Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Cascade Systems, Inc. 86 498K
2: EX-3.1 Amended and Restated Certificate of Incorporation 33 88K
3: EX-3.2 Certificate of Amend. to Certificate of Incorp. 17 60K
4: EX-3.3 2nd Amend. and Restated Certificate of Inc. 12 45K
5: EX-3.4 Bylaws of the Registrant 17 56K
6: EX-3.5 Amended and Restated Bylaws of the Company 18 79K
7: EX-10.1 Second Amended 1994 Stock Option Plan 14 53K
8: EX-10.2 1997 Stock Incentive Plan 8 34K
9: EX-10.3 1997 Non-Employee Director Stock Option Plan 7 27K
10: EX-10.4 1997 Employee Stock Purchase Plan 7 29K
11: EX-10.5 License and Distribution Agreement 49 150K
12: EX-10.6 Source Code License Agreement 34 84K
13: EX-10.7 Lease, Dated February 27, 1996 59 177K
14: EX-10.8 Rights Agreement Dated July 25, 1994 33 122K
15: EX-10.9 Loan Agreement 36 131K
16: EX-11 Pro Forma Net Income Per Common Share 1 10K
17: EX-16 Letter, Dated September 16, 1997 2 10K
18: EX-21 Subsidiaries of the Registrant 1 7K
19: EX-23.2 Consent of Arthur Andersen LLP 1 7K
20: EX-27 Financial Data Schedule 1 10K
EX-3.2 — Certificate of Amend. to Certificate of Incorp.
| EX-3.2 | 1st Page of 17 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
|---|
Exhibit 3.2
CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CASCADE SYSTEMS INCORPORATED
Pursuant to Section 242
of the General Corporation Law of
the State of Delaware
---------------------
Cascade Systems Incorporated (the "Corporation"), a corporation duly
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware, does hereby certify as follows:
By vote of the Board of Directors of the Corporation a resolution was duly
adopted, pursuant to Sections 141 and 242 of the General Corporation Law of the
State of Delaware, setting forth an amendment to the Amended and Restated
Certificate of Incorporation of the Corporation and declaring said amendment to
be advisable and directing that it be submitted to and be considered by the
stockholders of the Corporation for approval. The stockholders of the
Corporation duly approved said proposed amendment by written consent in lieu of
a special meeting in accordance with Sections 228 and 242 of the General
Corporation Law of the State of Delaware. The resolutions setting forth the
amendment are as follows:
RESOLVED: That Article III of the Amended and Restated Certificate of
Incorporation be and hereby is deleted and the following
Article III is inserted in lieu thereof:
ARTICLE III
STOCK
The Corporation is authorized to issue two classes of shares to be
designated respectively "Preferred Stock" and "Common Stock." The total number
of shares of Preferred Stock authorized is 2,100,000, $0.001 par value per
share. The total number of shares of Common Stock authorized is 25,000,000,
$0.001 par value per share.
A. PREFERRED STOCK. The Preferred Stock shall be comprised of 2,100,000
shares, of which 1,700,000 shares are designated as Series A Preferred Stock
(the "Series A Preferred Stock"), and 400,000 shares are designated as Series B
Preferred Stock (the "Series B Preferred Stock"). The relative rights,
preferences, restrictions and other matters relating to the Preferred Stock are
as follows:
1. DIVIDENDS RIGHTS.
(a) The holders of the then outstanding Series A Preferred Stock
and Series B Preferred Stock shall be entitled to receive in any fiscal year,
when, as and if, declared by the Board of Directors, out of any assets at the
time legally available therefor, dividends in cash at the rate per annum of $.08
per share in the case of the Series A Preferred Stock, and $.40 per share in the
case of the Series B Preferred Stock (in each case adjusted for any splits,
combinations, consolidations or stock dividends or distributions with respect to
such shares) payable in preference and priority to any payment of any cash
dividend on Common Stock. After dividends shall have been paid on account of the
Series A Preferred Stock and Series B Preferred Stock in any given fiscal year
as aforesaid, the holders of the then outstanding Common Stock shall be entitled
to receive in that fiscal year, when, as and if, declared by the Board of
Directors, out of any assets at the time legally available therefor, dividends
in cash at the rate per annum of $.08 per share (adjusted for any splits,
combinations, consolidations or stock dividends or distributions with respect to
such shares) payable in preference and priority to any payment of any additional
cash dividends on the Preferred Stock. The right to such cash dividends on the
Preferred Stock and the Common Stock shall not be cumulative, and no right shall
accrue to holders of the Preferred Stock or Common Stock by reason of the fact
that dividends on such shares are not declared in any prior year. Except as set
forth above, no dividends shall be paid on any Common Stock unless a
corresponding dividend is paid with respect to all outstanding shares of
Preferred Stock in an amount for each such share of Preferred Stock equal to the
aggregate amount of such dividends for all Common Stock into which each such
share of Preferred Stock could then be converted.
