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) 94 494K
2: EX-3.1 Amended and Restated Certificate of Incorporation 14 61K
3: EX-3.2 Certificate of Correction of Certificate 2 14K
4: EX-3.4 Amended and Restated Bylaws 29 131K
5: EX-10.1 1996 Stock Option Plan 38 175K
14: EX-10.10 Amended and Restated Investors Agreement 10/27/999 20 91K
15: EX-10.11 Voting Agreement Dated October 27, 1999 9 35K
16: EX-10.12 Form of Restricted Stock Purchase Agreement 7 48K
17: EX-10.13 Worldwide Intercompany Management Agreement 5 23K
18: EX-10.14 International Distributor Agreement 15 64K
19: EX-10.15 Promissory Note Dated 02/19/00 - Shai Agassi 1 11K
20: EX-10.16 Promissory Note 1 11K
21: EX-10.17 Promissory Note Date 12/30/99 - David Blumstein 1 11K
22: EX-10.18 Promissory Nate Dated 01/22/00 - Gil Perez 1 11K
6: EX-10.2 2000 Stock Plan and Agreement Thereunder 19 77K
23: EX-10.20 Promissory Nate Dated 12/30/99 - Joseph Zarb 1 11K
24: EX-10.21 Employment Agreement Dated 10/06/98 - Shai Agassi 9 44K
25: EX-10.22 Employment Agreement 10/06/98 - David Blumstein 9 44K
26: EX-10.23 Employment Agreement Dated 10/06/98 - Udi Ziv 9 44K
27: EX-10.24 Offer Letter Dated July 28, 1997 - Joseph Zarb 2 14K
7: EX-10.3 2000 Employee Stock Purchase Plan 14 60K
8: EX-10.4 Form of Indemnification Agreement 11 58K
9: EX-10.5 Office Lease Dated December 19, 1996 29 100K
10: EX-10.6 Office Lease Dated December 5, 1997 42 110K
11: EX-10.7 Oem License Agreement With Baan Development 36 157K
12: EX-10.8 Reseller Agreement With Baan Development 25 95K
13: EX-10.9 Master Software License and Distro Agreement 18 63K
28: EX-21.1 List of Subsidiaries 1 8K
29: EX-23.1 Consent of Arthur Andersen, Independent 1 9K
Accountants
30: EX-27.1 Financial Data Schedule 2 12K
EX-3.1 — Amended and Restated Certificate of Incorporation
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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
TOP TIER SOFTWARE, INC.
The undersigned Shai Agassi and Armando Castro hereby certify that:
1. They are the duly elected and acting President and Secretary,
respectively of TopTier Software, Inc. (the "Corporation").
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2. The Certificate of Incorporation of the Corporation was
originally filed on August 22, 1996 under the name "Datasurf Inc." and amended
on May 27, 1997. The Amended and Restated Certificate of Incorporation of the
Corporation shall be amended and restated in its entirety to read as follows:
"ARTICLE I
The name of the corporation is Top Tier Software, Inc.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 9 E. Loockerman Street, Dover, County of Kent. The name of its
registered agent at such address is National Corporate Research, Ltd.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
ARTICLE IV
(A) Classes of Stock. This corporation is authorized to issue two
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classes of stock to be designated, respectively, "Common Stock" and "Preferred
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Stock." The total number of shares which the corporation is authorized to issue
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is 59,200,000 shares, of which 33,125,000 shares shall be Common Stock and
26,075,000 shares shall be Preferred Stock, each with a par value of $0.001. The
Preferred Stock shall consist of four series. The first series shall be
designated "Series A Preferred Stock" and shall consist of 688,081 shares. The
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second series shall be designated "Series B Preferred Stock" and shall consist
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of 5,971,245 shares. The third series shall be designated "Series C Preferred
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Stock" and shall consist of 9,345,000 shares. The fourth series shall be
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designated "Series D Preferred Stock" and shall consist of 8,100,000 shares.
