Attached files
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10-Q - FORM 10-Q - JDA SOFTWARE GROUP INC | p18036e10vq.htm |
EX-31.1 - EX-31.1 - JDA SOFTWARE GROUP INC | p18036exv31w1.htm |
EX-31.2 - EX-31.2 - JDA SOFTWARE GROUP INC | p18036exv31w2.htm |
EX-32.1 - EX-32.1 - JDA SOFTWARE GROUP INC | p18036exv32w1.htm |
Exhibit 3.1
Delaware | PAGE 1 | |||
I,
JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED
ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS FILED FROM AND INCLUDING THE RESTATED CERTIFICATE OR A
MERGER WITH A RESTATED CERTIFICATE ATTACHED OF JDA SOFTWARE
GROUP, INC. AS RECEIVED AND FILED
IN THIS OFFICE.
THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
RESTATED
CERTIFICATE, FILED THE EIGHTH DAY OF NOVEMBER, A.D. 2002, AT 1 OCLOCK P.M.
CERTIFICATE
OF MERGER, FILED THE THIRTIETH DAY OF DECEMBER, A.D. 2003, AT 7:30 OCLOCK P.M.
CERTIFICATE OF DESIGNATION, FILED THE FIFTH DAY OF JULY, A.D. 2006, AT 11:58 OCLOCK A.M.
CERTIFICATE OF CORRECTION, FILED THE TWENTIETH DAY OF OCTOBER, A.D. 2006, AT 4:07 OCLOCK P.M.
CERTIFICATE OF RENEWAL, FILED THE TWENTY-SECOND DAY OF JULY, A.D. 2008, AT 8 OCLOCK A.M.
CERTIFICATE OF DESIGNATION, FILED THE FOURTEENTH DAY OF OCTOBER, A.D. 2009, AT 12:44 OCLOCK
P.M.
CERTIFICATE OF AMENDMENT, FILED THE FOURTEENTH DAY OF JULY, A.D. 2010, AT 3:07 OCLOCK P.M.
/s/ Jeffrey W. Bullock | ||||||
Jeffrey W. Bullock, Secretary of State | ||||||
2487680
8100X
|
AUTHENTICATION: 8113555 | |||||
100742804
|
DATE: 07-15-10 | |||||
You
may verify this certificate online at corp.delaware.gov/authver.shtml |
STATE OF DELAWARE | ||
SECRETARY OF STATE | ||
DIVISION OF CORPORATIONS | ||
FILED 01:00 PM 11/08/2002 | ||
020692473 2487680 |
THIRD RESTATED CERTIFICATE OF INCORPORATION
OF
JDA SOFTWARE GROUP, INC.,
a Delaware Corporation
OF
JDA SOFTWARE GROUP, INC.,
a Delaware Corporation
JDA SOFTWARE GROUP, INC., a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the Corporation), hereby certifies as follows:
ONE: The name of this Corporation is JDA SOFTWARE GROUP, INC.
TWO: The original Certificate of Incorporation of the Corporation was filed with the Secretary of
State of Delaware on the 14th day of March, 1995.
THREE: This Third Restated Certificate of Incorporation only restates and integrates and does
not further amend provisions of the Certificate of Incorporation as heretofore in effect, and there
is no discrepancy between those provisions and the provisions of this Third Restated Certificate of
Incorporation. This Third Restated Certificate of Incorporation has been adopted by the Board of
Directors in the manner and by the vote prescribed by Section 245 of the General Corporation Law of
the State of Delaware, and is as follows:
ARTICLE I
The
name of this Corporation is JDA SOFTWARE GROUP, INC. (the Corporation).
ARTICLE II
The address of the registered office of this Corporation in the State of Delaware is
Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County of New Castle,
Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted is to engage in any lawful
act or activity for which corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE IV
This Corporation is authorized to issue two classes of stock to be designated, respectively,
the Preferred Stock and the Common Stock. The total number of shares of capital stock which
this Corporation is authorized to issue is Fifty-Two Million (52,000,000) shares. Fifty Million
(50,000,000) shares shall be common stock, par value $0.01 per share (the
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Common Stock), and Two Million (2,000,000) shares shall be Preferred Stock, par value $1.00 per
share (the Preferred Stock).
The Preferred Stock may be issued from time to time in one or more series. The Board of
Directors is hereby authorized, within the limitations and restrictions stated in this Restated
Certificate of Incorporation, to fix or alter the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption (including sinking fund provisions), the
redemption price or prices, and the liquidation preferences of any wholly unissued series of
Preferred Stock, and the number of shares constituting any such series and the designation thereof,
or any of them, and to increase or decrease the number of shares of any series subsequent to the
issue of shares of that series but not below the number of shares of such series then outstanding.
In case the number of shares of any series shall be so decreased, the shares constituting such
decrease shall resume the status which they had prior to the adoption of the resolution originally
fixing the number of shares of such series.
ARTICLE V
The rights, preferences, privileges, restrictions and other matters relating to the Common
Stock are as follows:
1. Dividends. If the Board of Directors shall elect to declare dividends out of funds legally
available therefor, such dividends shall be declared in equal amounts per share on all shares of
Common Stock and Series A Preferred Stock then outstanding (on an as-converted to Common Stock
basis), subject to Article VI.
2. Liquidation Rights. In the event of any liquidation, dissolution or winding up of this
Corporation, either voluntary or involuntary, and after the payment of any preferential liquidating
distribution, if any, to the holders of the Preferred Stock as provided in Article VI, any
remaining assets shall be distributed ratably among the holders of this Corporations Common Stock
and Series A Preferred Stock (on an as-converted to Common Stock basis).
3. Voting Rights. The holder of each share of Common Stock shall be entitled to one vote for
each such share as determined on the record date for the vote or consent of stockholders and shall
vote together with the holders of the Preferred Stock upon any items submitted to a vote of
stockholders and those matters required by law to be submitted to a class vote.
ARTICLE VI
Five Hundred Thousand (500,000) shares of the Preferred Stock are hereby designated Series A
Preferred Stock $1.00 par value per share, with the rights, preferences and privileges specified
herein.
The rights, preferences, privileges, restrictions and other matters relating to the Series A
Preferred Stock are as follows:
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1. Dividends and Distributions.
(A) The dividend rate on the shares of Series A Preferred Stock shall be for each quarterly
dividend (hereinafter referred to as a quarterly dividend period) which quarterly dividend
periods shall commence on January 1, April 1, July 1 and October 1 each year (each such date being
referred to herein as a Quarterly Dividend Payment Date) (or in the case of original issuance,
from the date of original issuance) and shall end on and include the day next preceding the first
date of the next quarterly dividend period, at a rate per quarterly dividend period (rounded to the
nearest cent) equal to the greater of (a) $250.00 or (b) subject to the provisions for adjustment
hereinafter set forth, 100 times the aggregate per share amount of
all cash dividends, plus 100 times
the aggregate per share amount (payable in cash, based upon the fair market value at the time the
non-cash dividend or other distribution is declared as determined in good faith by the Board of
Directors) of all non-cash dividends or other distributions other than a dividend payable in shares
of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared (but not withdrawn) on the Common Stock during the immediately preceding
quarterly dividend period, or, with respect to the first quarterly dividend period, since the first
issuance of any share or fraction of a share of Series A Preferred Stock. In the event this Company
shall at any time after October 2, 1998 (the Rights Declaration Date) (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case
the amount to which holders of shares of Series A Preferred Stock were entitled immediately prior
to such event under clause (b)of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(B) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A
Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such
shares of Series A Preferred Stock, unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the determination of holders of shares
of Series A Preferred Stock entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata
on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may
fix a record date for the determination of holders of shares of Series A Preferred Stock entitled
to receive payment of a dividend or distribution declared thereon, which record date shall be no
more than 45 days prior to the date fixed for the payment thereof.
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2. Voting Rights. The holders of shares of Series A Preferred Stock shall have the following
voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each share of Series A
Preferred Stock shall entitle the holder thereof to 100 votes on all matters submitted to a vote of
the stockholders of the Corporation. In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the number of votes per share to which holders of
shares of Series A Preferred Stock were entitled immediately prior to such event shall be adjusted
by multiplying such number by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event
(B) Except as otherwise provided herein, in the Certificate of Incorporation or by law, the
holders of shares of Series A Preferred Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of stockholders of the Corporation.
(C) Except as set forth herein, in the Certificate of Incorporation and in the Bylaws, holders
of Series A Preferred Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
3. Reacquired
Shares. Any shares of Series A Preferred Stock purchased or otherwise acquired
by the Corporation in any manner whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock to be
created by resolution or resolutions of the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
4. Liquidation,
Dissolution or Winding Up. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders of the Series A Preferred
Stock shall be entitled to receive the greater of (a) $10,000.00 per share, plus accrued dividends
to the date of distribution, whether or not earned or declared, or (b) an amount per share, subject
to the provision for adjustment hereinafter set forth, equal to 100 times the aggregate amount to
be distributed per share to holders of Common Stock. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the amount to which holders of shares
of Series A Preferred Stock were entitled immediately prior to such event pursuant to clause (b) of
the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such event and the
denominator of which is the
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number of shares of Common Stock that were outstanding immediately prior to such event.
5. Consolidation,
Merger, etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case the shares of Series A Preferred Stock shall at the same time be similarly exchanged
or changed in an amount per share (subject to the provision for adjustment hereinafter set forth)
equal to 100 times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at any time after the Rights Declaration
Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series A Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event
6. No Redemption. The shares of Series A Preferred Stock shall not be redeemable.
7. Fractional Shares. Series A Preferred Stock may be issued in fractions of a share
which shall entitle the holder, in proportion to such holders fractional shares, to exercise
voting rights, receive dividends, participate in distributions and have the benefit of all other
rights of holders of Series A Preferred Stock. All payments made with respect to fractional shares
hereunder shall be rounded to the nearest whole cent.
8. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions payable on the
Series A Preferred Stock as provided in Article VI, Section 1, are in arrears, thereafter
and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends on, make any other distributions on, or redeem or
purchase or otherwise acquire for consideration any shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on any shares
of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except dividends paid
ratably on the Series A Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
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(iii) redeem or purchase or otherwise acquire for consideration shares of any
stock ranking on a parity (either as to dividends or upon liquidation, dissolution
or winding up) with the Series A Preferred Stock, provided that the Corporation may
at any time redeem, purchase or otherwise acquire shares of any such parity stock
in exchange for shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the Series A Preferred
Stock; or
(iv) purchase or otherwise acquire for consideration any shares of Series A
Preferred Stock, or any shares of stock ranking on a parity with the Series A
Preferred Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of such shares
upon such terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the respective
series and classes shall determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation unless the
Corporation could, under paragraph (A) of this Section 8, purchase or otherwise acquire
such shares at such time and in such manner.
