Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) 102 483K
2: EX-3.1 Articles of Incorporation/Organization or By-Laws 19 72K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws 21 74K
4: EX-4.1 Instrument Defining the Rights of Security Holders 74 237K
10: EX-10.10 Material Contract 3 20K
11: EX-10.11 Material Contract 9 39K
12: EX-10.12 Material Contract 7 29K
13: EX-10.13 Material Contract 6 29K
5: EX-10.5 Material Contract 14 59K
6: EX-10.6 Material Contract 14 59K
7: EX-10.7 Material Contract 2 14K
8: EX-10.8 Material Contract 2 11K
9: EX-10.9 Material Contract 2 13K
14: EX-23.1 Consent of Experts or Counsel 1 6K
15: EX-27.1 Financial Data Schedule (Pre-XBRL) 2 8K
EX-3.1 — Articles of Incorporation/Organization or By-Laws
Exhibit Table of Contents
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
KOZMO.COM, INC.
(originally incorporated August 20, 1999)
The undersigned natural persons of at least 18 years of age,
Joseph C. Park and Yong Kang, being the Chief Executive Officer and Secretary,
respectively, of Kozmo.com, Inc., a corporation organized and existing under the
laws of the State of Delaware, on behalf of said corporation, hereby certify as
follows:
FIRST: The name of the corporation (hereinafter the
"CORPORATION") is Kozmo.com, Inc.
SECOND: The Amended and Restated Certificate of Incorporation
of the Corporation as in effect on the date hereof is hereby further amended to
read in its entirety as set forth on EXHIBIT A hereto.
THIRD: Said Amended and Restated Certificate of Incorporation
was duly adopted in accordance with the provisions of Sections 228, 242 and 245
of Title 8 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, we have executed this Amended and Restated
Certificate of Incorporation this 16th day of March, 2000.
/s/ Joseph Park
------------------------------------
Chief Executive Officer
/s/ Yong Kang
----------------------------------
Secretary
EXHIBIT A
ARTICLE I
Name
The name of the corporation is Kozmo.com, Inc. (the "CORPORATION").
ARTICLE II
Corporate Purpose
The purpose for which the Corporation is organized is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
ARTICLE III
Capital Stock
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 203,840,245, shares, consisting of
(a) 114,083,777 shares of Common Stock, par value $.001 per share, (the "COMMON
STOCK") and (b) 89,756,468 shares of Preferred Stock, par value $.01 per share
(the "PREFERRED Stock"), of which (i) 1,133,332 shares are designated Series A
Preferred Stock (the "SERIES A PREFERRED STOCK"), (ii) 4,998,517 shares are
designated 8% Series B Convertible Preferred Stock (the "SERIES B PREFERRED
STOCK"), (iii) 2,508,500 shares are designated 8% Series C Convertible Preferred
Stock (the "SERIES C PREFERRED STOCK"), (iv) 15,616,119 shares are designated 8%
Series D Convertible Preferred Stock (the "SERIES D PREFERRED STOCK"), (v)
45,500,000 shares are designated 8% Series E Convertible Preferred Stock (the
"SERIES E PREFERRED STOCK") and (vi) 20,000,000 shares are designated 8% Series
F Convertible Preferred Stock (the "SERIES F PREFERRED STOCK") .
The designations, powers, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations and restrictions thereof in respect of the Preferred Stock and the
Common Stock are as follows:
PREFERRED STOCK
1. DIVIDENDS.
(a) The holders of shares of Series F Preferred Stock, Series E
Preferred Stock, Series D Preferred Stock, Series C Preferred Stock and Series B
Preferred Stock shall be entitled to receive cash dividends out of funds legally
available for payment of dividends. Such dividends shall be payable in cash at
the rate of 8% per annum (compounded semi-annually) of the price
per share for which such shares were purchased from the Corporation and 8% per
annum (compounded semi-annually) on any accrued dividends on such shares,
whether or not declared, that remain unpaid beyond the next succeeding Dividend
Payment Date (as hereinafter defined).
(b) Dividends on shares of Series F Preferred Stock, Series E
Preferred Stock, Series D Preferred Stock, Series C Preferred Stock and Series B
Preferred Stock shall accrue and be cumulative from and after the date of
issuance of such shares. Dividends shall be payable semi-annually in arrears,
when, as and if declared by the Board of Directors of the Corporation, on June
30 and December 31 of each year (each, a "DIVIDEND PAYMENT DATE"), commencing on
June 30, 1999. If any Dividend Payment Date occurs on a day other than a
Business Day, any dividends otherwise payable on such Dividend Payment Date
shall be paid on the next Business Day. Dividends shall be paid to the holders
of record of the Series F Preferred Stock, Series E Preferred Stock, Series D
Preferred Stock, Series C Preferred Stock and Series B Preferred Stock as their
names shall appear on the share register of the Corporation on the record date
for such dividend. Dividends payable in any Dividend Period (as hereinafter
defined) that is less than a full Dividend Period in length shall be computed on
the basis of a 180 day-period and actual days lapsed in such Dividend Period.