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(B) Rights, Preferences and Restrictions of Preferred Stock. The
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rights, preferences, privileges, and restrictions granted to and imposed on the
Preferred Stock are as follows:
(1) Dividends.
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(a) The holders of outstanding Preferred Stock shall be entitled
to receive in any fiscal year, when and as declared by the Board of Directors,
out of any assets at the time legally available therefor, dividends in cash at
the rate of $0.0424 per share of Series A Preferred Stock, $0.1664 per share of
Series B Preferred Stock, $0.5152 per share of Series C Preferred Stock and
$0.040 per share of Series D Preferred Stock, per annum, before any dividend
payable other than in Common Stock or other securities and rights convertible
into or entitling the holder thereof to receive, directly or indirectly,
additional shares of Common Stock of this Corporation, is paid on Common Stock.
Such dividend or distribution may be payable annually or otherwise as the Board
of Directors may from time to time determine. Dividends or distributions (other
than dividends payable solely in shares of Common Stock) may be declared and
paid upon shares of Common Stock in any fiscal year of the corporation only if
dividends shall have been paid on or declared and set apart upon all shares of
Preferred Stock at such annual rates; and no further dividends shall be paid to
holders of shares of Preferred Stock in excess of such annual rates in any
fiscal year unless at the same time equivalent dividends are paid to holders of
shares of Common Stock. The right to such dividends on shares of Preferred Stock
shall not be cumulative and no right shall accrue to holders of shares of
Preferred Stock by reason of the fact that dividends on said shares are not
declared in any prior year, nor shall any undeclared or unpaid dividend bear or
accrue interest.
(b) In the event this corporation shall declare a distribution
payable in securities of other persons, evidences of indebtedness issued by this
corporation or other persons, assets (excluding cash dividends) or options or
rights to purchase any such securities or evidences of indebtedness, then, in
each such case, the holders of the Preferred Stock shall be entitled to a
proportionate share of any such distribution as though the holders of the
Preferred Stock were the holders of the number of shares of Common Stock of the
corporation into which their respective shares of 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.
(2) Voting Rights.
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(a) Subject to subsection 2(b), each holder of shares of the
Preferred Stock shall be 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 or consent of stockholders and shall
have voting rights and powers equal to the voting rights and powers of the
Common Stock. The holder of each share of the Preferred Stock shall be entitled
to notice of any stockholders' meeting in accordance with the Bylaws of the
corporation and shall vote with holders of the Common Stock upon the election of
directors and upon any other matter submitted to a vote of stockholders, except
in 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.
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(b) The holders of shares of Series A Preferred Stock, voting
separately as a class, shall elect two members of the Board of Directors of the
Corporation. The holders of shares of Series B and Series C Preferred Stock,
voting together as a single class, shall elect two members of the Board of
Directors of the Corporation. The holders of shares of Series D Preferred Stock,
voting separately as a class, shall elect one member of the Board of Directors
of the Corporation. The holders of shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Common
Stock, voting together as a single class, shall elect any remaining members of
the Board of Directors. If a vacancy on the Board of Directors is to be filled
by the Board of Directors, only a director or directors elected by the same
class of shareholders as those who would be entitled to vote to fill such
vacancy, if any, shall vote to fill such vacancy. A director may be removed from
the Board of Directors with or without cause by the vote or consent of the
holders of the outstanding class or series with voting power to elect him or her
in accordance with this Certificate of Incorporation.