9. Ranking. The Series A Preferred Stock shall be junior to all other Series of the
Corporations preferred stock as to the payment of dividends and the distribution of assets, unless
the terms of any series shall provide otherwise.
10. Amendment. The Certificate of Incorporation of the Corporation shall not be
amended in any manner which would materially alter or change the powers, preferences or special
rights of the Series A Preferred Stock so as to affect them adversely without the affirmative vote
of the holders of two-thirds or more of the outstanding shares of Series A Preferred Stock voting
together as a single class.
ARTICLE VII
The following provisions are inserted for the management of the business and the conduct of
the affairs of the Corporation, and for further definition, limitation and regulation of the powers
of the Corporation and of its directors and stockholders:
1. The business and affairs of the Corporation shall be managed by or under the direction of
the Board of Directors. In addition to the powers and authority expressly conferred upon them by
statute or by this Certificate of Incorporation or the Bylaws of the Corporation, the directors are
hereby empowered to exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation.
2. The directors of the Corporation need not be elected by written ballot unless the Bylaws so
provide.
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3. Any action required or permitted to be taken by the stockholders of the Corporation must be
effected at a duly called annual or special meeting of stockholders of the Corporation and may not
be effected by any consent in writing by such stockholders.
4. Special
meetings of stockholders of the Corporation may be called only (1) by the Board of
Directors pursuant to a resolution adopted by at least one-third of the total number of directors
then in office or (2) by the Corporations President or Chief Executive Officer.
ARTICLE VIII
1. The number of directors shall be set at four (4) and, thereafter, shall be fixed from time
to time exclusively by the Board of Directors pursuant to a resolution adopted by a majority of the
total number of authorized directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented to the Board for adoption).
The directors shall be divided into three classes with the term of office of the first class (Class
I) to expire at the first annual meeting of the stockholders following the closing of the first
sale of the Corporations Common Stock, pursuant to a firmly underwritten registered public
offering (the IPO); the term of office of the second class (Class II) to expire at the second
annual meeting of stockholders held following the IPO; the term of office of the third class (Class
III) to expire at the third annual meeting of stockholders; and thereafter for each such term to
expire at each third succeeding annual meeting of stockholders after such election. All directors
shall hold office until the expiration of the term for which elected, and until their respective
successors are elected, except in the case of the death, resignation, or removal of any director.
2. Newly created directorships resulting from any increase in the authorized number of
directors or any vacancies in the Board of Directors resulting from death, resignation or other
cause (other than removal from office by a vote of the stockholders) may be filled only by a
majority vote of the directors then in office, though less than a quorum, and directors so chosen
shall hold office for a term expiring at the next annual meeting of stockholders at which the term
of office of the class to which they have been elected expires, and until their respective
successors are elected, except in the case of the death, resignation, or removal of any director.
No decrease in the number of directors constituting the Board of Directors shall shorten the term
of any incumbent director.
3. Subject to the rights of the holders of any series of Preferred Stock then outstanding, any
directors, or the entire Board of Directors, may be removed from office at any time, with or
without cause, but only by the affirmative vote of the holders of at least a majority of the voting
power of all of the then outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class. Vacancies in the Board
of Directors resulting from such removal may be filled by a majority of the directors then in
office, though less than a quorum. Directors so chosen shall hold office for a term expiring at the
next annual meeting of stockholders at which the term of office of the class to which they have
been elected expires, and until their respective successors are elected, except in the case of the
death, resignation, or removal of any director.
7
ARTICLE IX
The Board of Directors is expressly empowered to adopt, amend or repeal Bylaws of the
Corporation. Any adoption, amendment or repeal of Bylaws of the Corporation by the Board of
Directors shall require the approval of at least two-thirds (2/3) of the total number of authorized
directors (whether or not there exist any vacancies in previously authorized directorships at the
time any resolution providing for adoption, amendment or repeal is
presented to the Board). The
stockholders shall also have power to adopt, amend or repeal the Bylaws of the Corporation. Any
adoption, amendment or repeal of Bylaws of the Corporation by the stockholders shall require, in
addition to any vote of the holders of any class or series of stock of the Corporation required by
law or by this Certificate of Incorporation, the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the then outstanding
shares of the capital stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
ARTICLE X
A director of the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, except for liability
(i) for any breach of the directors duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involved intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit.
If the Delaware General Corporation Law is hereafter amended to authorize the further
elimination or limitation of the liability of a director, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
Any repeal or modification of the foregoing provisions of this Article X by the stockholders
of the Corporation shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
ARTICLE XI
The Corporation reserves the right to amend or repeal any provision contained in this
Certificate of Incorporation in the manner prescribed by the laws of the State of Delaware and all
rights conferred upon stockholders are granted subject to this reservation; provided, however,
notwithstanding any other provision of this Certificate of Incorporation or any provision of law
which might otherwise permit a lesser vote or no vote, but in addition to any vote of the holders
of any class or series of the stock of this Corporation required by law or by this Certificate of
Incorporation, the affirmative vote of the holders of at least 66-2/3% of the voting power of all
of the then outstanding shares of the capital stock of the Corporation entitled to vote generally
in the election of directors, voting together as a single class, shall be required to amend or
repeal this Article XI, Article VII, Article VIII, Article IX or Article X.
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IN WITNESS WHEREOF, JDA SOFTWARE GROUP, INC. has caused this Third Restated Certificate of
Incorporation to be signed by its President and attested to by its Secretary this 23 rd day of
July, 2002.
JDA SOFTWARE GROUP, INC. |
||||
By: | Hamish N. Brewer | |||
Hamish N. Brewer, President | ||||
ATTEST |
||||
By: | Kristen L. Magnuson | |||
Kristen L. Magnuson, Secretary | ||||
9
State of Delaware | ||
Secretary of State | ||
Division of Corporations | ||
Delivered 10:17 PM 12/30/2003 | ||
FILED 07:30 PM 12/30/2003 | ||
SRV 030845103 2487680 FILE |
CERTIFICATE
OF MERGER
OF
JDA-E3- CORPORATION
(a Delaware corporation)
(a Delaware corporation)
WITH AND INTO
JDA SOFTWARE GROUP, INC.
(a Delaware corporation)
(a Delaware corporation)
JDA
Software Group, Inc. (JDA), organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (DGCL) and JDA-E3 Corporation (JDA-E3), organized and
existing under and by virtue of the DGCL and a wholly-owned subsidiary of JDA
EACH
DO HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the constituent corporations of the
merger is as follows:
Name | State of Incorporation | |
JDA Software Group, Inc. | Delaware | |
JDA-E3 Corporation | Delaware |
SECOND:
That an Agreement and Plan of Merger dated as of December 29,
2003 (Agreement of Merger) by and
between JDA-E3 and JDA has been approved, adopted, certified, executed and acknowledged by each of
the constituent corporations in accordance with the requirements of Section 251 of the DGCL.
THIRD: That the name of the surviving corporation of the merger is JDA Software Group, Inc.
FOURTH:
The Certificate of Incorporation of JDA shall be the Certificate of Incorporation of the
surviving corporation.
FIFTH: That the executed Agreement of Merger is on file at the principal place of business of the
surviving corporation. The address of the principal place of business of the surviving corporation
is 14400 North 87th Street, Scottsdale, Arizona 852602649.
SIXTH: That a copy of the Agreement of Merger will be furnished by the surviving corporation, on
request and without cost to any stockholder of any constituent corporation.
[Signature page follows]
IN WITNESS WHEREOF, JDA and JDA-E3 have caused the Certificate to be duly signed its authorized
officers, this 29th day of December, 2003.
JDA SOFTWARE GROUP, INC. |
||||
By: | /s/ Hamish Brewer | |||
Hamish Brewer, President and | ||||
Chief Executive Officer | ||||
JDA-E3 CORPORATION |
||||
By: | /s/ Hamish Brewer | |||
Hamish Brewer, President and | ||||
Chief Executive Officer | ||||
[Signature
Page to the Certificate of Merger]
State of Delaware | ||
Secretary of State | ||
Division of Corporations | ||
Delivered 12:07 PM 07/05/2006 | ||
FILED 11:58 AM 07/05/2006 | ||
SRV 060638611 2487680 FILE |
CERTIFICATE
OF DESIGNATION
of
RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS
of
SERIES B CONVERTIBLE PREFERRED STOCK
of
JDA
SOFTWARE GROUP, INC.
The
undersigned officer of JDA Software Group, Inc. (the
Corporation), a corporation organized and
existing under and by virtue of the provisions of the General Corporation Law of the State of
Delaware (the DGC-L), does hereby certify the following.
A. | The Corporation has authorized 2,000,000 shares of Preferred Stock, par value $1.00 per share, none of which has been issued | |
B. | Pursuant to the authority conferred upon the Board of Directors of the Corporation (the Board) by its Third Restated Certificate of Incorporation (the Certificate of Incorporation), and pursuant to the provisions of Section 151 of the General Corporation Law of the State of Delaware, the Board has duly adopted recitals and resolutions in accordance with the powers granted it by the Certificate of Incorporation, which resolutions remains in full force and effect on the date hereof, as follows: |
WHEREAS,
the Certificate of Incorporation provides for a class of stock designated Preferred
Stock, issuable from time to time in one or more series;
WHEREAS, the Board is authorized, within the limitations and restrictions stated in the Certificate
of Incorporation, to fix or alter the dividend rights, dividend rate, conversion rights, voting
rights, rights and terms of redemption (including sinking fund provisions), the redemption price or
prices, and the liquidation preferences of any wholly unissued series of preferred Stock, and the
number of shares constituting any such series and the designation thereof, or any of them; and,
WHEREAS, the Board desires, pursuant to its authority as aforesaid, to designate a series of
Preferred Stock as Series B Convertible Preferred
Stock and to fix and determine the number of
shares constituting such series and the rights preferences, privileges and restrictions of such
series.
