does
hereby certify as follows:
1. Section A. of ARTICLE IV of the Third Amended and Restated Certificate of Incorporation
(the Certificate) of the Corporation shall be amended in its entirety to read as follows:
A. Authorization. The aggregate number of shares of all classes of stock which the
Corporation shall have authority to issue is One Hundred Twenty-Seven Million Seventeen
Thousand Two Hundred Sixty-Two (127,017,262) shares, such shares being designated as
follows: (i) Seventy-Three Million Fifty Thousand (73,050,000) shares of common stock, par
value $0.001 per share (the Common Stock), and (ii) Fifty-Three Million Nine Hundred
Sixty-Seven Thousand Two Hundred Sixty-Two (53,967,262) shares of preferred stock, par value
$0.001 per share (the Preferred Stock), Seventeen Million Fifty-Six Thousand Nine Hundred
Fourteen (17,056,914) shares of which are designated Series A Preferred Stock (the Series A
Preferred Stock) and Thirty-Six Million Nine Hundred Ten Thousand Three Hundred Forty-Eight
(36,910,348) shares of which are designated Series B Preferred Stock (the Series B
Preferred Stock). The Common Stock and the Preferred Stock shall have the following
designations, preferences, rights, qualifications, limitations and restrictions set forth in
Sections B and C, respectively, of this ARTICLE IV. Subject to ARTICLE IVC.7, the Preferred
Stock not otherwise designated as either Series A Preferred Stock or Series B Preferred
Stock may be issued from time to time in one or more classes or series. Subject to ARTICLE
IVC.7, the Board of Directors of the Corporation (the Board) shall have authority to the
fullest extent permitted under the Corporation Law to adopt by resolution from time to time
one or more Certificates of Designation providing for the designation of one or more classes
or series of Preferred Stock and the voting powers, whether full or limited or no voting
powers, and such designations, preferences and relative, participating, optional, or other
special rights and qualifications, limitations or restrictions thereof, and to fix or alter
the number of shares comprising any such class or series, subject to any requirements of the
Corporation Law and this Certificate, as the same may be amended from time to time.
2. The foregoing Certificate of Amendment has been duly adopted by the Corporations Board of
Directors and stockholders in accordance with Sections 141(f) and 228 of the DGCL and the
provisions of the Certificate.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by
Jane H. Hollingsworth, its Chief Executive Officer, this 20th day of August, 2009.
NUPATHE INC. |
||||
By: | /s/ Jane H. Hollingsworth | |||
Name: | Jane H. Hollingsworth | |||
Title: | Chief Executive Officer | |||
CERTIFICATE OF AMENDMENT
OF
THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NUPATHE INC.
OF
THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NUPATHE INC.
Pursuant to Section 242 of the
General Corporation Law of the State of Delaware
General Corporation Law of the State of Delaware
NuPathe Inc. (the Corporation), a corporation duly organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, as amended (the DGCL), does
hereby certify as follows:
1. Section A. of ARTICLE IV of the Third Amended and Restated Certificate of Incorporation
(the Certificate) of the Corporation shall be amended in its entirety to read as follows:
A. Authorization. The aggregate number of shares of all classes of stock which the
Corporation shall have authority to issue is One Hundred Sixty-Two Million Sixty-Four
Thousand Six Hundred Seventy-Nine (162,064,679) shares, such shares being designated as
follows: (i) Ninety Million Five Hundred Seventy-Five Thousand (90,575,000) shares of common
stock, par value $0.001 per share (the Common Stock), and (ii) Seventy-One Million Four
Hundred Eighty-Nine Thousand Six Hundred Seventy-Nine (71,489,679) shares of preferred
stock, par value $0.001 per share (the Preferred Stock), Seventeen Million Fifty-Six
Thousand Nine Hundred Fourteen (17,056,914) shares of which are designated Series A
Preferred Stock (the Series A Preferred Stock) and Fifty-Four Million Four Hundred
Thirty-Two Thousand Seven Hundred Sixty-Five (54,432,765) shares of which are designated
Series B Preferred Stock (the Series B Preferred Stock). The Common Stock and the
Preferred Stock shall have the following designations, preferences, rights, qualifications,
limitations and restrictions set forth in Sections B and C, respectively, of this ARTICLE
IV. Subject to ARTICLE IVC.7, the Preferred Stock not otherwise designated as either Series
A Preferred Stock or Series B Preferred Stock may be issued from time to time in one or more
classes or series. Subject to ARTICLE IVC.7, the Board of Directors of the Corporation (the
Board) shall have authority to the fullest extent permitted under the Corporation Law to
adopt by resolution from time to time one or more Certificates of Designation providing for
the designation of one or more classes or series of Preferred Stock and the voting powers,
whether full or limited or no voting powers, and such designations, preferences and
relative, participating, optional, or other special rights and qualifications, limitations
or restrictions thereof, and to fix or alter the number of shares comprising any such class
or series, subject to any requirements of the Corporation Law and this Certificate, as the
same may be amended from time to time.