Dividends in arrears for any past Dividend Periods may be declared and paid at
any time to holders of record on the record date for such payment. "DIVIDEND
PERIOD" shall mean any period from and including the first issuance date of
shares of Series F Preferred Stock, Series E Preferred Stock, Series D Preferred
Stock, Series C Preferred Stock and Series B Preferred Stock, respectively,
until but not including the first Dividend Payment Date and thereafter, each
semi-annual period from and including each Dividend Payment Date to but not
including the next Dividend Payment Date.
(c) So long as any shares of Series F Preferred Stock shall remain
outstanding, the Corporation shall not (i) declare, pay or set apart for payment
on any other class or series of capital stock of the Corporation any dividends
whatsoever, whether in cash, property or otherwise, (ii) make any distribution
on any other class or series of capital stock of the Corporation, (iii)
purchase, redeem or otherwise acquire any other class or series of capital stock
of the Corporation or (iv) pay or make any monies available for a sinking fund
for the purchase or redemption of any other class or series of capital stock of
the Corporation, in each case unless all dividends to which the holders of
shares of Series F Preferred shall have been entitled for all previous Dividend
Periods shall have been paid in full. Upon conversion of the Series F Preferred
Stock, any declared but unpaid dividends shall be paid in accordance with the
terms of Section 4.
(d) So long as any shares of Series E Preferred Stock, Series D
Preferred Stock, Series C Preferred Stock or Series B Preferred Stock shall
remain outstanding, the Corporation shall not (i) declare, pay or set apart for
payment on Junior Stock any dividends whatsoever, whether in cash, property or
otherwise, (ii) make any distribution on any Junior Stock, (iii) purchase,
redeem or otherwise acquire any Junior Stock or (iv) pay or make available any
monies for a sinking fund for the purchase or redemption of any Junior Stock, in
each case unless all dividends to which the holders of shares of Series E
Preferred Stock,
Series D Preferred Stock, Series C Preferred Stock and Series B Preferred Stock
shall have been entitled for all previous Dividend Periods shall have been paid
in full. Upon conversion of the Series E Preferred Stock, Series D Preferred
Stock, Series C Preferred Stock, and Series B Preferred Stock, any declared but
unpaid dividends shall be paid in accordance with the terms of Section 4.
2. LIQUIDATION.
(a) Upon any Liquidation of the Corporation, the holders of the shares
of Series D Preferred Stock shall first be entitled, before any distribution or
payment is made upon any common, preferred or any other capital stock of the
Corporation (including, without limitation, all other series of Preferred
Stock), an amount equal to the price originally paid to the Corporation for such
shares of Series D Preferred Stock (as adjusted to reflect stock splits, stock
dividends, stock combinations, recapitalizations and like occurrences), plus, in
the case of each such share, any dividends declared but unpaid thereon (the
"ORIGINAL COST") computed to the date payment thereof is made available (such
amount payable with respect to one share of Series D Preferred Stock being
sometimes referred to as the "LIQUIDATION PREFERENCE PAYMENT" and with respect
to all shares of Series D Preferred Stock being sometimes referred to as the
"LIQUIDATION PREFERENCE PAYMENTS"); PROVIDED, HOWEVER, that in no event shall
the Liquidation Preference Payment for each share of Series D Preferred Stock be
less than 200% of the Original Cost for such share.
(b) Upon any Liquidation of the Corporation, subsequent to payment by
the Corporation of the Liquidation Preference Payments to the holders of the
Series D Preferred Stock, the holders of the Series F Preferred Stock, Series E
Preferred Stock, Series C Preferred Stock, Series B Preferred Stock and Series A
Preferred Stock shall be entitled to, in such order of priority, receive an
amount equal to the amount per share for which such shares were originally
purchased from the Corporation plus any dividends accrued but unpaid thereon
computed to the date payment is made available (the "JUNIOR PREFERRED
LIQUIDATION PAYMENTS").
