Attached files
| file | filename |
|---|---|
| 8-K - Orchard Enterprises, Inc. | v192021_8k.htm |
| EX-3.2 - Orchard Enterprises, Inc. | v192021_ex3-2.htm |
| EX-99.1 - Orchard Enterprises, Inc. | v192021_ex99-1.htm |
Exhibit
3.1
SECOND
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
THE
ORCHARD ENTERPRISES, INC.
ARTICLE
I
NAME
The name
of the corporation is The Orchard Enterprises, Inc. (the “Corporation”).
ARTICLE
II
REGISTERED
AND PRINCIPAL OFFICES
The
address of the Corporation’s registered office in the State of Delaware is 874
Walker Road, Suite C, City of Dover, County of Kent, State of Delaware
19904. The name of its registered agent at such address is United
Corporate Services, Inc.
ARTICLE
III
PURPOSE
The
purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the DGCL.
ARTICLE
IV
CAPITAL
STOCK
SECTION
1. Authorized
Capital.
(a) The
Corporation is authorized to issue two classes of shares of stock to be
designated, respectively, Common Stock, $0.01 par value, and Preferred Stock,
$0.01 par value. The aggregate number of shares that the Corporation
is authorized to issue is Thirty-One Million (31,000,000) shares, of which
Thirty Million (30,000,000) shares shall be designated Common Stock and One
Million (1,000,000) shares shall be designated Preferred Stock.
(b) Subject
to the limitations and restrictions set forth herein:
(i) the
Preferred Stock may be issued from time to time in one or more series in such
numbers and with such designations, preferences, and relative participating,
optional, or other rights, qualifications, limitations or restrictions thereof
as shall be stated and expressed in a resolution or resolutions providing for
the issuance of such class, classes or series duly adopted by the Board of
Directors, pursuant to the authority hereby given as provided by statute;
and
(ii) the
Board of Directors, within the limits and restrictions stated in any resolution
or resolutions of the Board of Directors originally fixing the number of shares
constituting any series of Preferred Stock, may increase or decrease (but not
below the number of shares in any such series then outstanding) the number of
authorized shares of any series of Preferred Stock subsequent to the issue of
shares of that series.
SECTION
2. Common
Stock.
(a) Ranking. All
preferences, voting powers, relative, participating, optional or other special
rights and privileges, and qualifications, limitations, or restrictions of the
Common Stock are expressly made subject and subordinate to those that may be
fixed with respect to any shares of Preferred Stock.
(b) Dividends. Subject
to the preferential rights of the Preferred Stock, the holders of shares of
Common Stock shall be entitled to receive, when and if declared by the Board of
Directors, out of the assets of the Corporation that are by law available
therefor, dividends payable either in cash, in property or in shares of capital
stock.
(c) Voting
Rights. Except as otherwise required by law or this Second
Amended and Restated Certificate of Incorporation, each holder of Common Stock
shall have one vote in respect of each share of Common Stock held by him, her or
it of record on the books of the Corporation on all matters submitted to a vote
of stockholders of the Corporation.
(d) Liquidation, Dissolution or
Winding Up. In the event of any dissolution, liquidation or
winding up of the affairs of the Corporation, after distribution in full of the
preferential amounts to be distributed to the holders of shares of Preferred
Stock, holders of Common Stock shall be entitled, unless otherwise provided by
law or this Second Amended and Restated Certificate of Incorporation, to receive
all of the remaining assets of the Corporation of whatever kind available for
distribution to stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
SECTION
3. Series A
Preferred Stock.
(a) Designation;
Amount. The shares of such series of Preferred Stock shall be
designated as Series A Convertible Preferred Stock (the “Series A Preferred
Stock”) and the number of shares constituting such series shall be Four
Hundred Eighty-Eight Thousand Eight Hundred Thirty-Three (488,833)
shares.