(3) Conversion. The holders of the Series A Preferred Stock, Series
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B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock shall
have conversion rights as follows (the "Conversion Rights"):
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(a) Right to Convert. Subject to Section 3(c), each share of
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Series A, Series B, Series C and Series D Preferred Stock shall be convertible,
at the option of the holder thereof, at any time after the date of issuance of
such share, at the office of the Corporation or any transfer agent for such
stock, into such number of fully paid and nonassessable shares of Common Stock
as is determined by dividing (i) $0.53 in the case of the Series A Preferred
Stock, (ii) $2.08 in the case of the Series B Preferred Stock, (iii) $6.44 in
the case of the Series C Preferred Stock and (iv) $4.98 in the case of the
Series D Preferred Stock by the Conversion Price applicable to such share,
determined as hereafter provided, in effect on the date the certificate is
surrendered for conversion. The initial Conversion Price per share shall be
$0.53 for shares of Series A Preferred Stock, $2.08 for shares of Series B
Preferred Stock, $6.44 for shares of Series C Preferred Stock and $4.98 for
shares of Series D Preferred Stock. Such initial Conversion Price shall be
subject to adjustment as set forth in Section 3(d) below.
(b) Automatic Conversion. Each share of Series A, Series B,
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Series C or Series D Preferred Stock shall automatically be converted into
shares of Common Stock at the Conversion Price at the time in effect for such
share immediately upon the earlier of the Corporation's sale of its Common Stock
in a firm commitment underwritten public offering pursuant to a registration
statement under the Securities Act of 1933, as amended, at a public offering
price per share not less than $14.94 and an aggregate offering price of
$20,000,000 or (i) as to the Series A, Series B and Series C Preferred Stock,
the date specified by written consent or agreement of the holders of at least
66-2/3% of the then outstanding shares of Series A, Series B and Series C
Preferred Stock, voting together as a class and (ii) as to the Series D
Preferred Stock, the date specified by written consent or agreement of the
holders of at least 50% of the then outstanding shares of Series D Preferred
Stock, voting together as a class.
(c) Mechanics of Conversion. Before any holder of Series A,
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Series B, Series C or Series D Preferred Stock shall be entitled to convert the
same into shares of Common Stock, he shall surrender the certificate or
certificates therefor, duly endorsed, at the office of the Corporation or of any
transfer agent for the Series A, Series B, Series C or Series D
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Preferred Stock, and shall give written notice to the Corporation at its
principal corporate office, of the election to convert the same and shall state
therein the name or names in which the certificate or certificates for shares of
Common Stock are to be issued. The Corporation shall, as soon as practicable
thereafter, issue and deliver at such office to such holder of Series A, Series
B, Series C or Series D Preferred Stock, or to the nominee or nominees of such
holder, 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 Series A, Series B, Series C or Series D
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. If the conversion is in connection with an underwritten offering
of securities registered pursuant to the Securities Act of 1933, the conversion
may, at the option of any holder tendering Series A, Series B, Series C or
Series D Preferred Stock for conversion, be conditioned upon the closing with
the underwriters of the sale of securities pursuant to such offering, in which
event the person(s) entitled to receive Common Stock upon conversion of such
Preferred Stock shall not be deemed to have converted such Preferred Stock until
immediately prior to the closing of such sale of securities.
(d) Conversion Price Adjustments of Preferred Stock for Certain
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Dilutive Issuances, Splits and Combinations. The Conversion Price of the Series
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A, Series B, Series C or Series D Preferred Stock shall be subject to adjustment
from time to time as follows:
(i) (A) If the Corporation shall issue, after the date
upon which any shares of Series A, Series B, Series C or Series D Preferred
Stock were first issued (the "Purchase Date" with respect to such series), any
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Additional Stock (as defined below) without consideration or for a consideration
per share less than the Conversion Price for such series in effect immediately
prior to the issuance of such Additional Stock, the Conversion Price for such
series in effect immediately prior to each such issuance shall automatically
(except as otherwise provided in this clause (i)) be adjusted to a price
determined by multiplying such Conversion Price by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding and/or issuable
upon conversion of Preferred Stock immediately prior to such issuance (the
"Outstanding Common") plus the number of shares of Common Stock that the
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aggregate consideration received by the Corporation for such issuance would
purchase at such Conversion Price, and the denominator of which shall be the
number of Outstanding Common plus the number of shares of such Additional Stock.