(c) If upon a Liquidation of the Corporation, the assets to be
distributed among the holders of Series D Preferred Stock shall be insufficient
to permit payment in full to the holders of Series D Preferred Stock of the
Liquidation Preference Payments, then the entire assets of the Corporation to be
so distributed to stockholders shall be distributed ratably among the holders of
Series D Preferred Stock. Upon a Liquidation of the Corporation, immediately
after the holders of Series D Preferred Stock shall have been paid in full the
Liquidation Preference Payments, the remaining net assets of the Corporation
available for distribution to stockholders shall be used to pay the Junior
Preferred Liquidation Payments in accordance with the priority set forth in
clause (b) above. If the remaining net assets shall be insufficient to permit
payment in full to the holders of any of the Series F Preferred Stock, Series E
Preferred Stock, Series C Preferred Stock, Series B Preferred Stock and Series A
Preferred Stock of the Junior Preferred Liquidation Payments, then the remaining
net assets of the Corporation available for distribution to stockholders shall
be distributed ratably among the holders of the series of Preferred Stock who
were not paid in full their Junior Preferred Liquidation Payments, but not to
the holders of any other series of Preferred Stock ranked below the order of
priority set forth in clause (b) above. After the Liquidation Preference
Payments and the Junior Preferred Liquidation Payments shall have been made in
full, the remaining net assets of the Corporation available for distribution to
stockholders shall be distributed ratably among the holders of the Common Stock.
3. VOTING RIGHTS.
(a) In addition to the rights provided herein, by law or in the
Corporation's By-Laws, each share of Preferred Stock shall entitle the holder
thereof to such number of votes as shall equal the number of shares of Common
Stock into which such share of Preferred Stock is then convertible pursuant to
Section 4 at the record date for the determination of stockholders entitled to
vote or, if no record date is established, at the date such vote is taken. The
holders of Preferred Stock shall be entitled to vote on all matters as to which
holders of Common Stock shall be entitled to vote, in the same manner and with
the same effect as such holders of Common Stock, voting together with the
holders of Common Stock as one class.
(b) The Corporation shall not, without the affirmative consent or
approval of the Series F Majority in Interest, voting separately as a class:
(i) in any manner authorize, create, designate, issue or sell
any class or series of capital stock (including any shares of treasury
stock) or rights, options, warrants or other securities convertible
into or exercisable or exchangeable for capital stock or any debt
security which by its terms is convertible into or exchangeable for any
equity security or any contractual right (including, but not limited
to, phantom stock or stock appreciation rights) which provide the
holder thereof with the right to receive consideration as if such
holder held an equity security or any security that is a combination of
debt and equity, which, in each case, has preferences senior to or on
parity with those of the holders of the Series F Preferred Stock or
which in any manner adversely affects the holders of the Series F
Preferred Stock;
(ii) in any manner alter or change the terms, designations,
powers, preferences or relative, participating, optional or other
special rights, or the qualifications, limitations or restrictions, of
the Series F Preferred Stock;
(iii) reclassify the shares of any class or series of capital
stock into shares of any class or series of capital stock (A) ranking,
either as to payment of dividends, distributions of assets or
redemptions, including, without limitation, distributions to be made
upon a Liquidation, senior to or on a parity with the Series F
Preferred Stock, or (B) which in any manner adversely affects the
rights of the holders of the Series F Preferred Stock;
(iv) take any action to cause any amendment, alteration or
repeal of any of the provisions of (A) this Amended and Restated
Certificate of Incorporation or (B) the By-Laws of the Corporation, if
such amendment, alteration or repeal would materially and adversely
affect the Series F Preferred Stock; or
(v) take any action that would result in taxation of the
holders of the Series F Preferred Stock under Section 305 of the
Internal Revenue Code.
(c) The Corporation shall not, without the affirmative consent or
approval of the Series E Majority in Interest, voting separately as a class:
(i) in any manner authorize, create, designate, issue or sell
any class or series of capital stock (including any shares of treasury
stock) or rights, options, warrants or other securities convertible
into or exercisable or exchangeable for capital stock or any debt
security which by its terms is convertible into or exchangeable for any
equity security or any contractual right (including, but not limited
to, phantom stock or stock appreciation rights) which provide the
holder thereof with the right to receive consideration as if such
holder held an equity security or any security that is a combination of
debt and equity, which, in each case, has preferences senior to or on
parity with those of the holders of the Series E Preferred Stock or
which in any manner adversely affects the holders of the Series E
Preferred Stock;
(ii) in any manner alter or change the terms, designations,
powers, preferences or relative, participating, optional or other
special rights, or the qualifications, limitations or restrictions, of
the Series E Preferred Stock;
(iii) reclassify the shares of any class or series of capital
stock into shares of any class or series of capital stock (A) ranking,
either as to payment of dividends, distributions of assets or
redemptions, including, without limitation, distributions to be made
upon a Liquidation, senior to or on a parity with the Series E
Preferred Stock, or (B) which in any manner adversely affects the
rights of the holders of the Series E Preferred Stock;
(iv) take any action to cause any amendment, alteration or
repeal of any of the provisions of (A) this Amended and Restated
Certificate of Incorporation or (B) the By-Laws of the Corporation, if
such amendment, alteration or repeal would materially and adversely
affect the Series E Preferred Stock;
(v) take any action that would result in taxation of the
holders of the Series E Preferred Stock under Section 305 of the
Internal Revenue Code; or
(vi) take any action to increase the size of the Board.