(b) Dividends. Except
as provided herein, the holders of Series A Preferred Stock, shall not be
entitled to receive any dividends. The Corporation shall not declare,
pay or set aside any dividends on shares of Common Stock unless the holders of
the Series A Preferred Stock then outstanding shall first receive, or
simultaneously receive, a dividend in an amount equal to the dividend they would
have received if all outstanding shares of Series A Preferred Stock (subject in
each case to appropriate adjustment in the event of any stock dividend, stock
split, combination or other similar recapitalization affecting such shares) had
been converted into shares of Common Stock on the record date fixed for the
payment of such dividend.
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(c) Priority in Certain Payments
and Distributions.
(i) Payments to Holders of
Series A Preferred Stock Upon Liquidation, Dissolution or Winding Up of the
Corporation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders of shares
of Series A Preferred Stock then outstanding shall be entitled to be paid out of
the assets of the Corporation available for distribution to its stockholders
(whether in cash, securities or other property), before any payment shall be
made to the holders of Common Stock or any other class or series of stock
ranking on liquidation junior to the Series A Preferred Stock by reason of their
ownership thereof, an amount equal to the greater of (A) $55.70 per share
(subject in each case to appropriate adjustment in the event of any stock
dividend, stock split, combination or other similar recapitalization affecting
such shares), plus any dividends declared pursuant to Section 3(b)
above but unpaid thereon, and (B) such amount per share as would have been
payable had each share of the Series A Preferred Stock been converted into
Common Stock pursuant to Section 3(e)
below immediately prior to such liquidation, dissolution or winding up, plus any
dividends declared pursuant to Section 3(b) above
but unpaid thereon (the greater of (A) and (B) is hereinafter referred to as the
“Series A Liquidation
Amount”). If, upon any such liquidation, dissolution or
winding up of the Corporation, the remaining assets of the Corporation available
for distribution to its stockholders shall be insufficient to pay the holders of
shares of Series A Preferred Stock, and any class or series of stock ranking on
liquidation on a parity with the Series A Preferred Stock, the full amount to
which such holders shall be entitled, the holders of shares of Series A
Preferred Stock, and any class or series of stock ranking on liquidation on a
parity with the Series A Preferred Stock, shall share ratably in any
distribution of the remaining assets and funds of the Corporation in proportion
to the respective amounts which would otherwise be payable in respect of the
shares held by them upon such distribution if all amounts payable on or with
respect to such shares were paid in full.
(ii) Payments to Holders of
Junior Stock Upon Liquidation, Dissolution or Winding Up of the
Corporation. After the payment of all preferential amounts
required to be paid to the holders of the Series A Preferred Stock and any other
class or series of stock of the Corporation ranking on liquidation senior to or
on parity with the Series A Preferred Stock, upon the dissolution, liquidation
or winding up of the Corporation, the holders of shares of Common Stock or any
other class or series of stock ranking on liquidation junior to the Series A
Preferred Stock then outstanding shall be entitled to receive the remaining
assets and funds of the Corporation available for distribution to its
stockholders.
(iii) Payments and Distributions
Upon Change of Control Event. Except as otherwise provided
upon the prior vote or written consent of the holders of at least a majority of
the then outstanding shares of Series A Preferred Stock, for so long as any
shares of Series A Preferred Stock remain outstanding, the Corporation shall not
enter into or otherwise effect any transaction (or series of transactions)
constituting a Change of Control Event (as defined below) unless (A) with
respect to a Change of Control Event involving the sale or exclusive license of
all or substantially all of the Corporation’s assets or intellectual property
(pursuant to a single transaction or a series of transactions) the Corporation
shall as promptly as practicable thereafter liquidate, dissolve and wind up the
Corporation and distribute the assets of the Corporation (whether in cash,
securities or other property) to the Corporation’s stockholders in accordance
with Sections
3(c)(i) and 3(c)(ii) and (B) with
respect to a Change of Control Event involving a transaction in which the
stockholders of the Corporation will receive consideration from an unrelated
third party, the agreement governing such transaction (or series of
transactions) provides that the consideration payable to the stockholders of the
Corporation (whether in cash, securities or other property) shall be allocated
among them in accordance with Sections 3(c)(i) and
3(c)(ii).