2. The foregoing Certificate of Amendment has been duly adopted by the Corporations Board of
Directors and stockholders in accordance with Sections 141(f) and 228 of the DGCL and the
provisions of the Certificate.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by
Jane H. Hollingsworth, its Chief Executive Officer, this 9th day of April, 2010.
NUPATHE INC. |
||||
By: | /s/ Jane H. Hollingsworth | |||
Name: | Jane H. Hollingsworth | |||
Title: | Chief Executive Officer | |||
CERTIFICATE OF AMENDMENT
OF
THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NUPATHE INC.
OF
THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NUPATHE INC.
Pursuant to Section 242 of the
General Corporation Law of the State of Delaware
General Corporation Law of the State of Delaware
NuPathe Inc. (the Corporation), a corporation duly organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, as amended (the DGCL), does
hereby certify as follows:
1. Section A. of ARTICLE IV of the Third Amended and Restated Certificate of Incorporation
(the Certificate) of the Corporation shall be amended in its entirety to read as follows:
A. Authorization. The aggregate number of shares of all classes of stock which
the Corporation shall have authority to issue is One Hundred Sixty-Two Million Five Hundred
Seventy-Five Thousand Four Hundred Thirty-One (162,575,431) shares, such shares being
designated as follows: (i) Ninety Million Eight Hundred Thirty Thousand Three Hundred
Seventy-Six (90,830,376) shares of common stock, par value $0.001 per share (the Common
Stock), and (ii) Seventy-One Million Seven Hundred Forty-Five Thousand Fifty-Five
(71,745,055) shares of preferred stock, par value $0.001 per share (the Preferred Stock),
Seventeen Million Fifty-Six Thousand Nine Hundred Fourteen (17,056,914) shares of which are
designated Series A Preferred Stock (the Series A Preferred Stock) and Fifty-Four Million
Six Hundred Eighty-Eight Thousand One Hundred Forty-One (54,688,141) shares of which are
designated Series B Preferred Stock (the Series B Preferred Stock). The Common Stock and
the Preferred Stock shall have the following designations, preferences, rights,
qualifications, limitations and restrictions set forth in Sections B and C, respectively,
of this ARTICLE IV. Subject to ARTICLE IVC.7, the Preferred Stock not otherwise designated
as either Series A Preferred Stock or Series B Preferred Stock may be issued from time to
time in one or more classes or series. Subject to ARTICLE IVC.7, the Board of Directors of
the Corporation (the Board) shall have authority to the fullest extent permitted under
the Corporation Law to adopt by resolution from time to time one or more Certificates of
Designation providing for the designation of one or more classes or series of Preferred
Stock and the voting powers, whether full or limited or no voting powers, and such
designations, preferences and relative, participating, optional, or other special rights
and qualifications, limitations or restrictions thereof, and to fix or alter the number of
shares comprising any such class or series, subject to any requirements of the Corporation
Law and this Certificate, as the same may be amended from time to time.
2. The foregoing Certificate of Amendment has been duly adopted by the Corporations Board of
Directors and stockholders in accordance with Sections 141(f) and 228 of the DGCL and the
provisions of the Certificate.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by
Jane H. Hollingsworth, its Chief Executive Officer, this 13th day of May, 2010.
NUPATHE INC. |
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By: | /s/ Jane H. Hollingsworth | |||
Name: | Jane H. Hollingsworth | |||
Title: | Chief Executive Officer | |||
CERTIFICATE OF AMENDMENT
OF
THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NUPATHE INC.
OF
THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NUPATHE INC.
