SEC Info uses JavaScript!
On: Monday, 2/27/17, at 5:10pm ET · For: 12/25/16 · Accession #: 1069258-17-9 · File #: 1-34460 Text Wildcards: ?(any letter/digit) , * (many) . Search Logic: & (and ) , | (or) ; for Text: | (anywhere ) , "(&)" (near) . Details... Document/Exhibit Description Pages Size 10-K Annual Report HTML 1.35M
2: EX-3.1 Articles of Incorporation/Organization or Bylaws HTML 327K
3: EX-3.2 Articles of Incorporation/Organization or Bylaws HTML 138K
4: EX-4.1 Instrument Defining the Rights of Security Holders HTML 23K
5: EX-21.1 Subsidiaries List HTML 35K
6: EX-23.1 Consent of Experts or Counsel HTML 29K
7: EX-31.1 Certification -- §302 - SOA'02 HTML 33K
8: EX-31.2 Certification -- §302 - SOA'02 HTML 34K
9: EX-32.1 Certification -- §906 - SOA'02 HTML 28K
10: EX-32.2 Certification -- §906 - SOA'02 HTML 28K
17: R1 Document and Entity Information HTML 53K
18: R2 Consolidated Balance Sheets HTML 128K
19: R3 Consolidated Balance Sheets (Parenthetical) HTML 43K
20: R4 Consolidated Statements of Operations and HTML 144K
Comprehensive Income (Loss)
21: R5 Consolidated Statements of Operations and HTML 28K
Comprehensive Income (Loss) (Parenthetical)
22: R6 Consolidated Statements of Stockholders' Equity HTML 77K
23: R7 Consolidated Statements of Cash Flows HTML 170K
24: R8 Organization and Summary of Significant Accounting HTML 169K
Policies
25: R9 Goodwill and Other Intangible Assets HTML 121K
26: R10 Balance Sheet Details HTML 79K
27: R11 Debt HTML 83K
28: R12 Lease Commitments HTML 51K
29: R13 Net Loss Per Common Share HTML 35K
30: R14 Income Taxes HTML 147K
31: R15 Discontinued Operations HTML 78K
32: R16 Fair Value Measurement HTML 33K
33: R17 Stockholders' Equity HTML 118K
34: R18 Retirement Plans HTML 30K
35: R19 Significant Customers HTML 29K
36: R20 Segment Information HTML 114K
37: R21 Commitments and Contingencies HTML 37K
38: R22 Quarterly Financial Data (Unaudited) HTML 123K
39: R23 Condensed Consolidating Financial Statements HTML 685K
40: R24 Organization and Summary of Significant Accounting HTML 201K
Policies (Policies)
41: R25 Organization and Summary of Significant Accounting HTML 91K
Policies (Tables)
42: R26 Goodwill and Other Intangible Assets (Tables) HTML 110K
43: R27 Balance Sheet Details (Tables) HTML 83K
44: R28 Debt (Tables) HTML 39K
45: R29 Lease Commitments (Tables) HTML 42K
46: R30 Net Loss Per Common Share (Tables) HTML 32K
47: R31 Income Taxes (Tables) HTML 140K
48: R32 Discontinued Operations (Tables) HTML 65K
49: R33 Stockholders' Equity (Tables) HTML 107K
50: R34 Segment Information (Tables) HTML 100K
51: R35 Quarterly Financial Data (Unaudited) (Tables) HTML 121K
52: R36 Condensed Consolidating Financial Statements HTML 684K
(Tables)
53: R37 Organization and Summary of Significant Accounting HTML 128K
Policies (Details)
54: R38 Goodwill and Other Intangible Assets - Goodwill HTML 52K
(Details)
55: R39 Goodwill and Other Intangible Assets - Purchased HTML 59K
Intangible Assets (Details)
56: R40 Goodwill and Other Intangible Assets - Intangible HTML 40K
Asset Amortization (Details)
57: R41 Balance Sheet Details - Accounts Receivable and HTML 77K
Inventory (Details)
58: R42 Balance Sheet Details - Property, Plant and HTML 50K
Equipment (Details)
59: R43 Debt - Issuance of 7.00% Senior Secured Notes due HTML 107K
2019 (Details)
60: R44 Debt - $110.0 Million Credit Agreement (Details) HTML 104K
61: R45 Debt - Debt Acquired in Acquisition (Details) HTML 37K
62: R46 Debt - Fair Value of Long-Term Debt (Details) HTML 45K
63: R47 Lease Commitments (Details) HTML 67K
64: R48 Net Loss Per Common Share - Antidilutive HTML 31K
Securities (Details)
65: R49 Income Taxes - Narrative (Details) HTML 64K
66: R50 Income Taxes - Components of Income Taxes HTML 75K
(Details)
67: R51 Income Taxes - Reconciliation of Income Tax HTML 53K
Provision (Details)
68: R52 Income Taxes - Deferred Taxes (Details) HTML 82K
69: R53 Income Taxes - Unrecognized Tax Benefits (Details) HTML 38K
70: R54 Discontinued Operations (Details) HTML 75K
71: R55 Discontinued Operations - Results of Discontinued HTML 63K
Operations (Details)
72: R56 Discontinued Operations - Summary of Assets and HTML 39K
Liabilities of Discontinued Operations (Details)
73: R57 Stockholders' Equity - Common Stock (Details) HTML 50K
74: R58 Stockholders' Equity - Stock Option Plans and HTML 64K
Restricted Stock Units Plans (Details)
75: R59 Stockholders' Equity - Stock Option Valuation HTML 48K
Assumptions (Details)
76: R60 Stockholders' Equity - Stock Options Roll Forward HTML 67K
(Details)
77: R61 Stockholders' Equity - Grants and Exercises Under HTML 31K
Option Plans (Details)
78: R62 Stockholders' Equity - Restricted Stock Unit HTML 55K
Activity (Details)
79: R63 Stockholders' Equity - Employee Stock Purchase HTML 73K
Plan (Details)
80: R64 Retirement Plans (Details) HTML 27K
81: R65 Significant Customers (Details) HTML 35K
82: R66 Segment Information (Details) HTML 64K
83: R67 Segment Information - Revenues, Operating Income HTML 70K
(Loss) and Assets by Reportable Segments (Details)
84: R68 Commitments and Contingencies - Narrative HTML 28K
(Details)
85: R69 Quarterly Financial Data (Unaudited) Summarized HTML 82K
Quarterly Financial Information (Details)
86: R70 Quarterly Financial Data (Unaudited) (Details) HTML 43K
87: R71 Condensed Consolidating Financial Statements - HTML 169K
Condensed Consolidating Balance Sheet (Details)
88: R72 Condensed Consolidating Financial Statements - HTML 158K
Condensed Consolidating Statement of Operations
and Comprehensive Income (Loss) (Details)
89: R73 Condensed Consolidating Financial Statements - HTML 134K
Condensed Consolidating Statement of Cash Flows
(Details)
91: XML IDEA XML File -- Filing Summary XML 159K
90: EXCEL IDEA Workbook of Financial Reports XLSX 132K
11: EX-101.INS XBRL Instance -- ktos-20161225 XML 4.96M
13: EX-101.CAL XBRL Calculations -- ktos-20161225_cal XML 356K
14: EX-101.DEF XBRL Definitions -- ktos-20161225_def XML 846K
15: EX-101.LAB XBRL Labels -- ktos-20161225_lab XML 2.20M
16: EX-101.PRE XBRL Presentations -- ktos-20161225_pre XML 1.38M
12: EX-101.SCH XBRL Schema -- ktos-20161225 XSD 190K
92: ZIP XBRL Zipped Folder -- 0001069258-17-000009-xbrl Zip 381K
‘EX-3.1’ — Articles of Incorporation/Organization or Bylaws
This Exhibit is an HTML Document rendered as filed. [ Alternative Formats ] <!
C:
C:
EXHIBIT 3.1
Page 1
Delaware
The First State
DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT
COPIES OF ALL DOCUMENTS FILED FROM AND INCLUDING THE RESTATED
CERTIFICATE OR A MERGER WITH A RESTATED CERTIFICATE ATTACHED OF
“KRATOS DEFENSE & SECURITY SOLUTIONS,
INC.” AS RECEIVED AND
FILED IN THIS OFFICE.
THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
RESTATED CERTIFICATE, FILED THE TENTH DAY OF NOVEMBER, A.D.
1999, AT 3:30 O`CLOCK P.M.
CERTIFICATE OF DESIGNATION, FILED THE TWENTY-NINTH DAY OF
OCTOBER, A.D. 2001, AT 3:15 O`CLOCK P.M.
CERTIFICATE OF DESIGNATION, FILED THE THIRTIETH DAY OF MAY,
A.D. 2002, AT 1 O`CLOCK P.M.
CERTIFICATE OF CORRECTION, FILED THE THIRTIETH DAY OF MAY,
A.D. 2002, AT 5 O`CLOCK P.M.
CERTIFICATE OF DESIGNATION, FILED THE SIXTEENTH DAY
OF
DECEMBER, A.D. 2004, AT 5:52 O`CLOCK P.M.
2762925 8100X Authentication: 203332063
SR# 20166626634 Date:
11-14-16
You may verify this certificate online at corp.delaware.gov/authver.shtml
Page 2
Delaware
The First State
CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE FIFTH
DAY OF MAY, A.D. 2005, AT 4:23 O`CLOCK P.M.
CERTIFICATE OF OWNERSHIP, CHANGING ITS NAME FROM "WIRELESS
FACILITIES, INC." TO "KRATOS DEFENSE & SECURITY SOLUTIONS,
INC.", FILED THE TWELFTH DAY OF SEPTEMBER, A.D. 2007, AT 10:57
O`CLOCK
A.M.
CERTIFICATE OF AMENDMENT, FILED THE TENTH DAY OF SEPTEMBER,
A.D. 2009, AT 11:48 O`CLOCK A.M.
CERTIFICATE OF OWNERSHIP, FILED THE FOURTH DAY OF APRIL,
A.D. 2011, AT 2:40 O`CLOCK P.M.
2762925 8100X Authentication: 203332063
SR# 20166626634 Date: 11-14-16
You may verify this certificate online at corp.delaware.gov/authver.shtml
AMENDED AND RESTATED
WIRELESS FACILITIES, INC., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware (the
"Corporation" ), hereby certifies as follows:
1. The name of the Corporation is Wireless Facilities, Inc.
2. The original name of this Corporation is Wireless Facilities, Inc. and
with the Secretary of State of the State of Delaware was July 7, 1997 .
Corporation, in the form attached hereto as Exhibit A, has been duly adopted by
the Board of Directors and by the stockholders of the corporation in accordance
with Sections 228, 242 and 245 of the General Corporation Law of the State of
Delaware.
in full as set forth in Exhibit A attached hereto and hereby incorporated by
reference.
IN WITNESS WHEREOF, Wireless Facilities, Inc. has caused this Amended and
Officer and Secretary this 2nd day of November, 1999.
-----------------------------------
Chief Executive Officer and Secretary
1.
Exhibit A
AMENDED AND RESTATED
OF
WIRELESS FACILITIES, INC.
I.
The name of this corporation is Wireless Facilities, Inc.
II.
The address of the registered office of the corporation in the State of
Delaware is 9 East Loockerman Street, City of Dover, County of Kent, and the
name of the registered agent of the corporation in the State of Delaware at such
address is National Registered Agents, Inc.
III.
The purpose of this corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
the State of Delaware.
IV.
A. This corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares which the corporation is authorized to issue is two hundred million
(200,000,000) shares. One hundred ninety five million (195,000,000) shares shall
be Common Stock, each having a par value of one tenth of one cent ($0.001). Five
million (5,000,000) shares shall be Preferred Stock, each having a par value of
one tenth of one cent ($0.001).