For
purposes of this Section 3(c)(iii), a
“Change of Control
Event” shall mean any of the following:
(A) a
merger or consolidation in which: (1) the Corporation is a
constituent party; or (2) a subsidiary of the Corporation is a constituent
party, except in either case, any such merger or consolidation involving the
Corporation or a subsidiary in which the holders of capital stock of the
Corporation immediately prior to such merger or consolidation continue to hold
immediately following such merger or consolidation, in approximately the same
proportion as such shares were held immediately prior to such merger or
consolidation, at least 51%, by voting power and economic interest, of the
capital stock of (x) the surviving or resulting corporation or (y) if the
surviving or resulting corporation is a wholly owned subsidiary of another
corporation immediately following such merger or consolidation, the parent
corporation of such surviving or resulting corporation;
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(B) the
sale or exclusive license, in a single transaction or series of related
transactions, by the Corporation of all or substantially all of the assets or
intellectual property of the Corporation (except where such sale or exclusive
license is to a wholly owned subsidiary of the Corporation); or
(C) the
sale, in a single transaction or series of related transactions, by the
Corporation or its stockholders of more than 50% of the outstanding stock by
voting power or economic interest (or securities convertible into stock) of the
Corporation, except any such sale or series of sales in which the holders of
capital stock of the Corporation immediately prior to such sale or sales
continue to hold immediately following such sale or sales, in approximately the
same proportion as such shares were held immediately prior to such sale or
sales, at least 51%, by voting power and economic interest, of the capital stock
of the Corporation.
(d) Voting.
(i) General
Rights. On any matter presented to the stockholders of the
Corporation for their action or consideration at any meeting of stockholders of
the Corporation (or by written action of stockholders in lieu of meeting), each
holder of outstanding shares of Series A Preferred Stock shall be entitled to
the number of votes equal to the number of whole shares of Common Stock into
which the shares of Series A Preferred Stock held by such holder are convertible
as of the record date for determining stockholders entitled to vote on such
matter. Except as provided by law or by the provisions of Section 3(c)(iii)
above and Section
3(d)(ii) below, holders of Series A Preferred Stock shall vote together
with the holders of Common Stock, and with the holders of any other series of
Preferred Stock the terms of which so provide, as a single class.
(ii) Separate Vote of Holders of
Series A Preferred Stock. For so long as any shares of Series
A Preferred Stock remain outstanding, in addition to any other vote or consent
required herein or by law, the vote or written consent of the holders of at
least a majority of the then outstanding Series A Preferred Stock, consenting or
voting (as the case may be) separately as a class, shall be necessary for
effecting or validating the following actions:
(A) Any
amendment, alteration or repeal (including any amendment, alteration or repeal
effected by a merger, consolidation or similar business combination) of any
provision of this Second Amended and Restated Certificate of Incorporation or
the Bylaws of the Corporation (including any filing of a Certificate of
Designation) that affects adversely the voting powers, preferences, dividends or
other special rights or privileges, qualifications, limitations or restrictions
of the Series A Preferred Stock;
(B) Any
increase or decrease (other than by redemption or conversion) in the authorized
number of shares of Preferred Stock;
(C) Any
authorization or any designation, whether by reclassification or otherwise, of
any new class or series of stock (or any other securities convertible into
equity securities of the Corporation) ranking superior to or on a parity with
the Series A Preferred Stock with respect to voting powers, preferences,
dividends or the other special rights or privileges, qualifications or
restrictions of the Series A Preferred Stock; or, if any such new class or
series is consented to by the holders of Series A Preferred Stock, any
subsequent increase in the authorized or designated number of any such new class
or series;
(D) Any
reorganization, recapitalization or reclassification of the Corporation and its
capital stock; or
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(iii) Any
redemption or repurchase of any securities of the Corporation or rights to
acquire securities of the Corporation (other than repurchases of Common Stock
made in accordance with the terms of any applicable stock plan of the
Corporation then in effect).