(B) No adjustment of the Conversion Price for the
Series A, Series B, Series C or Series D Preferred Stock shall be made in an
amount less than one cent per share, provided that any adjustments which are not
required to be made by reason of this sentence shall be carried forward and
shall be either taken into account in any subsequent adjustment made prior to
three years from the date of the event giving rise to the adjustment being
carried forward, or shall be made at the end of three years from the date of the
event giving rise to the adjustment being carried forward. Except to the limited
extent provided for in Sections 3(d)(i)(E)(3) and 3(d)(i)(E)(4), no adjustment
of such Conversion Price pursuant to this Section 3(d)(i) shall have the effect
of increasing the Conversion Price above the Conversion Price in effect
immediately prior to such adjustment.
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(C) In the case of the issuance of Common Stock for
cash, the consideration shall be deemed to be the amount of cash paid therefor
before deducting any reasonable discounts, commissions or other expenses
allowed, paid or incurred by the Corporation for any underwriting or otherwise
in connection with the issuance and sale thereof.
(D) In the case of the issuance of the Common Stock
for a consideration in whole or in part other than cash, the consideration other
than cash shall be deemed to be the fair market value thereof as determined by
the Board of Directors irrespective of any accounting treatment.
(E) In the case of the issuance (whether before, on or
after the applicable Purchase Date) 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, the following provisions shall
apply for all purposes of this Section 3(d)(i) and Section 3(d)(ii):
(1) The aggregate maximum number of shares of
Common Stock deliverable upon exercise (assuming the satisfaction of any
conditions to exercisability, including without limitation, the passage of time,
but without taking into account potential antidilution adjustments) 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
Sections 3(d)(i)(C) and 3(d)(i)(D)), if any, received by the Corporation upon
the issuance of such options or rights plus the minimum exercise price provided
in such options or rights (without taking into account potential antidilution
adjustments) for the Common Stock covered thereby.
(2) The aggregate maximum number of shares of
Common Stock deliverable upon conversion of or in exchange (assuming the
satisfaction of any conditions to convertibility or exchangeability, including,
without limitation, the passage of time, but without taking into account
potential antidilution adjustments) 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
were issued or such options or rights were issued and for a consideration equal
to the consideration, if any, received by the Corporation for any such
securities and related options or rights (excluding any cash received on account
of accrued interest or accrued dividends), plus the minimum additional
consideration, if any, to be received by the Corporation (without taking into
account potential antidilution adjustments) 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 Sections
3(d)(i)(C) and 3(d)(i)(D)).
(3) In the event of any change in the number of
shares of Common Stock deliverable or in the consideration payable to the
Corporation upon exercise of such options or rights or upon conversion of or in
exchange for such convertible or exchangeable securities, including, but not
limited to, a change resulting from the antidilution provisions thereof, the
Conversion Price of each of the Series A, Series B, Series C or Series D
Preferred Stock, to the extent in any way affected by or computed using such
options, rights or
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securities, shall be recomputed to reflect such change, but no further
adjustment shall be made for the actual issuance of Common Stock or any payment
of such consideration upon the exercise of any such options or rights or the
conversion or exchange of such securities.
(4) Upon 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 of each of the Series A, Series B, Series C and
Series D Preferred Stock, to the extent in any way affected by or computed using
such options, rights or securities or options or rights related to such
securities, shall be recomputed to reflect the issuance of only the number of
shares of Common Stock (and convertible or exchangeable securities which remain
in effect) 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.
(5) The number of shares of Common Stock deemed
issued and the consideration deemed paid therefor pursuant to Sections
3(d)(i)(E)(1) and (2) shall be appropriately adjusted to reflect any change,
termination or expiration of the type described in either Section 3(d)(i)(E)(3)
or (4).