NOW, THEREFORE, BE IT RESOLVED, that the Board hereby designates such new series of Preferred Stock
and the number of shares constituting such series as follows:
I. | Designation of Series. The Corporation shall have a series of Preferred Stock designated as Series B Convertible Preferred Stock (the Series B Preferred). | |
II. | Designation of Number of Shares of Series B Preferred. The number of shares constituting the Series B Preferred shall be 50,000 shares. | |
III. | Rank of Series B Preferred. The Series B Preferred shall, with respect to dividend rights and rights on liquidation, winding up and dissolution, rank senior to all classes of common stock of the Corporation (including Common Stock (as hereinafter defined)) and senior to any other class of capital stock or series of preferred stock, unless the issuance of capital stock being on parity with or senior to the Series B Preferred shall be in compliance with this Certificate of Designation. | |
IV. | Fixing the Rights, Preferences, Privileges and Restrictions of the Series B Preferred. The rights, preferences, privileges and restrictions hereby granted to and imposed upon the Series B Preferred are as follows: |
* * * *
Section 1. Dividends.
The Series B Preferred shall not bear a fixed yield or dividend. However, in the event that the
Corporation declares or pays any dividends upon the Common Stock (whether payable in cash,
securities or other property) other than dividends payable solely in shares of Common Stock, the
Corporation also shall declare and pay to the holders of the Series B Preferred, at the same time
that it declares and pays such dividends to the holders of the Common Stock, the dividends which
would have been declared and paid with respect to the Common Stock issuable upon conversion of the
Series B Preferred had all of the outstanding Series B Preferred been converted immediately prior
to the record date for such dividend or, if no record date is fixed, the date as of which the
record holders of Common Stock entitled to such dividends are to be determined.
Section 2. Liquidation.
2A. Liquidation Events. Upon any liquidation, dissolution or winding up of the Corporation (whether
voluntary or involuntary) (a Liquidation Event), each holder of Series B Preferred shall be
entitled to be paid out of cash legally available for distribution to stockholders, before any
distribution or payment is made upon any Junior Securities, an amount in cash equal to the greater
of (i) the aggregate Liquidation Value of all shares of the Series B Preferred (each, a Share and
collectively, the Shares) held by such holder plus all accrued and unpaid dividends thereon and
(ii) the aggregate amount that would be paid in connection with such Liquidation Event with respect
to the Common Stock issuable upon conversion of all Shares held by such holder had all of the
outstanding Series B Preferred been converted immediately prior to such Liquidation Event, and the
holders of Series B Preferred shall not be
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entitled to any further payment. If upon any such Liquidation Event the Corporations assets to be
distributed among the holders of the Series B Preferred are insufficient to permit payment to such
holders of the aggregate amount which they are entitled to be paid under this Section 2A,
then the entire assets available to be distributed to the Corporations stockholders shall be
distributed pro rata among such holders based upon the aggregate Liquidation Value (plus all
accrued and unpaid dividends) of the Series B Preferred held by each such holder.
2B. Notice. Not less than 40 days and not more than 90 days prior to the payment date
stated therein, the Corporation shall deliver written notice of any such Liquidation Event, and not
less than 40 days and not more than 90 days prior to consummating any transaction deemed a
Liquidation Event as described in Section 2C below, the Corporation shall deliver written
notice of such transaction, in each case to each record holder of Series B Preferred, setting forth
in reasonable detail the amount of proceeds to be paid with respect to each Share and each share of
Common Stock in connection with such Liquidation Event or the terms of such transaction described
in Section 2C (including the amount to be paid with respect to each Share and each share of
Common Stock in connection therewith), as the case may be.
2C. Deemed Liquidation Events. Upon the election of the Majority Holders delivered to the
Corporation within 15 days after receipt of the Corporations notice to the holders of Series B
Preferred under Section 2B, any consolidation or merger of the Corporation with or into
another entity or entities (whether or not the Corporation is the surviving entity) or any sale or
transfer by the Corporation of all or substantially all of its assets (determined either for the
Corporation alone or with its Subsidiaries on a consolidated basis) or any sale, transfer or
issuance or series of sales, transfers and/or issuances of shares of the Corporations capital
stock by the Corporation or the beneficial or record holders thereof as a result of which such
holders of the Corporations outstanding capital stock possessing the voting power (under ordinary
circumstances) to elect a majority of the Corporations Board of Directors immediately prior to
such sale or issuance cease to own the Corporations outstanding capital stock possessing the
voting power (under ordinary circumstances) to elect a majority of the Corporations Board of
Directors, shall be deemed to be a Liquidation Event for purposes of this Section 2, and,
to the extent permitted by the Senior Debt, the holders of the Series B Preferred shall be entitled
to receive a payment from the Corporation equal to the amounts payable with respect to the Series B
Preferred upon a Liquidation Event under this Section 2 (the Liquidation Payment
Amount) in cancellation of their Shares upon the consummation of any such transaction;
provided that the foregoing provision shall not apply to any merger in which (i) the
Corporation is the surviving entity, (ii) the terms of the Series B Preferred are not changed and
the Series B Preferred is not exchanged for any cash, securities or other property, (iii) the
beneficial holders of the Corporations outstanding capital stock immediately prior to the merger
shall continue to own shares of the Corporations outstanding capital stock possessing the voting
power (under ordinary circumstances) to elect a majority of the Corporations Board of Directors
and (iv) no Person or group of Persons (as the term group is used under the Securities Exchange
Act of 1934), other than the holders of Series B Preferred as of the date of the Purchase
Agreement, has beneficial ownership (as that term is used under the Securities Exchange Act of
1934, as amended) of more than 25% of the outstanding Common Stock. The Corporation shall give
prompt written notice of any such election of the Majority Holders to all other holders of Series B
Preferred within five days after the receipt thereof, and each such holder shall have until the
fifth business
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day prior to the date of consummation of such deemed Liquidation Event to demand payment from the
Corporation of the Liquidation Payment Amount in cancellation of their Shares upon the consummation
of any such transaction. The Majority Holders shall have the right to elect the benefits of either
this Section 2 or Section 3G hereof in connection with any such merger,
consolidation or sale of assets.
Section 3. Redemptions.
3A. Scheduled Redemption. At any time after September 6, 2013, any holder of Series B
Preferred may demand redemption of all or any part of the Shares of Series B Preferred then held by
such holder. Holders may exercise such redemption right by giving written notice to the Corporation
of such election not more than 60 days and not less than 15 days prior to the date on which such
redemption is to be made. Upon such holders redemption election pursuant to this Section
3A, the Corporation shall be obligated to redeem such Shares on the date specified in such
notice at a price per Share equal to the Cash Redemption Price.
3B. Redemption Payments. For each Share which is to be redeemed hereunder, the Corporation
shall be obligated on the Redemption Date to pay to the holder thereof (upon surrender by such
holder at the Corporations principal office of the certificate representing such Share) an amount
in cash equal to the Cash Redemption Price. If the funds of the Corporation legally available for
redemption of Shares on any Redemption Date are insufficient to redeem the total number of Shares
to be redeemed on such date, those funds which are legally available shall be used to redeem the
maximum possible number of Shares pro rata among the holders of the Shares to be redeemed based
upon the aggregate Cash Redemption Price of such Shares held by each such holder. At any time
thereafter when additional funds of the Corporation are legally available for the redemption of
Shares, such funds shall immediately be used to redeem the balance of the Shares which the
Corporation has become obligated to redeem on any Redemption Date but which it has not redeemed.
3C. Upon Notice of Redemption. Upon mailing any redemption notice, the Corporation shall
become obligated to redeem the total number of Shares specified in such notice at the time of
redemption specified therein in accordance with the applicable paragraph of this Section 3.
In case fewer than the total number of Shares represented by any certificate are redeemed in any
redemption hereunder, a new certificate representing the number of unredeemed Shares shall be
issued to the holder thereof without cost to such holder within five business days after surrender
of the certificate representing the redeemed Shares.
3D. Dividends After Redemption Date. No Share shall be entitled to any dividends accruing
after the date on which the Cash Redemption Price specified herein is paid to the holder of such
Share. On such date, all rights of the holder of such Share (other than as set forth in Section 3D)
shall cease, and such Share shall no longer be deemed to be issued and outstanding.
3E. Redeemed or Otherwise Acquired Shares. Any Shares which are redeemed or otherwise
acquired by the Corporation shall be canceled and shall not be reissued, sold or transferred.
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3F. Other Redemptions or Acquisitions. The Corporation shall not, nor shall it permit any
Subsidiary to, redeem or otherwise acquire any Shares of Series B Preferred, except as expressly
authorized herein or pursuant to a purchase offer made pro rata to all holders of Series B
Preferred on the basis of the number of Shares owned by each such holder. Except as otherwise
provided herein, the number of Shares of Series B Preferred to be redeemed from each holder thereof
in redemptions hereunder shall be the number of Shares determined by multiplying the total number
of Shares to be redeemed times a fraction, the numerator of which shall be the total number of
Shares then held by such holder and the denominator of which shall be the total number of Shares
then outstanding, but in no event more than the number of Shares of which such holder has accepted
or requested redemption.
3G. Special Redemptions.
(i) If a Change in Ownership has occurred or the Corporation obtains knowledge that a Change in
Ownership is proposed to occur, the Corporation shall give prompt written notice of such Change in
Ownership describing in reasonable detail the material terms and date of consummation thereof to
each holder of Series B Preferred, but in any event such notice shall not be given later than five
days after the occurrence of such Change in Ownership, and the Corporation shall give each holder
of Series B Preferred prompt written notice of any material change in the terms or timing of such
transaction. The Majority Holders may require, to the extent permitted by the Senior Debt, the
Corporation to redeem all or any portion of the Series B Preferred owned by such holder or holders
at a price per Share equal to the Cash Redemption Price by giving written notice to the Corporation
of such election prior to the later of (a) 15 days after receipt of the Corporations notice and
(b) 15 days prior to the consummation of the Change in Ownership (the Expiration Date).
The Corporation shall give prompt written notice of any such election to require the Corporation to
redeem all or any portion of the Series B Preferred to all other holders of Series B Preferred
within five days after the receipt thereof, and each such holder shall have until the later of (a)
the Expiration Date or (b) ten days after receipt of such second notice to request redemption
hereunder (by giving written notice to the Corporation) of all or any portion of the Series B
Preferred owned by such holder.
Upon receipt of such election(s), the Corporation shall be obligated, to the extent permitted by
the Senior Debt, to redeem the aggregate number of Shares specified therein on the later of (a) the
occurrence of the Change in Ownership or (b) five days after the Corporations receipt of such
election(s). If any proposed Change in Ownership does not occur, all requests for redemption in
connection therewith shall be automatically rescinded, or if there has been a material change in
the terms or the timing of the transaction, any holder of Series B Preferred may rescind such
holders request for redemption by giving written notice of such rescission to the Corporation.