(e) Conversion. The
holders of the Series A Preferred Stock shall have conversion rights as follows
(the “Conversion
Rights”):
(i) Right to
Convert.
(A) Each
share of Series A Preferred Stock shall be convertible, at the option of the
holder thereof, at any time and from time to time, and without the payment of
additional consideration by the holder thereof, into such number of fully paid
and nonassessable shares of Common Stock as is determined by dividing $55.70 by
the Series A Conversion Price in effect at the time of conversion (the “Series A Conversion
Rate”), The “Series A Conversion
Price” shall initially be $16.71. Such initial Series A
Conversion Price, and the rate at which shares of Series A Preferred Stock may
be converted into shares of Common Stock, shall be subject to adjustment as
provided below.
(B) In
the event of a notice of redemption of any shares of Series A Preferred Stock
pursuant to Section 3(f)
hereof, the Conversion Rights of the shares designated for redemption shall
terminate at the close of business on the last full day preceding the Redemption
Date (as defined below), unless either (1) a Redemption Right Termination occurs
in which case the Corporation’s attempt to exercise the Redemption Right shall
immediately terminate and become null and void and the Conversion Rights for
such shares shall not terminate or (2) the Redemption Price (as defined below)
is not paid on such Redemption Date, in which case the Conversion Rights for
such shares shall continue until such price is paid in full. In the
event of a liquidation, dissolution or winding up of the Corporation, the
Conversion Rights shall terminate at the close of business on the last full day
preceding the date fixed for the payment of any such amounts distributable on
such event to the holders of Series A Preferred Stock. In the event
of such a redemption or liquidation, dissolution or winding up, the Corporation
shall provide to each holder of shares of Series A Preferred Stock notice of
such redemption or liquidation, dissolution or winding up, which notice shall
(x) be sent at least 30 days prior to the termination of the Conversion Rights
and (y) state the amount per share of Series A Preferred Stock that will be paid
or distributed on such redemption or liquidation, dissolution or winding up, as
the case may be.
(ii) Fractional
Shares. No fractional shares of Common Stock shall be issued
upon conversion of the Series A Preferred Stock. In lieu of any
fractional shares to which the holder would otherwise be entitled, the
Corporation shall pay cash equal to such fraction multiplied by the then
effective Series A Conversion Price.
(iii) Mechanics of
Conversion.
(A) In
order for a holder of Series A Preferred Stock to convert shares of Series A
Preferred Stock into shares of Common Stock, such holder shall surrender the
certificate or certificates for such shares of Series A Preferred Stock, at the
office of the transfer agent for the Series A Preferred Stock (or at the
principal office of the Corporation if the Corporation serves as its own
transfer agent), together with written notice that such holder elects to convert
all or any number of the shares of the Series A Preferred Stock represented by
such certificate or certificates. Such notice shall state such
holder’s name or the names of the nominees in which such holder wishes the
certificate or certificates for shares of Common Stock to be
issued. If required by the Corporation, certificates surrendered for
conversion shall be endorsed or accompanied by a written instrument or
instruments of transfer, in form satisfactory to the Corporation, duly executed
by the registered holder or his or its attorney duly authorized in
writing. The date of receipt of such certificates and notice by the
transfer agent (or by the Corporation if the Corporation serves as its own
transfer agent) shall be the conversion date (“Conversion Date”),
and the shares of Common Stock issuable upon conversion of the shares
represented by such certificate shall be deemed to be outstanding of record as
of such date. The Corporation shall, as soon as practicable after the
Conversion Date, issue and deliver at such office to such holder of Series A
Preferred Stock, or to his or its nominees, a certificate or certificates for
the number of shares of Common Stock to which such holder shall be entitled,
together with cash in lieu of any fraction of a share.
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(B) The
Corporation shall at all times when any Series A Preferred Stock shall be
outstanding, reserve and keep available out of its authorized but unissued
stock, for the purpose of effecting the conversion of the Series A Preferred
Stock, such number of its duly authorized shares of Common Stock as shall from
time to time be sufficient to effect the conversion of all outstanding Series A
Preferred Stock.