B. The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized, by filing a certificate (a
"Preferred Stock Designation" ) pursuant to the Delaware General Corporation Law,
to fix or alter from time to time the designation, powers, preferences and
rights of the shares of each such series and the qualifications, limitations or
restrictions of any wholly unissued series of Preferred Stock, and to establish
from time to time the number of shares constituting any such series or any of
them; and to increase or decrease the number of shares of any series subsequent
to
the issuance of shares of that series, but not below the number of shares of
such series then outstanding. In case the number of shares of any series shall
be decreased in accordance with the foregoing sentence, 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.
V.
For the management of the business and for the conduct of the affairs of
the corporation, and in further definition, limitation and regulation of the
powers of the corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
A. 1. The management of the business and the conduct of the affairs of the
corporation shall be vested in its Board of Directors. The number of directors
which shall constitute the whole Board of Directors shall be fixed exclusively
by one or more resolutions adopted by the Board of Directors.
2. Board of Directors
a. Directors shall be elected at each annual meeting of stockholders
to hold office until the next annual meeting. Each director shall hold office
either until the expiration of the term for which elected or appointed and until
a successor has been elected and qualified, or until such director's death,
resignation or removal. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
b. No person entitled to vote at an election for directors may
cumulate
votes to which such person is entitled, unless, at the time of such
election, the corporation (i) is subject to Section 2115(b) of the California
General Corporation Law ("CGCL" ) and (ii) is not a "listed" corporation or
ceases to be a "listed" corporation under Section 301.5 of the CGCL. During
this time, every stockholder entitled to vote at an election for directors may
cumulate such stockholder's votes and give one candidate a number of votes equal
to the number of directors to be elected multiplied by the number of votes to
which such stockholder's shares are otherwise entitled, or distribute the
stockholder's
votes on the same principle among as many candidates as such
stockholder thinks fit. No stockholder, however, shall be entitled to so
cumulate such stockholder's votes unless (i) the names of such candidate or
candidates have been placed in nomination prior to the voting and (ii) the
stockholder has given notice at the meeting, prior to the voting, of such
stockholder's intention to cumulate such stockholder's votes. If any stockholder
has given proper notice to cumulate votes, all stockholders may cumulate their
votes for any candidates who have been properly placed in nomination. Under
cumulative voting, the candidates receiving
the highest number of votes, up to
the number of directors to be elected, are elected.
3. Removal of Directors
a. During such time or times that the corporation is subject to
Section 2115(b) of the CGCL, the Board of Directors or any individual director
may be removed from office at any time without cause by the affirmative vote of
the holders of at least a majority of the outstanding shares entitled to vote on
such removal; provided, however, that unless the entire Board is removed, no
individual director may be removed
when the votes cast against such director's
removal, or not consenting in writing to such removal, would be sufficient to
elect that director if voted cumulatively at an election which the same total
number of votes were cast (or, if such action is taken by written consent, all
shares entitled to vote were voted) and the entire
2.
number of directors authorized at the time of such director's most recent
election
were then being elected.
b. At any time or times that the corporation is not subject to
Section 2115(b) of the CGCL and subject to any limitations imposed by law,
Section A(3)(a) above shall not apply and the Board of Directors or any director
may be removed from office at any time with or without cause by the affirmative
vote of the holders of a majority of the voting power of all then-outstanding
shares of voting stock of the corporation, entitled to vote at an election of
directors.
4. Vacancies
c. Subject to the rights of the holders of any series of Preferred
Stock, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes and any newly created
directorshipsresulting from any increase in the number of directors, shall,
unless the Board of Directors determines by resolution that any such vacancies
or newly created directorships shall be filled by the stockholders, except as
otherwise provided by law, be filled only by the affirmative vote of a majority
of the directors then in office, even though less than a quorum of the Board of
Directors, and not by
the stockholders (except as stockholders may have such
rights as described below). Any director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
director for which the vacancy was created or occurred and until such director's
successor shall have been elected and qualified.
d. If at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole board (as constituted immediately prior to any such increase), the
Delaware Court of Chancery
may, upon application of any stockholder or
stockholders holding at least ten percent (10%) of the total number of the
shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in offices as aforesaid, which election shall be governed by Section 211 of the
DGCL.
e. At any time or times that the Corporation is subject to Section
2115(b) of the CGCL, if, after the filling of any vacancy by the directors
then
in office, where the number of such directors voting to fill, such vacancy who
have been elected by stockholders shall constitute less than a majority of the
directors then in office, then
(i) Any holder or holders of an aggregate of five percent (5%) or
more of the total number of shares at the time outstanding having the right to
vote for those directors may call a special meeting of stockholders; or
(ii) The Superior Court of the proper county shall, upon
application of such stockholder or stockholders,
summarily order a special
meeting of stockholders, to be held to elect the entire board, all in accordance
with Section 305(c) of the CGCL. The term of office of any director shall
terminate upon that election of a successor.
3.
B. 1. Subject to paragraph (h) of Section 43 of the Bylaws , the Bylaws
may be altered or amended or new Bylaws adopted by the affirmative vote of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the
then-outstanding shares of the voting stock of the Corporation entitled to vote.
The Board of Directors shall also have the power to adopt, amend, or repeal
2. The directors of the Corporation need not be elected by written
ballot unless the Bylaws
so provide.
3. No action shall be taken by the stockholders of the Corporation
except at an annual or special meeting of stockholders called in accordance
with the Bylaws . No action shall be taken by the stockholders by written consent.
4. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
VI.
A. The liability of the directors for monetary damages shall be eliminated
to the fullest extent under applicable law.
B. This corporation is authorized to provide indemnification of agents (as
defined in Section 317 of the CGCL) for breach of duty to the corporation and
its shareholders through bylaw provisions or through agreements with the agents, or through shareholder
resolutions, or otherwise, in excess of the
indemnification otherwise permitted by Section 317 of the CGCL, subject, at any
time or times the corporation is subject to Section 2115(b) to the limits on
such excess indemnification set forth in Section 204 of the CGCL.
C. Any repeal or modification of this Article VI shall be prospective and
shall not affect the rights under this Article VI in effect at the time of the
alleged occurrence of any act or omission to act giving rise to liability or
indemnification.
VII.
A. The corporation reserves the right to amend, alter, change or repeal any
hereafter prescribed by statute, except as provided in paragraph B of this
Article VII, and all rights conferred upon the stockholders herein are granted
subject to this reservation.
B. Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit
a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the voting stock required by law, this Certificate
of Incorporation or any Preferred Stock Designation, the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting
power of all of the then-outstanding shares of the voting stock, voting together
as a single class, shall be required to alter, amend or repeal Articles V, VI,
and VII.
4.
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS
of
SERIES A PREFERRED STOCK
of
WIRELESS FACILITIES, INC.
a corporation organized and existing under the laws of the State
of Delaware
(the "Corporation" ), in accordance with the provisions of Section 151 of the
Delaware General Corporation Law, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors of the
the Corporation and by Section 151(g) of the Delaware General Corporation Law,
on October 9, 2001 , the Board of Directors adopted the following resolution, creating a series of
shares of convertible preferred stock, Series A, designated
as "Series A Preferred Stock" :
"RESOLVED, that pursuant to the authority vested in the Board of Directors
(the "Board of Directors" ) of WIRELESS FACILITIES, INC., a corporation
organized and existing under the laws of the State of Delaware (the
for the authorization and issuance of a series of convertible preferred
stock, Series A, par value U.S.$0.001 per share, of the Corporation, to be
designated "Series A Preferred Stock," initially consisting of 63,637
shares, and to the extent that the designations, powers, preferences, and
relative participating, optional, or other special rights, and the
qualifications, limitations, and restrictions of the Series A Preferred
Board of Directors does hereby fix and herein state and express such
designations, powers, preferences, and relative participating, optional, or
other special rights, and the qualifications, limitations, and restrictions
thereof, as follows:
1. Designation and Rank.
(a) Sixty-three thousand six hundred thirty-seven (63,637) shares of the
preferred stock of the Corporation, par value $0.001 per share, shall be
designated and known as the "Series A Preferred Stock."
(b) The Series A Preferred Stock shall rank senior and prior to the common
stock, par value U.S.$0.001 per share, of the Corporation (the "Common Stock" ),
and all other classes or series of the capital stock (other than preferred
stock) of the Corporation (now or hereafter authorized or issued), with respect
to the payment of any dividends, the conversion rights set forth herein and any
payment upon liquidation or redemption. The Corporation may not issue any
additional classes or series of preferred stock with liquidation, redemption or
conversion rights or right of payment of any kind that is senior to the Series A
Preferred
Stock, except pursuant to Section 12.
1.
2. Dividend Rights.
From and after the date hereof, when and if the Board of Directors declares
a dividend or distribution payable with respect to the then-outstanding shares
of Common Stock (other than in additional shares of Common Stock or Common Stock
Equivalents (as defined in
Section 4(e)(i) below), the holders of the Series A
Preferred Stock shall be entitled to the amount of dividends per share in the
same form as such Common Stock dividends that would be payable on the largest
number of whole shares of Common Stock into which a holder's aggregate shares of
Series A Preferred Stock could then be converted pursuant to Section 4 hereof
(such number to be determined as of the record date for the determination of
holders of Common Stock entitled to receive such dividend).
3. Liquidation Rights.
(a) Liquidation
Events. The occurrence of any of the following events
shall be deemed a "Liquidation" : (i) any liquidation, dissolution, or winding-up
of the affairs of the Corporation; (ii) any transaction or series of related
transactions in which securities of the Corporation representing 50% or more of
the combined voting power of the Corporation's then outstanding voting
securities are acquired by a person, entity or group of related persons or
entities, excluding any consolidation or merger effected exclusively to change
the domicile of the Corporation; (iii) any consolidation, merger or
reorganization of the Corporation with or into
any other corporation or other
entity or person pursuant to which the holders of the Corporation's outstanding
securities receive, pursuant to such transaction, securities in the surviving
entity that represent less than 50% of the voting power of such surviving
entity; or (iv) any sale, lease, exclusive license or other disposition of all
or substantially all of the assets of the Corporation.
(b) Liquidation Preference.
(i) In the event of any Liquidation, whether voluntary or involuntary,
before any payment of cash or
distribution of other property shall be made to
the holders of Common Stock, or any other class or series of stock subordinate
in liquidation preference to the Series A Preferred Stock, the holders of the
Series A Preferred Stock shall be entitled to receive out of the assets of the
Corporation legally available for distribution to its stockholders, on behalf of
each share of Series A Preferred Stock held by such holder, U.S.$550.00 (the
"Original Issue Price" ) (as appropriately adjusted for any combinations,
divisions, or similar recapitalizations affecting the Series A Preferred Stock
after issuance) and all accumulated
or accrued and unpaid dividends thereon
(collectively, the "Series A Liquidation Preference" ).
(ii) If, upon any Liquidation, the assets of the Corporation available
for distribution to its stockholders are insufficient to pay the holders of the
Series A Preferred Stock the full amounts to which they are entitled pursuant to
clause (b)(i) above, the holders of the Series A Preferred Stock shall share pro
rata in any distribution of assets in proportion to the respective amounts which
would be payable to the holders of the Series A Preferred Stock and any other
class
or series of capital stock of the Corporation ranking on par with the
Series A Preferred Stock in respect of the shares held by them if all amounts
payable to them in respect of such were paid in full pursuant to clause (b)(i)
above.
2.
(iii) After the distributions described in clause (b)(i) or (b)(ii)
above have been paid, subject to the rights of any other class
or series of
capital stock of the Corporation that may from time to time come into existence,
the remaining assets of the Corporation available for distribution to
stockholders shall be distributed among the holders of Common Stock pro rata
based on the number of shares of Common Stock held by each.