(ii) If a Fundamental Change is proposed to occur, the Corporation shall give written notice of
such Fundamental Change describing in reasonable detail the material terms and date of consummation
thereof to each holder of Series B Preferred not more than 45 days nor less than 20 days prior to
the consummation of such Fundamental Change, and the Corporation shall give each holder of Series B
Preferred prompt written notice of any material change in the terms or timing of such transaction.
The Majority Holders may require, to the extent permitted by the
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Senior Debt, the Corporation to redeem all or any portion of the Series B Preferred owned by such
holder or holders at a price per Share equal to the Cash Redemption Price by giving written notice
to the Corporation of such election prior to the later of (a) fifteen days prior to the
consummation of the Fundamental Change or (b) ten days after receipt of notice from the
Corporation. The Corporation shall give prompt written notice of such election to all other holders
of Series B Preferred (but in any event within five days prior to the consummation of the
Fundamental Change), and each such holder shall have until two days after the receipt of such
notice to request redemption (by written notice given to the Corporation) of all or any portion of
the Series B Preferred owned by such holder.
Upon receipt of such election(s), the Corporation shall be obligated, to the extent permitted by
the Senior Debt, to redeem the aggregate number of Shares specified therein upon the consummation
of such Fundamental Change. If any proposed Fundamental Change does not occur, all requests for
redemption in connection therewith shall be automatically rescinded, or if there has been a
material change in the terms or the timing of the transaction, any holder of Series B Preferred may
rescind such holders request for redemption by delivering written notice thereof to the
Corporation prior to the consummation of the transaction.
Section 4. Voting Rights.
4A. Election of Directors. In the election of directors of the Corporation, the holders of
the Series B Preferred, voting separately as a single series to the exclusion of all other classes
and series of the Corporations capital stock and with each Share of Series B Preferred entitled to
one vote, shall be entitled (so long as Thoma Cressey is the Majority Holder, but in no event at
any time that Thoma Cressey is not the Majority Holder) at an annual or special meeting of the
shareholders to elect one director to serve as a member of the Corporations Board of Directors
(the Series B Director), until his successor is duly elected by the holders of the Series
B Preferred, subject to prior death, resignation, retirement, disqualification, or removal or
termination of term of office in accordance with this Section 4A. The Series B Director so
elected shall be in addition to the directors elected by the holders of the Common Stock of the
Corporation, and shall in accordance with the Corporations bylaws increase the maximum number of
directors otherwise permitted pursuant to the Corporations bylaws.
(i) Initial Appointment. Upon the initial issuance of any Series B Preferred, the vacancy
resulting from the directorship newly created hereby shall be filled by a vote of the other
directors on the Board of Directors to designate Orlando Bravo as the initial Series B Director.
(ii) Subsequent Designation and Election. At any time that the holders of Series B
Preferred are entitled to elect a Series B Director pursuant to Section 4A above, the
individual designated by the Majority Holders shall be elected by the holders of the Series B
Preferred as the Series B Director and all holders of Series B Preferred shall vote their Shares in
such a manner to effect the election of the Series B Director designated by the Majority Holders.
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(iii)
Qualifications; Disqualification; Resignation; Termination of Term; Removal; and
Vacancies.
(a) Qualification. Notwithstanding appointment or election to the Board of Directors, the
Series B Directors qualification to serve on the Board of Directors is subject to compliance with
any then existing applicable local, state or federal law or regulations governing the business
operations of the Corporation and the Corporations directors generally.
(b) Resignation. The Series B Director may resign from the Board of Directors at any time
by giving written notice to the Corporation at its principal executive office. The resignation is
effective without acceptance when the notice is given to the Corporation, unless a later effective
time is specified in the notice.
(c) Termination of Term of Office. So long as any Series B Preferred remains outstanding
and Thoma Cressey is the Majority Holder, the term of office of the Series B Director may be
terminated only by the Majority Holders. The term of office of the Series B Director shall
automatically terminate on the date on which Thoma Cressey is no longer the Majority Holder.
(d) Removal. So long as any Series B Preferred remains outstanding, the Series B Director
may be removed only by (I) a written direction of removal delivered to the Corporation by the
Majority Holders or (II) a resolution of the Board of Directors excluding such Series B Director if
such Series B Director fails to meet the requirements for
qualification provided for in Section 4A(iii)(a).
(e) Vacancies. In the event of a vacancy on the Board resulting from the death,
disqualification, resignation, retirement or termination of term of office of the Series B Director
designated by the Majority Holders, the resulting vacancy shall be filled by a representative
designated in a writing to the Corporation by the Majority Holders, until the next annual or
special meeting of the shareholders (and at such meeting, such representative, or another
representative designated by the Majority Holders, will be elected to the Board in the manner
described in this Section 4A). If the Majority Holders fail or decline to fill the vacancy,
then the directorship shall remain open until such time as the Majority Holders elect to fill it
with a representative designated hereunder.
(iv) Committees. The Series B Director shall serve on any executive committee of the Board
of Directors and on any pricing committee relating to the offering or sale of securities by the
Corporation and, in each case, on any successor or comparable committee thereto.
(v) Fees & Expenses. The Series B Director shall be entitled to all fees, other
compensation and reimbursement of expenses paid to Board of Directors members who are not employees
of the Corporation or its Subsidiaries.
- 7 -
(vi) Reporting Information. The Majority Holders shall provide the Corporation with all
necessary assistance and information related to the Series B Director that is required (or would be
required if the Corporation were subject to Regulation 14A under the Securities Exchange Act of
1934, as amended) to be disclosed in solicitations of proxies or otherwise, including such persons
written consent to being named in the proxy statement (if applicable) and to serving as a director
if elected.
(vii) Voting Agreement. The holders of Series B Preferred intend the provisions of this
Section 4A to be enforceable as a shareholder voting agreement in accordance with the provisions of
the DGCL.
4B. Other Voting Rights. The holders of the Series B Preferred shall be entitled to notice
of all stockholders meetings in accordance with the Corporations bylaws and shall be entitled to
all votes as a single class provided for or required by applicable law, and, except as otherwise
required by applicable law, the holders of the Series B Preferred shall be entitled to vote on all
matters submitted to the stockholders for a vote together as a single class with (i) the holders of
the Common Stock, (ii) the holders of any class or series of preferred stock entitled to vote with
the Common Stock and (iii) the holders of any note or debenture entitled to vote with the Common
Stock, in each case pursuant to the terms of the Certificate of Incorporation or any certificate of
designation, with each share of Series B Preferred entitled to one vote for each share of Common
Stock issuable upon conversion of the Series B Preferred as of the record date for such vote or, if
no record date is specified, as of the date of such vote; provided that, so long as at
least shares of Series B Preferred greater than or equal to 25% of the shares initially issued in
by the Corporation on July 5, 2006 remain outstanding, written consent or other affirmative vote of
the Majority Holders (which Majority Holders shall act in good faith to provide the Corporation
with a response (whether affirmative or negative) to any request for the written consent or other
affirmative vote of the Majority Holders hereunder and to make any requests for additional
information necessary or desirable in considering such request), voting as a single and separate
class, will be required (so long as Thoma Cressey is the Majority Holder, but in no event at any
time that Thoma Cressey is not the Majority Holder) for the Corporation to:
(i) authorize, issue, sell (including from treasury) or enter into any agreement providing for the
issuance or sale (contingent or otherwise) of, or take any action that would amend the terms of or
reclassify any existing securities so as to constitute, (a) any capital stock or other equity
securities of the Corporation or any Subsidiary (or any such securities convertible into or
exchangeable for any capital stock or other equity securities or containing equity or profit
participation features), other than issuances of up to an aggregate of 6,254,418 shares of Common
Stock (as such number of shares is proportionately adjusted for subsequent stock splits,
combinations, dividends, recapitalizations, reclassifications and similar events affecting the
Common Stock) upon the exercise of Options issued pursuant to the Permitted Stock Plans and other
than the issuance, sale or entering into any agreements with respect thereto of Junior Securities
for a price no less than their Market Price, or (b) any additional shares of Series B Preferred;
- 8 -
(ii) consummate or permit any Subsidiary to consummate any Fundamental Change, Organic Change or
Change in Ownership or permit any Subsidiary to merge or consolidate with any Person (other than a
merger or consolidation with the Corporation or between or among Wholly-Owned Subsidiaries) within
three years of the original date of issuance of the Series B Preferred;
(iii) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction
(including, without limitation, any reorganization into a limited liability company, a partnership
or any other non-corporate entity which is treated as a partnership for federal income tax
purposes);
(iv) make any material change to the Corporations capital structure;
(v) make an assignment for the benefit of creditors or admit in writing its inability to pay its
debts generally as they become due; or petition or apply, or permit any Subsidiary to petition or
apply, to any tribunal for the appointment of a custodian, trustee, receiver or liquidator of the
Corporation or any Subsidiary or of any substantial part of the assets of the Corporation or any
Subsidiary, or commence any proceeding (other than a proceeding for the voluntary liquidation and
dissolution of a Subsidiary) relating to the Corporation or any Subsidiary under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of
any jurisdiction; or, after any such petition or application is filed, or any such proceeding is
commenced, against the Corporation or any Subsidiary, either (A) by any act of the Corporation or
any Subsidiary indicate its approval thereof, consent thereto or acquiescence therein or (B) fail
to seek to have such petition, application or proceeding dismissed;
(vi) acquire or enter into, or permit any Subsidiary to acquire or enter into, any material
interest or material Investment in any company or business (whether by a purchase of assets,
purchase of stock, merger or otherwise), or any material joint venture (including by issuing or
selling any shares of the capital stock, or rights to acquire shares of the capital stock, of any
Subsidiary to any Person other than the Corporation or a Wholly-Owned Subsidiary);
(vii) create, incur, assume or suffer to exist or enter into any agreement providing for a facility
from which it may incur, or permit any Subsidiary to create, incur, assume or suffer to exist or
enter into any agreement providing for a facility from which it may incur, Funded Debt;
(viii) become subject to, or permit any of its Subsidiaries to become subject to, (including,
without limitation, by way of amendment to or modification of) any agreement or instrument which by
its terms would (under any circumstances) restricts (a) the right of any Subsidiary to make loans
or advances or pay dividends to, transfer property to, or repay any indebtedness owed to, the
Corporation or another Subsidiary or (b) the Corporations right to perform the provisions of this
Certificate of Designation or the Corporations bylaws (including, without limitation, restrictions
relating to the declaration and payment of dividends on and/or the making of redemptions of the
Series B Preferred as contemplated by this Certificate of Designation and/or relating to
conversions of the Series B Preferred);
- 9 -
(ix) increase the number of authorized shares of any series of preferred stock or alter, change or
otherwise affect or impair the rights, preferences or powers or the relative preferences and
priorities of the holders of any series of preferred stock;
(x) make any amendment to the Certificate of Incorporation, this Certificate of Designation or the
Corporations bylaws (other than as required by law);
(xi) adopt or amend any anti-takeover protections (including, without limitation, any agreement in
which the payment of money is or could be triggered by a change of control or any shareholder
rights plan or poison pill plan or similar arrangement relating to accumulations of beneficial
ownership of the Corporations capital stock or a change in control of the Corporation), other than
the adoption or entering into of change of control agreements with officers of the Corporation on
terms substantially similar to the terms of the change of control agreements between the
corporation and officers of the Corporation in effect on the date of the initial issuance of the
Series B Preferred; or
(xii) commit or agree to do any of the foregoing.
