Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Ibeam Broadcasting Corporation Form S-1 90 449K
2: EX-3.1 Amended & Restated Cert. of Incorporation 18 70K
3: EX-3.2 Form of Amend. & Restated Certificate of Incorp. 5 20K
4: EX-3.3 By-Laws of the Registrant 15 53K
5: EX-3.4 Form of Amended & Restated By-Laws 26 120K
6: EX-4.2 Amended & Restated Investors Right Agreement 38 137K
7: EX-4.3 Series D Stock Purchase Warrant 11 46K
8: EX-4.4 Voting Agreement 10/14/99 23 62K
9: EX-4.5 Voting Agreement With Liberty Ib, Inc. 4 21K
10: EX-10.1 Form of Indemnification Agreement 9 43K
11: EX-10.3 1998 Stock Plan and Forms Thereunder 26 101K
12: EX-10.4 2000 Stock Plan and Forms Thereunder 18 75K
13: EX-10.5 2000 Employee Stock Purchase Plan 14 57K
14: EX-10.6 Director Option Plan 7 33K
15: EX-23.1 Consent of Pricewaterhousecoopers, LLP 1 7K
16: EX-27.1 Financial Data Schedule 2 9K
EX-3.1 — Amended & Restated Cert. of Incorporation
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Exhibit 3.1
RESTATED
CERTIFICATE OF INCORPORATION OF
iBEAM BROADCASTING CORPORATION
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
iBEAM Broadcasting Corporation, a corporation organized and existing
under and by virtue of the provisions of the General Corporation Law of the
State of Delaware (the "General Corporation Law"),
DOES HEREBY CERTIFY:
FIRST: That the name of this corporation is iBEAM Broadcasting
Corporation and that this corporation was originally incorporated pursuant to
the General Corporation Law on March 20, 1998 under the name Bowles, Inc.
SECOND: That the Board of Directors duly adopted resolutions proposing
to amend and restate the Certificate of Incorporation of this corporation,
declaring said amendment and restatement to be advisable and in the best
interests of this corporation and its stockholders, and authorizing the
appropriate officers of this corporation to solicit the consent of the
stockholders therefor, which resolution setting forth the proposed amendment and
restatement is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended and restated in its entirety as follows:
ARTICLE I
The name of this corporation is iBEAM Broadcasting Corporation.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 15 East North Street in the City of Dover, County of Kent. The name
of the corporation's registered agent at such address is Incorporating Services,
Ltd.
ARTICLE III
The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
ARTICLE IV
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
Stock." Upon the filing of
this Amended and Restated Certificate of Incorporation, each outstanding share
of Common Stock shall be divided into three shares of Common Stock. The total
number of shares that this corporation is authorized to issue is One Hundred and
Forty Million (140,000,000) shares. One Hundred and Twenty Million (120,000,000)
shares shall be Common Stock and Twenty Million (20,000,000) shares shall be
Preferred Stock, each with a par value of $0.0001 per share. The first series of
Preferred Stock shall be designated "Series A Preferred Stock," consisting of
One Million Three Hundred and Fifty Thousand (1,350,000) shares. The second
series of Preferred Stock shall be designated "Series B Preferred Stock,"
consisting of Three Million Three Hundred and Eighty Thousand (3,380,000)
shares. The third series of Preferred Stock shall be designated "Series C
Preferred Stock," consisting of Three Million Six Hundred and Fifty Thousand
(3,650,000) shares. The fourth series of Preferred Stock shall be designated
"Series D Preferred Stock, consisting of Seven Million Five Hundred Thousand
(7,500,000) shares.