(b) Each holder of Preferred Stock shall be deemed to have
consented to distributions made by the Corporation in connection with the
repurchase of Common Stock issued to or held by employees, directors or
consultants upon termination of their employment or services pursuant to
agreements providing for such repurchase.
2. PREFERENCE ON LIQUIDATION.
(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of shares of Preferred
Stock then outstanding shall be entitled to be paid, out of the assets of the
Corporation available for distribution to its shareholders before any payment
shall be made in respect of the Common Stock, an amount equal to (i) in the case
of the holders of the Series A Preferred Stock, $1.00 per share for each share
of Series A Preferred Stock then held by them, and in the case of the holders of
the Series B Preferred Stock, $5.00 per share for each share of Series B
Preferred Stock then held by them, in each case as adjusted for any stock split,
combination, consolidation, or stock distributions or stock dividends with
respect to such shares, and (ii) an amount equal to all declared but unpaid
dividends on the Series A Preferred Stock and Series B Preferred
-2-
Stock as provided in Section 1 above. If the assets and funds available to be
distributed among the holders of the Series A Preferred Stock and the Series B
Preferred Stock shall be insufficient to permit the payment to such holders of
the full aforesaid preferential amount, then the entire assets and funds of the
Corporation legally available for distribution shall be distributed ratably
among the holders of the Series A Preferred Stock and Series B Preferred Stock
in proportion to their aggregate preferential amounts.
(b) After payment has been made to the holders of the Preferred
Stock of the full preferential amounts to which they shall be entitled, if any,
as aforesaid, the remaining assets of the Corporation available for distribution
to stockholders, if any, shall be distributed ratably on a per share basis among
the holders of Common Stock and the holders of Preferred Stock, based on the
number of shares of Common Stock then held, with each share of Preferred Stock
treated as the number of shares of Common Stock into which such share of
Preferred Stock is then convertible.
(c) A consolidation or merger of the Corporation with or into
any other corporation or corporations (other than a wholly owned subsidiary), or
the sale, transfer or other disposition of all or substantially all of the
assets of the Corporation or the consummation of any transaction or series of
related transactions which results in the Corporation's stockholders immediately
prior to such transaction not holding at least 50% of the voting power of the
surviving or continuing entity shall be deemed a liquidation, dissolution or
winding up within the meaning of this Section 2.
3. VOTING RIGHTS.
(a) Except as set forth to the contrary in Sections 3(b) and 5
below or as required by law, each holder of shares of Preferred Stock shall be
entitled to vote on all matters and shall be entitled to that number of votes
equal to the number of shares of Common Stock into which such shares of
Preferred Stock could be converted on the record date for the vote or consent of
stockholders. The holder of each share of Preferred Stock shall be entitled to
notice of any stockholders' meeting in accordance with the Bylaws of the
Corporation and, except as provided in this Certificate of Incorporation, shall
vote with holders of the Common Stock upon any matter submitted to a vote of
stockholders, except those matters required by law to be submitted to a class
vote. Fractional votes by the holders of Preferred Stock shall not, however, be
permitted and any fractional voting rights resulting from the above formula
(after aggregating all shares into which shares of Preferred Stock held by each
holder could be converted) shall be rounded to the nearest whole number.
(b) So long as at least 1,050,000 shares of Preferred Stock
remain outstanding (adjusted to reflect subsequent stock dividends or
distributions,
-3-
stock splits or combinations or recapitalizations) the holders of shares of
Series A Preferred Stock and Series B Preferred Stock shall be entitled, voting
together as a separate class, to elect two (2) members of the Board of Directors
of this Corporation. The holders of shares of Common Stock shall be entitled,
voting together as a separate class, to elect two (2) members of the Board of
Directors of this Corporation. In all other cases, the holders of shares of
Common Stock and Preferred Stock, voting together as a single class with each
holder of shares of Preferred Stock entitled to the number of votes equal to the
number of shares of Common Stock into which such shares of Preferred Stock could
be converted on the record date for the vote, shall be entitled to elect the
remaining directors of the Corporation, if any. In the case of any vacancy in
the office of a director elected by the holders of a particular class or series
of stock, the vacancy may be filled only by the vote of the holders of such
class or series of stock. Any director who shall have been elected by the
holders of a particular class or series of stock may be removed with or without
cause by, and only by, the applicable vote of the holders of shares of such
class or series of stock.
4. CONVERSION. The holders of the Series A Preferred Stock and
Series B Preferred Stock shall have conversion rights as follows (the
"Conversion Rights"):
(a) RIGHT TO CONVERT; AUTOMATIC CONVERSION.