(d) The Corporation shall not, without the affirmative consent or
approval of the Series D Majority in Interest, voting separately as a class:
(i) in any manner authorize, create, designate, issue or sell
any class or series of capital stock (including any shares of treasury
stock) or rights, options, warrants or other securities convertible
into or exercisable or exchangeable for capital stock or any debt
security which by its terms is convertible into or exchangeable for any
equity security or any contractual right (including, but not limited
to, phantom stock or stock appreciation rights) which provide the
holder thereof with the right to receive consideration as if such
holder held an equity security or any security that is a combination of
debt and equity, which, in each case, has preferences senior to or on
parity with those of the holders of the Series D Preferred Stock or
which in any manner adversely affects the holders of the Series D
Preferred Stock;
(ii) in any manner alter or change the terms, designations,
powers, preferences or relative, participating, optional or other
special rights, or the qualifications, limitations or restrictions, of
the Series D Preferred Stock;
(iii) reclassify the shares of any class or series of capital
stock into shares of any class or series of capital stock (A) ranking,
either as to payment of dividends, distributions of assets or
redemptions, including, without limitation, distributions to be made
upon a Liquidation, senior to or on a parity with the Series D
Preferred Stock, or (B) which in any manner adversely affects the
rights of the holders of the Series D Preferred Stock;
(iv) take any action to cause any amendment, alteration or
repeal of any of the provisions of (A) this Amended and Restated
Certificate of Incorporation or (B) the By-Laws of the Corporation, if
such amendment, alteration or repeal would materially and adversely
affect the Series D Preferred Stock; or
(v) take any action to increase the size of the Board.
(e) The Corporation shall not, without the affirmative consent or
approval of the Series F Majority in Interest, the Series E Majority in Interest
and the Series D Majority in Interest, each voting separately as a class:
(i) approve or authorize any Liquidation of the Corporation;
(ii) approve or authorize the redemption of any shares of
capital stock, other than, with respect to the Common Stock, the
Excluded Stock, or as otherwise provided in Section 7 of the
Stockholders' Agreement;
(iii) approve or authorize the payment of any dividend or
other distribution upon shares of capital stock, other than a dividend
payable solely in shares of Common Stock;
(iv) take any action that increases the number of shares of
Common Stock issuable upon exercise of stock options granted to
directors, officers, consultants and employees of the Corporation; or
(v) take any action to increase the number of authorized
shares of any class or series of capital stock.
4. CONVERSION.
(a) OPTIONAL. Upon the terms set forth in this Section 4, each holder
of shares of Preferred Stock shall have the right, at such holder's option, at
any time and from time to time, to convert each such share of Preferred Stock
into that number of fully paid and nonassessable shares of Common Stock equal to
the quotient obtained by dividing (A) the price originally paid for such share
of Preferred Stock by (B) the Conversion Price (as defined below) then in
effect.
The "CONVERSION PRICE" shall be the price per share originally paid with respect
to each series of Preferred Stock, as adjusted pursuant to paragraph (e) below.
The holder of any of such shares of Preferred Stock may exercise the conversion
right pursuant to this paragraph (a) by delivering to the Corporation the
certificate for the shares to be converted, duly endorsed or assigned in blank
or to the Corporation (if required by it), accompanied by written notice stating
that the holder elects to convert such shares. Conversion shall be deemed to
have been effected on the date when such delivery is made or upon the closing of
a Qualified Public Offering as provided below, if applicable (the "CONVERSION
DATE").
(b) MANDATORY. Upon the closing of a Qualified Public Offering, each
share of Preferred Stock shall automatically be converted into that number of
fully paid and nonassessable shares of Common Stock equal to the quotient
obtained by dividing (A) the price originally paid for such share by (B) the
Conversion Price then in effect.
(c) As promptly as practicable after the conversion of any shares of
Preferred Stock into Common Stock under paragraph (a) or (b) above, the
Corporation shall issue and deliver to or upon the written order of such holder,
to the place designated by such holder, a certificate or certificates for the
number of full shares of Common Stock to which such holder is entitled, and a
cash amount in respect of any fractional interest in a share of Common Stock as
provided in paragraph (d) below. The holder in whose name the certificate or
certificates for Common Stock are to be issued shall be deemed to have become a
stockholder of record of Common Stock on the applicable Conversion Date unless
the transfer books of the Corporation are closed on that date, in which event
such person shall be deemed to have become a stockholder of record of Common
Stock on the next succeeding date on which the transfer books are open, but the
Conversion Price shall be that in effect on the Conversion Date, and the rights
of the holder of the shares of Preferred Stock so converted shall cease on such
Conversion Date. Upon conversion of only a portion of the number of shares
covered by a certificate representing shares of Preferred Stock surrendered for
conversion, in addition to the issuance of certificates for the appropriate
number of shares of Common Stock pursuant to the preceding sentence, the
Corporation shall issue and deliver to or upon the written order of the holder
of the certificate so surrendered for conversion, at the expense of the
Corporation (other than any transfer taxes imposed on the holders of such shares
of Preferred Stock under applicable law), a new certificate covering the number
of shares of Preferred Stock representing the unconverted portion of the
certificate so surrendered, and all declared and unpaid dividends on the shares
of Preferred Stock so converted shall be paid in cash.