(c) Non-Cash Distributions. If any distribution to be made pursuant to
this Section 3 is to be paid other than in cash or Common Stock or Common Stock
Equivalents, the value of such distribution will be deemed its fair market value
as determined in good faith by the Board of Directors.
Any securities shall be
valued as follows:
(i) Securities not subject to investment letter or other similar
restrictions on free marketability covered by clause (ii) 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 quotation system over the thirty (30) trading
day period ending three (3) trading days prior to the occurrence of the
Liquidation;
(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) trading day period ending three (3) trading
days prior to the occurrence of the Liquidation; and
(3) if there is no active public market, the value shall be the
fair market value thereof, as determined by the Board of Directors.
(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 effectuate an appropriate discount from the market value,
as determined by clause (i)(1), (2) or (3) of this Section 3(c), so as to
reflect the approximate fair market value thereof, as determined by the Board of
Directors.
(iii) The holders of at least a majority of the outstanding Series A
Preferred Stock shall have the right to challenge any determination by the Board
of Directors of fair market value pursuant to this Section 3(c), in which case
the determination of fair market value
shall be made by an independent appraiser
selected jointly by the Board of Directors and the challenging parties, the cost
of such appraisal to be borne equally by the Corporation and the challenging
parties.
4. Conversion Rights.
The holders of the Series A Preferred Stock shall have conversion rights as
follows (the "Conversion Right" ):
(a) Conversion Price. The "Conversion Price" shall, initially, be U.S.
$5.50 per share and shall be subject to adjustment as set
forth below in
Sections 4(e) and 4(f).
3.
(b) Automatic Conversion. If the closing price for the shares of the
Corporation's Common Stock (trading on a securities exchange or through Nasdaq
National Market or other national exchange or market) exceeds $11.00 per share
(as adjusted for events described in Section 4(e)(ii) and 4(e)(iii) below) for
any
thirty consecutive trading day period that begins after July 29, 2004 , then, upon such occurrence, each share of Series A Preferred Stock shall be
automatically converted into such number of fully paid and non-assessable shares
of Common Stock as is determined by dividing (x) the Original Issue Price of
such share of Series A Preferred Stock (including any accumulated or accrued but
unpaid dividends thereon) by (y) the Conversion Price. The date of such
conversion is herein referred to as the "Conversion Date."
(c) Optional Conversion. The holders of the Series A
Preferred Stock shall
have the right, at any time, to convert the shares of Series A Preferred Stock
held by such holder into that number of shares of Common Stock into which such
shares are convertible pursuant to Section 4(b) ("Optional Conversion" ). In the
event of any Optional Conversion, the date of the such conversion shall be
referred to as the "Optional Conversion Date."
(d) Mechanics of Conversion. On the Conversion Date or Optional Conversion
Date, as the case may be, (x) each holder shall tender such holder's shares of
Series A Preferred Stock to the Corporation
for cancellation, free and clear of
encumbrances of any type or nature, and (y) the Corporation shall cause to be
delivered to such holder a number of shares of Common Stock as calculated
pursuant to Section 4(b) above, free and clear of encumbrances of any type or
nature. Each holder and the Corporation shall take all other necessary or
appropriate actions in connection with or to effect such closing.
(e) Certain Adjustments. To the extent that the holders of Series A
Preferred Stock do not participate fully with other stockholders of the
Corporation with respect to dividends
paid pursuant to Section 2 hereof, the
following adjustments shall be made to the Conversion Price:
(i) Adjustment for Common Stock Dividends and Distributions. If, at
any time after the original issue date of the Series A Preferred Stock (the
"Original Issue Date" ), the Corporation makes, or fixes a record date for the
determination of holders of Common Stock entitled to receive, a dividend or
other distribution payable in additional shares of Common Stock or Common Stock
Equivalents, in each such event the Conversion Price that is then in effect
shall be decreased
as of the time of such issuance or, in the event such record
date is fixed, as of the close of business on such record date, by multiplying
the Conversion Price then in effect by a fraction (i) the numerator of which is
the total number of shares of Common Stock and Common Stock Equivalents issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date, and (ii) the denominator of which is the total
number of shares of Common Stock and Common Stock Equivalents issued and
outstanding immediately prior to the time of such issuance or the close of
business on such record date plus
the number of shares of Common Stock or Common
Stock Equivalents issuable in payment of such dividend or distribution;
provided, however, that if such record date is fixed and such dividend is not
fully paid or if such distribution is not fully made on the date fixed therefor,
the Conversion Price shall be recomputed accordingly as of the close of business
on such record date and thereafter the Conversion Price shall be adjusted
pursuant to this Section 4(e)(i) to reflect the actual payment of such dividend
or distribution.
4.
A
"Common Stock Equivalent" shall mean each share of Common
Stock into which securities or property or rights are convertible, exchangeable
or exercisable for or into shares of Common Stock, or otherwise entitle the
holder thereof to receive directly or indirectly, any of the foregoing.
(ii) Adjustments for Stock Splits, Stock Subdivisions and
Combinations. If, at any time after the Original Issue Date, the Corporation
subdivides or combines the Common Stock without making a corresponding
subdivision or combination of the Series A Preferred Stock, (A) in the case of a
subdivision
(including a stock split), the Conversion Price in effect
immediately prior to such event shall be proportionately decreased and the
number of shares of Common Stock purchasable thereunder shall be proportionately
increased, and (B) in the case of a combination (including a reverse stock
split), the Conversion Price in effect immediately prior to such event shall be
proportionately increased and the number of shares of Common Stock purchasable
thereunder shall be proportionately decreased. Any adjustment under this Section
4(e)(ii) shall become effective at the close of business on the date the
subdivision or combination becomes
effective.
(iii) Adjustments for Reclassification, Reorganization and
Consolidation. In case of (A) any reclassification, reorganization, change or
conversion of securities of the class issuable upon conversion of the Series A
Preferred Stock (other than a change in par value, or from par value to no par
value) into other shares or securities of the Corporation, or (B) any merger or
consolidation of the Corporation with or into another entity (other than a
Liquidation or a merger or consolidation with another entity in which the
Corporation is the acquiring and the surviving
entity and that does not result
in any reclassification or change of outstanding securities issuable upon
conversion of the Series A Preferred Stock) each holder of shares of Series A
Preferred Stock shall have the right to receive, in lieu of the shares of Common
Stock otherwise issuable upon the conversion of its shares of Series A Preferred
Stock (and accumulated or accrued and unpaid dividends then-outstanding
thereunder) in accordance with Section 4(b), the kind and amount of shares of
stock and other securities, money and property receivable upon such
reclassification, reorganization, change, merger or consolidation upon
conversion
by a holder of the maximum number of shares of Common Stock into
which such shares of Series A Preferred Stock could have been converted
immediately prior to such reclassification, reorganization, change, merger or
consolidation, all subject to further adjustment as provided herein or with
respect to such other securities or property by the terms thereof. The
provisions of this clause (iii) shall similarly attach to successive
reclassifications, reorganizations, changes, mergers and consolidations.
(f) Antidilution Adjustments. To the extent that (i) the Corporation
issues after
the Original Issue Date and before April 29, 2003 , Additional Shares of Common Stock (as defined below) (in one or more transactions, whether
or not related), (ii) each such issuance is at an Effective Price (as defined
below) per share less than Conversion Price then in effect and (iii) the
aggregate gross proceeds of such issuances exceed $15 million, then the
Conversion Price shall be adjusted to equal the lowest Effective Price received
by the Corporation pursuant to any such issuance. The previous sentence will
apply to any issuances of Additional Shares of Common Stock after the $15
million
threshold has been met (provided any such issuance is below the
Conversion Price then in effect) but will not apply to any issuance of
Additional Shares of
5.
Common Stock occurring after April 29, 2003 . Notwithstanding the foregoing, the Conversion Price shall in no event be lower than U.S.$3.77.
(i) For the purpose of making any adjustment required under Section
4(f), the consideration received by the Company for any issue or sale of securities shall (A) to the extent it consists of cash, be computed at the net
amount of cash received by the Company after deduction of any underwriting or similar commissions, compensation or concessions paid or allowed by the Company in connection with such issue or sale but without deduction of any expenses
payable
by the Company (except for purposes of determining if the $15 million threshold referred to above has been met, in which case the consideration
received will be deemed to be the aggregate gross proceeds received by the
Company), (B) to the extent it consists of property other than cash, be computed
at the fair value of that property as determined in good faith by the Board of
Directors, and (C) if Additional Shares of Common Stock, Convertible Securities
(as defined below) or rights or options to purchase either Additional Shares of
Common Stock or Convertible Securities are issued or sold
together with other
stock or securities or other assets of the Company for a consideration which covers both, be computed as the portion of the consideration so received that
may be reasonably determined in good faith by the Board of Directors to be
allocable to such Additional Shares of Common Stock, Convertible Securities or
rights or options; provided, however, that the holders of at least a majority of
the outstanding Series A Preferred Stock shall have the right to challenge any
determination by the Board of Directors of fair market value pursuant to this
Section
4(f)(i), in which case the determination of fair market value shall be
made by an independent appraiser selected jointly by the Board of Directors and
the challenging parties, the cost of such appraisal to be borne equally by the
Corporation and the challenging parties.
(ii) For the purpose of the adjustment required under this Section
4(f), if the Company issues or sells (A) stock or other securities convertible into, Additional Shares of Common Stock (such convertible stock or securities
being herein referred to as "Convertible
Securities" ) or (B) rights or options
for the purchase of Additional Shares of Common Stock or Convertible Securities
and if the Effective Price of such Additional Shares of Common Stock is less
than the Conversion Price, in each case the Company shall be deemed to have issued at the time of the issuance of such rights or options or Convertible
Securities the maximum number of Additional Shares of Common Stock issuable upon
exercise or conversion thereof and to have received as consideration for the
issuance of such shares an amount equal to the total amount of the
consideration,
if any, received by the Company for the issuance of such rights or options or Convertible Securities, plus, in the case of such rights or
options, the minimum amounts of consideration, if any, payable to the Company upon the exercise of such rights or options, plus, in the case of Convertible
Securities, the minimum amounts of consideration, if any, payable to the Company (other than by cancellation of liabilities or obligations evidenced by such
Convertible
Securities) upon the conversion thereof; provided that if in the
case of Convertible Securities the minimum amounts of such consideration cannot
be ascertained, but are a function of antidilution or similar protective
clauses, the Company shall be deemed to have received the minimum amounts of consideration without reference to such clauses; provided further that if the
minimum amount of consideration payable to the Company upon the exercise or conversion of rights, options or Convertible Securities is reduced over time or
on
the occurrence or non-occurrence of specified events other than by reason of
antidilution adjustments, the Effective Price shall be recalculated using the
figure to which such minimum amount of consideration is
6.
reduced; provided further that if the minimum amount of consideration payable to
the Company upon the exercise or conversion of such rights, options orConvertible
Securities is subsequently increased, the Effective Price shall be
again recalculated using the increased minimum amount of consideration payable
to the Company upon the exercise or conversion of such rights, options or Convertible Securities. No further adjustment of the Conversion Price, as
adjusted upon the issuance of such rights, options or Convertible Securities,
shall be made as a result of the actual issuance of Additional Shares of Common
Stock on the exercise of any such rights or options or the conversion of any
such Convertible Securities. If any such rights or options or the
conversion
privilege represented by any such Convertible Securities shall expire without
having been exercised, the Conversion Price, as adjusted upon the issuance of
such rights, options or Convertible Securities, shall be readjusted to the
Conversion Price which would have been in effect had an adjustment been made on
the basis that the only Additional Shares of Common Stock so issued were the
Additional Shares of Common Stock, if any, actually issued or sold on the
exercise of such rights or options or rights of conversion of such Convertible
Securities, and such Additional Shares of Common Stock, if any, were issued or
sold
for the consideration actually received by the Company upon such exercise, plus the consideration, if any, actually received by the Company for the granting of all such rights or options, whether or not exercised, plus the
consideration received for issuing or selling the Convertible Securities
actually converted, plus the consideration, if any, actually received by the
Company (other than by cancellation of liabilities or obligations evidenced by
such Convertible Securities) on the conversion of such Convertible Securities.