B. Rights, Preferences and Restrictions of Preferred Stock. The
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Preferred Stock authorized by this Restated Certificate of Incorporation may be
issued from time to time in one or more series. The rights, preferences,
privileges, and restrictions granted to and imposed on the Series A, Series B,
Series C and Series D Preferred Stock are as set forth below in this Article
IV(B). The Board of Directors is hereby authorized to fix or alter the rights,
preferences, privileges and restrictions granted to or imposed upon additional
series of Preferred Stock, and the number of shares constituting any such series
and the designation thereof, or of any of them. Subject to compliance with
applicable protective voting rights that have been or may be granted to the
Preferred Stock or series thereof in Certificates of Designation or this
corporation's Certificate of Incorporation ("Protective Provisions"), but
notwithstanding any other rights of the Preferred Stock or any series thereof,
the rights, privileges, preferences and restrictions of any such additional
series may be subordinated to, pari passu with (including, without limitation,
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inclusion in provisions with respect to liquidation and acquisition preferences,
redemption and/or approval of matters by vote or written consent), or senior to
any of those of any present or future class or series of Preferred or Common
Stock. Subject to compliance with applicable Protective Provisions, the Board
of Directors is also authorized to increase or decrease the number of shares of
any series (other than the Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock or Series D Preferred Stock), prior or subsequent to
the issue of that series, but not below the number of shares of such series then
outstanding. In case the number of shares of any series shall be so decreased,
the shares constituting such decrease shall resume the status that they had
prior to the adoption of the resolution originally fixing the number of shares
of such series.
1. Dividend Provisions.
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(a) Subject to the rights of any series of Preferred Stock that may
from time to time come into existence, the holders of shares of Series A, Series
B, Series C and Series D Preferred Stock shall be entitled to receive dividends,
out of any assets legally available therefor, prior and in preference to any
declaration or payment of 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) on the Common Stock of this corporation, at the rate of (A) $0.096
per share per annum for each share of Series A Preferred Stock then held by them
(as adjusted for any stock splits, stock dividends, recapitalizations or the
like), (B) $0.132 per share per annum for each share of Series B Preferred
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Stock then held by them (as adjusted for any stock splits, stock dividends,
recapitalizations or the like), (C) $0.274 per share per annum for each share of
Series C Preferred Stock then held by them (as adjusted for any stock splits,
stock dividends, recapitalizations or the like), (D) $0.477 per share per annum
for each share of Series D Preferred Stock then held by them (as adjusted for
any stock splits, stock dividends, recapitalizations or the like) or such
greater amount as is paid on the Common Stock, payable when, as, and if declared
by the Board of Directors. Such dividends shall not be cumulative. The holders
of the outstanding Series A, Series B, Series C or Series D Preferred Stock can
waive any dividend preference that such holders of each such respective series
shall be entitled to receive under this Section 1 upon the affirmative vote or
written consent of the holders of at least a majority of the Series A, Series B,
Series C or Series D Preferred Stock respectively, then outstanding.
2. Liquidation Preference.
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(a) In the event of any liquidation, dissolution or winding up of
this corporation, either voluntary or involuntary, subject to the rights of
series of Preferred Stock that may from time to time come into existence, the
holders of 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 of this corporation to the holders of Common Stock by reason of their
ownership thereof, an amount per share equal to the sum of (A) $1.20 for each
outstanding share of Series A Preferred Stock (the "Original Series A Issue
Price"), plus declared but unpaid dividends on such share (subject to adjustment
of such fixed dollar amounts for any stock splits, stock dividends,
combinations, recapitalizations or the like); (B) $1.65 for each outstanding
share of Series B Preferred Stock (the "Original Series B Issue Price"), plus
declared but unpaid dividends on such share (subject to adjustment of such fixed
dollar amounts for any stock splits, stock dividends, combinations,
recapitalizations or the like); (C) $3.42 for each outstanding share of Series C
Preferred Stock (the "Original Series C Issue Price"), plus declared but unpaid
dividends on such share (subject to adjustment of such fixed dollar amounts for
any stock splits, stock dividends, combinations, recapitalizations or the like)
and (D) $5.96 for each outstanding share of Series D Preferred Stock (the
"Original Series D Issue Price"), plus declared but unpaid dividends on such
share (subject to adjustment of such fixed dollar amounts for any stock splits,
stock dividends, combinations, recapitalizations or the like). If upon the
occurrence of such event, the assets and funds thus distributed among the
holders of the Series A, Series B, Series C and Series D Preferred Stock shall
be insufficient to permit the payment to such holders of the full aforesaid
preferential amounts, then, subject to the rights of series of Preferred Stock
that may from time to time come into existence, the entire assets and funds of
this corporation legally available for distribution shall be distributed ratably
among the holders of the Series A, Series B, Series C and Series D Preferred
Stock in proportion to the foregoing respective liquidation preferences of such
holder.