Notwithstanding the foregoing, no consent or affirmative vote of the Majority Holders shall be
required for the Corporation or any of its Subsidiaries to (x) enter into any agreement with
respect to the initial incurrence of the Senior Debt or any incurrence of revolving credit
indebtedness thereunder (including the incurrence of liens), (y) perform any of its obligations
thereunder or abide by any of the provisions thereof or (z) repay or prepay any loans, indebtedness
or obligations thereunder when due, including the repayment of revolving credit loans from time to
time, in accordance with the terms thereof.
Section 5. Conversion.
5A. Conversion at the Holders Option. At any time and from time to time, any holder of
Series B Preferred may convert (without the payment of any additional consideration) all or any
portion of the Series B Preferred (including any fraction of a Share) held by such holder into a
number of shares of Conversion Stock computed by multiplying the number of Shares to be converted
by $1,000 and dividing the result by the Conversion Price then in effect.
5B.
Conversion at the Corporations Option. The Corporation may, at any time that the Market Price
per shares of the Underlying Common Stock is greater than or equal to a price that is 250% of the
Conversion Price then in effect, force a conversion of all (but not less than all) of the Shares of
Series B Preferred then outstanding. The Corporation may exercise such conversion right by giving
written notice to the holders of Series B Preferred of such election not less than 30 calendar days
prior to the date on which such conversion is to be made.
5C. Conversion Procedure.
(i) Except as otherwise provided herein, each conversion of Series B Preferred shall be deemed to
have been effected as of the close of business on the date on which
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the applicable notice of conversion has been made in accordance with this Certificate of
Designations. At the time any such conversion has been effected, the rights of the holder of the
Shares converted as a holder of Series B Preferred shall cease and the Person or Persons in whose
name or names any certificate or certificates for shares of Conversion Stock are to be issued upon
such conversion shall be deemed to have become the holder or holders of record of the shares of
Conversion Stock represented thereby.
(ii) The conversion rights of any Share subject to redemption hereunder shall terminate on the
Redemption Date for such Share unless the Corporation has failed to pay to the holder thereof the
Cash Redemption Price for such Share.
(iii) Notwithstanding any other provision hereof, if a conversion of Series B Preferred is to be
made in connection with a Change in Ownership, a Fundamental Change or other transaction affecting
the Corporation, the conversion of any Shares of Series B Preferred may, at the election of the
holder thereof, be conditioned upon the consummation of such transaction, in which case such
conversion shall not be deemed to be effective until such transaction has been consummated.
(iv) As soon as possible after a conversion has been effected (but in any event within three
business days), the Corporation shall deliver to the converting holder:
(a) a certificate or certificates representing the number of shares of Conversion Stock issuable by
reason of such conversion in such name or names and such denomination or denominations as the
converting holder has specified;
(b) payment in an amount equal to all accrued dividends with respect to each Share converted which
have not been paid prior thereto; and
(c) a certificate representing any Shares which were represented by the certificate or certificates
delivered to the Corporation in connection with such conversion but which were not converted.
(v) The
Corporation shall declare the payment of all dividends payable under
Section 5C(iv)(b) above. If the Corporation is not permitted under applicable law to pay any portion of the accrued
and unpaid dividends on the Series B Preferred being converted, the Corporation shall pay such
dividends to the converting holder as soon thereafter as funds of the Corporation are legally
available for such payment. At the request of any such converting holder, the Corporation shall
provide such holder with written evidence of its obligation to such holder.
(vi) The issuance of certificates for shares of Conversion Stock upon conversion of Series B
Preferred shall be made without charge to the holders of such Series B Preferred for any issuance
tax in respect thereof or other cost incurred by the Corporation in connection with such conversion
and the related issuance of shares of Conversion Stock. Upon conversion of each Share, the
Corporation shall take all such actions as are necessary in order to insure that the Conversion
Stock issuable with respect to such conversion shall be validly issued,
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fully paid and nonassessable, free and clear of all taxes, liens, charges and encumbrances with
respect to the issuance thereof.
(vii) The Corporation shall not close its books against the transfer of Series B Preferred or of
Conversion Stock issued or issuable upon conversion of Series B Preferred in any manner which
interferes with the timely conversion of Series B Preferred. The Corporation shall assist and
cooperate with any holder of Shares required to make any governmental filings or obtain any
governmental approval prior to or in connection with any conversion of Shares hereunder (including,
without limitation, making any filings required to be made by the Corporation).
(viii) The Corporation shall at all times reserve and keep available out of its authorized but
unissued shares of Conversion Stock, solely for the purpose of issuance upon the conversion of the
Series B Preferred, such number of shares of Conversion Stock issuable upon the conversion of all
outstanding Series B Preferred. All shares of Conversion Stock which are so issuable shall, when
issued, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and
charges. The Corporation shall take all such actions as may be necessary to assure that all such
shares of Conversion Stock may be so issued without violation of any applicable law or governmental
regulation or any requirements of any domestic securities exchange upon which shares of Conversion
Stock may be listed (except for official notice of issuance which shall be immediately delivered by
the Corporation upon each such issuance). The Corporation shall not take any action which would
cause the number of authorized but unissued shares of Conversion Stock to be less than the number
of such shares required to be reserved hereunder for issuance upon conversion of the Series B
Preferred.
5D. Conversion Price. The initial Conversion Price shall be $13.875. In order to prevent
dilution of the conversion rights granted under this
Section 5, the Conversion Price shall be
subject to adjustment from time to time pursuant to this Section 5D, Section 5E,
Section 5F and Section 5G.
5E. Subdivision or Combination of Common Stock. If the Corporation at any time subdivides
(by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its
outstanding shares of Common Stock into a greater number of shares, the Conversion Price in effect
immediately prior to such subdivision shall be proportionately reduced, and if the Corporation at
any time combines (by reverse stock split or otherwise) one or more classes of its outstanding
shares of Common Stock into a smaller number of shares, the Conversion Price in effect immediately
prior to such combination shall be proportionately increased.
5F. Reorganization, Reclassification, Consolidation, Merger or Sale. Any recapitalization,
reorganization, reclassification, consolidation, merger, sale of all or substantially all of the
Corporations assets or other transaction, in each case which is effected in such a manner that the
holders of Common Stock are entitled to receive (either directly or upon subsequent liquidation)
stock, securities or assets with respect to or in exchange for Common Stock, is referred to herein
as an Organic Change. Prior to the consummation of any Organic Change, the Corporation
shall make appropriate provisions (in form and substance reasonably
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satisfactory to the Majority Holders) to insure that the Series B Preferred shall not be cancelled
or retired as a result of such Organic Change and each of the holders of the Series B Preferred
shall thereafter have the right to acquire and receive, in lieu of or in addition to (as the case
may be) the shares of Conversion Stock immediately theretofore acquirable and receivable upon the
conversion of such holders Series B Preferred, such shares of stock, securities or assets as such
holder would have received in connection with such Organic Change if such holder had converted its
Series B Preferred immediately prior to such Organic Change. In each such case, the Corporation
shall also make appropriate provisions (in form and substance reasonably satisfactory to the
Majority Holders) to insure that the provisions of this Section 5 and Section 6
hereof shall thereafter be applicable to the Series B Preferred (including, in the case of any such
consolidation, merger or sale in which the successor entity or purchasing entity is other than the
Corporation, an immediate adjustment of the Conversion Price, and a corresponding immediate
adjustment in the number of shares of Conversion Stock acquirable and receivable upon conversion of
Series B Preferred, if the value so reflected is less than the Conversion Price determined as of
the date of such consolidation, merger or sale). The Corporation shall not effect any such
consolidation, merger or sale, unless prior to the consummation thereof, the successor entity (if
other than the Corporation) resulting from consolidation or merger or the entity purchasing such
assets assumes by written instrument (in form and substance reasonably satisfactory to the Majority
Holders), the obligation to deliver to each such holder such shares of stock, securities or assets
as, in accordance with the foregoing provisions, such holder may be
entitled to acquire.
5G. Certain Events. If any event occurs of the type contemplated by the provisions of this
Section 5 but not expressly provided for by such provisions (including, without limitation, the
granting of stock appreciation rights, phantom stock rights or other rights with equity features),
then the Corporations Board of Directors shall make an appropriate adjustment in the Conversion
Price so as to protect the rights of the holders of Series B Preferred; provided that no such
adjustment shall increase the Conversion Price as otherwise determined pursuant to this Section
5 or decrease the number of shares of Conversion Stock issuable upon conversion of each Share
of Series B Preferred.
5H. Notices.
(i) Immediately upon any adjustment of the Conversion Price, the Corporation shall give written
notice thereof to all holders of Series B Preferred, setting forth in reasonable detail and
certifying the calculation of such adjustment.
(ii) The Corporation shall give written notice to all holders of Series B Preferred at least 20
days prior to the date on which the Corporation closes its books or takes a record (a) with respect
to any dividend or distribution upon Common Stock, (b) with respect to any pro rata subscription
offer to holders of Common Stock or (c) for determining rights to vote with respect to any Organic
Change, dissolution or liquidation.
(iii) The Corporation shall also give written notice to the holders of Series B Preferred at least
20 days prior to the date on which any Organic Change shall take place.
- 13 -
5I. No Avoidance. If the Corporation shall enter into any transaction for the purpose of
avoiding the application of the provisions of this Section 5, the benefits of such
provisions shall nevertheless apply and be preserved.
Section 6. Purchase Rights.