(i) Subject to subsection 4(c), each share of Series A Preferred Stock and
Series B Preferred Stock shall be convertible, at the option of the holder
thereof, at any time after the date of issuance of such shares, at the office of
the Corporation or any transfer agent for the Series A Preferred Stock or Series
B Preferred Stock, into such number of fully paid and nonassessable shares of
Common Stock as is determined (x) in the case of the Series A Preferred Stock,
by dividing $1.00 by the Conversion Price (as defined below) in effect at the
time of conversion for such share of Series A Preferred Stock, and (y) in the
case of the Series B Preferred Stock, by dividing $5.00 by the Conversion Price
in effect at the time of conversion for such share of Series B Preferred Stock
(the "Conversion Rate"). The Conversion Price for the Series A Preferred Stock
and the Series B Preferred Stock shall initially be $1.00 and $5.00,
respectively, provided, however, that the Conversion Price for the Series A
Preferred Stock and the Series B Preferred Stock shall be subject to adjustment
as set forth in subsection 4(c).
(ii) Each share of Series A Preferred Stock and Series B Preferred Stock
shall automatically be converted into shares of Common Stock at the Conversion
Rate at the time in effect for such Series A Preferred Stock and Series B
Preferred Stock immediately upon the earlier of the following:
(A) immediately prior to the closing of the Corporation's
sale of its Common Stock in an underwritten public offering pursuant
-4-
to a registration statement on Form S-1 under the Securities Act of 1933, as
amended, in which the Corporation receives aggregate cash proceeds of more than
$10,000,000 (net of any underwriting discounts and commissions), and the public
offering price of which is not less than $8.00 per share (adjusted to reflect
subsequent stock dividends or distributions, stock splits or combinations or
recapitalizations); or
(B) the election of the holders of more than 50% of the
outstanding shares of Series A Preferred Stock and Series B Preferred Stock,
voting together as a separate class; or
(C) if less than 420,000 shares in the aggregate of the
Series A Preferred Stock and Series B Preferred Stock (adjusted to reflect
subsequent stock dividends or distributions, stock splits or combinations or
recapitalizations) remain outstanding.
(b) MECHANICS OF CONVERSION. Before any holder of Preferred
Stock shall be entitled to convert the same into shares of Common Stock, the
holder shall surrender the certificate or certificates therefor, duly endorsed,
at the office of the Corporation or of any transfer agent for the Preferred
Stock, and shall give written notice by mail, postage prepaid, to the
Corporation at its principal corporate office, of the election to convert the
same. The Corporation shall, as soon as practicable thereafter, issue and
deliver at such office to such holder of Preferred Stock a certificate or
certificates for the number of shares of Common Stock to which such holder shall
be entitled as aforesaid. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of such surrender of the
shares of Preferred Stock to be converted, and the person or persons entitled to
receive the shares of Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such shares of
Common Stock as of such date.
(c) CONVERSION PRICE ADJUSTMENTS OF PREFERRED STOCK. The
Conversion Price for the Series A Preferred Stock and the Series B Preferred
Stock from time to time in effect shall be subject to adjustment from time to
time as follows:
(i) In case the Corporation shall at any time subdivide the outstanding
shares of Common Stock, or shall issue a stock dividend on its outstanding
Common Stock, without an equivalent subdivision of, or dividend on, the Series A
Preferred Stock and the Series B Preferred Stock, the Conversion Price in effect
immediately prior to such subdivision or the issuance of such dividend shall be
proportionately decreased, and in case the Corporation shall at any time combine
the outstanding shares of Common Stock, without an equivalent combination of the
Series A Preferred Stock and the Series B Preferred Stock, the Conversion Price
in effect immediately prior to such combination shall be proportionately
increased, effective at
-5-
the close of business on the date of such subdivision, dividend or combination,
as the case may be.
(ii) If the Corporation shall issue or sell Equity Securities (as defined
below) at a consideration per share less than the Conversion Price for the
Series A Preferred Stock or the Series B Preferred Stock in effect immediately
prior to the time of such issue or sale, as the case may be, then forthwith upon
such issue or sale, the Conversion Price of each share of Series A Preferred
Stock or Series B Preferred Stock, as the case may be, shall be adjusted to a
price (calculated to the nearest cent) determined by dividing:
(A) an amount equal to the sum of (1) the number of shares of Common
Stock issuable upon conversion of the Series A Preferred Stock or the Series B
Preferred Stock, as the case may be, outstanding immediately prior to such issue
or sale multiplied by the then existing Conversion Price for the Series A
Preferred Stock or the Series B Preferred Stock, as the case may be, and (2) an
amount equal to the aggregate "consideration actually received" by the
Corporation upon such issue or sale, by
(B) the sum of the number of shares of Common Stock issuable upon
conversion of the Series A Preferred Stock or the Series B Preferred Stock
Preferred Stock, as the case may be, outstanding immediately prior to such issue
or sale and the number of shares (on a common-equivalent basis) of the Equity
Securities so issued or sold.