(b) Upon the completion of the distribution required by subsection
(a) of this Section 2 and any other distribution that may be required with
respect to series of Preferred Stock that may from time to time come into
existence, the remaining assets of this corporation available for distribution
to stockholders shall be distributed among the holders of Series A, Series B,
Series C and Series D Preferred Stock and Common Stock pro rata based on the
number of shares of Common Stock held by each (assuming full conversion of all
such Series A, Series B, Series C and Series D Preferred Stock) until the value
of the assets distributed to or the
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consideration received by such holders in the aggregate equals $180,000,000
(including amounts paid pursuant to subsection (a) of this Section 2);
(c) Thereafter, subject to the rights of series of Preferred Stock
that may from time to time come into existence, if assets remain in this
corporation, the holders of the Common Stock of this corporation shall receive
all of the remaining assets of this corporation pro rata based on the number of
shares of Common Stock held by each.
(d) (i) For purposes of this Section 2, a liquidation, dissolution
or winding up of this corporation shall be deemed to be occasioned by, or to
include (unless the holders of at least a majority of the Series A, Series B,
Series C and Series D Preferred Stock then outstanding voting together as a
single class shall determine otherwise), (A) the acquisition of this corporation
by another entity by means of any transaction or series of related transactions
(including, without limitation, any reorganization, merger or consolidation)
that results in the transfer of fifty percent (50%) or more of the outstanding
voting power of this corporation to another person or entity or group of related
persons or entities; or (B) a sale of all or substantially all of the assets of
this corporation.
(ii) In any of such events, if the consideration received by
this corporation is other than cash, its value will be deemed its fair market
value. Any securities shall be valued as follows:
(A) Securities not subject to investment letter or other
similar restrictions on free marketability covered by (B) below:
(1) If traded on a securities exchange or through the
Nasdaq National Market, the value shall be deemed to be the average of the
closing prices of the securities on such exchange or system over the thirty (30)
day period ending three (3) days prior to the closing;
(2) 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 (30) day period ending three (3) days prior to
the closing; and
(3) If there is no active public market, the value
shall be the fair market value thereof, as mutually determined by this
corporation and the holders of at least a majority of the voting power of all
then outstanding shares of Preferred Stock.
(B) 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 from the market
value determined as above in (A) (1), (2) or (3) to reflect the approximate fair
market value thereof, as mutually determined by this corporation and the holders
of at least a majority of the voting power of all then outstanding shares of
such Preferred Stock.
(iii) In the event the requirements of this subsection 2(d) are
not complied with, this corporation shall forthwith either:
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(A) cause such closing to be postponed until such time as
the requirements of this Section 2 have been complied with; or
(B) cancel such transaction, in which event the rights,
preferences and privileges of the holders of the Series A, Series B, Series C
and Series D Preferred Stock shall revert to and be the same as such rights,
preferences and privileges existing immediately prior to the date of the first
notice referred to in subsection 2(e)(iv) hereof.
(iv) This corporation shall give each holder of record of Series
A, Series B, Series C or Series D Preferred Stock written notice of such
impending transaction not later than twenty (20) days prior to the stockholders'
meeting called to approve such transaction, or twenty (20) days prior to the
closing of such transaction, whichever is earlier, and shall also notify such
holders in writing of the final approval of such transaction. The first of such
notices shall describe the material terms and conditions of the impending
transaction and the provisions of this Section 2, and this corporation shall
thereafter give such holders prompt notice of any material changes. The
transaction shall in no event take place sooner than twenty (20) days after this
corporation has given the first notice provided for herein or sooner than ten
(10) days after this corporation has given notice of any material changes
provided for herein; provided, however, that such periods may be shortened upon
the written consent of the holders of Preferred Stock that are entitled to such
notice rights or similar notice rights and that represent at least a majority of
the voting power of all then outstanding shares of such Preferred Stock.