(d) No fractional shares of Common Stock or scrip shall be issued upon
conversion of shares of Preferred Stock. The number of full shares of Common
Stock issuable upon conversion of Preferred Stock shall be computed on the basis
of the aggregate number of shares of such Preferred Stock to be converted.
Instead of any fractional shares of Common Stock which would otherwise be
issuable upon conversion of any such shares, the Corporation shall pay a cash
adjustment in respect of such fractional interest in an amount equal to the
product of (A) the fair market value of one share of Common Stock (as determined
by the Board, in good faith, upon the vote of at least a majority of the members
thereof) and (B) such fractional interest.
The holders of fractional interests shall not be entitled to any rights as
stockholders of the Corporation in respect of such fractional interests.
(e) CONVERSION PRICE ADJUSTMENTS. The Conversion Price shall be subject
to adjustment from time to time as follows:
(i) If the Corporation shall, at any time or from time to
time after the Original Issuance Date, issue any shares of Common Stock
other than Excluded Stock without consideration or for a consideration
per share less than (x) the Conversion Price in effect immediately
prior to the issuance of such Common Stock or (y) the fair market value
(as determined by the Board, in good faith, upon the vote of at least a
majority of the members thereof) of the Common Stock at the date of
issuance, then such Conversion Price, as in effect immediately prior to
each such issuance, shall forthwith be lowered to a price equal to the
quotient obtained by dividing:
(A) an amount equal to the sum of (x) the total
number of shares of Common Stock outstanding on a
fully-diluted basis immediately prior to such issuance,
multiplied by the Conversion Price in effect immediately prior
to such issuance, and (y) the consideration received by the
Corporation upon such issuance; by
(B) the total number of shares of Common Stock
outstanding on a fully-diluted basis immediately after the
issuance of such Common Stock.
(ii) For the purposes of any adjustment of a Conversion Price
pursuant to clause (i) above, the following provisions shall be
applicable:
(A) In the case of the issuance of Common Stock for
cash in a public offering or private placement, the
consideration received by the Corporation for such issuance
shall be deemed to be the net amount of cash paid therefor
after deducting therefrom any and all discounts, commissions
and expenses payable by the Corporation to any underwriter or
placement agent in connection with the issuance and sale
thereof.
(B) In the case of the issuance of Common Stock for
a consideration in whole or in part other than cash, the
non-cash consideration received by the Corporation for such
issuance shall be deemed to be the fair market value thereof
(as determined by the Board, in good faith, upon the vote of
at least a majority of the members thereof).
(C) In the case of the issuance of options to
purchase or rights to subscribe for Common Stock, securities
by their terms convertible into or exchangeable for Common
Stock, or options to purchase or rights to subscribe for such
convertible or exchangeable securities except for options to
acquire or rights to subscribe for securities which are
Excluded Stock:
(1) the aggregate maximum number of shares
of Common Stock deliverable upon exercise of such
options to purchase or rights to subscribe for Common
Stock shall be deemed to have been issued at the time
such options or rights were issued and for a
consideration equal to the consideration (determined
in the manner provided in subdivisions (A) and (B)
above), if any, received by the Corporation upon the
issuance of such options or rights plus the minimum
purchase price provided in such options or rights for
the Common Stock covered thereby;
(2) the aggregate maximum number of shares
of Common Stock deliverable upon conversion of or in
exchange for any such convertible or exchangeable
securities or upon the exercise of options to
purchase or rights to subscribe for such convertible
or exchangeable securities and subsequent conversion
or exchange thereof shall be deemed to have been
issued at the time such securities, options, or
rights were issued and for a consideration equal to
the consideration received by the Corporation for any
such securities and related options or rights, plus
the additional consideration, if any, to be received
by the Corporation upon the conversion or exchange of
such securities or the exercise of any related
options or rights (the consideration in each case to
be determined in the manner provided in subdivisions
(A) and (B) above);
(3) on any change in the number of shares
or exercise price of Common Stock deliverable upon
exercise of any such options or rights or conversions
of or exchanges for such securities, other than a
change resulting from the antidilution provisions
thereof, the Conversion Price shall forthwith be
readjusted to such Conversion Price as would have
been obtained had the adjustment made upon the
issuance of such options, rights or securities (to
the extent not converted prior to such change), or
options or rights related to such securities (to the
extent not converted prior to such change), been made
upon the basis of such change;
(4) on the expiration of any such options
or rights, the termination of any such rights to
convert or exchange or the expiration of any options
or rights related to such convertible or exchangeable
securities, the Conversion Price shall forthwith be
readjusted to such Conversion Price as would have
been obtained had the adjustment made upon the
issuance of such options, rights, securities or
options or rights related to such securities been
made upon the basis of the issuance of only the
number of shares of Common Stock actually issued upon
the exercise of such options or rights, upon the
conversion or exchange of such securities, or upon
the exercise of the options or rights related to such
securities and subsequent conversion or exchange
thereof which in each case had not expired or
terminated; and
(5) No further adjustment of the Conversion
Price adjusted upon the issuance of any such options,
rights, convertible securities or exchangeable
securities shall be made as a result of the actual
issuance of Common Stock on the exercise of any such
rights or options or any conversion or exchange of
any such securities.