(iii) For purposes of this subsection 4(c) the following provisions shall
be applicable:
(A) The term "Equity Securities" shall mean any shares of
Common Stock, any shares of stock convertible into Common Stock or any option,
warrant or other right to purchase either Common Stock or stock or other
securities of the Corporation convertible into or exchangeable for Common Stock
except for (1) Common Stock issued or issuable, after the date of the initial
issuance of shares of Series A Preferred Stock, to officers, directors,
employees or consultants of the Corporation pursuant to stock grants, stock
purchase and stock option plans or other stock incentive programs, agreements or
arrangements approved by the Board of Directors, (2) shares issued pursuant to
transactions described in subsection 4(c)(i), (3) securities issued in
connection with an equipment lease, equipment financing or bank line financing,
or (4) shares of Common Stock issued upon conversion of the Series A Preferred
Stock or Series B Preferred Stock.
(B) In the case of an issue or sale for cash of shares of
Common Stock, the "consideration actually received" by the Corporation
-6-
therefor shall be deemed to be the amount of cash received, before deducting
therefrom any commissions or expenses paid by the Corporation.
(C) In case of the issuance (otherwise than upon conversion
or exchange of rights or shares of stock of the Corporation) of additional
shares of Common Stock for a consideration other than cash or a consideration
partly other than cash, the amount of the consideration other than cash received
by the Corporation for such shares shall be deemed to be the value of such
consideration as determined in good faith by the Board of Directors.
(D) In case of the issuance by the Corporation in any
manner of any rights, including options or warrants, to subscribe for or to
purchase shares of Common Stock or stock convertible into Common Stock, all
shares of Common Stock to which the holders of such rights shall be entitled to
subscribe for or purchase pursuant to such rights shall be deemed issued as of
the date of the issuance of such rights, and the minimum aggregate consideration
named in such rights for the shares of Common Stock or stock convertible into
Common Stock covered thereby, plus the consideration, if any, received by the
Corporation for such rights, shall be deemed to be the "consideration actually
received" by the Corporation (as of the date of the issuance of such rights) for
the issuance of such shares.
(E) In case of the issuance or issuances by the Corporation
in any manner of any obligations or of any shares of stock of the Corporation
that shall be convertible into or exchangeable for Common Stock, all shares of
Common Stock issuable upon the conversion or exchange of such obligations or
shares shall be deemed issued as of the date such obligations or shares are
issued, and the amount of the "consideration actually received" by the
Corporation for such additional shares of Common Stock shall be deemed to be the
total of (1) the amount of consideration received by the Corporation upon the
issuance of such obligations or shares, as the case may be, plus (2) the minimum
aggregate consideration, if any, other than such obligations or shares,
receivable by the Corporation upon such conversion or exchange, except in
adjustment of dividends.
(F) The amount of the "consideration actually received" by
the Corporation upon the issuance of any rights or options referred to in
subsection (D) above or upon the issuance of any obligations or shares which are
convertible or exchangeable as described in subsection (E) above, and the amount
of the consideration, if any, other than such obligations or shares so
convertible or exchangeable, receivable by the Corporation upon the exercise,
conversion or exchange thereof shall be determined in the same manner provided
in subsections (B) and (C) above with respect to the consideration received by
the Corporation in case of the issuance of additional shares of Common Stock;
provided, however, that if such obligations or shares of stock so convertible or
exchangeable are issued in
-7-
payment or satisfaction of any dividend upon any stock of the Corporation other
than Common Stock, the amount of the "consideration actually received" by the
Corporation upon the original issuance of such obligations or shares or stock so
convertible or exchangeable shall be deemed to be the value of such obligations
or shares of stock, as of the date of the adoption of the resolution declaring
such dividend, as determined by the Board of Directors at or as of that date. On
the expiration of any rights or options referred to in subsection (D), or the
termination of any right of conversion or exchange referred to in subsection
(E), or any change in the number of shares of Common Stock deliverable upon
exercise of such options or rights or upon conversion of or exchange of such
convertible or exchangeable securities, the Conversion Price for the Series A
Preferred Stock and the Series B Preferred Stock then in effect shall forthwith
be readjusted to such Conversion Price as would have been obtained had the
adjustments made upon the issuance of such option, right or convertible or
exchangeable securities been made upon the basis of the delivery of only the
number of shares of Common Stock actually delivered or to be delivered upon the
exercise of such rights or options or upon the conversion or exchange of such
securities.