(ii) "Additional Stock" shall mean any shares of Common
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Stock issued (or deemed to have been issued pursuant to Section 3(d)(i)(E)) by
the Corporation after the Purchase Date) other than
(A) Common Stock issued pursuant to a transaction
described in Section 3(d)(iii) hereof,
(B) Common Stock issuable or issued to employees,
consultants or directors of the Corporation directly or pursuant to a stock
option plan or restricted stock plan approved by the Board of Directors of the
Corporation,
(C) Capital stock, or options or warrants to purchase
capital stock, issued to financial institutions or lessors in connection with
commercial credit arrangements, equipment financings or similar transactions,
(D) Shares of Common Stock or Preferred Stock issuable
upon exercise of warrants outstanding as of the date of this Amended and
Restated Certificate of Incorporation,
(E) Capital stock or warrants or options to purchase
capital stock issued in connection with bona fide acquisitions, mergers or
similar transactions, the terms of which are approved by the Board of Directors
of the Corporation,
(F) Shares of Common Stock issued or issuable upon
conversion of the Series A, Series B, Series C or Series D Preferred Stock,
(G) Shares of Series D Preferred Stock, and
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(H) Shares of Common Stock issued or issuable in a
public offering prior to or in connection with which all outstanding shares of
Series A, Series B, Series C and Series D Preferred Stock will be converted to
Common Stock.
(iii) In the event the Corporation should at any time or
from time to time after the Purchase Date fix a record date for the effectuation
of a split or subdivision of the outstanding shares of Common Stock or the
determination of holders of Common Stock entitled to receive a dividend or other
distribution payable in additional shares of Common Stock or other securities or
rights convertible into, or entitling the holder thereof to receive directly or
indirectly, additional shares of Common Stock (hereinafter referred to as
"Common Stock Equivalents") without payment of any consideration by such holder
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for the additional shares of Common Stock or the Common Stock Equivalents
(including the additional shares of Common Stock issuable upon conversion or
exercise thereof), then, as of such record date (or the date of such dividend
distribution, split or subdivision if no record date is fixed), the Conversion
Price of each of the Series A, Series B, Series C and Series D Preferred Stock
shall be appropriately decreased so that the number of shares of Common Stock
issuable on conversion of each share of such series shall be increased in
proportion to such increase of the aggregate of shares of Common Stock
outstanding and those issuable with respect to such Common Stock Equivalents
with the number of shares issuable with respect to Common Stock Equivalents
determined from time to time in the manner provided for deemed issuances in
Section 3(d)(i)(E).
(iv) If the number of shares of Common Stock outstanding at
any time after the Purchase Date is decreased by a combination of the
outstanding shares of Common Stock, then, following the record date of such
combination, the Conversion Price for each of the Series A, Series B, Series C
and the Series D Preferred Stock shall be appropriately increased so that the
number of shares of Common Stock issuable on conversion of each share of such
series shall be decreased in proportion to such decrease in outstanding shares.
(e) Other Distributions. In the event the Corporation shall
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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 Section 3(d)(iii), then, in
each such case for the purpose of this Section 3(e), the holders of Series A,
Series B, Series C and Series D 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 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.
(f) Recapitalizations. If at any time or from time to time
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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 3 or Section 4) provision shall be made so that the holders of the
Series A, Series B, Series C and Series D Preferred Stock shall thereafter be
entitled to receive upon conversion of the Series A, Series B, Series C and
Series D Preferred Stock the number of shares of stock or other securities or
property of the Company 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 3 with respect to the rights of the holders of the
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Series A, Series B, Series C and Series D Preferred Stock after the
recapitalization to the end that the provisions of this Section 4 (including
adjustment of the Conversion Price then in effect and the number of shares
purchasable upon conversion of the Series A, Series B, Series C and Series D
Preferred Stock) shall be applicable after that event and be as nearly
equivalent as practicable.
(g) No Impairment. The Corporation will not, by amendment of
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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 terms to be observed or performed
hereunder by the Corporation, but will at all times in good faith assist in the
carrying out of all the provisions of this Section 3 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 Preferred Stock against Impairment.