If at any time the Corporation grants, issues or sells any Options, Convertible Securities or
rights to purchase stock, warrants, securities or other property pro rata to the record holders of
any class of Common Stock (the Purchase Right), then each holder of Series B Preferred
shall be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate
Purchase Rights which such holder could have acquired if such holder had held the number of shares
of Conversion Stock acquirable upon conversion of such holders Series B Preferred immediately
before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights,
or if no such record is taken, the date as of which the record holders of Common Stock are to be
determined for the grant, issue or sale of such Purchase Rights.
Section 7. Events of Noncompliance.
7A. Definition. An Event of Noncompliance shall have occurred if:
(i) the Corporation fails to pay on any dividends with respect to the Series B Preferred that it is
required to make pursuant to Section 1A hereof;
(ii) the
Corporation fails to make any redemption payment with respect to the
Series B Preferred
which it is required to make hereunder, whether or not such payment is legally permissible or is
prohibited by any agreement to which the Corporation is subject;
(iii) the Corporation materially breaches or otherwise materially fails to perform or observe any
other covenant or agreement set forth herein or in any of the Transaction Documents and such breach
or failure continues for a period of 30 days after notice is given the Corporation by any holder of
Series B Preferred or the Corporation otherwise has actual knowledge thereof or any opinion of the
Corporations independent accountants on the Corporations audited financial statements contains a
going-concern exception;
(iv) any representation or warranty contained in any of the Transaction Documents or required to be
furnished to any holder of Series B Preferred pursuant to the Purchase Agreement, or any
information contained in writing furnished by the Corporation or any Subsidiary to any holder of
Series B Preferred, is false or misleading on the date made or furnished, and such breach of the
representation or warranty has had or would reasonably be expected to result in a Material Adverse
Effect;
(v) the Corporation or any Subsidiary makes an assignment for the benefit of creditors or admits in
writing its inability to pay its debts generally as they become due; or an order, judgment or
decree is entered adjudicating the Corporation or any Subsidiary bankrupt or insolvent; or any
order for relief with respect to the Corporation or any Subsidiary is entered under the Federal
Bankruptcy Code; or the Corporation or any Subsidiary petitions or applies to any tribunal for the
appointment of a custodian, trustee, receiver or liquidator of the Corporation
- 14 -
or any Subsidiary or of any substantial part of the assets of the Corporation or any Subsidiary, or
commences any proceeding (other than a proceeding for the voluntary liquidation and dissolution of
a Subsidiary) relating to the Corporation or any Subsidiary under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction;
or any such petition or application is filed, or any such proceeding is commenced, against the
Corporation or any Subsidiary and either (a) the Corporation or any such Subsidiary by any act
indicates its approval thereof, consent thereto or acquiescence therein or (b) such petition,
application or proceeding is not dismissed within 60 days;
(vi) a judgment in excess of the sum of $25,000,000 plus (unless the applicable insurer has in any
way disputed or denied such coverage) the amount of applicable insurance coverage is rendered
against the Corporation or any Subsidiary and, within 60 days after entry thereof, such judgment is
not fully discharged or execution thereof stayed pending appeal, or within 60 days after the
expiration of any such stay, such judgment is not discharged; or
(vii) the Corporation or any Subsidiary defaults in the performance of any obligation or agreement
if the effect of such default is to cause an amount exceeding $25,000,000 to become due prior to
its stated maturity or to permit the holder or holders of any obligation to cause an amount
exceeding $25,000,000 to become due prior to its stated maturity.
7B. Consequences of Events of Noncompliance.
(i) If an Event of Noncompliance other than an Event of Noncompliance of the type described in
Section 7A(v) has occurred and is continuing, the Majority Holders may demand (by written
notice delivered to the Corporation), to the extent permitted by the Senior Debt, immediate
redemption of all or any portion of the Series B Preferred owned by such holder or holders at a
price per Share equal to the Cash Redemption Price. The Corporation shall give prompt written
notice of such election to the other holders of Series B Preferred (but in any event within five
days after receipt of the initial demand for redemption), and each such other holder may demand, to
the extent permitted by the Senior Debt, immediate redemption of all or any portion of such
holders Series B Preferred by giving written notice thereof to the Corporation within seven days
after receipt of the Corporations notice. The Corporation shall redeem, to the extent permitted by
the Senior Debt, all Series B Preferred as to which rights under this Section 7B(i) have
been exercised within 15 days after receipt of the initial demand for redemption.
(ii) If an Event of Noncompliance of the type described in Section 7A(v) has occurred, all
of the Series B Preferred then outstanding shall, to the extent permitted by the Senior Debt, be
subject to immediate redemption by the Corporation (without any action on the part of the holders
of the Series B Preferred) at a price per Share equal to the Cash Redemption Price. The Corporation
shall immediately redeem all Series B Preferred upon the occurrence of such Event of Noncompliance.
(iii) If any Event of Noncompliance exists, each holder of Series B Preferred shall also have any
other rights which such holder is entitled to under any contract or agreement at any time and any
other rights which such holder may have pursuant to applicable law.
- 15 -
Section 8. Registration of Transfer.
The Corporation shall keep at its principal office a register for the registration of Series B
Preferred. Upon the surrender of any certificate representing Series B Preferred at such place, the
Corporation shall, at the request of the record holder of such certificate, execute and deliver (at
the Corporations expense) a new certificate or certificates in exchange therefor representing in
the aggregate the number of Shares represented by the surrendered certificate. Each such new
certificate shall be registered in such name and shall represent such number of Shares as is
requested by the holder of the surrendered certificate and shall be substantially identical in form
to the surrendered certificate, and dividends shall accrue on the Series B Preferred represented by
such new certificate from the date to which dividends have been fully paid on such Series B
Preferred represented by the surrendered certificate.
Section 9. Replacement.
Upon receipt of evidence reasonably satisfactory to the Corporation (an affidavit of the registered
holder shall be satisfactory) of the ownership and the loss, theft, destruction or mutilation of
any certificate evidencing Shares of Series B Preferred, and in the ease of any such loss, theft or
destruction, upon receipt of indemnity reasonably satisfactory to the Corporation (provided
that if the holder is a financial institution or other institutional investor its own agreement
shall be satisfactory), or, in the ease of any such mutilation upon surrender of such certificate,
the Corporation shall (at its expense) execute and deliver in lieu of such certificate a new
certificate of like kind representing the number of Shares of such class represented by such lost,
stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or
mutilated certificate, and dividends shall accrue on the Series B Preferred represented by such new
certificate from the date to which dividends have been fully paid on such lost, stolen, destroyed
or mutilated certificate.
Section 10. Amendment and Waiver.
No amendment, modification or waiver shall be binding or effective with respect to any provision of
Sections 1 to 12 hereof without the prior written consent of the Majority Holders
as of the time such action is taken; provided that if any such amendment, modification or waiver is
to a provision in this Certificate of Designation that requires a specific vote to take an action
thereunder or to take an action with respect to the matters described therein, such amendment,
modification or waiver shall not be effective unless such vote is obtained with respect to such
amendment, modification or waiver; and provided further that no change in the terms
hereof may be accomplished by merger or consolidation of the Corporation with another corporation
or entity unless the Corporation has obtained the prior written consent of the holders of the
applicable percentage of the Series B Preferred then outstanding. No other course of dealing
between the Corporation and the holder of any Series B Preferred or any delay in exercising any
rights hereunder shall operate as a waiver of any rights of any such holders. For purposes of this
Certificate of Designation, Series B Preferred held by the Corporation or any Subsidiaries shall
not be deemed to be outstanding.
- 16 -
Section 11. Notices.
All notices, demands or other communications to be given or delivered under or by reason of the
provisions of this Certificate of Designation shall be in writing and shall be deemed to have been
given when delivered personally to the recipient, telecopied to the recipient (with hard copy sent
by overnight courier in the manner provided hereunder) if sent prior to 4:00 p.m. Chicago time on a
business day (and otherwise, on the immediately succeeding business day), one business day after
being sent to the recipient by reputable overnight courier service (charges prepaid) or three
business days after being mailed to the recipient by certified or registered mail, return receipt
requested and postage prepaid. Such notices, demands and other communications shall be sent (i) to
the Corporation, at its principal executive offices and (ii) to any holder of Series B Preferred,
at such holders address as it appears in the stock records of the Corporation (unless otherwise
indicated by any such holder).
Section 12. Definitions.
Affiliate of any particular Person means (i) any other Person controlling, controlled by
or under common control with such particular Person, where control means the possession, directly
or indirectly, of the power to direct the management and policies of a Person whether through the
ownership of voting securities, by contract or otherwise, and (ii) if such Person is a partnership
or limited liability company, any partner or member thereof
Cash Redemption Price of any Share as of any date of determination means the greater of
(a) the Liquidation Value thereof plus all accrued and unpaid dividends thereon and (b) the
sum of (i) the Fair Market Value of the Conversion Stock issuable upon conversion of such
Share of Series B Preferred (which, in the case of a redemption in connection with a Change in
Ownership or Fundamental Change, shall be the Fair Market Value of the total consideration that the
holder of the Share of Series B Preferred to be redeemed would have received in connection with
such Change in Ownership or Fundamental Change had such holder converted such Share into Conversion
Stock immediately prior to such Change in Ownership or Fundamental Change) plus (ii)
accrued and unpaid dividends on such Share.
Change
in Ownership means any transaction or event (including, without limitation, any sale,
transfer or issuance or series of sales, transfers and/or issuances of Common Stock by the
Corporation or any holders thereof) which results in any Person or group of Persons (as the term
group is used under the Securities Exchange Act of 1934, as amended), other than the initial
holders of Series B Preferred, owning (including beneficial ownership, as that term is used under
the Securities Exchange Act of 1934, as amended) more than 25% of the Common Stock outstanding at
the time of such transaction or event, or of capital stock of the Corporation possessing the voting
power (under ordinary circumstances) to elect a majority of the Corporations Board of Directors.
Closing means the closing of the separate purchases and sales of the Series B Preferred
pursuant to the Purchase Agreement.
- 17 -
Common Stock means, collectively, the Corporations Common Stock, par value $.0 1 per
share, and any capital stock of any class of the Corporation hereafter authorized which is not
limited to a fixed sum or percentage of par or stated value in respect to the rights of the
holders thereof to participate in dividends or in the distribution of assets upon any Liquidation
Event.
Common Stock Deemed Outstanding means, at any given time, the number of shares of Common
Stock actually outstanding at such time, plus the number of shares of Common Stock deemed to be
outstanding pursuant to Sections 5C(i) and 5C(ii) hereof whether or not the Options
or Convertible Securities are actually exercisable at such time, but excluding any shares of Common
Stock issuable upon conversion of the Series B Preferred.