(d) OTHER DISTRIBUTIONS. In the event the Corporation shall
declare a distribution payable in securities of other persons, evidences of
indebtedness issued by the Corporation or other persons, assets (excluding cash
dividends) or options or rights not referred to in subsection 4(c)(iii), then,
in each such case for the purpose of this subsection 4(d), the holders of the
Series A Preferred Stock and the Series B Preferred Stock shall be entitled to a
proportionate share of any such distribution as though they were the holders of
the number of shares of Common Stock of the Corporation into which their shares
of Series A Preferred Stock or Series B Preferred Stock are convertible as of
the record date fixed for the determination of the holders of Common Stock of
the Corporation entitled to receive such distribution.
(e) RECAPITALIZATION. If at any time or from time to time there
shall be a recapitalization of the Common Stock (other than a subdivision,
combination or merger or sale of assets transaction provided for elsewhere in
this Section 4 or Section 3 above) provision shall be made so that the holders
of the Preferred Stock shall thereafter be entitled to receive upon conversion
of the Preferred Stock the number of shares of stock or other securities or
property of the Corporation or otherwise, to which a holder of Common Stock
deliverable upon conversion would have been entitled on such recapitalization.
In any such case, appropriate adjustment shall be made in the application of the
provisions of this Section 4 with respect to the rights of the holders of the
Preferred Stock after the recapitalization to the end that the provisions of
this Section 4 (including adjustment of the Conversion Price for the Series A
Preferred Stock and the Series B Preferred Stock then in effect and the number
of shares purchasable upon conversion of the
-8-
Preferred Stock) shall be applicable after that event as nearly equivalent as
may be practicable.
(f) NO IMPAIRMENTS. The Corporation will not, by amendment of
its Certificate of Incorporation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the rights, preferences or privileges of the
Preferred Stock set forth herein, but will at all times in good faith assist in
the carrying out of all the provisions of this Section 4 and in the taking of
all such action as may be necessary or appropriate in order to protect the
Conversion Rights of the holders of the Preferred Stock against impairment.
(g) NO FRACTIONAL SHARES AND CERTIFICATE AS TO ADJUSTMENTS.
(i) No fractional shares shall be issued upon conversion of the Preferred
Stock, and the number of shares of Common Stock to be issued shall be rounded to
the nearest whole share. Whether or not fractional shares are issuable upon such
conversion shall be determined on the basis of the total number of shares of
Preferred Stock the holder is at the time converting into Common Stock and the
number of shares of Common Stock issuable upon such aggregate conversion.
(ii) Upon the occurrence of each adjustment or readjustment of the
Conversion Price of the Series A Preferred Stock or the Series B Preferred Stock
pursuant to this Section 4, the Corporation, at its expense, shall promptly
compute such adjustment or readjustment in accordance with the terms hereof and
prepare and furnish to each holder of Preferred Stock a certificate setting
forth such adjustment or readjustment and showing in detail the facts upon which
such adjustment or readjustment is based. The Corporation shall, upon the
written request at any time of any holder of Preferred Stock, furnish or cause
to be furnished to such holder a like certificate setting forth (A) such
adjustment and readjustment, (B) the Conversion Price of the Series A Preferred
Stock or the Series B Preferred Stock, as the case may be, at the time in
effect, and (C) the number of shares of Common Stock and the amount, if any, of
other property which at the time would be received upon the conversion of a
share of Series A Preferred Stock or Series B Preferred Stock, as the case may
be.
(h) NOTICES OF RECORD DATE. In the event of any setting of a
record date by the Corporation for the holders of any class of securities for
the purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, the Corporation
shall mail to each holder of Preferred Stock, at least 20 days prior to the date
specified therein, a notice specifying
-9-
the date on which any such record is to be taken for the purpose of such
dividend, distribution or right, and the amount and character of such dividend,
distribution or right.
(i) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The
Corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock solely for the purpose of effecting the
conversion of the shares of the Preferred Stock such number of its shares of
Common Stock as shall from time to time be sufficient to effect the conversion
of all outstanding shares of the Preferred Stock and if at any time the number
of authorized but unissued shares of Common Stock shall not be sufficient to
effect the conversion of all then outstanding shares of the Preferred Stock, in
addition to such other remedies as shall be available to the holder of such
Preferred Stock, the Corporation will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such
purposes.
(j) NOTICES. Any notice required by the provisions of this
Section 4 to be given to the holders of shares of Preferred Stock shall be
deemed given if deposited in the United States mail, postage prepaid, and
addressed to each holder of record at his address appearing on the books of the
Corporation.