3. Conversion. The holders of the Series A, Series B, Series C and
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Series D Preferred Stock shall have conversion rights as follows (the
"Conversion Rights"):
(a) Right to Convert. Subject to Section 3(d), each share of 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 this corporation or any transfer agent for such stock,
into such number of fully paid and nonassessable shares of Common Stock as is
determined by (i) in the case of the Series A Preferred Stock, dividing the
Original Series A Issue Price by the Conversion Price applicable to such share,
determined as hereafter provided, in effect on the date the certificate is
surrendered for conversion; (ii) in the case of the Series B Preferred Stock,
dividing the Original Series B Issue Price by the Conversion Price applicable to
such share, determined as hereafter provided, in effect on the date the
certificate is surrendered for conversion; (iii) in the case of the Series C
Preferred Stock, dividing the Original Series C Issue Price by the Conversion
Price applicable to such share, determined as hereafter provided, in effect on
the date the certificate is surrendered for conversion; (iv) in the case of the
Series D Preferred Stock, dividing the Original Series D Issue Price 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 for shares of Series A, Series B, Series C and Series
D Preferred Stock shall be the Original Series A Issue Price, Original Series B
Issue Price, Original Series C Issue Price and Original Series D Issue Price
respectively; provided, however, that the Conversion Price for the Series A,
Series B, Series C and Series D Preferred Stock shall be subject to adjustment
as set forth in subsection 3(d).
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(b) Automatic Conversion. Each share of Series A, Series B, Series C
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and Series D Preferred Stock shall automatically be converted into shares of
Common Stock at the Conversion Price at the time in effect for such Series A,
Series B, Series C or Series D Preferred Stock immediately upon the earlier of
(i) this corporation's sale of its Common Stock in a firm commitment
underwritten public offering pursuant to a registration statement on Form S-1 or
Form SB-2 under the Securities Act of 1933, as amended, the public offering
price of which was not less than $11.92 per share (as adjusted for any stock
splits, stock dividends, recapitalizations or the like) and $20,000,000 in the
aggregate or (ii) the date specified by written consent or agreement of the
holders of a majority of the then outstanding shares of Series A, Series B,
Series C and Series D Preferred Stock, voting together as a single class.
(c) Mechanics of Conversion. Except as provided in Section 3(b),
-----------------------
before any holder of Series A, Series B, Series C or Series D Preferred Stock
shall be entitled to convert the same into shares of Common Stock, he or she
shall surrender the certificate or certificates therefor, duly endorsed, at the
office of this corporation or of any transfer agent for the Series A, Series B,
Series C or Series D Preferred Stock , and shall give written notice to this
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. This 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 persons entitled to
receive the Common Stock upon conversion of the Series A, Series B, Series C or
Series D Preferred Stock shall not be deemed to have converted such Series A,
Series B, Series C or Series D 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 and Series D Preferred Stock shall be subject to
adjustment from time to time as follows:
(i) (A) If this 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
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 forthwith (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
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outstanding immediately prior to such issuance (including shares of Common Stock
deemed to be issued pursuant to subsection 3(d)(i)(E)(1) or (2)) plus the number
of shares of Common Stock that the aggregate consideration received by this
corporation for such issuance would purchase at such Conversion Price; and the
denominator of which shall be the number of shares of Common Stock outstanding
immediately prior to such issuance (including shares of Common Stock deemed to
be issued pursuant to subsection 3(d)(i)(E)(1) or (2)) 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 that 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 (3) years
from the date of the event giving rise to the adjustment being carried forward,
or shall be made at the end of three (3) years from the date of the event giving
rise to the adjustment being carried forward. Except to the limited extent
provided for in subsections (E)(3) and (E)(4), no adjustment of such Conversion
Price pursuant to this subsection 3(d)(i) shall have the effect of increasing
the Conversion Price above the Conversion Price in effect immediately prior to
such adjustment.