"Additional Shares of Common Stock" shall mean all shares of Common Stock
issued by the Company or deemed to be issued pursuant to this Section 4(f), whether or not subsequently reacquired or retired by the Company other than (A) shares of Common Stock and/or options, warrants or other Common Stock purchase
rights, and the Common Stock issued or issuable pursuant to such options,
warrants or other rights to employees, officers or directors of, or consultants
or advisors to the
Company or any subsidiary pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board; (B) shares of
Common Stock issued or issuable pursuant to any equipment loan or leasing
arrangement, or debt financing from a bank or similar financial institution; (C)
shares of Common Stock issued or issuable in connection with licensing
transactions involving the Company and other entities, including (1) joint ventures, manufacturing, marketing or distribution arrangements or (2)
technology transfer or development arrangements; provided that such transactions
in
(1) and (2) and the issuance of shares therein has been approved by a
majority of the members of the Company 's Board of Directors and the aggregate number of shares so issued does not exceed four million (4,000,000)(as adjusted
for stock splits, stock dividends, stock combinations, recapitalizatons and the
like); and (D) any other issuances approved by the holders of a majority of the
Series A Preferred Stock then outstanding.
The "Effective Price" of Additional Shares of Common Stock shall mean the
quotient determined by dividing
the total number of Additional Shares of Common
Stock issued or sold, or deemed to have been issued or sold by the Company under this Section 4(f), into the aggregate consideration received, or deemed to have
been received by the Company for such issue under this Section 4(f), for such Additional Shares of Common Stock.
7.
5. Other
Distributions.
In the event the Corporation provides the holders of its Common Stock with
consideration that is not otherwise addressed in Section 4 (including, without
limitation, declaring a distribution payable in securities, assets, cash or
evidences of indebtedness issued by other persons or the Corporation (excluding
cash dividends declared and paid by the Corporation out of retained earnings)),
then, in each such case, the holders of the Series A Preferred Stock shall be
entitled to a pro rata share of any such distribution as though such holders
were holders of the number
of shares of Common Stock of the Corporation as
though the Series A Preferred Stock had been converted in whole as of the record
date fixed for the determination of the holders of Common Stock of the
Corporation entitled to receive such distribution.
6. Recapitalizations.
If at any time there occurs a recapitalization of the Common Stock (other
than a subdivision, combination, or merger or sale of assets provided for in
Section 4 hereof), the holders of the Series A Preferred Stock shall be entitled
to receive upon conversion of
the Series A Preferred Stock the number of shares
of capital stock or other securities or property of the Corporation or otherwise
to which a holder of the 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 Section 4 hereof with
respect to the rights of the holders of the Series A Preferred Stock after the
recapitalization to the end that the provisions of Section 4 hereof (including
adjustment of the Conversion Price then in effect and the number of shares
purchasable upon conversion of the Series
A Preferred Stock) shall be applicable
after that event as nearly equivalent as may be practicable.
7. No Impairment.
or through any reorganization, recapitalization, transfer of assets,
consolidation, merger, dissolution, issuance 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 hereof
and in the taking of all such action as may be necessary or appropriate in order
to protect the Conversion Right of the holders of the Series A Preferred Stock
against impairment.
8. No Fractional Shares and Certificate as to Adjustments.
(a) No fractional shares of Common Stock will be issued upon the conversion
of any share or shares of the Series A Preferred Stock. All shares of Common
Stock (including fractions thereof) issuable upon conversion
of more than one
share of Series A Preferred Stock by a holder shall be aggregated for purposes
of determining whether the conversion would result in the issuance of any
fractional share. If, after the aforementioned aggregation, the conversion would
result in the issuance of a fraction of a share of Common Stock, the Corporation
shall, in lieu of issuing any fractional share, pay the holder otherwise
entitled to such fraction a sum in cash equal to such fraction multiplied by the
closing price of the Corporation's Common Stock on the Nasdaq National Market
(or any other national securities exchange on which the Common
8.
Stock is then traded) on the day immediately preceding the conversion. All
calculations under Section 4 hereof and this Section 8(a) shall be made to the
nearest cent or to the nearest share, as the case may be.
(b) Upon the occurrence of each adjustment or readjustment of the
Conversion Price pursuant to Section 4 hereof, 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 shares of Series A
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 Preferred Stock, use its reasonable best efforts to furnish or cause to
be furnished to such holder a like certificate setting forth (i) such adjustment
or readjustment, (ii) the Conversion Price at the time in effect, and (iii) the
number of shares of Common Stock and the amount, if any, of other property
which
at the time would be received upon the conversion of a share of Series A
Preferred Stock.
9. Reservation of Stock Issuable Upon Conversion.
The Corporation shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock, solely for the purpose of
effecting the conversion of the shares of the Series A Preferred Stock, such
number of its shares of Common Stock that shall from time to time be sufficient
to effect the conversion of all outstanding shares of the Series A Preferred
Stock;
and if at any time the number of authorized but unissued shares of Common
Stock not otherwise reserved for issuance shall not be sufficient to effect the
conversion of all then outstanding shares of the Series A Preferred Stock, the
Corporation shall take such corporate action that 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 its Certificate of
Incorporation.
10. Notices.
Any notice required by the provisions hereof to be given to the holders of
shares of Series A Preferred Stock shall be given in writing and shall be deemed
to have been given (i) in the case of personal or hand delivery, on the date of
such delivery, (ii) in the case of an internationally-recognized overnight
delivery courier, on the second business day after the date when sent, (iii) in
the case of mailing, on the fifth business day following that day on which the
piece of mail containing such communication is posted and (iv) in the case of
facsimile transmission, the date of telephone confirmation of receipt.
11. Voting
Rights.
Holders of Series A Preferred Stock shall be entitled to vote on all
matters submitted to a vote of the holders of the Corporation's Common Stock,
including with respect to the election of directors of the Corporation, on an as
if converted to Common Stock basis; provided, however, that the number of votes
to which the Series A Preferred Stock is entitled shall be based on a conversion
price of $5.50 per share, giving effect to any future adjustments pursuant to
Section
9.
4(e)
above, but without giving any effect to any future adjustments pursuant to
Section 4(f) above.
12. Protective Provisions.
Subject to the rights of any series of preferred stock that may from time to
time come into existence, so long as any shares of Series A Preferred Stock are
outstanding, the Corporation shall not 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
separately as a series:
Certificate of Designations) so as to (i) increase the number of authorized
shares of the Corporation's preferred stock or (ii) affect adversely the shares
of Series A Preferred Stock or any holder thereof, including, without
limitation, by creating any additional series of preferred stock (or issuing
shares under any such series) that is senior or pari passu in liquidation
preference, redemption right, conversion rights or right of payment to the
Series A Preferred Stock;
(b) after the date of this Certificate of Designation, create any new debt
instrument or create or increase any new or existing bank line (or similar
arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements
exceeds $105,000,000 in the aggregate; or
(c) change the rights of the holders of the Series A Preferred Stock in any
other respect;
provided, however, that the authorization and
issuance of additional shares of
Common Stock, and creation of any series of preferred stock (or issuing shares
under any such series) that is junior in right of payment upon liquidation,
redemption, conversion and payment rights and otherwise to the Series A
Preferred Stock shall not be deemed to adversely affect the rights, preferences
or privileges of the Series A Preferred Stock or any holder thereof or change
the rights of the holders of the Series A Preferred Stock in any other respect.
The Series A Preferred Stock shall have no preemptive rights pursuant
hereto.
13. Legend.
The Series A Preferred Stock and any underlying shares of Common Stock will
be issued under an exemption or exemptions from registration under the Act.
Accordingly, the certificates evidencing the Series A Preferred Stock and the
underlying Common Stock shall, upon issuance, contain a legend, substantially in
the form as follows:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT" ), OR APPLICABLE STATE
SECURITIES LAWS AND NO INTEREST HEREIN MAY BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED
OF UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT TO
SUCH SECURITIES SHALL BE EFFECTIVE UNDER
10.
THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR (2) SUCH SECURITIES ARE
TRANSFERRED PURSUANT TO RULE 144 PROMULGATED UNDER THE ACT (OR ANY
SUCCESSOR RULE) OR (3) THE ISSUER OF THESE SECURITIES SHALL HAVE RECEIVED
AN OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY
SATISFACTORY TO THE ISSUER THAT NO VIOLATION OF THE ACT OR SIMILAR STATE
SECURITIES LAWS WILL BE INVOLVED IN SUCH TRANSFER.
14. Status of Converted Stock.
In the event any shares of Series A Preferred Stock shall be converted
pursuant to Section 4 hereof, the shares so converted shall be canceled and
shall not be reissuable by the Corporation.
[Signature page follows]
11.
IN WITNESS WHEREOF, said Wireless Facilities, Inc. has caused this
WIRELESS FACILITIES, INC.
----------------------------------
Title: Chief Executive Officer
12.
FORM OF CERTIFICATE OF DESIGNATIONS
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS
of
SERIES B PREFERRED STOCK
of
WIRELESS FACILITIES, INC.
a corporation organized and existing under the laws of the State of Delaware
(the "Corporation" or the "Company" )), in accordance with the provisions of
Section 151 of the Delaware General Corporation Law, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors of the
the Corporation and by Section 151(g) of the Delaware General Corporation Law,
on May
16, 2002 , the Board of Directors adopted the following resolution, creating a series of shares of convertible preferred stock, Series B, designated
as "Series B Preferred Stock" :
"RESOLVED, that pursuant to the authority vested in the Board of Directors
(the "Board of Directors" ) of WIRELESS FACILITIES, INC., a corporation
organized and existing under the laws of the State of Delaware (the
for the authorization and issuance of a series of convertible preferred
stock, Series B, par value U.S.$0.001 per share, of the Corporation, to be
designated "Series B Preferred Stock," initially consisting of 90,000
shares, and to the extent that the designations, powers, preferences, and
relative participating, optional, or other special rights, and the
qualifications, limitations, and restrictions of the Series B Preferred
Board of Directors does hereby fix and herein state and express such
designations, powers, preferences, and relative participating, optional, or
other special rights, and the qualifications, limitations, and restrictions
thereof, as follows:
1. Designation and Rank.
(a) Ninety thousand (90,000) shares of the preferred stock of the
Corporation, par value $0.001 per share, shall be designated and known as the
"Series B Preferred Stock."
(b) The Series B Preferred Stock shall rank senior and prior to the common
stock, par value U.S.$0.001 per share, of the Corporation (the "Common Stock" ),
and all other classes or series of the capital stock (other than preferred
stock) of the Corporation (now or hereafter authorized or issued), with respect
to the payment of any dividends, the conversion rights set forth herein and any
payment upon liquidation or redemption. The Series B Preferred Stock shall rank
on par with the Series A Preferred Stock of the Corporation with respect to the
payment of any dividends, the conversion rights set forth herein and any payment
upon
liquidation or redemption. The Corporation may not issue any additional
classes or series of preferred stock with liquidation, redemption or conversion
rights or right of payment of any kind that is senior to the Series B Preferred
Stock, except pursuant to Section 12.
1.