Pursuant to Section 242 of the
General Corporation Law of the State of Delaware
General Corporation Law of the State of Delaware
NuPathe Inc. (the Corporation), a corporation duly organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, as amended (the Corporation Law),
does hereby certify as follows:
1. Section A. of ARTICLE IV of the Third Amended and Restated Certificate of Incorporation,
as amended (the Certificate), of the Corporation shall be deleted in its entirety and replaced
with the following:
A. Authorization. The aggregate number of shares of all classes of stock which the Corporation shall have authority to issue is One Hundred Million (100,000,000) shares, such shares being designated as follows: (i) Twenty-Eight Million Two Hundred Fifty-Four Thousand Nine Hundred and Forty-Five (28,254,945) shares of common stock, $0.001 par value per share (the Common Stock), and (ii) Seventy-One Million Seven Hundred Forty-Five Thousand Fifty-Five (71,745,055) shares of preferred stock, par value $0.001 per share (the Preferred Stock), Seventeen Million Fifty-Six Thousand Nine Hundred Fourteen (17,056,914) shares of which are designated Series A Preferred Stock (the Series A Preferred Stock) and Fifty-Four Million Six Hundred Eighty-Eight Thousand One Hundred Forty-One (54,688,141) shares of which are designated Series B Preferred Stock (the Series B Preferred Stock). The Common Stock and the Preferred Stock shall have the following designations, preferences, rights, qualifications, limitations and restrictions set forth in Sections B and C, respectively, of this ARTICLE IV. Subject to ARTICLE IVC.7, the Preferred Stock not otherwise designated as either Series A Preferred Stock or Series B Preferred Stock may be issued from time to time in one or more classes or series. Subject to ARTICLE IVC.7, the Board of Directors of the Corporation (the Board) shall have authority to the fullest extent permitted under the Corporation Law to adopt by resolution from time to time one or more Certificates of Designation providing for the designation of one or more classes or series of Preferred Stock and the voting powers, whether full or limited or no voting powers, and such designations, preferences and relative, participating, optional, or other special rights and qualifications, limitations or restrictions thereof, and to fix or alter the number of shares comprising any such class or series, subject to any requirements of the Corporation Law and this Certificate, as the same may be amended from time to time. |
Effective at the time of the filing with the Secretary of State of the State of Delaware of this Certificate of Amendment (the Effective Time), each 8.0149 shares of Common Stock issued and outstanding or held in treasury immediately prior to the Effective Time shall, automatically and without any action on the part of the respective holders thereof, be reclassified into one share of Common Stock, and each stock certificate that, immediately prior to the Effective Time, represented 8.0149 shares of Common Stock, shall from and after the Effective Time, represent one share of Common Stock (the Reverse Stock Split). No fractional shares of Common Stock shall be issued or issuable in connection with the Reverse Stock Split. Whether or not fractional shares of Common Stock would be issuable upon the Reverse Stock Split shall be determined on the basis of the total number of shares of Common Stock the holder of record holds at the Effective Time. |
2. Section C.6.3.1(f)(iv) of ARTICLE IV of the Certificate shall be deleted in its entirety and
replaced with the following provision:
(iv) Common Stock (or options to purchase such shares of Common Stock ) Issued or Issuable to employees or directors of, or consultants to, the Corporation not to exceed Two Million Five Hundred Thousand (2,500,000) shares of Common Stock, or options to acquire Common Stock, pursuant to an equity incentive plan approved by the Board; |
3. The definition of Qualified Public Offering set forth in Section 14.1 of Article IV of
the Certificate shall be deleted in its entirety and replaced with the following definition:
Qualified Public Offering means either (i) an underwritten public offering on a firm commitment basis pursuant to an effective registration statement (other than on Form S-4 or S-8 or any successor forms thereto) filed pursuant to the Securities Act, covering the offering and sale of Common Stock for the account of the Corporation in which the Corporation actually receives gross proceeds equal to or greater than $40,000,000, calculated after deducting underwriters discounts and commissions and other offering expenses, and in which the public offering price per share of Common Stock (calculated after deducting underwriters discounts and commissions) is equal to or exceeds three (3) times the Series B Conversion Price, and as may otherwise be adjusted as required herein, and following which the Common Stock of the Corporation is traded or listed for quotation on a nationally recognized United States stock exchange; or (ii) the 2010 IPO. |
4. The following shall be inserted as the first defined term in Section 14.1 of Article IV of
the Certificate:
2010 IPO means an initial public offering closing on or before December 31, 2010 pursuant to the Registration Statement on Form S-1 (File No. 333-166825), as amended from time to time, in which the Corporation actually receives gross proceeds equal to or greater than $50,000,000, calculated before deducting underwriters discounts and commissions and other offering expenses, and in which the initial public offering price per share of Common Stock to the public is not less than $11.00 per share of Common Stock after giving effect to the Reverse Stock Split, and as may be otherwise adjusted as required herein, and following which the Common Stock of the Corporation is traded or listed for quotation on a nationally recognized United States stock exchange. | ||
5. The foregoing Certificate of Amendment has been duly adopted by the Corporations Board of
Directors and stockholders in accordance with Sections 141(f) and 228 of the Corporation Law and
the provisions of the Certificate.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by
Jane H. Hollingsworth, its Chief Executive Officer, this
20th day of July, 2010.
NUPATHE INC. |
||||
By: | /s/ Jane H. Hollingsworth | |||
Name: | Jane H. Hollingsworth | |||
Title: | Chief Executive Officer |