5. PROTECTIVE PROVISIONS.
(a) So long as any shares of Series A Preferred Stock or Series
B Preferred Stock are outstanding, the Corporation shall not, without first
obtaining the approval by vote or written consent, in the manner provided by
law, of the holders of a majority of the total number of shares of Series A
Preferred Stock and Series B Preferred Stock outstanding, voting together as a
separate class (except as otherwise provided by law): (1) alter or change any of
the powers, preferences, privileges or rights of the Series A Preferred Stock or
Series B Preferred Stock; (2) increase the authorized number of shares of
Preferred Stock; (3) amend the provisions of this paragraph (a) of Section 5; or
(4) create any new class or series of shares having preferences prior to or on
parity with those of the Series A Preferred Stock or the Series B Preferred
Stock.
(b) So long as at least 1,050,000 shares of Series A Preferred
Stock and Series B Preferred Stock in the aggregate (adjusted to reflect
subsequent stock dividends or distributions, stock splits or combinations or
recapitalizations) are outstanding, the Corporation shall not, without first
obtaining the approval by vote or written consent, in the manner provided by
law, of the holders of a majority of the total number of shares of Series A
Preferred Stock and Series B Preferred Stock outstanding, voting together as a
separate class: (1) undertake or effect any consolidation or merger of the
Corporation with or into another corporation (except
-10-
into or with a wholly-owned subsidiary) or any acquisition by or the conveyance
of all or substantially all of the assets of the Corporation to another person
or effectuate any transaction or series of related transactions which results in
the Corporation's stockholders immediately prior to such transaction not holding
at least 50% of the voting power of the surviving or continuing entity; (2)
effect a material change in the principal business of the Corporation; (3)
repurchase any shares of Common Stock except the repurchase of Common Stock of
employees, consultants or directors pursuant to a stock or option agreement duly
approved by the Corporation's Board of Directors; or (4) amend the Corporation's
Certificate of Incorporation or Bylaws.
B. COMMON STOCK.
1. DIVIDEND RIGHTS. Subject to the prior rights of holders of all
classes of stock at the time outstanding having prior rights as to dividends,
the holders of the Common Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of any assets of the Corporation legally
available therefore, such dividends as may be declared from time to time by the
Board of Directors.
2. LIQUIDATION RIGHTS. Upon the liquidation, dissolution or winding
up of the Corporation, the assets of the Corporation shall be distributed as
provided in Section 2 of Article III.A.
3. VOTING RIGHTS. The holder of each share of Common Stock shall have
the right to one vote, and shall be entitled to notice of any stockholders'
meeting in accordance with the Bylaws of this Corporation, and shall be entitled
to vote upon such matters and in such manner as may be provided by law or as
provided by Section 3 of Article III.A above. Except as otherwise expressly
provided herein or required by law, the holders of shares of Common Stock and
the holders of shares of Preferred Stock shall vote together as a single class
on all matters.
RESOLVED: That Article IV of the Amended and Restated Certificate of
Incorporation be and hereby is deleted and the following Article
IV is inserted in lieu thereof:
ARTICLE IV
DIRECTORS' LIABILITY AND INDEMNIFICATION OF AGENTS
1. ACTION, SUITS AND PROCEEDINGS OTHER THAN BY OR IN THE RIGHT OF THE
CORPORATION. The Corporation shall indemnify each 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,
-11-
or has agreed to become, a director or officer of the Corporation, or is or was
serving, or has agreed to serve, at the request of the Corporation, as a
director, officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise (including
any employee benefit plan) (all such persons being referred to hereafter as an
"Indemnitee"), or by reason of any action alleged to have been taken or omitted
in such capacity, against all expenses (including attorneys' fees) judgment,
fines and amounts paid in settlement actually and reasonably incurred by him or
on his behalf in connection with such action, suit or proceeding and any appeal
therefrom, 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 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. Notwithstanding anything to the contrary in this Article, except
as set forth in Section 6 below, the Corporation shall not indemnify an
Indemnitee seeking indemnification in connection with a proceeding (or part
thereof) initiated by the Indemnitee unless the initiation thereof was approved
by the Board of Directors of the Corporation.
2. ACTIONS OR SUITS BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify any Indemnitee 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, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to serve, at the
request of the Corporation, as a director, officer or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust or
other enterprise (including any employee benefit plan), or by reason of any
action alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys' fees) and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such action, suit
or proceeding and any appeal therefrom, 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, 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 Delaware shall determine upon application that, despite the
adjudication of such liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
(including attorneys' fees) which the Court of Chancery of Delaware shall deem
proper.