(C) All
shares of Series A Preferred Stock which shall have been surrendered for
conversion as herein provided shall no longer be deemed to be outstanding and
all rights with respect to such shares, including the rights, if any, to receive
notices and to vote, shall immediately cease and terminate on the Conversion
Date, except only the right of the holders thereof to receive shares of Common
Stock in exchange therefor and payment of any dividends declared or accrued
pursuant to Section 3(b)
above but unpaid thereon. Any shares of Series A Preferred Stock so
converted shall be retired and cancelled and shall not be reissued, and the
Corporation (without the need for stockholder action) may from time to time take
such appropriate action as may be necessary to reduce the authorized number of
shares of such series of Series A Preferred Stock accordingly.
(D) The
Corporation shall pay any and all issue and other similar taxes that may be
payable in respect of any issuance or delivery of shares of Common Stock upon
conversion of shares of Series A Preferred Stock pursuant to this Section
3(e). The Corporation shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issuance
and delivery of shares of Common Stock in a name other than that in which the
shares of Series A Preferred Stock so converted were registered, and no such
issuance or delivery shall be made unless and until the person or entity
requesting such issuance has paid to the Corporation the amount of any such tax
or has established, to the satisfaction of the Corporation, that such tax has
been paid.
(iv) Adjustment for Stock Splits
and Combinations. If the Corporation shall at any time or from
time to time on or after the Original Issue Date for the Series A Preferred
Stock effect a subdivision of the outstanding Common Stock or combine the
outstanding shares of Series A Preferred Stock, the applicable Series A
Conversion Price then in effect immediately before that subdivision or
combination shall be proportionately decreased. If the Corporation
shall at any time or from time to time after the Original Issue Date (as defined
below) for the Series A Preferred Stock combine the outstanding shares of Common
Stock or effect a subdivision of the outstanding shares of Series A Preferred
Stock, the Series A Conversion Price then in effect immediately before the
combination or subdivision shall be proportionately increased. Any
adjustment under this paragraph shall become effective at the close of business
on the date the subdivision or combination becomes effective.
For
purposes of this Section 3(e),
the term “Original
Issue Date” shall mean the date on which a share of Series A Preferred
Stock, was first issued.
(v) Adjustment for Certain
Dividends and Distributions. In the event the Corporation at
any time, or from time to time on or after the Original Issue Date for the
Series A Preferred Stock shall make or issue, or fix a record date for the
determination of holders of Common Stock entitled to receive, a dividend or
other distribution payable in additional shares of Common Stock, then and in
each such event the Series A Conversion Price then in effect immediately before
such event shall be decreased as of the time of such issuance or, in the event
such a record date shall have been fixed, as of the close of business on such
record date, by multiplying the Series A Conversion Price then in effect by a
fraction:
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(A) the
numerator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date, and
(B) the
denominator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date plus the number of shares of Common Stock issuable
in payment of such dividend or distribution; provided, however, that if such
record date shall have been fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the Series A
Conversion Price shall be recomputed accordingly as of the close of business on
such record date and thereafter the Series A Conversion Price shall be adjusted
pursuant to this paragraph as of the time of actual payment of such dividends or
distributions; and provided further, however, that no such adjustment shall be
made if the holders of Series A Preferred Stock simultaneously receive (1) a
dividend or other distribution of shares of Common Stock in a number equal to
the number of shares of Common Stock as they would have received if all
outstanding shares of Series A Preferred Stock had been converted into Common
Stock on the date of such event or (2) a dividend or other distribution of
shares of Series A Preferred Stock which are convertible, as of the date of such
event, into such number of shares of Common Stock as is equal to the number of
additional shares of Common Stock being issued with respect to each share of
Common Stock in such dividend or distribution.