(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 this 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 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 subsection 3(d)(i) and subsection 3(d)(ii):
(1) The aggregate maximum number of shares of Common
Stock deliverable upon exercise of such options to purchase or rights to
subscribe for Common Stock shall be deemed to have been issued at the time such
options or rights were issued and for a consideration equal to the consideration
(determined in the manner provided in subsections 3(d)(i)(C) and (d)(i)(D)), if
any, received by this 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 for, any such convertible
or exchangeable securities or upon the exercise of options to purchase or rights
to subscribe for
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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 this 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 this 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
subsections 3(d)(i)(C) and (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 this 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 (unless such options
or rights or convertible or exchangeable securities were merely deemed to be
included in the numerator and denominator for purposes of determining the number
of shares of Common Stock outstanding for purposes of subsection 3(d)(i)(A)),
the Conversion Price of the Series A, Series B, Series C and the Series D
Preferred Stock, to the extent in any way affected by or computed using such
options, rights or 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 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 securities or options or rights related to such securities (unless
such options or rights were merely deemed to be included in the numerator and
denominator for purposes of determining the number of shares of Common Stock
outstanding for purposes of subsection 3(d)(i)(A)), shall be recomputed to
reflect the issuance of only the number of shares of Common Stock (and
convertible or exchangeable securities that 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 subsections 3(d)(i)(E)(1)
and (2) shall be appropriately adjusted to reflect any change, termination or
expiration of the type described in either subsection 3(d)(i)(E)(3) or (4).
(ii) "Additional Stock" shall mean any shares of Common Stock
issued (or deemed to have been issued pursuant to subsection 3(d)(i)(E)) by this
corporation after the Series D Purchase Date other than:
(A) Common Stock issued pursuant to a transaction described
in subsection 3(d)(iii) hereof;
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(B) Common Stock (or options therefor) issuable or issued
to employees, consultants, directors or vendors (if in transactions with
primarily non-financing purposes) of this corporation, with the approval of a
majority of the members of the Board of Directors not holding management
positions with the Company, directly or pursuant to a stock option plan or
restricted stock plan approved by the Board of Directors of this corporation
(and the reissuance of any shares issued or subject to outstanding options
returned to the Company from any unexercised options or restricted stock
repurchased by the Company after such date); or
(C) the issuance of stock, warrants or other securities or
rights, with the approval of a majority of the Board of Directors of the
Company, to persons or entities in connection with a bona fide business
acquisition of or by the Company, whether by merger, consolidation, sale of
assets, sale or exchange of stock or otherwise; or
(D) the issuance of stock warrants or other securities or
rights, with the approval of a majority of the Board of Directors of the
Company, to persons with which the Company is entering or has entered into a
strategic relationship; or
(E) the issuance of stock, warrants or other securities or
rights in connection with bank and other debt financings, commercial lending,
equipment financings, capital lease, or similar transactions approved by a
majority of the Board of Directors of this corporation;
(F) in the event that Intel Corporation and the Company
agree on the terms of a technology development relationship, the issuance of a
warrant to Intel Corporation to purchase up to 146,199 shares of Series C
Preferred Stock for $3.42 per share (subject to adjustment of such fixed dollar
amounts for any stock splits, stock dividends, combinations, recapitalizations
or the like) and the issuance of any Common Stock in connection with the
conversion of such preferred stock.
(G) the issuance of a warrant to Comdisco Inc. to purchase
up to 6,397 shares of Series D Preferred Stock for $4.69 per share (subject to
adjustment of such fixed dollar amounts for any stock splits, stock dividends,
combinations, recapitalizations or the like) and the issuance of any Common
Stock in connection with the conversion of such preferred stock.
(iii) In the event this 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
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 the Series A, Series B, Series C or 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
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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.