-12-
3. INDEMNIFICATION FOR EXPENSES OF SUCCESSFUL PARTY. Notwithstanding the
other provisions of this Article, to the extent that an Indemnitee 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, or in defense of any
claim, issue or matter therein, or on appeal from any such action, suit or
proceeding, he shall be indemnified against all expenses (including attorneys'
fees) actually and reasonably incurred by him or on his behalf in connection
therewith. Without limiting the foregoing, if any action, suit or proceeding is
disposed of, on the merits or otherwise (including a disposition without
prejudice), without (i) the disposition being adverse to the Indemnitee, (ii) an
adjudication that the Indemnitee was liable to the Corporation, (iii) a plea of
guilty or NOLO CONTENDERE by the Indemnitee, (iv) an adjudication that the
Indemnitee did not act in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and (v) with
respect to any criminal proceeding, an adjudication that the Indemnitee had
reasonable cause to believe his conduct was unlawful, the Indemnitee shall be
considered for the purposes hereof to have been wholly successful with respect
thereto.
4. NOTIFICATION AND DEFENSE OF CLAIM. As a condition precedent to his
right to be indemnified, the Indemnitee must notify the Corporation in writing
as soon as practicable of any action, suit, proceeding or investigation
involving him for which indemnity will or could be sought. With respect to any
action, suit, proceeding or investigation of which the Corporation is so
notified, the Corporation will be entitled to participate therein at its own
expense and/or to assume the defense thereof at its own expense, with legal
counsel reasonably acceptable to the Indemnitee. After notice from the
Corporation to the Indemnitee of its election so to assume such defense, the
Corporation shall not be liable to the Indemnitee for any legal or other
expenses subsequently incurred by the Indemnitee in connection with such claim,
other than as provided below in this Section 4. The Indemnitee shall have the
right to employ his own counsel in connection with such claim, but the fees and
expenses of such counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expense of the Indemnitee
unless (i) the employment of counsel by the Indemnitee has been authorized by
the Corporation, (ii) counsel to the Indemnitee shall have reasonably concluded
that there may be a conflict of interest or position on any significant issue
between the Corporation and the Indemnitee in the conduct of the defense of such
action or (iii) the Corporation shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the fees and expenses
of counsel for the Indemnitee shall be at the expense of the Corporation, except
as otherwise expressly provided by this Article. The Corporation shall not be
entitled, without the consent of the Indemnitee, to assume the defense of any
claim brought by or in the right of the Corporation or as to which counsel for
the Indemnitee shall have reasonably made the conclusion provided for in clause
(ii) above.
-13-
5. ADVANCE OF EXPENSES. Subject to the provisions of Section 6 below, in
the event that the Corporation does not assume the defense pursuant to Section 4
of this Article of any action, suit, proceeding or investigation of which the
Corporation receives notice under this Article, any expenses (including
attorneys' fees) incurred by an Indemnitee in defending a civil or criminal
action, suit, proceeding or investigation or any appeal therefrom shall be paid
by the Corporation in advance of the final disposition of such matter; PROVIDED,
HOWEVER, that the payment of such expense incurred by an Indemnitee in advance
of the final disposition of such matter shall be made only upon receipt of an
undertaking by or on behalf of the Indemnitee to repay all amounts so advanced
in the event that it shall ultimately be determined that the Indemnitee is not
entitled to be indemnified by the Corporation as authorized in this Article.
Such undertaking shall be accepted without reference to the financial ability of
the Indemnitee to make such repayment.
6. PROCEDURE FOR INDEMNIFICATION. In order to obtain indemnification or
advancement of expenses pursuant to Section 1, 2, 3 or 5 of this Article, the
Indemnitee shall submit to the Corporation a written request, including in such
request such documentation and information as is reasonably available to the
Indemnitee and is reasonably necessary to determine whether and to what extent
the Indemnitee is entitled to indemnification or advancement of expenses. Any
such indemnification or advancement of expenses shall be made promptly, and in
any event within 60 days after receipt by the Corporation of the written request
of the Indemnitee, unless with respect to requests under Section 1, 2 or 5 the
Corporation determines, by clear and convincing evidence, within such 60-day
period that the Indemnitee did not meet the applicable standard of conduct set
forth in Section 1 or 2, as the case may be. Such determination shall be made in
each instance by (a) a majority vote of the directors of the Corporation
consisting of persons who are not at that time parties to the action, suit or
proceeding in question ("disinterested directors"), even though less than a
quorum, (b) a majority vote of a quorum of the outstanding shares of stock of
all classes entitled to vote for directors, voting as a single class, which
quorum shall consist of stockholders who are not at that time parties to the
action, suit or proceeding in question, (c) independent legal counsel (who may
be regular legal counsel to the Corporation), or (d) a court of competent
jurisdiction.