(vi) Adjustments for Other
Dividends and Distributions. In the event the Corporation at
any time or from time to time on or after the Original Issue Date for the Series
A Preferred Stock shall make or issue, or fix a record date for the
determination of holders of Common Stock entitled to receive, a dividend or
other distribution payable in securities of the Corporation (other than shares
of Common Stock) or in cash or other property, then and in each such event the
holders of Series A Preferred Stock shall receive, simultaneously with the
distribution to the holders of Common Stock, a dividend or other distribution of
such securities, cash or other property in an amount equal to the amount of such
securities, cash or other property as they would have received if all
outstanding shares of Series A Preferred Stock had been converted into Common
Stock on the date of such event or record date, as the case may be.
(vii) Certificate as to
Adjustments. Upon the occurrence of each adjustment or
readjustment of the Series A Conversion Price pursuant to this Section 3(e), the
Corporation at its expense shall, as promptly as reasonably practicable but in
any event not later than 10 days thereafter, compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
Series A Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Corporation shall, as promptly as
reasonably practicable after the written request at any time of any holder of
Series A Preferred Stock (but in any event not later than 10 days thereafter),
furnish or cause to be furnished to such holder a certificate setting forth the
Series A Conversion Price then in effect.
(viii) Notice of Record
Date. In the event:
(A) the
Corporation shall take a record of the holders of its Common Stock (or other
stock or securities at the time issuable upon conversion of the Series A
Preferred Stock) for the purpose of entitling or enabling them to receive any
dividend or other distribution, or to receive any right to subscribe for or
purchase any shares of stock of any class or any other securities, or to receive
any other right; or
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(B) of
any capital reorganization of the Corporation, any reclassification of the
Common Stock of the Corporation, any consolidation or merger of the Corporation
with or into another corporation (other than a consolidation or merger in which
the Corporation is the surviving entity and its Common Stock is not converted
into or exchanged for any other securities or property), or any transfer of all
or substantially all of the assets of the Corporation; or
(C) of
the voluntary or involuntary dissolution, liquidation or winding-up of the
Corporation, then, and in each such case, the Corporation will send or cause to
be sent to the holders of the Series A Preferred Stock a notice specifying, as
the case may be, (1) the record date for such dividend, distribution or right,
and the amount and character of such dividend, distribution or right, or (2) the
effective date on which such reorganization, reclassification, consolidation,
merger, transfer, dissolution, liquidation or winding-up is to take place, and
the time, if any is to be fixed, as of which the holders of record of Common
Stock (or such other stock or securities at the time issuable upon the
conversion of the Series A Preferred Stock) shall be entitled to exchange their
shares of Common Stock (or such other stock or securities) for securities or
other property deliverable upon such reorganization, reclassification,
consolidation, merger, transfer, dissolution, liquidation or
winding-up. Such notice shall be sent at least 10 days prior to the
record date or effective date for the event specified in such
notice.
(f) Redemption.
(i) Optional
Redemption. On any date commencing after the fifth anniversary
of the Original Issue Date (the “Exercise Date”), so
long as the Stock Price Requirement (as defined below) has been satisfied the
Corporation, at the option of its Board of Directors or any duly authorized
committee thereof, may exercise its right to redeem in whole, but not in part,
all shares of Series A Preferred Stock then outstanding, upon delivery of a
Redemption Notice (as defined below) in accordance with the requirements and
subject to the conditions of Section 3(f)(iii)
(the “Redemption
Right”); provided, however, that if for any day during the period between
the Exercise Date and the business day immediately preceding the Redemption Date
(as defined below), the closing price of the Corporation’s Common Stock on the
applicable Trading Market (as defined below) is less than $25.50 (subject to
adjustment for stock splits, combinations or stock dividends), then the
Corporation’s attempt to exercise the Redemption Right in such instance shall
immediately terminate and become null and void (a “Redemption Right
Termination”) and the Corporation shall not be entitled to exercise the
Redemption Right again unless and until the Stock Price Requirement and the
other requirements and conditions of this Section 3(f) are
subsequently satisfied. Notwithstanding anything to the contrary
contained in this Section 3(f) or
elsewhere, holders of Series A Preferred Stock shall be entitled to convert
their shares pursuant to Section 3(e) above up
through the close of business on the business day immediately preceding the
Redemption Date regardless of whether such holder exercises such right after the
Corporation has exercised the Redemption Right or delivered a Redemption
Notice.