(iii) If, at any time after the Original Issuance Date, the
number of shares of Common Stock outstanding is increased by a stock
dividend payable in shares of Common Stock or by a subdivision or
split-up of shares of Common Stock, then, following the record date for
the determination of holders of Common Stock entitled to receive such
stock dividend, subdivision or split-up, the Conversion Price shall be
appropriately decreased so that the number of shares of Common Stock
issuable on conversion of each share of Preferred Stock shall be
increased to the number of shares of Common Stock the holder of each
such share of Preferred Stock would have held after such dividend
payment, subdivision or split-up, if such holder had converted each
such share of Preferred Stock immediately prior thereto, in accordance
with the provisions hereof.
(iv) If, at any time after the Original Issuance Date, the
number of shares of Common Stock outstanding is decreased by a
redemption, repurchase or a combination of the outstanding shares of
Common Stock, then, following the record date for such combination, the
Conversion Price shall be appropriately increased so that the number of
shares of Common Stock issuable on conversion of each share of
Preferred Stock shall be decreased to the number of shares of Common
Stock the holder of each such share of Preferred Stock would have held
after such redemption, repurchase or combination, if such holder had
converted each such share of Preferred Stock immediately prior thereto,
in accordance with the provisions hereof.
(v) In the event of any other capital reorganization of the
Corporation, any reclassification of the stock of the Corporation
(other than a change in par value or from par value to no par value or
from no par value to par value or as a result of a stock dividend or
subdivision, split-up or combination of shares), or any consolidation
or merger of the Corporation, each share of Preferred Stock shall after
such reorganization, reclassification, consolidation, or merger be
convertible into the kind and number of shares of stock or other
securities or property of the Corporation or of the corporation
resulting from such consolidation or surviving such merger to which the
holder of the number of shares of Common Stock deliverable (immediately
prior to the time of such reorganization, reclassification,
consolidation or merger) upon conversion of such share of Preferred
Stock would have been entitled upon such reorganization,
reclassification, consolidation or merger if such holder had converted
each such share of Preferred Stock immediately prior thereto, in
accordance with the provisions hereof. The provisions of this clause
shall similarly apply to successive reorganizations, reclassifications,
consolidations or mergers.
(vi) No adjustment in any Conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least .1% in such Conversion Price; PROVIDED, that any adjustments not
required to be made by virtue of this sentence shall be carried forward
and taken into account in any subsequent adjustment. All calculations
under paragraphs (i) through (v) above shall be made to the nearest
cent or the nearest one tenth (1/10) of a share, as the case may be.
(vii) In any case in which the provisions of this paragraph
(e) shall require that an adjustment shall become effective immediately
after a record date of an event, the Corporation may defer until the
occurrence of such event (1) issuing to the holder of any share of
Preferred Stock converted after such record date and before the
occurrence of such event the shares of capital stock issuable upon such
conversion by reason of the adjustment required by such event in
addition to the shares of capital stock issuable upon such conversion
before giving effect to such adjustments, and (2) paying to such holder
any amount in cash in lieu of a fractional share of capital stock
pursuant to paragraph (d) above; PROVIDED, HOWEVER, that the
Corporation shall deliver to such holder an appropriate instrument
evidencing such holder's right to receive such additional shares and
such cash.
(viii) Whenever a Conversion Price shall be adjusted as
provided in paragraph (iv), the Corporation shall make available for
inspection during regular business hours, at its principal executive
offices or at such other place as may be designated by the Corporation,
a statement, signed by its chief executive officer or other duly
authorized executive officer of the Corporation, showing in reasonable
detail the facts requiring such adjustment and the Conversion Price
that shall be in effect after such adjustment. The Corporation shall
also cause a copy of such statement to be sent by first class certified
mail, return receipt requested and postage prepaid, to each holder of
Preferred Stock at such holder's address appearing on the Corporation's
records. Where appropriate, such copy may be given in advance and may
be included as part of any notice required to be mailed under the
provisions of paragraph (ix) below.