(h) No Fractional Shares and Certificate as to Adjustments.
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(i) No fractional shares shall be issued upon the
conversion of any share or shares of the Series A, Series B, Series C or Series
D 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 Series A, Series B, Series C or Series D 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 Series A, Series B, Series C or Series D Preferred
Stock pursuant to this Section 3, 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 Series A, Series B, Series C or
Series D 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 Series A, Series B, Series C or Series D 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 for such series
of Preferred Stock 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 such series of Preferred Stock.
(i) Notices of Record Date. In the event of any taking by the
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Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
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 Series A, Series B, Series C or Series D Preferred
Stock, at least 20 days prior to the date specified therein, a notice specifying
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.
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(j) Reservation of Stock Issuable Upon Conversion. The
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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 Series A, Series B, Series C and Series D
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 Series
A, Series B, Series C and Series D 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 Series A, Series B,
Series C and Series D 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, including, without limitation,
engaging in best efforts to obtain the requisite stockholder approval of any
necessary amendment to this Certificate of Incorporation.
(k) Notices. Any notice required by the provisions of this
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Section 3 to be given to the holders of shares of Series A, Series B, Series C
or Series D 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.
(4) Liquidation Preference.
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(a) In the event of any liquidation, dissolution or winding up
of the corporation, either voluntary or involuntary, the holders of the Series
A, Series B, Series C and Series D Preferred Stock shall be entitled to receive,
prior and in preference to any distribution of any of the assets or surplus
funds of the corporation to the holders of the Common Stock by reason of their
ownership thereof, an amount per share equal to $0.533 per share for each share
of Series A Preferred Stock then held by them, $2.08 per share for each share of
Series B Preferred Stock then held by them, $6.44 per share for each share of
Series C Preferred Stock held by them, $4.98 per share for each share of Series
D Preferred Stock held by them, plus an amount equal to all declared but unpaid
dividends on the Preferred Stock. If, upon the occurrence of such event, the
assets and funds thus distributed among the holders of the Preferred Stock shall
be insufficient to permit the payment to such holders of the full preferential
amount, then the entire assets and funds of the corporation legally available
for distribution shall be distributed ratably among the holders of the Preferred
Stock in proportion to the preferential amount each such holder is otherwise
entitled to receive.
(b) Upon the completion of the distribution required by Section
B(4)(a) above, and subject to the provisions of Section B(4)(c) hereof, the
remaining assets of the Corporation available for distribution to stockholders
shall be distributed among the holders of the Series A, Series B, Series C and
Series D Preferred Stock and the Common Stock pro rata based on the number of
shares of Common stock held by each (assuming conversion of all such Series A,
Series B, Series C and Series D Preferred Stock) until (i) with respect to the
holders of Series A Preferred Stock, such holders shall have received an
aggregate of $1.07 per share (including amounts paid pursuant to Section B(4)(a)
above), and (ii) with respect to the holders of Series B Preferred Stock, such
holders shall have received an aggregate of $4.16 per share (including any
amounts paid pursuant to Section B(4)(a) above); (iii) with respect to the
holders of Series C Preferred Stock, such holders shall have received an
aggregate of $12.88 per share
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(including amounts paid pursuant to Section B(4)(a) above), and (iv) with
respect to the holders of Series D Preferred Stock, such holders shall have
received an aggregate of $9.96 per share (including any amounts paid pursuant to
Section B(4)(a) above).