7. REMEDIES. The right to indemnification or advances as granted by this
Article shall be enforceable by the Indemnitee in any court of competent
jurisdiction if the Corporation denies such request, in whole or in part, or if
no disposition thereof is made within the 60-day period referred to above in
Section 6. Unless otherwise provided by law, the burden of proving that the
Indemnitee is not entitled to indemnification or advanced of expenses under this
Article shall be on the Corporation. Neither the failure of the Corporation to
have made a determination prior to the commencement of such action that
indemnification is proper in the circumstances because the Indemnitee has met
the applicable standard of conduct,
-14-
nor an actual determination by the Corporation pursuant to Section 6 that the
Indemnitee has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that the Indemnitee has not met the
applicable standard of conduct. The Indemnitee's expenses (including attorneys'
fees) incurred in connection with successfully establishing his right to
indemnification, in whole or in part, in any such proceeding shall also be
indemnified by the Corporation.
8. SUBSEQUENT AMENDMENT. No amendment, termination or repeal of this
Article or of the relevant provisions of the General Corporation Law of Delaware
or any other applicable laws shall affect or diminish in any way the rights of
any Indemnitee to indemnification under the provisions hereof with respect to
any action, suit, proceeding or investigation arising out of or relating to any
actions, transactions or facts occurring prior to the final adoption of such
amendment, termination or repeal.
9. OTHER RIGHTS. The indemnification and advancement of expenses provided
by this Article shall not be deemed exclusive of any other rights to which an
Indemnitee seeking indemnification or advancement of expenses may be entitled
under any law (common or statutory), agreement or vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in any other capacity while holding office for the Corporation,
and shall continue as to an Indemnitee who has ceased to be a director or
officer, and shall inure to the benefit of the estate, heirs, executors and
administrators of the Indemnitee. Nothing contained in this Article shall be
deemed to prohibit, and the Corporation is specifically authorized to enter
into, agreements with officers and directors providing indemnification rights
and procedures different from those set forth in this Article. In addition, the
Corporation may, to the extent authorized from time to time by its Board of
Directors, grant indemnification rights to other employees or agents of the
Corporation or other persons serving the Corporation and such rights may be
equivalent to, or greater or less than, those set forth in this Article.
10. PARTIAL INDEMNIFICATION. If an Indemnitee is entitled under any
provision of this Article to indemnification by the Corporation for some or a
portion of the expenses (including attorneys' fees), judgments, fines or amounts
paid in settlement actually and reasonably incurred by him or on his behalf in
connection with any action, suit, proceeding or investigation and any appeal,
therefrom but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify the Indemnitee for the portion of such expenses
(including attorneys' fees), judgments, fines or amounts paid in settlement to
which the Indemnitee is entitled.
11. INSURANCE. The Corporation may purchase and maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
-15-
enterprise (including any employee benefit plan) against any expense, liability
or loss 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 such
person against such expense, liability or loss under the General Corporation law
of Delaware.
12. MERGER OR CONSOLIDATION. If the Corporation is merged into or
consolidated with another corporation and the Corporation is not the surviving
corporation, the surviving corporation shall assume the obligations of the
Corporation under this Article with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or facts
occurring prior to the date of such merger or consolidation.
13. SAVINGS CLAUSE. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Indemnitee as to any expenses
(including attorneys' fees) judgments, fines and amounts paid in settlement in
connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the
Corporation, to the fullest extent permitted by any applicable portion of this
Article that shall not have been invalidated and to the fullest extent permitted
by applicable law.
14. DEFINITIONS. Terms used herein and defined in Section 145(h) and
Section 145(i) of the General Corporation Law of Delaware shall have the
respective meanings assigned to such terms in such Section 145(h) and Section
145(i).
15. SUBSEQUENT LEGISLATION. If the General Corporation Law of Delaware is
amended after adoption of this Article to expand further the indemnification
permitted to Indemnitees, then the Corporation shall indemnify such persons to
the fullest extent permitted by the General Corporation Law of Delaware, as so
amended.
ARTICLE V
DIRECTORS' FIDUCIARY LIABILITY
Except to the extent that the General Corporation Law of the State of
Delaware prohibits the elimination or limitation of liability of directors for
breaches of fiduciary duty, no director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for any
breach of fiduciary duty as a director, notwithstanding any provision of law
imposing such liability. No amendment to or repeal of this provision shall
apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment.
-16-
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this Certificate of Amendment to be signed by its President
this _____ day of September, 1997.
CASCADE SYSTEMS INCORPORATED
By:
-------------------------------------
Malcolm P. McGrory
President and Chief Executive Officer
-17-
↑Top
Filing Submission 0000950135-97-003928 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Mon., May 13, 2:17:01.1pm ET 