Conversion Stock means shares of the Corporations Common Stock, par value $.01 per
share; provided that if there is a change such that the securities issuable upon conversion
of the Series B Preferred are issued by an entity other than the Corporation or there is a change
in the type or class of securities so issuable, then the term Conversion Stock shall mean one
share of the security issuable upon conversion of the Series B Preferred if such security is
issuable in shares, or shall mean the smallest unit in which such security is issuable if such
security is not issuable in shares.
Convertible Securities means any stock or securities directly or indirectly convertible
into or exchangeable for Common Stock.
Disclosure Schedules means the schedules referenced in the Purchase Agreement (other than
the Schedule of Purchasers) and delivered to each of the Purchasers in a letter dated as of the
date of the Purchase Agreement.
Event
of Noncompliance has the meaning specified in
Section 7A.
Fair Market Value means (a) with respect to cash, the amount thereof, (b) with respect to
securities, their Market Price and (c) with respect to any consideration other than cash or
securities, its fair value determined jointly by the Corporations Board of Directors and the
Majority Holders. If such parties are unable to reach agreement within a reasonable period of time,
such fair value shall be determined by an independent appraiser experienced in valuing securities
jointly selected by the Corporation and the Majority Holders. The determination of such appraiser
shall be final and binding upon the parties, and the Corporation and the holders of Series B
Preferred (pro rata based on the number of Shares held by each such holder) each shall pay one-half
of the fees and expenses of such appraiser.
Fundamental Change means (1) any sale or transfer of more than 50% of the assets of the
Corporation and its Subsidiaries on a consolidated basis (measured by Fair Market Value) in any
transaction or series of transactions, or (2) any merger or consolidation to which the Corporation
is a party or any recapitalization, reorganization or reclassification of the Corporation or its
capital stock, except for a merger, recapitalization, reorganization or reclassification in which
the Corporation is the surviving corporation, the terms of the
Series B Preferred are not changed
and the Series B Preferred is not exchanged for cash, securities or other
- 18 -
property, and after giving effect to such merger, recapitalization, reorganization or
reclassification, the beneficial holders of the Corporations outstanding capital stock immediately
prior to the merger shall continue to own the Corporations outstanding capital stock possessing
the voting power (under ordinary circumstances) to elect a majority of the Corporations Board of
Directors and no Person or group of Persons (as the term group is used under the Securities
Exchange Act of 1934), other than the initial holders of Series B Preferred, has beneficial
ownership (as that term is used under the Securities Exchange Act of 1934, as amended) of more
than 25% of the outstanding Common Stock.
Funded Debt means at a particular time, without duplication, (i) any indebtedness for
borrowed money or issued in substitution for or exchange of indebtedness for borrowed money, (ii)
any indebtedness evidenced by any note, bond, debenture or other debt security and (iii) any
indebtedness described in clauses (i) or (ii) guaranteed in any manner by a Person (including,
without limitation, guarantees in the form of an agreement to repurchase or reimburse);
provided that Funded Debt shall not include any loans between the Corporation and/or its
Wholly-Owned Subsidiaries.
GAAP means generally accepted accounting principles in the United States, consistently
applied.
Investments as applied to any Person means (i) any direct or indirect purchase or other
acquisition by such Person of any notes, obligations, instruments, stock, securities or ownership
interests (including partnership interests and joint venture interests) of any other Person and
(ii) any capital contribution by such Person to any other Person.
Junior Securities means shares of any class or series of the Corporations capital stock
or other equity securities which are junior to the Series B Preferred in all respects with respect
to preference and priority on dividends, redemptions, liquidations and otherwise, including,
without limitation, (i) not having redemption rights or obligations or other put or call rights in
priority to, or earlier in time than, the payment in fill in cash of the Redemption Price or
conversion of all Shares of Series B Preferred, except for after the Scheduled Demand Redemption
Date, (ii) being subordinate in all respects to prior payment in full of all amounts to which the
holders of the Series B Preferred are entitled hereunder upon a Liquidation Event (including in the
case of any deemed Liquidation Event described in Section 2C), (iii) not providing for cash
dividends (although such securities may have payment-in-kind or accruing dividends), (iv) not
containing any other rights or terms entitling the holder thereof to receive or obtain any other
payments prior to the payment in full of all amounts to which the holders of Series B Preferred are
entitled, (v) not containing any provision which in any way could impair, restrict or otherwise
adversely affect the Corporations right or ability to comply with its obligations with respect to
the Series B Preferred, (vi) not containing any other rights superior to the rights afforded to the
holders of Series B Preferred pursuant to this Certificate of Designation, and (vii) not providing
for or permitting the conversion, exercise or exchange of such security (regardless of the
circumstances) into or for a security other than a Junior Security as otherwise described in this
definition.
Liquidation Event has the meaning specified in Section 2A.
- 19 -
Liquidation Payment Amount has the meaning specified in Section 2C.
Liquidation Value of any Share as of any particular date shall be equal to $1,000.
Majority
Holders means the holders of a majority of the then
outstanding Series B Preferred.
Market Price of any security means the average, over a period of 20 days consisting of
the day as of which Market Price is being determined and the 19 consecutive trading days prior to
such day, of the closing prices of such securitys sales on the principal securities exchange on
which such security may at the time be listed, or, if there has been no sales on such exchange on
any day, the average of the highest bid and lowest asked prices on such exchange at the end of such
day, or, if on any day such security is not so listed, the average of the representative bid and
asked prices quoted in the Nasdaq National Market System as of 4:00 P.M., New York time, or, if on
any day such security is not quoted in the Nasdaq National Market System, the average of the
highest bid and lowest asked prices on such day in the domestic over-the-counter market as reported
by the National Quotation Bureau, Incorporated, or any similar successor organization. If at any
time such security is not listed on any securities exchange or quoted in the Nasdaq National Market
System or the over-the-counter market, the Market Price shall be the fair value thereof
determined jointly by the Corporation and the Majority Holders. If such parties are unable to reach
agreement within a reasonable period of time, such fair value shall be determined by an independent
appraiser experienced in valuing securities jointly selected by the Corporation and the Majority
Holders. The determination of such appraiser shall be final and binding upon the parties, and the
Corporation and the holders of Series B Preferred (pro rata based on the number of Shares held by
each such holder) each shall pay one-half of the fees and expenses of such appraiser.
Marketable Securities means securities which are (i) listed or quoted on a United States
national securities exchange or quoted on a United States national automated inter- dealer
quotation system, (ii) in the Majority Holders reasonable belief after consultation with counsel,
immediately eligible for sale by each holder pursuant to a registration statement effective under
the Securities Act of 1933, as amended, or immediately eligible for sale by the holder
(independently of sales by other holders) pursuant to Rule 144(k) of the Securities Act of 1933, as
amended, or any similar provision then in force and (iii) not subject to any hold-back or
lock-up imposed by a managing underwriter in connection with a public offering of the issuer or
any other restriction on the disposition thereof under the terms of any other agreement.
Material Adverse Effect means a material and adverse effect, change or development upon
or in the business, operations, assets, liabilities, condition (financial or otherwise), business
prospects or operating results of the Corporation and its Subsidiaries taken as a whole.
Options means any rights, warrants or options to subscribe for or purchase Common Stock
or Convertible Securities.
- 20 -
Organic Change has the meaning specified in Section 5F.
Permitted Stock Plans means the following stock option plans of the Company, each of
which have been approved by the Companys stockholders in accordance with the applicable rules of
the Nasdaq National Market: 1995 Stock Option Plan, 1996 Stock Option Plan, 1996 Outside Director
Stock Option Plan, 1998 Non-statutory Stock Option Plan and 2005 Performance Incentive Plan.
Person means an individual, a partnership, a corporation, a limited liability company, an
association, a joint stock company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political
subdivision thereof.
Public Offering means any offering by the Corporation of its capital stock or equity
securities to the public pursuant to an effective registration statement under the Securities Act
of 1933, as then in effect, or any comparable statement under any similar federal statute then in
force.
Purchase Agreement means the Preferred Stock Purchase Agreement, dated as of April 23,
2006, by and among the Corporation and certain investors, as such agreement may from time to time
be amended in accordance with its terms.
Purchase Rights has the meaning specified in Section 6.
Redemption Date as to any Share means the date specified in the notice of any redemption
at the Corporations option or at the Scheduled Redemption Date; provided that no such date shall
be a Redemption Date unless the Cash Redemption Price is actually
paid in Full on such date, and if
not so paid in full, the Redemption Date shall be the date on which such amount is fully paid.
Registration Rights Agreement means the Registration Rights Agreement, dated as of April
23, 2006, by and among the Corporation and certain investors, as such agreement may from time to
time be amended in accordance with its terms.
Scheduled Demand Redemption Date has the meaning specified in Section 3A.
SEC Reports means the quarterly reports on Form 10-Q and the annual reports on Form 10-K
(including any amendments thereto) required to be filed by it with the Securities and Exchange
Commission (including any successor thereto) pursuant to the federal securities laws and the
Securities and Exchange Commission rules and regulations thereunder.
Senior Debt means (a) the Credit Agreement (Credit Agreement), dated July 5, 2006, by
and among the Corporation, the Lenders identified therein, Citigroup North America, Inc., as
Administrative Agent and Collateral Agent, Citibank, N.A., as Issuing Bank, and the other agents
party thereto, including any notes, guarantees, collateral and security documents, instruments and
agreements executed in connection therewith, and in each case, as amended, restated, refinanced or
waived from time to time (other than to increase the principal amount or
- 21 -
maturity thereof unless consented to by the Majority Holders if the Majority Holders continue to
possess the other voting rights set forth in Section 4B hereof at the time of such increase
in principal amount or maturity; and, notwithstanding the foregoing, increases in principal amount
or commitments under the Credit Agreement in an aggregate amount of up to an additional $75.0
million pursuant to Section 2.21 thereunder (or any successor provision thereto) shall not require
the consent of the Majority Holders pursuant to Section 4B hereof or otherwise, and shall for all
purposes hereof constitute Senior Debt) and (b) all obligations thereunder or with respect
thereto.
Series B Director has the meaning specified in Section 4A.
Series B Preferred has the meaning specified in Section 1A.
Share has the meaning specified in Section lA.