(c) In the event the liquidation, dissolution or winding up of
the corporation, either voluntary or involuntary occurs on a date after
September 29, 2000, then in such event, in lieu of the distribution set forth in
Section B(4)(b) hereof, the remaining assets of the Corporation available for
distribution to stockholders after completion of the distribution required by
Section B(4)(a), shall be distributed among the holders of the Series A, Series
B, Series C and Series D Preferred Stock and the Common Stock pro rata based on
the number of shares of Common stock held by each (assuming conversion of all
such Series A, Series B, Series C and Series D Preferred Stock) until (i) with
respect to the holders of Series A Preferred Stock, such holders shall have
received an aggregate of $1.60 per share (including amounts paid pursuant to
Section B(4)(a) above), and (ii) with respect to the holders of Series B
Preferred Stock, such holders shall have received an aggregate of $6.24 per
share (including any amounts paid pursuant to Section B(4)(a) above); (iii) with
respect to the holders of Series C Preferred Stock, such holders shall have
received an aggregate of $19.32 per share (including amounts paid pursuant to
Section B(4)(a) above), and (iv) with respect to the holders of Series D
Preferred Stock, such holders shall have received an aggregate of $14.94 per
share (including any amounts paid pursuant to Section B(4)(a) above).
(d) A merger of the corporation with or into any other
corporation or corporations or a sale of all or substantially all of the assets
of the corporation, shall be treated as a liquidation, dissolution or winding up
for purposes of this Section (B)(4), excluding any consolidation or merger
effected solely to change the domicile of the Corporation.
(e) In any of the events specified in (d) above, if the
consideration received by the Corporation is other than cash, its value will be
deemed its fair market value. Any securities shall be valued as follows:
(i) Securities not subject to investment letter or other
similar restrictions on free marketability:
(A) If traded on a securities exchange or the Nasdaq
National Market System, the value shall be deemed to be the average of the
closing prices of the securities on such exchange over the thirty-day period
ending three (3) days prior to the closing;
(B) If actively traded over-the-counter, the value
shall be deemed to be the average of the closing bid or sale prices (whichever
is applicable) over the thirty-day period ending three (3) days prior to the
closing; and
(C) If there is no active public market, the value
shall be the fair market value thereof, as mutually determined by the
Corporation and the holders of at least a majority of the voting power of all
then outstanding shares of Preferred Stock.
(ii) The method of valuation of securities subject to
investment letter or other restrictions on free marketability (other than
restrictions arising solely by virtue of a stockholder's status as an affiliate
or former affiliate) shall be to make an appropriate discount
10
from the market value determined as above in (i) (A), (B) or (C) to reflect the
approximate fair market value thereof, as mutually determined by the Corporation
and the holders of at least a majority of the voting power of all then
outstanding shares of Preferred Stock.
(5) No Reissuance of Preferred Stock. No share or shares of
--------------------------------
Preferred Stock acquired by the Company by reason of purchase, conversion or
otherwise shall be reissued, and all such shares shall be canceled, retired and
eliminated from the shares that the corporation shall be authorized to issue.
The corporation may from time to time take such appropriate corporate action as
may be necessary to reduce the authorized number of shares of Preferred Stock
accordingly.
(6) Protective Provisions.
---------------------
(a) So long as any shares of Preferred Stock are outstanding,
the Corporation shall not, without first obtaining the approval of the holders
of at least a majority of the then outstanding shares of Preferred Stock, voting
together as a class:
(i) alter or change the rights, preferences or privileges
of the shares of Series A, Series B, Series C or Series D Preferred Stock so as
to affect adversely the shares of such series;
(ii) increase or decrease (other than by conversion) the
total number of authorized shares of any series of Preferred Stock;
(iii) authorize or issue, or obligate itself to issue, any
other equity security, including any other security convertible into or
exercisable for any equity security having a preference over, or being on parity
with any series of Preferred Stock with respect to voting, dividend or upon
liquidation;
(iv) change the number of directors of the Corporation; or
(v) redeem, purchase or otherwise acquire (or pay or set
aside for a sinking fund for such purpose) any share or shares of Preferred
Stock or Common Stock; provided however, that this restriction shall not apply
to (i) the repurchase of shares of Common Stock from employees, officers,
directors, consultants or other persons performing services for the Corporation
or any subsidiary pursuant to which the Corporation has the option to repurchase
such shares upon the occurrence of certain events, such as the termination of
employment, or (ii) the exercise by the Company of a contractual right of first
refusal to purchase any share or shares of Preferred Stock or Common Stock.