2. Dividend Rights.
From and after the date hereof,
when and if the Board of Directors declares
a dividend or distribution payable with respect to the then-outstanding shares
of Common Stock (other than in additional shares of Common Stock or Common Stock
Equivalents (as defined in Section 4(e)(i) below), the holders of the Series B
Preferred Stock shall be entitled to the amount of dividends per share in the
same form as such Common Stock dividends that would be payable on the largest
number of whole shares of Common Stock into which a holder's aggregate shares of
Series B Preferred Stock could then be converted pursuant to Section 4 hereof
(such number to be determined as of the
record date for the determination of
holders of Common Stock entitled to receive such dividend).
3. Liquidation Rights.
(a) Liquidation Events. The occurrence of any of the following events shall
be deemed a "Liquidation" : (i) any liquidation, dissolution, or winding-up of
the affairs of the Corporation; (ii) any transaction or series of related
transactions in which securities of the Corporation representing 50% or more of
the combined voting power of the Corporation's then outstanding voting
securities are acquired by a
person, entity or group of related persons or
entities, excluding any consolidation or merger effected exclusively to change
the domicile of the Corporation; (iii) any consolidation, merger or
reorganization of the Corporation with or into any other corporation or other
entity or person pursuant to which the holders of the Corporation's outstanding
securities receive, pursuant to such transaction, securities in the surviving
entity that represent less than 50% of the voting power of such surviving
entity; or (iv) any sale, lease, exclusive license or other disposition of all
or substantially all of the assets of the Corporation.
(b) Liquidation Preference.
(i) In the event of any Liquidation, whether voluntary or involuntary,
before any payment of cash or distribution of other property shall be made to
the holders of Common Stock, or any other class or series of stock subordinate
in liquidation preference to the Series B Preferred Stock, the holders of the
Series B Preferred Stock shall be entitled to receive out of the assets of the
Corporation legally available for distribution to its stockholders, on behalf of
each share of Series B Preferred Stock held by such holder, U.S.$500.00 (the
"Original
Issue Price" ) (as appropriately adjusted for any combinations,
divisions, or similar recapitalizations affecting the Series B Preferred Stock
after issuance) and all accumulated or accrued and unpaid dividends thereon
(collectively, the "Series B Liquidation Preference" ).
(ii) If, upon any Liquidation, the assets of the Corporation available
for distribution to its stockholders are insufficient to pay the holders of the
Series B Preferred Stock the full amounts to which they are entitled pursuant to
clause (b)(i) above, the holders of the Series B Preferred Stock shall share pro
rata
in any distribution of assets in proportion to the respective amounts which
would be payable to the holders of the Series B Preferred Stock and any other
class or series of capital stock of the Corporation ranking on par with the
Series B Preferred Stock in respect of the shares held by them if all amounts
payable to them in respect of such were paid in full pursuant to clause (b)(i)
above.
2.
(iii)
After the distributions described in clause (b)(i) or (b)(ii)
above have been paid, subject to the rights of any other class or series of
capital stock of the Corporation that may from time to time come into existence,
the remaining assets of the Corporation available for distribution to
stockholders shall be distributed among the holders of Common Stock pro rata
based on the number of shares of Common Stock held by each.
(c) Non-Cash Distributions. If any distribution to be made pursuant to this
Section 3 is to be paid other than in cash or Common Stock or Common Stock
Equivalents,
the value of such distribution will be deemed its fair market value
as determined in good faith by the Board of Directors. Any securities shall be
valued as follows:
(i) Securities not subject to investment letter or other similar
restrictions on free marketability covered by clause (ii) 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 quotation system over the thirty (30) trading
day
period ending three (3) trading days prior to the occurrence of the
Liquidation;
(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) trading day period ending three (3) trading
days prior to the occurrence of the Liquidation; and
(3) if there is no active public market, the value shall be the
fair market value thereof, as determined by the Board of Directors.
(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 effectuate an appropriate discount from the market value,
as determined by clause (i)(1), (2) or (3) of this Section 3(c), so as to
reflect the approximate fair market value thereof, as determined by the Board of
Directors.
(iii) The holders of at least a majority of the outstanding Series B
Preferred Stock shall have the right
to challenge any determination by the Board
of Directors of fair market value pursuant to this Section 3(c), in which case
the determination of fair market value shall be made by an independent appraiser
selected jointly by the Board of Directors and the challenging parties, the cost
of such appraisal to be borne equally by the Corporation and the challenging
parties.
4. Conversion Rights.
The holders of the Series B Preferred Stock shall have conversion rights as
follows (the "Conversion Right" ):
(a) Conversion Price. The "Conversion Price" shall, initially, be U.S.$5.00
per share and shall be subject to adjustment as set forth below in Sections 4(e)
and 4(f).
3.
(b) Automatic Conversion. If the closing price for the shares of the
Corporation's Common Stock (trading on a securities exchange or through Nasdaq
National Market or other national exchange or
market) exceeds $11.00 per share
(as adjusted for events described in Section 4(e)(ii) and 4(e)(iii) below) for
then, upon such occurrence, each share of Series B Preferred Stock shall be
automatically converted into such number of fully paid and non-assessable shares
of Common Stock as is determined by dividing (x) the Original Issue Price of
such share of Series B Preferred Stock (including any accumulated or accrued but
unpaid dividends thereon) by (y) the Conversion Price. The date of such
conversion
is herein referred to as the "Conversion Date."
(c) Optional Conversion. The holders of the Series B Preferred Stock shall
have the right, at any time, to convert the shares of Series B Preferred Stock
held by such holder into that number of shares of Common Stock into which such
shares are convertible pursuant to Section 4(b) ("Optional Conversion" ). In the
event of any Optional Conversion, the date of such conversion shall be referred
to as the "Optional Conversion Date."
(d) Mechanics of Conversion. On the Conversion Date or Optional Conversion
Date,
as the case may be, (x) each holder shall tender such holder's shares of
Series B Preferred Stock to the Corporation for cancellation, free and clear of
encumbrances of any type or nature, and (y) the Corporation shall cause to be
delivered to such holder a number of shares of Common Stock as calculated
pursuant to Section 4(b) above, free and clear of encumbrances of any type or
nature. Each holder and the Corporation shall take all other necessary or
appropriate actions in connection with or to effect such closing.
(e) Certain Adjustments. To the extent that the holders of Series B
Preferred
Stock do not participate fully with other stockholders of the
Corporation with respect to dividends paid pursuant to Section 2 hereof, the
following adjustments shall be made to the Conversion Price:
(i) Adjustment for Common Stock Dividends and Distributions. If, at
any time after the original issue date of the Series B Preferred Stock (the
"Original Issue Date" ), the Corporation makes, or fixes a record date for the
determination of holders of Common Stock entitled to receive, a dividend or
other distribution payable in additional shares of Common Stock or Common Stock
Equivalents,
in each such event the Conversion Price that is then in effect
shall be decreased as of the time of such issuance or, in the event such record
date is fixed, as of the close of business on such record date, by multiplying
the Conversion Price then in effect by a fraction (i) the numerator of which is
the total number of shares of Common Stock and Common Stock Equivalents issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date, and (ii) the denominator of which is the total
number of shares of Common Stock and Common Stock Equivalents issued and
outstanding immediately prior
to the time of such issuance or the close of
business on such record date plus the number of shares of Common Stock or Common
Stock Equivalents issuable in payment of such dividend or distribution;
provided, however, that if such record date is fixed and such dividend is not
fully paid or if such distribution is not fully made on the date fixed therefor,
the Conversion Price shall be recomputed accordingly as of the close of business
on such record date and thereafter the Conversion Price shall be adjusted
pursuant to this Section 4(e)(i) to reflect the actual payment of such dividend
or distribution.
4.
A "Common Stock Equivalent" shall mean each share of Common Stock
into which securities or property or rights are convertible, exchangeable or
exercisable for or into shares of Common Stock, or otherwise entitle the holder
thereof to receive directly or indirectly, any of the foregoing.
(ii) Adjustments for Stock Splits, Stock Subdivisions and
Combinations. If, at any time after the Original
Issue Date, the Corporation
subdivides or combines the Common Stock without making a corresponding
subdivision or combination of the Series B Preferred Stock, (A) in the case of a
subdivision (including a stock split), the Conversion Price in effect
immediately prior to such event shall be proportionately decreased and the
number of shares of Common Stock purchasable thereunder shall be proportionately
increased, and (B) in the case of a combination (including a reverse stock
split), the Conversion Price in effect immediately prior to such event shall be
proportionately increased and the number of shares of Common Stock purchasable
thereunder
shall be proportionately decreased. Any adjustment under this Section
4(e)(ii) shall become effective at the close of business on the date the
subdivision or combination becomes effective.
(iii) Adjustments for Reclassification, Reorganization and
Consolidation. In case of (A) any reclassification, reorganization, change or
conversion of securities of the class issuable upon conversion of the Series B
Preferred Stock (other than a change in par value, or from par value to no par
value) into other shares or securities of the Corporation, or (B) any merger or
consolidation of
the Corporation with or into another entity (other than a
Liquidation or a merger or consolidation with another entity in which the
Corporation is the acquiring and the surviving entity and that does not result
in any reclassification or change of outstanding securities issuable upon
conversion of the Series B Preferred Stock) each holder of shares of Series B
Preferred Stock shall have the right to receive, in lieu of the shares of Common
Stock otherwise issuable upon the conversion of its shares of Series B Preferred
Stock (and accumulated or accrued and unpaid dividends then-outstanding
thereunder) in accordance with Section 4(b),
the kind and amount of shares of
stock and other securities, money and property receivable upon such
reclassification, reorganization, change, merger or consolidation upon
conversion by a holder of the maximum number of shares of Common Stock into
which such shares of Series B Preferred Stock could have been converted
immediately prior to such reclassification, reorganization, change, merger or
consolidation, all subject to further adjustment as provided herein or with
respect to such other securities or property by the terms thereof. The
provisions of this clause (iii) shall similarly attach to successive
reclassifications,
reorganizations, changes, mergers and consolidations.
(f) Antidilution Adjustments. To the extent that (i) the Corporation issues
Common Stock (as defined below) (in one or more transactions, whether or not
related), (ii) each such issuance is at an Effective Price (as defined below)
per share less than Conversion Price then in effect and (iii) the aggregate
gross proceeds of such issuances exceed $15 million, then the Conversion Price
shall be adjusted to equal the lowest Effective Price received
by the
Corporation pursuant to any such issuance. The previous sentence will apply to
any issuances of Additional Shares of Common Stock after the $15 million
threshold has been met (provided any such issuance is below the Conversion Price
then in effect) but will not apply to any issuance of Additional
5.
foregoing, the Conversion Price shall in no event be lower than U.S.$[4.17].
(i) For the purpose of making any adjustment required under Section
4(f), the consideration received by the Company for any issue or sale of securities shall (A) to the extent it consists of cash, be computed at the net
amount of cash received by the Company after deduction of any underwriting or similar commissions, compensation or concessions paid or allowed by the
Company in connection with such issue or sale but without deduction of any expenses
payable by the Company (except for purposes of determining if the $15 million threshold referred to above has been met, in which case the consideration
received will be deemed to be the aggregate gross proceeds received by the
Company), (B) to the extent it consists of property other than cash, be computed
at the fair value of that property as determined in good faith by the Board of
Directors, and (C) if Additional Shares of Common Stock, Convertible Securities
(as
defined below) or rights or options to purchase either Additional Shares of
Common Stock or Convertible Securities are issued or sold together with other
stock or securities or other assets of the Company for a consideration which covers both, be computed as the portion of the consideration so received that
may be reasonably determined in good faith by the Board of Directors to be
allocable to such Additional Shares of Common Stock, Convertible Securities or
rights or options; provided, however, that the holders of at least a majority of
the outstanding Series B Preferred Stock shall have
the right to challenge any
determination by the Board of Directors of fair market value pursuant to this
Section 4(f)(i), in which case the determination of fair market value shall be
made by an independent appraiser selected jointly by the Board of Directors and
the challenging parties, the cost of such appraisal to be borne equally by the
Corporation and the challenging parties.