For
purposes of this Section 3(f), the
“Stock Price
Requirement” shall be satisfied if the average closing price of the
Corporation’s Common Stock on the applicable Trading Market for the 30 day
period immediately prior to the Exercise Date shall be greater than or equal to
$30.00 (subject to adjustment for stock splits, combinations or stock
dividends). For purposes of this Section 3(f), “Trading Market” shall
mean any of the following markets, exchanges or systems on which the
Corporation’s Common Stock is listed or quoted for trading for the 30 day period
in question: the OTC Bulletin Board, the American Stock Exchange, the
New York Stock Exchange, the Nasdaq National Market, the Nasdaq Global Market or
the Nasdaq SmallCap Market.
(ii) Redemption
Price. The redemption price for shares of Series A Preferred
Stock shall be $55.70 per share (subject in each case to appropriate adjustment
in the event of any stock dividend, stock split, combination or other similar
recapitalization affecting such shares), plus any dividends declared pursuant to
Section 3(b)
above but unpaid thereon (the “Redemption
Price”).
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(iii) Notice of
Redemption. No later than five business days after the
Exercise Date, notice of redemption of shares of Series A Preferred Stock shall
be mailed by first class mail, postage prepaid, addressed to the holders of
record of such shares at their respective last addresses appearing on the stock
register of the Corporation (the “Redemption
Notice”). The Redemption Notice shall be delivered at least 30
days and not more than 60 days before the date fixed for
redemption. Each Redemption Notice shall state (A) the redemption
date (the “Redemption
Date”); (B) the Redemption Price per share and the aggregate Redemption
Price payable to such holder; (C) the place or places where the certificates for
such shares are to be surrendered for payment of the Redemption Price; and (D)
that dividends on the shares to be redeemed will cease to accrue on the
Redemption Date. If a Redemption Right Termination occurs, the
Corporation shall promptly give notice of such event to holders of record of
shares of Series A Preferred Stock in the manner contemplated by this Section 3(f)(iii) for
delivery of Redemption Notices.
(iv) Surrender of Certificates;
Payment. Unless a Redemption Right Termination has
subsequently occurred or a holder of Series A Preferred Stock has exercised his,
her or its right to convert such shares as provided in Section 3(e) hereof,
on or before the respective Redemption Date, each holder of shares of Series A
Preferred Stock shall surrender the certificate or certificates representing
such shares to the Corporation, in the manner and at the place designated in the
Redemption Notice, and thereupon the respective Redemption Price for 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 and retired.
(v) Rights Subsequent to
Redemption. Unless a Redemption Right Termination has
subsequently occurred or a holder of Series A Preferred Stock has exercised his,
her or its right to convert such shares as provided in Section 3(e) hereof,
if the Redemption Notice shall have been duly given, and if on the applicable
Redemption Date the applicable Redemption Price payable upon redemption of the
Series A Preferred Stock is paid or tendered for payment, then notwithstanding
that the certificates evidencing any of the shares of Series A Preferred Stock
called for redemption shall not have been surrendered, dividends with respect to
such shares of Series A Preferred Stock shall cease to accrue after such
respective Redemption Date and all rights with respect to such shares shall
forthwith after the respective Redemption Date terminate, except only the right
of the holders to receive the applicable Redemption Price without interest upon
surrender of their certificate or certificates therefor.
(vi) Redeemed or Otherwise
Acquired Shares. Any shares of Series A Preferred Stock which
are redeemed or otherwise acquired by the Corporation or any of its subsidiaries
shall be automatically and immediately canceled and shall not be reissued, sold
or transferred. Neither the Corporation nor any of its subsidiaries
may exercise any voting or other rights granted to the holders of Series A
Preferred Stock following redemption or repurchase.
ARTICLE
V
AMENDMENT
The
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Second Amended and Restated Certificate of Incorporation, in
the manner now or hereafter prescribed by statute and this Second Amended and
Restated Certificate of Incorporation, and all rights conferred upon officers,
directors and stockholders herein are granted subject to this
reservation.