(ix) If the Corporation shall propose to take any action of
the types described in clauses (iii), (iv) or (v) of this paragraph
(e), the Corporation shall give notice to each holder of shares of
Preferred Stock, in the manner set forth in paragraph (viii) above,
which notice shall specify the record date, if any, with respect to any
such action and the date on which such action is to take place. Such
notice shall also set forth such facts with respect thereto as shall be
reasonably necessary to indicate the effect of such action (to the
extent such effect may be known at the date of such notice) on the
Conversion Price and the number, kind or class of shares or other
securities or property which shall be deliverable or purchasable upon
the occurrence of such action or deliverable upon conversion of shares
of Preferred Stock. Such notice shall be given at least 10 days prior
to the taking of such proposed action. Failure to give such notice, or
any defect therein, shall not affect the legality or validity of any
such action.
(x) The Corporation shall at all times keep reserved, free
from preemptive rights, out of its authorized but unissued shares of
Common Stock, solely for the purpose
of effecting the conversion of the Preferred Stock, sufficient shares
of Common Stock to provide for the conversion of all outstanding shares
of Preferred Stock and for the exercise of all options, rights and
warrants for the purchase of Common Stock.
(xi) Without duplication of any other adjustment provided for
in this Section 4, at any time the Corporation makes or fixes a record
date for the determination of holders of Common Stock entitled to
receive a dividend or other distribution payable in securities of the
Corporation other than shares of Common Stock, provision shall be made
so that each holder of Preferred Stock shall receive upon conversion
thereof, in addition to the shares of Common Stock receivable
thereupon, the number of securities of the Corporation which it would
have received had its shares of Preferred Stock been converted into
shares of Common Stock on the date of such event and had such holder
thereafter, during the period from the date of such event to and
including the date of conversion, retained such securities receivable
by it pursuant to this paragraph during such period, subject to the sum
of all other adjustments called for during such period under this
Section 4 with respect to the rights of such holder of Preferred Stock.
5. DEFINITIONS.
As used herein, the following terms shall have the following meanings:
(a) "AFFILIATE" means, with respect to any Person, any (a) director,
officer or stockholder holding 5% or more of the capital stock (on a fully
diluted basis) of such Person, (b) spouse, parent, sibling or descendant of such
Person (or a spouse, parent, sibling or descendant of a director, officer, or
partner of such Person) and (c) other Person that, directly or indirectly,
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such Person. The term "CONTROL" includes, without
limitation, 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.
(b) "BOARD" shall mean the Board of Directors of the Corporation.
(c) "BUSINESS DAY" means each day except for Saturday, Sunday, federal
holidays and any other state-recognized holidays in the State of New York.
(d) "EXCLUDED STOCK" means (1) up to 13,814,809 shares (as adjusted
equitably for stock dividends, stock splits, combinations, etc.) of Common Stock
issuable upon exercise of stock options or warrants (the issuance of which was
duly approved by the Board) granted to directors, officers, consultants and
employees of the Corporation or its subsidiaries, (2) shares of Common Stock
issued upon conversion of shares of any series of Preferred Stock, and (3)
shares of Common Stock issued pursuant to any Board-approved acquisition by the
Corporation of another Person.
(e) "INDEPENDENT THIRD PARTY" means, immediately prior to the
contemplated transaction, any person or entity which (i) does not own in excess
of five percent (5%) of the
Corporation's capital stock deemed outstanding at such time (on a fully-diluted
basis) and (ii) is not an Affiliate of any such owner.
(f) "JUNIOR STOCK" means Common Stock or any class or series of capital
stock of the corporation other than Series F Preferred Stock, Series E Preferred
Stock, Series D Preferred Stock, Series C Preferred Stock or Series B Preferred
Stock.
(g) "LIQUIDATION" means any Sale of the Corporation or voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, other than any dissolution, liquidation or winding up in connection
with any reincorporation of the Corporation in another jurisdiction.
(h) "ORIGINAL ISSUANCE DATE" means, with respect to any series of
Preferred Stock, the date of original issuance of the first share of such series
of Preferred Stock.
(i) "QUALIFIED PUBLIC OFFERING" shall mean a firm commitment public
offering of the securities of the Corporation underwritten by a major bracket or
nationally known underwriter of the Corporation yielding gross proceeds to the
Corporation of not less than $30,000,000 and at an offering price of not less
than $12.00 per share.
(j) "SALE OF THE CORPORATION" means the sale of the Corporation to one
or more Independent Third Parties, pursuant to (i) which such party or parties
acquire all or substantially all of the Corporation's assets determined on a
consolidated basis (ii) which such party or parties acquire capital stock or
other securities of the Corporation possessing the voting power to elect a
majority of the Corporation's Board (whether by merger, consolidation or
issuances, sale or transfer of the Corporation's capital stock) or (iii) a
merger or consolidation of the Corporation with or into such party or parties
resulting in the holders of a majority of the voting power of the Corporation
immediately prior to such merger or consolidation owning less than a majority in
voting power of the surviving or resulting corporation.