(ii) For the purpose of the adjustment required under this Section
4(f), if the Company issues or sells (A) stock or other securities convertible into,
Additional Shares of Common Stock (such convertible stock or securities
being herein referred to as "Convertible Securities" ) or (B) rights or options
for the purchase of Additional Shares of Common Stock or Convertible Securities
and if the Effective Price of such Additional Shares of Common Stock is less
than the Conversion Price, in each case the Company shall be deemed to have issued at the time of the issuance of such rights or options or Convertible
Securities the maximum number of Additional Shares of Common Stock issuable upon
exercise or conversion thereof and to have received
as consideration for the
issuance of such shares an amount equal to the total amount of the
consideration, if any, received by the Company for the issuance of such rights or options or Convertible Securities, plus, in the case of such rights or
options, the minimum amounts of consideration, if any, payable to the Company upon the exercise of such rights or options, plus, in the case of Convertible
Securities, the minimum amounts of consideration, if any, payable to the
Company (other than by cancellation of liabilities or obligations evidenced by such
Convertible Securities) upon the conversion thereof; provided that if in the
case of Convertible Securities the minimum amounts of such consideration cannot
be ascertained, but are a function of antidilution or similar protective
clauses, the Company shall be deemed to have received the minimum amounts of consideration without reference to such clauses; provided further that if the
minimum amount of consideration payable to the
Company upon the exercise or conversion of rights, options or Convertible Securities is reduced over time or
on the occurrence or non-occurrence of specified events other than by reason of
antidilution adjustments, the Effective Price shall be recalculated using the
figure to which such minimum amount of consideration is
6.
reduced; provided further that if the minimum amount of consideration payable to
the
Company upon the exercise or conversion of such rights, options orConvertible Securities is subsequently increased, the Effective Price shall be
again recalculated using the increased minimum amount of consideration payable
to the Company upon the exercise or conversion of such rights, options or Convertible Securities. No further adjustment of the Conversion Price, as
adjusted upon the issuance of such rights, options or Convertible Securities,
shall be made as a result of the actual issuance of Additional Shares of Common
Stock on the exercise of any such rights or options or the
conversion of any
such Convertible Securities. If any such rights or options or the conversion
privilege represented by any such Convertible Securities shall expire without
having been exercised, the Conversion Price, as adjusted upon the issuance of
such rights, options or Convertible Securities, shall be readjusted to the
Conversion Price which would have been in effect had an adjustment been made on
the basis that the only Additional Shares of Common Stock so issued were the
Additional Shares of Common Stock, if any, actually issued or sold on the
exercise of such rights or options or rights of conversion of such Convertible
Securities,
and such Additional Shares of Common Stock, if any, were issued or
sold for the consideration actually received by the Company upon such exercise, plus the consideration, if any, actually received by the Company for the granting of all such rights or options, whether or not exercised, plus the
consideration received for issuing or selling the Convertible Securities
actually converted, plus the consideration, if any, actually received by the
Company (other than by cancellation of liabilities or obligations evidenced by
such
Convertible Securities) on the conversion of such Convertible Securities.
"Additional Shares of Common Stock" shall mean all shares of
Common Stock issued by the Company or deemed to be issued pursuant to this Section 4(f), whether or not subsequently reacquired or retired by the Company other than (A) shares of Common Stock and/or options, warrants or other Common
Stock purchase rights, and the Common Stock issued or issuable pursuant to such
options, warrants or other
rights to employees, officers or directors of, or
consultants or advisors to the Company or any subsidiary pursuant to stock purchase or stock option plans or other arrangements that are approved by the
Board; (B) shares of Common Stock issued or issuable pursuant to any equipment
loan or leasing arrangement, or debt financing from a bank or similar financial
institution; (C) shares of Common Stock issued or issuable in connection with
licensing transactions involving the Company and other entities, including (1) joint
ventures, manufacturing, marketing or distribution arrangements or (2)
technology transfer or development arrangements; provided that such transactions
in (1) and (2) and the issuance of shares therein has been approved by a
majority of the members of the Company 's Board of Directors and the aggregate number of shares so issued does not exceed four million (4,000,000)(as adjusted
for stock splits, stock dividends, stock combinations, recapitalizatons and the
like); and (D) any other issuances approved by the holders of a majority of the
Series B Preferred Stock then outstanding.
The "Effective Price" of Additional Shares of Common Stock
shall mean the quotient determined by dividing the total number of Additional
Shares of Common Stock issued or sold, or deemed to have been issued or sold by
the Company under this Section 4(f), into the aggregate consideration received,or deemed to have been received by the Company for such issue under this Section 4(f), for such Additional Shares of Common Stock.
7.
5. Other Distributions.
In the event the Corporation provides the holders of its Common Stock with
consideration that is not otherwise addressed in Section 4 (including, without
limitation, declaring a distribution payable in securities, assets, cash or
evidences of indebtedness issued by other persons or the Corporation (excluding
cash dividends declared and paid by the Corporation out of retained earnings)),
then,
in each such case, the holders of the Series B Preferred Stock shall be
entitled to a pro rata share of any such distribution as though such holders
were holders of the number of shares of Common Stock of the Corporation as
though the Series B Preferred Stock had been converted in whole as of the record
date fixed for the determination of the holders of Common Stock of the
Corporation entitled to receive such distribution.
6. Recapitalizations.
If at any time there occurs a recapitalization of the Common Stock (other
than a subdivision,
combination, or merger or sale of assets provided for in
Section 4 hereof), the holders of the Series B Preferred Stock shall be entitled
to receive upon conversion of the Series B Preferred Stock the number of shares
of capital stock or other securities or property of the Corporation or otherwise
to which a holder of the 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 Section 4 hereof with
respect to the rights of the holders of the Series B Preferred Stock after the
recapitalization to the end
that the provisions of Section 4 hereof (including
adjustment of the Conversion Price then in effect and the number of shares
purchasable upon conversion of the Series B Preferred Stock) shall be applicable
after that event as nearly equivalent as may be practicable.
7. No Impairment.
or through any reorganization, recapitalization, transfer of assets,
consolidation, merger, dissolution, issuance 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 hereof
and in the taking of all such action as may be necessary or appropriate in order
to protect the Conversion Right of the holders of the Series B Preferred Stock
against impairment.
8. No Fractional Shares and Certificate as to Adjustments.
(a) No fractional shares of Common Stock will
be issued upon the conversion
of any share or shares of the Series B Preferred Stock. All shares of Common
Stock (including fractions thereof) issuable upon conversion of more than one
share of Series B Preferred Stock by a holder shall be aggregated for purposes
of determining whether the conversion would result in the issuance of any
fractional share. If, after the aforementioned aggregation, the conversion would
result in the issuance of a fraction of a share of Common Stock, the Corporation
shall, in lieu of issuing any fractional share, pay the holder otherwise
entitled to such fraction a sum in cash equal to such fraction multiplied
by the
closing price of the Corporation's Common Stock on the Nasdaq National Market
(or any other national securities exchange on which the Common
8.
Stock is then traded) on the day immediately preceding the conversion. All
calculations under Section 4 hereof and this Section 8(a) shall be made to the
nearest cent or to the nearest share, as the case may be.
(b) Upon the occurrence of each adjustment or readjustment of the
Conversion Price pursuant to Section 4 hereof, 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 shares of Series B
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 B Preferred Stock, use its reasonable best efforts to furnish or cause to
be furnished to
such holder a like certificate setting forth (i) such adjustment
or readjustment, (ii) the Conversion Price at the time in effect, and (iii) the
number of shares of Common Stock and the amount, if any, of other property which
at the time would be received upon the conversion of a share of Series B
Preferred Stock.
9. Reservation of Stock Issuable Upon Conversion.
The Corporation shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock, solely for the purpose of
effecting the conversion
of the shares of the Series B Preferred Stock, such
number of its shares of Common Stock that shall from time to time be sufficient
to effect the conversion of all outstanding shares of the Series B Preferred
Stock; and if at any time the number of authorized but unissued shares of Common
Stock not otherwise reserved for issuance shall not be sufficient to effect the
conversion of all then outstanding shares of the Series B Preferred Stock, the
Corporation shall take such corporate action that 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 its Certificate of
Incorporation.
10. Notices.
Any notice required by the provisions hereof to be given to the holders of
shares of Series B Preferred Stock shall be given in writing and shall be deemed
to have been given (i) in the case of personal or hand delivery, on the date of
such delivery, (ii) in the case of an internationally-recognized overnight
delivery
courier, on the second business day after the date when sent, (iii) in
the case of mailing, on the fifth business day following that day on which the
piece of mail containing such communication is posted, and (iv) in the case of
facsimile transmission, the date of telephone confirmation of receipt.
11. Voting Rights.
Holders of Series B Preferred Stock shall be entitled to vote on all
matters submitted to a vote of the holders of the Corporation's Common Stock,
including with respect to the election of directors of the Corporation, on an as
if
converted to Common Stock basis; provided, however, that the number of votes
to which the Series B Preferred Stock is entitled shall be based on a conversion
price of $5.00 per share, giving effect to any future adjustments pursuant to
Section
9.
4(e) above, but without giving any effect to any future adjustments pursuant to
Section 4(f) above.
12. Protective
Provisions.
Subject to the rights of any series of preferred stock that may from time to
time come into existence, so long as any shares of Series B Preferred Stock are
outstanding, the Corporation shall not 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
separately as a series:
Certificate of Designations) so as to (i) increase the number of authorized
shares of the Corporation's preferred stock or (ii) affect adversely the shares
of Series B Preferred Stock or any holder thereof, including, without
limitation, by creating any additional series of preferred stock (or issuing
shares under any such series) that is senior or pari passu in liquidation
preference, redemption right, conversion rights or right of payment to the
Series B Preferred Stock;
(b) after the date of this Certificate of Designation, create any new debt
instrument
or create or increase any new or existing bank line (or similar
arrangement pursuant to which the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements
exceeds $105,000,000 in the aggregate; or
(c) change the rights of the holders of the Series B Preferred Stock in any
other respect;
provided, however, that the authorization and issuance of additional shares of
Common Stock, and creation of any series of preferred stock
(or issuing shares
under any such series) that is junior in right of payment upon liquidation,
redemption, conversion and payment rights and otherwise to the Series B
Preferred Stock shall not be deemed to adversely affect the rights, preferences
or privileges of the Series B Preferred Stock or any holder thereof or change
the rights of the holders of the Series B Preferred Stock in any other respect.
The Series B Preferred Stock shall have no preemptive rights pursuant
hereto.
13. Legend.
The Series B Preferred Stock and any underlying shares of Common Stock will
be issued under an exemption or exemptions from registration under the Act.
Accordingly, the certificates evidencing the Series B Preferred Stock and the
underlying Common Stock shall, upon issuance, contain a legend, substantially in
the form as follows:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT" ), OR APPLICABLE STATE
SECURITIES LAWS AND NO INTEREST HEREIN MAY BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED
OF UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT TO
SUCH SECURITIES SHALL BE EFFECTIVE UNDER
10.
THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR (2) SUCH SECURITIES ARE
TRANSFERRED PURSUANT TO RULE 144 PROMULGATED UNDER THE ACT (OR ANY SUCCESSOR
RULE) OR (3) THE ISSUER OF THESE SECURITIES SHALL HAVE RECEIVED AN OPINION OF
COUNSEL FOR THE HOLDER OF THESE SECURITIES
REASONABLY SATISFACTORY TO THE ISSUER
THAT NO VIOLATION OF THE ACT OR SIMILAR STATE SECURITIES LAWS WILL BE INVOLVED
IN SUCH TRANSFER.
14. Status of Converted Stock.
In the event any shares of Series B Preferred Stock shall be converted
pursuant to Section 4 hereof, the shares so converted shall be canceled and
shall not be reissuable by the Corporation.
[Signature page follows]
11.
IN WITNESS WHEREOF, said Wireless Facilities, Inc. has caused this
WIRELESS FACILITIES, INC.
-------------------------------------
Title: Chief Executive Officer
12.
CERTIFICATE OF CORRECTION OF THE CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF SERIES B PREFERRED STOCK OF WIRELESS FACILITIES, INC.
WIRELESS FACILITIES, INC. ( the “ Corporation” ), a corporation organized and existing under and by virtue of the Delaware General Corporation Law, DOES HEREBY CERTIFY:
1. The
name of the Corporation is Wireless Facilities, Inc.
1.
The instrument being corrected is entitled: Certificate of Designations, Preferences and Rights of Series B Preferred Stock of Wireless Facilities, Inc., which was filed on May 30, 2002 with the Secretary of State of the State of Delaware (the “ Certificate of Designations ” ).
2.
The
caption for the second paragraph was inadvertently omitted. The caption should be inserted to read “FIRST:” .
3.
Article 1, Section 4(f) of the Certificate of Designations had a typographical error. The dollar amount in the last sentence should be U.S.$4.17 not U.S.$4.72.
5.
The penultimate paragraph was inadvertently omitted. It should read in its entirety as follows:
“SECOND: That
the authorization of, and the filing of this Certificate of Designations relating to, the Series B Preferred Stock has been duly approved by the holders of the Company 's Series A Preferred Stock in accordance with the Company 's Amended and Restated Certificate of Incorporation , as amended by the Certificate of Designations filed on October 29, 2001 , and Section 242 of the Delaware General Corporation Law.”
6.
The
Certificate of Designations, Preferences and Rights of Series B Preferred Stock, as corrected, is set forth in its entirety as Exhibit A hereto.
IN WITNESS WHEREOF, Wireless Facilities, Inc., acting pursuant to Section 103(f) of the Delaware General Corporation Law, has caused this Corrected Certificate of Designations, Preferences and Rights of Series B Preferred Stock to be signed by its Vice President, Legal Affairs, General Counsel and Secretary this 30th day of May, 2002.
Wireless Facilities, Inc.
Vice President, Legal Affairs, General Counsel and Secretary
CORRECTED
FORM OF CERTIFICATE OF DESIGNATIONS
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS
of
SERIES B PREFERRED STOCK
of
WIRELESS FACILITIES, INC.
a corporation organized and existing under the laws of the State of Delaware
(the "Corporation" or the "Company" )), in accordance with the provisions of
Section 151 of the Delaware General Corporation Law, DO HEREBY CERTIFY:
FIRST: That pursuant to the authority conferred upon the Board of Directors
of the Corporation (the "Board of
Directors" ) by the Certificate of
Incorporation of the Corporation and by Section 151(g) of the Delaware General
Corporation Law, on May 16, 2002 , the Board of Directors adopted the following resolution, creating a series of shares of convertible preferred stock, Series
B, designated as "Series B Preferred Stock" :
"RESOLVED, that pursuant to the authority vested in the Board of Directors
(the "Board of Directors" ) of WIRELESS FACILITIES, INC., a corporation
organized and existing under the laws of the State of Delaware (the
for the authorization and issuance of a series of convertible preferred
stock, Series B, par value U.S.$0.001 per share, of the Corporation, to be
designated "Series B Preferred Stock," initially consisting of 90,000
shares, and to the extent that the designations, powers, preferences, and
relative participating, optional, or other
special rights, and the
qualifications, limitations, and restrictions of the Series B Preferred
Board of Directors does hereby fix and herein state and express such
designations, powers, preferences, and relative participating, optional, or
other special rights, and the qualifications, limitations, and restrictions
thereof, as follows:
1. Designation and Rank.
(a) Ninety thousand (90,000) shares of the preferred stock of the
Corporation, par value $0.001 per share, shall be designated and known as the
"Series B Preferred Stock."
(b) The Series B Preferred Stock shall rank senior and prior to the common
stock, par value U.S.$0.001 per share, of the Corporation (the "Common Stock" ),
and all other classes or series of the capital stock (other than preferred
stock) of the Corporation (now or hereafter authorized or issued), with respect
to the payment of any dividends, the conversion rights set forth herein and any
payment
upon liquidation or redemption. The Series B Preferred Stock shall rank
on par with the Series A Preferred Stock of the Corporation with respect to the
payment of any dividends, the conversion rights set forth herein and any payment
upon liquidation or redemption. The Corporation may not issue any additional
classes or series of preferred stock with liquidation, redemption or conversion
rights or right of payment of any kind that is senior to the Series B Preferred
Stock, except pursuant to Section 12.
1.
2. Dividend
Rights.
From and after the date hereof, when and if the Board of Directors declares
a dividend or distribution payable with respect to the then-outstanding shares
of Common Stock (other than in additional shares of Common Stock or Common Stock
Equivalents (as defined in Section 4(e)(i) below), the holders of the Series B
Preferred Stock shall be entitled to the amount of dividends per share in the
same form as such Common Stock dividends that would be payable on the largest
number of whole shares of Common Stock into which a holder's aggregate shares of
Series B Preferred
Stock could then be converted pursuant to Section 4 hereof
(such number to be determined as of the record date for the determination of
holders of Common Stock entitled to receive such dividend).
3. Liquidation Rights.
(a) Liquidation Events. The occurrence of any of the following events shall
be deemed a "Liquidation" : (i) any liquidation, dissolution, or winding-up of
the affairs of the Corporation; (ii) any transaction or series of related
transactions in which securities of the Corporation representing 50% or more of
the
combined voting power of the Corporation's then outstanding voting
securities are acquired by a person, entity or group of related persons or
entities, excluding any consolidation or merger effected exclusively to change
the domicile of the Corporation; (iii) any consolidation, merger or
reorganization of the Corporation with or into any other corporation or other
entity or person pursuant to which the holders of the Corporation's outstanding
securities receive, pursuant to such transaction, securities in the surviving
entity that represent less than 50% of the voting power of such surviving
entity; or (iv) any sale, lease,
exclusive license or other disposition of all
or substantially all of the assets of the Corporation.
(b) Liquidation Preference.
(i) In the event of any Liquidation, whether voluntary or involuntary,
before any payment of cash or distribution of other property shall be made to
the holders of Common Stock, or any other class or series of stock subordinate
in liquidation preference to the Series B Preferred Stock, the holders of the
Series B Preferred Stock shall be entitled to receive out of the assets of the
Corporation
legally available for distribution to its stockholders, on behalf of
each share of Series B Preferred Stock held by such holder, U.S.$500.00 (the
"Original Issue Price" ) (as appropriately adjusted for any combinations,
divisions, or similar recapitalizations affecting the Series B Preferred Stock
after issuance) and all accumulated or accrued and unpaid dividends thereon
(collectively, the "Series B Liquidation Preference" ).
(ii) If, upon any Liquidation, the assets of the Corporation available
for distribution to its stockholders are insufficient to pay the holders of the
Series
B Preferred Stock the full amounts to which they are entitled pursuant to
clause (b)(i) above, the holders of the Series B Preferred Stock shall share pro
rata in any distribution of assets in proportion to the respective amounts which
would be payable to the holders of the Series B Preferred Stock and any other
class or series of capital stock of the Corporation ranking on par with the
Series B Preferred Stock in respect of the shares held by them if all amounts
payable to them in respect of such were paid in full pursuant to clause (b)(i)
above.
2.
(iii) After the distributions described in clause (b)(i) or (b)(ii)
above have been paid, subject to the rights of any other class or series of
capital stock of the Corporation that may from time to time come into existence,
the remaining assets of the Corporation available for distribution to
stockholders shall be distributed among the holders of Common Stock pro rata
based on the number of shares of Common Stock held by each.
(c) Non-Cash Distributions. If any distribution to be made pursuant to this
Section 3 is to be paid other than in cash or Common Stock or Common Stock
Equivalents, the value of such distribution will be deemed its fair market value
as determined in good faith by the Board of Directors. Any securities shall be
valued as follows:
(i) Securities not subject to investment letter or other similar
restrictions on free marketability covered by clause (ii) 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 quotation system over the thirty (30) trading
day period ending three (3) trading days prior to the occurrence of the
Liquidation;
(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) trading day period ending three (3) trading
days prior to the occurrence of the Liquidation; and
(3) if
there is no active public market, the value shall be the
fair market value thereof, as determined by the Board of Directors.
(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 effectuate an appropriate discount from the market value,
as determined by clause (i)(1), (2) or (3) of this Section 3(c), so as to
reflect the approximate fair market value thereof, as determined by the Board of
Directors.
(iii) The holders of at least a majority of the outstanding Series B
Preferred Stock shall have the right to challenge any determination by the Board
of Directors of fair market value pursuant to this Section 3(c), in which case
the determination of fair market value shall be made by an independent appraiser
selected jointly by the Board of Directors and the challenging parties, the cost
of such appraisal to be borne equally by the Corporation and the challenging
parties.
4. Conversion Rights.
The holders of the
Series B Preferred Stock shall have conversion rights as
follows (the "Conversion Right" ):
(a) Conversion Price. The "Conversion Price" shall, initially, be U.S.$5.00
per share and shall be subject to adjustment as set forth below in Sections 4(e)
and 4(f).
3.
(b) Automatic Conversion. If the closing
price for the shares of the
Corporation's Common Stock (trading on a securities exchange or through Nasdaq
National Market or other national exchange or market) exceeds $11.00 per share
(as adjusted for events described in Section 4(e)(ii) and 4(e)(iii) below) for
then, upon such occurrence, each share of Series B Preferred Stock shall be
automatically converted into such number of fully paid and non-assessable shares
of Common Stock as is determined by dividing (x) the Original Issue Price of
such
share of Series B Preferred Stock (including any accumulated or accrued but
unpaid dividends thereon) by (y) the Conversion Price. The date of such
conversion is herein referred to as the "Conversion Date."
(c) Optional Conversion. The holders of the Series B Preferred Stock shall
have the right, at any time, to convert the shares of Series B Preferred Stock
held by such holder into that number of shares of Common Stock into which such
shares are convertible pursuant to Section 4(b) ("Optional Conversion" ). In the
event of any Optional Conversion, the date of such conversion shall be referred
to
as the "Optional Conversion Date."
(d) Mechanics of Conversion. On the Conversion Date or Optional Conversion
Date, as the case may be, (x) each holder shall tender such holder's shares of
Series B Preferred Stock to the Corporation for cancellation, free and clear of
encumbrances of any type or nature, and (y) the Corporation shall cause to be
delivered to such holder a number of shares of Common Stock as calculated
pursuant to Section 4(b) above, free and clear of encumbrances of any type or
nature. Each holder and the Corporation shall take all other necessary or
appropriate
actions in connection with or to effect such closing.