(b) So long as any shares of Series D Preferred Stock remain
outstanding, the Corporation shall not without first obtaining the approval of
the holders of at least a majority of the then outstanding shares of Series D
Preferred Stock, voting together as a series:
(i) alter or change the rights, preferences or privileges
of the shares of Series D Preferred Stock;
11
(ii) authorize, create, or issue any new class or
securities of equity securities, other than an issuance pursuant to the
Corporation's conversion of any of the Corporation's outstanding debt to equity
securities;
(iii) increase or decrease the authorized number of
directors constituting the entire Board of Directors;
(iv) consolidate, sell or merge the Corporation with or to
any entity, on enter into any other transaction in which control of the Company
is transferred;
(v) amend or waive any provision of this Certificate of
Incorporation or the Corporation's Bylaws; or
(vi) redeem, repurchase or declare a dividend with regard
to any security of the Company prior to August 1, 2006, except for the Company's
repurchase of capital stock granted pursuant to a stock benefits plan.
(7) Residual Rights. All rights accruing to the outstanding shares of
---------------
this corporation not expressly provided for to the contrary herein shall be
vested in the Common Stock.
(C) 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 therefor, 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 Article IV(B)(4) hereof.
(3) Voting Rights. Subject to the provisions of Section B(2) hereof
-------------
each holder of shares of Common Stock shall have the right to one vote per share
of Common Stock held by such holder, 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.
ARTICLE V
The Board of Directors of the Corporation is expressly authorized to make,
alter or repeal Bylaws of the Corporation, but the stockholders may make
additional Bylaws and may alter or repeal any Bylaw whether adopted by them or
otherwise.
12
ARTICLE VI
Elections of directors need not be by written ballot unless otherwise
provided in the Bylaws of the Corporation.
ARTICLE VII
(A) To the fullest extent permitted by the Delaware General Corporation
Law, as the same exists or as may hereafter be amended, 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.
(B) The Corporation shall indemnify to the fullest extent permitted by
law any person made or threatened to be made a party to an action or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact
that he, his testator or intestate is or was a director, officer or employee of
the Corporation or any predecessor of the Corporation, or serves or served at
any other enterprise as a director, officer or employee at the request of the
Corporation or any predecessor to the Corporation.
(C) Neither any amendment nor repeal of this Article VII, nor the adoption
of any provision of this Corporation's Certificate of Incorporation inconsistent
with this Article VII, shall eliminate or reduce the effect of this Article VIII
in respect of any matter occurring, or any action or proceeding accruing or
arising or that, but for this Article VIII, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
ARTICLE VIII
The Corporation is to have perpetual existence.
ARTICLE IX
The number of directors which will constitute the whole Board of
Directors of the Corporation shall be five (5).
ARTICLE X
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any statutory provision) outside the State of Delaware at such place
or places as may be designated from time to time by the Board of Directors in
the Bylaws of the Corporation."
* * *
13
The foregoing Amended and Restated Certificate of Incorporation has been
duly adopted by the Corporation's Board of Directors and stockholders in
accordance with the applicable provisions of Sections 228, 242 and 245 of the
General Corporation Law of the State of Delaware.
Executed at Palo Alto, California on this 29/th/ day of September, 1999.
/s/ Shai Agassi
----------------------------------
Shai Agassi, President
/s/ Armando Castro
----------------------------------
Armando Castro, Secretary
14
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 8/1/06 | | 12 | | | | | None on these Dates |
| | 9/29/00 | | 10 |
| Filed as of: | | 4/5/00 |
| Filed on: | | 4/4/00 |
| | 5/27/97 | | 1 |
| | 8/22/96 | | 1 |
| List all Filings |
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