Subsidiary means, with respect to any Person, any corporation, limited liability company,
partnership, association or other business entity of which (i) if a corporation, a majority of the
total voting power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company,
partnership, association or other business entity, a majority of the partnership or other similar
ownership interest thereof is at the time owned or controlled, directly or indirectly, by any
Person or one or more Subsidiaries of that person or a combination
thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a limited liability
company, partnership, association or other business entity if such Person or Persons shall be
allocated a majority of limited liability company, partnership, association or other business
entity gains or losses or shall be or control the managing general partner of such limited
liability company, partnership, association or other business entity. For purposes of this
Certificate of Designation, if the context does not otherwise specify in respect of which Person
the term Subsidiary is used, the term Subsidiary shall refer to a Subsidiary of the
Corporation.
Thoma
Cressey means, collectively, any and all funds affiliated with Thoma Crecssey Equity
Partners Inc. and their co-investors and limited partners.
Transaction Documents means the Purchase Agreement, the Registration Rights Agreement,
the Disclosure Schedules, any other agreement contemplated hereby or thereby to which the
Corporation is a party and any certificate delivered by the Corporation with respect hereto or
thereto in connection with the Closing.
Underlying Common Stock means (i) the Common Stock issuable upon conversion of the Series
B Preferred and (ii) any Common Stock issuable with respect to the securities referred to in clause
(i) above by way of stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. For all purposes of this
Certificate of Designation, any Person who holds Series B Preferred shall be deemed to be the
holder of the Underlying Common Stock obtainable upon conversion of the
- 22 -
Series B Preferred in connection with the transfer thereof or otherwise regardless of any
restriction or limitation on the conversion of the Series B Preferred, such Underlying Common Stock
shall be deemed to be in existence and outstanding, and such Person shall be entitled to exercise
the rights of a holder of Underlying Common Stock hereunder.
Wholly-Owned Subsidiary means, with respect to any Person, a Subsidiary of which all of
the outstanding capital stock or other ownership interests are owned by such Person or another
Wholly-Owned Subsidiary of such Person.
* * * *
[Signature page follows.]
- 23 -
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designation to be executed by
its duly authorized officer this 5th day of July, 2006.
JDA SOFTWARE GROUP, INC. |
||||
By: | /s/ Hamish Brewer | |||
Hamish Brewer | ||||
Its: President and Chief Executive Officer | ||||
State of Delaware | ||
Secretary of State | ||
Division of Corporations | ||
Delivered 04:07 PM 10/20/2006 | ||
FILED 04:07 PM 10/20/2006 | ||
SRV 060966615 2487680 FILE |
CERTIFICATE OF CORRECTION FIELD
TO CORRECT A CERTAIN ERROR IN THE
CERTIFICATE OF DESIGNATION OF
JDA SOFTWARE GROUP, INC.
FILED IN THE OFFICE OF THE SECRETARY OF STATE
OF DELAWARE ON JULY 5, 2006
TO CORRECT A CERTAIN ERROR IN THE
CERTIFICATE OF DESIGNATION OF
JDA SOFTWARE GROUP, INC.
FILED IN THE OFFICE OF THE SECRETARY OF STATE
OF DELAWARE ON JULY 5, 2006
JDA Software Group, Inc., a corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (the
Corporation),
DOES HEREBY CERTIFY:
1. The
name of the Corporation is JDA Software Group, Inc.
2. That a Certificate of Designation of Rights, Preferences, Privileges and Restrictions of Series
B Convertible Preferred Stock of JDA Software Group, Inc. (the
Certificate) was filed by the
Secretary of State of Delaware on July 5, 2006 and that said Certificate requires correction as
permitted by Section 103 of the General Corporation Law of the State of Delaware.
3. The inaccuracy or defect of said Certificate to be corrected is as follows:
The definition of Cash Redemption Price and the calculation of amounts payable to the holders of
Series B Preferred in a Liquidation Event (as such terms are defined in the Certificate), are
incorrect.
4. ARTICLE FOURTH, Section 2A of the Certificate is corrected to read in its entirety as follows:
2A. Liquidation Events. Upon any liquidation, dissolution or winding up of the Corporation (whether
voluntary or involuntary) (a Liquidation Event) ,
each holder of Series B Preferred shall be
entitled to be paid out of cash legally available for distribution to stockholders, before any
distribution or payment is made upon any Junior Securities, an amount in cash equal to the
aggregate Liquidation Value of all shares of the Series B Preferred (each, a Share and
collectively, the Shares) held by such holder plus all accrued and unpaid dividends thereon, and
the holders of Series B Preferred shall not be entitled to any further payment. If upon any such
Liquidation Event the Corporations assets to be distributed among the holders of the Series B
Preferred are insufficient to permit payment to such holders of the aggregate amount which they are
entitled to be paid under this Section 2A, then the entire assets available to be distributed to
the Corporations stockholders shall be distributed pro
rata among such holders based upon the
aggregate Liquidation Value (plus all accrued and unpaid dividends) of the Series B Preferred held
by each such holder.
5. The definition of Cash Redemption Price set forth in Section 12, Definitions is corrected to
read in its entirely as follows:
Cash Redemption Price of any Share as of any date of determination means the Liquidation Value
thereof plus all acccrued and unpaid dividends thereon.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed by Hamish Brewer, its
President and Chief Executive Officer, this 20th day of October, 2006.
/s/ Hamish Brewer | ||||
Hamish Brewer, President and | ||||
Chief Executive Officer |
2
State of Delaware | ||
Secretary of State | ||
Division of Corporations | ||
Delivered 08:00 AM 07/22/2008 | ||
FILED 08:00 AM 07/22/2008 | ||
SRV 080809158 2487680 FILE |
STATE OF DELAWARE
CERTIFICATE FOR RENEWAL
AND REVIVAL OF CHARTER
CERTIFICATE FOR RENEWAL
AND REVIVAL OF CHARTER
The corporation organized under the laws of Delaware, the charter of which was voided for
non-payment of taxes, now desires to procure a restoration, renewal and revival of its charter, and
hereby certifies as follows:
1. | The name of this corporation is JDA Software Group, Inc. | ||
2. | Its registered office in the State of Delaware is located at Corporation Trust Center, 1209 Orange (street), City of Wilmington Zip Code 19801 County of New Castle the name of its registered agent is The Corporation Trust Company | ||
3. | The date of filing of the original Certificate of Incorporation in Delaware was March 14, 1995. | ||
4. | The date when restoration, renewal, and revival of the charter of this company is to commence is the 29th day of February, 2008, same being prior to the date of the expiration of the charter. This renewal and revival of the charter of this corporation is to be perpetual. | ||
5. | This corporation was duly organized and carried on the business authorized by its charter until the 1st day of March A.D. 2008, at which time its charter became inoperative and void for non-payment of taxes and this certificate for renewal and revival is filed by authority of the duly elected directors of the corporation in accordance with the laws of the State of Delaware. |
IN TESTIMONY WHEREOF, and in compliance with the provisions of Section 312 of the General
Corporation Law of the State of Delaware, as amended, providing for
the renewal, extension and
restoration of charters the last and acting authorized officer hereunto set his/her hand to this
certificate this 19th day of
May A.D. 2008.
By: | /s/ Hamish Brewer | |||
Authorized Officer | ||||
Name: | Hamish Brewer | |||
Print or Type | ||||
Title: | President and CEO |
CERTIFICATE OF ELIMINATION
OF
SERIES B CONVERTIBLE
PREFERRED STOCK
PREFERRED STOCK
OF
JDA SOFTWARE GROUP, INC.
(Pursuant to Section 151 of the General Corporation Law of the State of Delaware)
JDA Software Group, Inc., a corporation organized and existing under the General Corporation Law
of the State of Delaware (the Company), certifies as follows:
FIRST: Article IV of the Companys Third Restated Certificate of Incorporation, as amended,
authorizes the issuance of 2,000,000 shares of Preferred Stock, par value $1.00 per share (the
Preferred Stock), of which 50,000 shares have been designated Series B Convertible Preferred
Stock.
SECOND: The following resolution was adopted on September 7, 2009 by the Board of Directors of the
Company as required by Section 151(g) of the General Corporation Law of the State of Delaware:
RESOLVED, that each member of senior management of the Company (the Authorized Officers) be, and
hereby are, authorized and empowered to prepare and execute the necessary certificate or
certificates described in Section 151 of the Delaware General
Corporate Law cancelling the Series B
Preferred and to file the same with the Delaware Secretary of State.
THIRD: Pursuant to the provisions of Section 151(g) of the General Corporation Law of the State of
Delaware, all matters set forth in the Certificate of Incorporation, as amended, with respect to
such Series B Convertible Preferred Stock are hereby eliminated from the Third Restated Certificate
of Incorporation, as amended.
State of Delaware | ||
Secretary of State | ||
Division of Corporations | ||
Delivered 01:02 PM 10/14/2009 | ||
FILED 12:44 PM 10/14/2009 | ||
SRV 090934191 2487680 FILE |
1
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed by its duly authorized
officer this 13th day of October, 2009.
JDA SOFTWARE GROUP, INC. |
||||
/s/ G. Michael Bridge | ||||
G. Michael Bridge, Senior Vice President and | ||||
General Counsel |
State of Delaware | ||
Secretary of State | ||
Division of Corporations | ||
Delivered 03:19 PM 07/14/2010 | ||
FILED 03:07 PM 07/14/2010 | ||
SRV 100741434 2487680 FILE |
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION
OF JDA SOFTWARE GROUP, INC.,
a Delaware corporation
CERTIFICATE OF INCORPORATION
OF JDA SOFTWARE GROUP, INC.,
a Delaware corporation
JDA Software Group, Inc ., a corporation duly organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the Corporation), DOES HEREBY CERTIFY as
follows:
FIRST: The Third Restated Certificate of Incorporation of the Corporation is hereby amended by
changing the first paragraph of the Article numbered IV so that, as amended, said paragraph of
said Article shall be and read as follows:
This Corporation is authorized to issue two classes of stock to be designated, respectively, the
Preferred Stock and the Common Stock. The total number of shares of capital stock which this
Corporation is authorized to issue is One Hundred Two Million (102,000,000) shares. One Hundred
Million (100,000,000) shares shall be common stock, par value $0.01 per share (the Common Stock),
and Two Million (2,000,000) shares shall be Preferred Stock, par value $1.00 per share (the
Preferred Stock).
SECOND: The foregoing amendment was duly adopted and approved in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, this Certificate of Amendment of Certificate of Incorporation has been executed
as of this 21st day of May, 2010.
JDA SOFTWARE GROUP, INC. |
||||
/s/ Hamish N. Brewer | ||||
Hamish N. Brewer, President | ||||