(k) "SERIES D MAJORITY IN INTEREST" means at any point in time on an
as-converted basis, holders of Series D Preferred Stock representing in the
aggregate at least two-thirds of the Common Stock issuable upon the conversion
of the Series D Preferred Stock.
(l) "SERIES E MAJORITY IN INTEREST" means at any point in time on an
as-converted basis, holders of Series E Preferred Stock representing in the
aggregate at least a majority of the Common Stock issuable upon the conversion
of the Series E Preferred Stock (including, for purposes of this definition,
those shares of Common Stock issuable upon conversion of those shares of Series
E Preferred Stock issuable upon exercise of any warrants to acquire Series E
Preferred Stock granted by the Corporation).
(m) "SERIES F MAJORITY IN INTEREST" means at any point in time on an
as-converted basis, holders of Series F Preferred Stock representing in the
aggregate at least a majority of the Common Stock issuable upon the conversion
of the Series F Preferred Stock.
(n) "STOCKHOLDERS' AGREEMENT" means the Second Amended and Restated
Stockholders' Agreement dated as of March 14, 2000, among the Corporation and
the other parties thereto.
COMMON STOCK
Each holder of shares of Common Stock shall be entitled to one
vote for each share of Common Stock held on all matters as to which holders of
Common Stock shall be entitled to vote. Except for and subject to those rights
expressly granted to the holders of the Preferred Stock, or except as may be
provided by the laws of the State of Delaware, the holders of Common Stock shall
have exclusively all other rights of stockholders including, but not by way of
limitation, (i) the right to receive dividends, when and as declared by the
Board out of assets legally available therefor and (ii) in the event of any
distribution of assets upon a Liquidation or otherwise, the right to receive
ratably and equally all the assets and funds of the Corporation remaining after
the payment to the holders of shares of the Preferred Stock of the specific
amounts which they are entitled to receive, respectively, upon such Liquidation
as herein provided.
ARTICLE IV
Directors
(1) The business and affairs of the Corporation shall be
managed by or under the direction of the Board, and the directors need not be
elected by ballot unless required by the By-Laws of the Corporation.
(2) 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
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith and which involve 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 any
improper personal benefit. If the Delaware General Corporation Law is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, 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 this
provision shall not adversely affect any right or protection of a director of
the Corporation existing at the time of such repeal or modification.
ARTICLE V
Indemnification of Directors, Officers and Others
(1) The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of NOLO CONTENDERE or its equivalent,
shall not, of itself, create a presumption that the person seeking
indemnification did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(2) The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(3) To the extent that a present or former director or officer
of the Corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Sections (1) and (2) of this
Article V, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(4) Any indemnification under Sections (1) and (2) of this
Article V (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
present or former director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
such Sections (1) and (2). Such determination shall be made, with respect to a
person who is a director of officer at the time of such determination, (a) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (c) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (c) by the stockholders of
the Corporation.
(5) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article V. Such expenses
(including attorneys' fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as
the Corporation deems appropriate.
(6) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other sections of this Article V shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any law, by-law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office.
(7) The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the
power to indemnify him against such liability under the provisions of Section
145 of the Delaware General Corporation Law.
(8) For purposes of this Article V, references to "the
Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article V with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(9) For purposes of this Article V, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves service by, such director,
officer, employee or agent with respect to any employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article V.
(10) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Article V shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
ARTICLE VI
Existence
The Corporation is to have perpetual existence.
ARTICLE VII
Corporate Books
The books of the Corporation may be kept at such place within
or without the State of Delaware as the By-Laws of the Corporation may provide
or as may be designated from time to time by the Board.
ARTICLE VIII
Registered Office and Registered Agent
The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, City of Wilmington, County of New
Castle, and the name of the registered agent of the Corporation in the State of
Delaware at such address is the Corporation Trust Company.
ARTICLE IX
Reorganization
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for this
Corporation under the provisions of Section 279 of Title 8 of the Delaware Code,
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be, to
be summoned in such matter as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
the Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
ARTICLE X
By-Laws
Subject to Section 3 of Article III, the directors of the
Corporation shall have the power to adopt, amend or repeal By-Laws.
ARTICLE XI
Amendment
Subject to Section 3 of Article III, this Amended and Restated
Certificate may not be amended without the affirmative consent or approval of
the holders of a majority of the shares of capital stock of the Corporation.
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed as of: | | 3/21/00 | | | | | | | None on these Dates |
| Filed on: | | 3/20/00 |
| | 3/14/00 | | 15 |
| | 8/20/99 | | 1 |
| | 6/30/99 | | 3 |
| List all Filings |
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