(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 the Series A, Series B, Series C and 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 this corporation shall declare
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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 not referred to in subsection 3(d)(iii), then, in each such
case for the purpose of this subsection 3(e), the holders of the 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 this corporation into which their shares
of Series A, Series B, Series C and/or Series D Preferred Stock are convertible
as of the record date fixed for the determination of the holders of Common Stock
of this corporation entitled to receive such distribution.
(f) Recapitalizations. If at any time or from time to time there
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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 2) 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 or
Series D 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 3 with respect to the rights of the holders of the
Series A, Series B, Series C and Series D Preferred Stock after the
recapitalization to the end that the provisions of this Section 3 (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 as nearly equivalent as
may be practicable.
(g) No Impairment. This 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 terms to be observed or performed hereunder by this
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 the Series A, Series B, Series C and Series D Preferred Stock against
impairment.
(h) No Fractional Shares and Certificate as to Adjustments.
------------------------------------------------------
10
(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 and/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, this 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 and 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.
This 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 that at the time would be received upon the conversion
of a share of Series A, Series B, Series C or Series D Preferred Stock.
(i) Notices of Record Date. In the event of any taking by this
----------------------
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, this
corporation shall mail to each holder of Series A, Series B, Series C and Series
D Preferred Stock, at least twenty (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.
(j) Reservation of Stock Issuable Upon Conversion. This 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 the 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 the 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, this 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.
11
(k) Notices. Any notice required by the provisions of this Section 3
-------
to be given to the holders of shares of Series A, Series B, Series C and/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 this corporation.
4. Voting Rights.
-------------
(a) General Voting Rights. The holder of each share of Series A,
---------------------
Series B, Series C and Series D Preferred Stock shall have the right to one vote
for each share of Common Stock into which such Series A, Series B, Series C or
Series D Preferred Stock could then be converted, and with respect to such vote,
such holder shall have full voting rights and powers equal to the voting rights
and powers of the holders of Common Stock, and shall be entitled,
notwithstanding any provision hereof, to notice of any stockholders' meeting in
accordance with the bylaws of this corporation, and shall be entitled to vote,
together with holders of Common Stock, with respect to any question upon which
holders of Common Stock have the right to vote. Fractional votes shall not,
however, be permitted and any fractional voting rights available on an as-
converted basis (after aggregating all shares into which shares of Series A,
Series B, Series C and/or Series D Preferred Stock held by each holder could be
converted) shall be rounded to the nearest whole number (with one-half being
rounded upward).
(b) Voting for the Election of Directors.
------------------------------------
(i) As long as at least a majority of the shares of Series A
Preferred Stock originally issued remain outstanding, the holders of such shares
of Series A Preferred Stock shall be entitled to elect one (1) director of this
corporation at each annual election of directors.
(ii) As long as at least a majority of the shares of Series B
Preferred Stock originally issued remain outstanding, the holders of such shares
of Series B Preferred Stock shall be entitled to elect one (1) director of this
corporation at each annual election of directors.
(iii) The remaining directors of this corporation shall be
elected as determined in the by-laws by the holders of the Common Stock and the
Series A, Series B, Series C and Series D Preferred Stock voting together as a
single class on an as if converted into Common Stock basis.
In the case of any vacancy (other than a vacancy caused by removal) in
the office of a director occurring among the directors elected by the holders of
a class or series of stock pursuant to this Section 4(b), the remaining
directors so elected by that class or series may by affirmative vote of a
majority thereof (or the remaining director so elected if there be but one, or
if there are no such directors remaining, by the affirmative vote of the holders
of a majority of the shares of that class or series), elect a successor or
successors to hold office for the unexpired term of the director or directors
whose place or places shall be vacant. Any director who shall have been elected
by the holders of a class or series of stock or by any directors so elected as
provided in the immediately preceding sentence hereof may be removed during the
aforesaid term of office, either with or without cause, by, and only by, the
affirmative vote of the holders of the shares of the class or series of stock
entitled to elect such director or directors, given either at a special meeting
of such stockholders duly called for that purpose or pursuant to a written
12
consent of stockholders, and any vacancy thereby created may be filled by the
holders of that class or series of stock represented at the meeting or pursuant
to unanimous written consent.