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ARTICLE
VI
DURATION
The
Corporation is to have perpetual existence.
ARTICLE
VII
BOARD
COMPOSITION AND POWERS
SECTION
1. Board
Composition. The
number of directors of the Corporation which shall constitute the whole Board of
Directors shall be such as from time to time may be fixed by or in the manner
provided in the Bylaws but in no case shall the number of directors be less than
one. Except as may otherwise be required by law, vacancies in the
Board of Directors and newly created directorships resulting from any increase
in the authorized number of directors may be filled by a majority of the
directors then in office, though less than a quorum, or by a sole remaining
director.
SECTION
2. Board
Powers. All
corporate powers of the Corporation shall be exercised by the Board of Directors
except as otherwise provided herein or by law. In furtherance and not
in limitation of the powers conferred by statute and by law, the Board of
Directors is expressly authorized to make, amend, alter, change, add to or
repeal Bylaws of the Corporation, without any action on the part of the
stockholders.
ARTICLE
VIII
INTERESTED
TRANSACTIONS; LIMITATION ON LIABILITY AND INDEMNIFICATION
SECTION
1. Interested
Transactions. No
contract or transaction between the Corporation and one or more of its
directors, or between the Corporation and any other corporation, partnership,
association or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because such directors or officers
are present at or participate in the meeting of the Board of Directors or the
committee thereof which authorizes the contract or transaction, or solely
because his, her or their votes are counted for such purpose if:
(a) The
material facts as to his, her or their relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors or
the committee, and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative votes of the disinterested
directors, even though the disinterested directors be less than a quorum;
or
(b) The
material facts as to his, her or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or
(c) The
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee
thereof, or the stockholders.
In any
case described in this Section 1, any
common or interested director may be counted in determining the existence of a
quorum at any meeting of the Board of Directors or any committee which shall
authorize any such contract or transaction and may vote thereat to authorize any
such contract or transaction. Any director of the Corporation may
vote upon any contract or other transaction between the Corporation and any
subsidiary or affiliated corporation without regard to the fact that he is also
a director of such subsidiary or affiliated corporation.
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SECTION
2. Limitation on
Liability. A
director of the Corporation shall not be personally liable to the Corporation
and to its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director’s duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which
the director derived an improper personal benefit.
SECTION
3. Indemnification.
(a) Each
person who was or is made a party or is threatened to be made a party to or is
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a “proceeding”), by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the DGCL, as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of his or her heirs, executors and administrators; provided,
however, that except as provided in clause (d) of this Article VIII, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this Section 3(a)
shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that if the DGCL requires, the payment
of such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Section 3 or
otherwise. The Corporation may, by action of its Board of Directors,
provide indemnification to employees and agents of the Corporation with the same
scope and effect as the foregoing indemnification of directors and
officers.
(b) If
a claim under Section 3(a) of
this Article
VIII is not paid in full by the Corporation within thirty days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the DGCL for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
DGCL, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard or conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
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(c) The
right to indemnification and the payment of expenses incurred in defending a
proceeding in advance of its final disposition conferred in this Section 3 shall
not be exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of this Second Amended and Restated
Certificate of Incorporation, the Bylaws of the Corporation, agreement, vote of
stockholders or disinterested directors or otherwise.
(d) The
Corporation may maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the
DGCL.
ARTICLE
IX
CREDITOR
MATTERS
Whenever
a compromise or arrangement is proposed between this Corporation and its
creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof, or on the application of
any receiver or receivers appointed for this Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code, order a meeting
of the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
this Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
ARTICLE
X
Meetings
of the stockholders may be held within or outside the State of Delaware, as the
Bylaws of the Corporation may provide. The books of the Corporation
may be kept (subject to any provision contained in the DGCL) outside of the
State of Delaware at such place or places as may be designated from time to time
by the Board of Directors or in the Bylaws of the Corporation.
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