5. Protective Provisions. So long as any shares of Series A, Series
---------------------
B, Series C and/or Series D Preferred Stock are outstanding (as adjusted for any
stock dividends, combinations or splits with respect to such shares), this
corporation shall not:
(a) without first obtaining the approval (by vote or written consent,
as provided by law) of the holders of at least a majority of the then
outstanding shares of Series A, Series B, Series C and Series D Preferred Stock,
voting together as a single class:
(i) 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 a parity with, the
Series A, Series B, Series C or Series D Preferred Stock with respect to
dividends, liquidation or voting;
(ii) redeem, purchase or otherwise acquire (or pay into 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 (x) the repurchase of shares of Common Stock from employees, officers,
directors, consultants or other persons performing services for this corporation
or any subsidiary pursuant to agreements under which this corporation has the
option to repurchase such shares at cost or at cost upon the occurrence of
certain events, such as the termination of employment or (y) repurchases of
shares of Common Stock not exceeding $25,000 during any twelve (12) month
period;
(iii) declare or pay dividends on or make any distribution on
the account of the Common Stock;
(iv) sell, convey, or otherwise dispose of all or substantially
all of its property or business or merge into or consolidate with any other
corporation (other than a wholly-owned subsidiary corporation) or effect any
transaction or series of related transactions in which more than fifty percent
(50%) or more of the voting power of this corporation shall have passed to
another person or entity or group of related persons or entities;
(v) dissolve, liquidate or wind up the corporation; or
(vi) sell, contract to sell or allow any subsidiary of this
corporation to sell securities of the subsidiary to a third person.
(b) without first obtaining the approval (by vote or written consent,
as provided by law) of the holders of at least a majority of the then
outstanding shares of Series A Preferred Stock, voting as a single class:
(i) increase or decrease (other than by redemption or
conversion) the total number of authorized shares of Series A Preferred Stock;
or
13
(ii) amend this corporation's Certificate of Incorporation in a
manner that would alter or change the rights, preferences or privileges of the
shares of Series A Preferred Stock so as to affect adversely the shares.
(c) without first obtaining the approval (by vote or written consent,
as provided by law) of the holders of at least a majority of the then
outstanding shares of Series B Preferred Stock, voting as a single class:
(i) increase or decrease (other than by redemption or
conversion) the total number of authorized shares of Series B Preferred Stock;
or
(ii) amend this corporation's Certificate of Incorporation in a
manner that would alter or change the rights, preferences or privileges of the
shares of Series B Preferred Stock so as to affect adversely the shares.
(d) without first obtaining the approval (by vote or written consent,
as provided by law) of the holders of at least a majority of the then
outstanding shares of Series C Preferred Stock, voting as a single class:
(i) increase or decrease (other than by redemption or
conversion) the total number of authorized shares of Series C Preferred Stock;
or
(ii) amend this corporation's Certificate of Incorporation in a
manner that would alter or change the rights, preferences or privileges of the
shares of Series C Preferred Stock so as to affect adversely the shares.
(e) without first obtaining the approval (by vote or written consent,
as provided by law) of the holders of at least a majority of the then
outstanding shares of Series D Preferred Stock, voting as a single class:
(i) increase or decrease (other than by redemption or
conversion) the total number of authorized shares of Series D Preferred Stock;
or
(ii) amend this corporation's Certificate of Incorporation in a
manner that would alter or change the rights, preferences or privileges of the
shares of Series D Preferred Stock so as to affect adversely the shares.
(f) The authorization or issuance of any equity security, other than
the Series A, Series B, Series C or Series D Preferred Stock, including any
equity security convertible into or exercisable for any equity security having a
preference over, or on a parity with the Series A, Series B, Series C or Series
D Preferred Stock with respect to dividends, liquidation or voting, which has
been approved pursuant to Section 5(a)(i) hereof, shall not require additional
approval under any of Sections 5(b), 5(c), 5(d) or 5(e).
6. Status of Converted Stock. In the event any shares of Series A,
-------------------------
Series B, Series C or Series D Preferred Stock shall be converted pursuant to
Section 3 hereof, the shares so converted shall be canceled and shall not be
issuable by this corporation. The Restated
14
Certificate of Incorporation of this corporation shall be appropriately amended
to effect the corresponding reduction in this corporation's authorized capital
stock.
C. Common Stock. The rights, preferences, privileges and
------------
restrictions granted to and imposed on the Common Stock are as set forth below
in this Article IV(C).
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 this 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 this corporation, the assets of this corporation shall be distributed as
provided in Section 2 of Division (B) of Article IV hereof.
3. Redemption. The Common Stock is not redeemable.
----------
4. Voting Rights. The holder of each share of Common Stock shall
-------------
have the right to one vote for each such share, 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
Except as otherwise provided in this Certificate of Incorporation, in
furtherance and not in limitation of the powers conferred by statute, the Board
of Directors is expressly authorized to make, repeal, alter, amend and rescind
any or all of the Bylaws of this corporation.
ARTICLE VI
The number of directors of this corporation shall be fixed from time
to time by a bylaw or amendment thereof duly adopted by the Board of Directors
or by the stockholders.
ARTICLE VII
Elections of directors need not be by written ballot unless the Bylaws
of this corporation shall so provide.
ARTICLE VIII
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of this corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of this corporation.
15
ARTICLE IX
A director of this corporation shall, to the fullest extent permitted
by the General Corporation Law as it now exists or as it may hereafter be
amended, not be personally liable to this corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to this
corporation or its stockholders, (ii) for acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the General Corporation Law, or (iv) for any transaction from
which the director derived any improper personal benefit. If the General
Corporation Law is amended, after approval by the stockholders of this Article,
to authorize corporation action further eliminating or limiting the personal
liability of directors, then the liability of a director of this corporation
shall be eliminated or limited to the fullest extent permitted by the General
Corporation Law, as so amended.
Any amendment, repeal or modification of this Article IX, or the
adoption of any provision of this Restated Certificate of Incorporation
inconsistent with this Article IX, by the stockholders of this corporation shall
not apply to or adversely affect any right or protection of a director of this
corporation existing at the time of such amendment, repeal, modification or
adoption.
ARTICLE X
This corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ARTICLE XI
To the fullest extent permitted by applicable law, this corporation is
authorized to provide indemnification of (and advancement of expenses to) agents
of this corporation (and any other persons to which General Corporation Law
permits this corporation to provide indemnification) through bylaw provisions,
agreements with such agents or other persons, vote of stockholders or
disinterested directors or otherwise, in excess of the indemnification and
advancement otherwise permitted by Section 145 of the General Corporation Law,
subject only to limits created by applicable General Corporation Law (statutory
or non-statutory), with respect to actions for breach of duty to this
corporation, its stockholders, and others.
Any amendment, repeal or modification of the foregoing provisions of
this Article XI shall not adversely affect any right or protection of a
director, officer, agent, or other person existing at the time of, or increase
the liability of any director of this corporation with respect to any acts or
omissions of such director, officer or agent occurring prior to, such amendment,
repeal or modification.
* * *
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THIRD: The foregoing amendment and restatement was approved by the
holders of the requisite number of shares of said corporation in accordance with
Section 228 of the General Corporation Law.
FOURTH: That said amendment and restatement was duly adopted in
accordance with the provisions of Section 242 and 245 of the General Corporation
Law.
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IN WITNESS WHEREOF, this Restated Certificate of Incorporation has
been executed by the Vice President - Chief Financial Officer of this
corporation on this 20th day of January, 2000.
/s/ Chris Dier
----------------------------------------------------
Chris Dier, Vice President - Chief Financial Officer
Dates Referenced Herein
| Referenced-On Page |
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This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
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| | |
Filed on: | | 2/1/00 | | | | | | | None on these Dates |
| | 3/20/98 | | 1 |
| List all Filings |
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