(e) Certain Adjustments. To the extent that the holders of Series B
Preferred Stock do not participate fully with other stockholders of the
Corporation with respect to dividends paid pursuant to Section 2 hereof, the
following adjustments shall be made to the Conversion Price:
(i) Adjustment for Common Stock Dividends and Distributions. If, at
any time after the original issue date of the Series B Preferred Stock (the
"Original Issue Date" ), the Corporation makes, or fixes a record date for the
determination
of holders of Common Stock entitled to receive, a dividend or
other distribution payable in additional shares of Common Stock or Common Stock
Equivalents, in each such event the Conversion Price that is then in effect
shall be decreased as of the time of such issuance or, in the event such record
date is fixed, as of the close of business on such record date, by multiplying
the Conversion Price then in effect by a fraction (i) the numerator of which is
the total number of shares of Common Stock and Common Stock Equivalents issued
and outstanding immediately prior to the time of such issuance or the close of
business on such
record date, and (ii) the denominator of which is the total
number of shares of Common Stock and Common Stock Equivalents issued and
outstanding immediately prior to the time of such issuance or the close of
business on such record date plus the number of shares of Common Stock or Common
Stock Equivalents issuable in payment of such dividend or distribution;
provided, however, that if such record date is fixed and such dividend is not
fully paid or if such distribution is not fully made on the date fixed therefor,
the Conversion Price shall be recomputed accordingly as of the close of business
on such record date and thereafter
the Conversion Price shall be adjusted
pursuant to this Section 4(e)(i) to reflect the actual payment of such dividend
or distribution.
4.
A "Common Stock Equivalent" shall mean each share of Common Stock
into which securities or property or rights are convertible, exchangeable or
exercisable for or into shares of Common Stock, or otherwise entitle
the holder
thereof to receive directly or indirectly, any of the foregoing.
(ii) Adjustments for Stock Splits, Stock Subdivisions and
Combinations. If, at any time after the Original Issue Date, the Corporation
subdivides or combines the Common Stock without making a corresponding
subdivision or combination of the Series B Preferred Stock, (A) in the case of a
subdivision (including a stock split), the Conversion Price in effect
immediately prior to such event shall be proportionately decreased and the
number of shares of Common Stock purchasable thereunder shall
be proportionately
increased, and (B) in the case of a combination (including a reverse stock
split), the Conversion Price in effect immediately prior to such event shall be
proportionately increased and the number of shares of Common Stock purchasable
thereunder shall be proportionately decreased. Any adjustment under this Section
4(e)(ii) shall become effective at the close of business on the date the
subdivision or combination becomes effective.
(iii) Adjustments for Reclassification, Reorganization and
Consolidation. In case of (A) any reclassification, reorganization,
change or
conversion of securities of the class issuable upon conversion of the Series B
Preferred Stock (other than a change in par value, or from par value to no par
value) into other shares or securities of the Corporation, or (B) any merger or
consolidation of the Corporation with or into another entity (other than a
Liquidation or a merger or consolidation with another entity in which the
Corporation is the acquiring and the surviving entity and that does not result
in any reclassification or change of outstanding securities issuable upon
conversion of the Series B Preferred Stock) each holder of shares of Series B
Preferred
Stock shall have the right to receive, in lieu of the shares of Common
Stock otherwise issuable upon the conversion of its shares of Series B Preferred
Stock (and accumulated or accrued and unpaid dividends then-outstanding
thereunder) in accordance with Section 4(b), the kind and amount of shares of
stock and other securities, money and property receivable upon such
reclassification, reorganization, change, merger or consolidation upon
conversion by a holder of the maximum number of shares of Common Stock into
which such shares of Series B Preferred Stock could have been converted
immediately prior to such reclassification,
reorganization, change, merger or
consolidation, all subject to further adjustment as provided herein or with
respect to such other securities or property by the terms thereof. The
provisions of this clause (iii) shall similarly attach to successive
reclassifications, reorganizations, changes, mergers and consolidations.
(f) Antidilution Adjustments. To the extent that (i) the Corporation issues
Common Stock (as defined below) (in one or more transactions, whether or not
related),
(ii) each such issuance is at an Effective Price (as defined below)
per share less than Conversion Price then in effect and (iii) the aggregate
gross proceeds of such issuances exceed $15 million, then the Conversion Price
shall be adjusted to equal the lowest Effective Price received by the
Corporation pursuant to any such issuance. The previous sentence will apply to
any issuances of Additional Shares of Common Stock after the $15 million
threshold has been met (provided any such issuance is below the Conversion Price
then in effect) but will not apply to any issuance of Additional
5.
foregoing, the Conversion Price shall in no event be lower than U.S.$4.17.
(i) For the purpose of making any adjustment required under Section
4(f), the consideration received by the Company for any issue or sale of securities shall (A)
to the extent it consists of cash, be computed at the net
amount of cash received by the Company after deduction of any underwriting or similar commissions, compensation or concessions paid or allowed by the Company in connection with such issue or sale but without deduction of any expenses
payable by the Company (except for purposes of determining if the $15 million threshold referred to above has been met, in which case the consideration
received will
be deemed to be the aggregate gross proceeds received by the
Company), (B) to the extent it consists of property other than cash, be computed
at the fair value of that property as determined in good faith by the Board of
Directors, and (C) if Additional Shares of Common Stock, Convertible Securities
(as defined below) or rights or options to purchase either Additional Shares of
Common Stock or Convertible Securities are issued or sold together with other
stock or securities or other assets of the Company for a consideration which covers both, be computed as the portion of the consideration
so received that
may be reasonably determined in good faith by the Board of Directors to be
allocable to such Additional Shares of Common Stock, Convertible Securities or
rights or options; provided, however, that the holders of at least a majority of
the outstanding Series B Preferred Stock shall have the right to challenge any
determination by the Board of Directors of fair market value pursuant to this
Section 4(f)(i), in which case the determination of fair market value shall be
made by an independent appraiser selected jointly by the Board of Directors and
the challenging parties, the cost of such appraisal to be borne
equally by the
Corporation and the challenging parties.
(ii) For the purpose of the adjustment required under this Section
4(f), if the Company issues or sells (A) stock or other securities convertible into, Additional Shares of Common Stock (such convertible stock or securities
being herein referred to as "Convertible Securities" ) or (B) rights or options
for the purchase of Additional Shares of Common Stock or Convertible Securities
and if the Effective Price of such Additional Shares of Common Stock is less
than
the Conversion Price, in each case the Company shall be deemed to have issued at the time of the issuance of such rights or options or Convertible
Securities the maximum number of Additional Shares of Common Stock issuable upon
exercise or conversion thereof and to have received as consideration for the
issuance of such shares an amount equal to the total amount of the
consideration, if any, received by the Company for the issuance of such rights or options or Convertible Securities, plus, in the case of such rights or
options,
the minimum amounts of consideration, if any, payable to the Company upon the exercise of such rights or options, plus, in the case of Convertible
Securities, the minimum amounts of consideration, if any, payable to the Company (other than by cancellation of liabilities or obligations evidenced by such
Convertible Securities) upon the conversion thereof; provided that if in the
case of Convertible Securities the minimum amounts of such consideration cannot
be ascertained, but are a function of antidilution or similar protective
clauses,
the Company shall be deemed to have received the minimum amounts of consideration without reference to such clauses; provided further that if the
minimum amount of consideration payable to the Company upon the exercise or conversion of rights, options or Convertible Securities is reduced over time or
on the occurrence or non-occurrence of specified events other than by reason of
antidilution adjustments, the Effective Price shall be recalculated using the
figure to which such minimum amount of consideration is
6.
reduced; provided further that if the minimum amount of consideration payable to
the Company upon the exercise or conversion of such rights, options orConvertible Securities is subsequently increased, the Effective Price shall be
again recalculated using the increased minimum amount of consideration payable
to the Company upon the exercise
or conversion of such rights, options or Convertible Securities. No further adjustment of the Conversion Price, as
adjusted upon the issuance of such rights, options or Convertible Securities,
shall be made as a result of the actual issuance of Additional Shares of Common
Stock on the exercise of any such rights or options or the conversion of any
such Convertible Securities. If any such rights or options or the conversion
privilege represented by any such Convertible Securities shall expire without
having been exercised, the Conversion Price, as adjusted upon the issuance of
such rights, options or Convertible Securities,
shall be readjusted to the
Conversion Price which would have been in effect had an adjustment been made on
the basis that the only Additional Shares of Common Stock so issued were the
Additional Shares of Common Stock, if any, actually issued or sold on the
exercise of such rights or options or rights of conversion of such Convertible
Securities, and such Additional Shares of Common Stock, if any, were issued or
sold for the consideration actually received by the Company upon such exercise, plus the consideration, if any, actually received by the
Company for the granting of all such rights or options, whether or not exercised, plus the
consideration received for issuing or selling the Convertible Securities
actually converted, plus the consideration, if any, actually received by the
Company (other than by cancellation of liabilities or obligations evidenced by
such Convertible Securities) on the conversion of such Convertible Securities.
"Additional Shares of Common Stock" shall mean all shares of
Common Stock issued by the Company or deemed to
be issued pursuant to this Section 4(f), whether or not subsequently reacquired or retired by the Company other than (A) shares of Common Stock and/or options, warrants or other Common
Stock purchase rights, and the Common Stock issued or issuable pursuant to such
options, warrants or other rights to employees, officers or directors of, or
consultants or advisors to the Company or any subsidiary pursuant to stock purchase or stock option plans or other arrangements that are approved by the
Board;
(B) shares of Common Stock issued or issuable pursuant to any equipment
loan or leasing arrangement, or debt financing from a bank or similar financial
institution; (C) shares of Common Stock issued or issuable in connection with
licensing transactions involving the Company and other entities, including (1) joint ventures, manufacturing, marketing or distribution arrangements or (2)
technology transfer or development arrangements; provided that such transactions
in (1) and (2) and the issuance of shares therein has been approved by a
majority of the members of the
Company 's Board of Directors and the aggregate number of shares so issued does not exceed four million (4,000,000)(as adjusted
for stock splits, stock dividends, stock combinations, recapitalizatons and the
like); and (D) any other issuances approved by the holders of a majority of the
Series B Preferred Stock then outstanding.
The "Effective Price" of Additional Shares of Common Stock
shall mean the quotient determined by dividing the total number of Additional
Shares of Common Stock issued or sold, or deemed to have been issued or sold by
the
Company under this Section 4(f), into the aggregate consideration received,or deemed to have been received by the Company for such issue under this Section 4(f), for such Additional Shares of Common Stock.
7.
5. Other Distributions.
In the event the Corporation provides the holders of its Common Stock with
consideration that is not otherwise addressed in Section 4 (including, without
limitation, declaring a distribution payable in securities, assets, cash or
evidences of indebtedness issued by other persons or the Corporation (excluding
cash dividends declared and paid by the Corporation out of retained earnings)),
then, in each such case, the holders of the Series B Preferred Stock shall be
entitled to a pro rata share of any such distribution as though such holders
were holders of the number of shares of Common Stock of the Corporation as
though
the Series B Preferred Stock had been converted in whole as of the record
date fixed for the determination of the holders of Common Stock of the
Corporation entitled to receive such distribution.
6. Recapitalizations.
If at any time there occurs a recapitalization of the Common Stock (other
than a subdivision, combination, or merger or sale of assets provided for in
Section 4 hereof), the holders of the Series B Preferred Stock shall be entitled
to receive upon conversion of the Series B Preferred Stock the number of shares
of
capital stock or other securities or property of the Corporation or otherwise
to which a holder of the 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 Section 4 hereof with
respect to the rights of the holders of the Series B Preferred Stock after the
recapitalization to the end that the provisions of Section 4 hereof (including
adjustment of the Conversion Price then in effect and the number of shares
purchasable upon conversion of the Series B Preferred Stock) shall be applicable
after
that event as nearly equivalent as may be practicable.
7. No Impairment.
or through any reorganization, recapitalization, transfer of assets,
consolidation, merger, dissolution, issuance 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 hereof
and in the taking of all such action as may be necessary or appropriate in order
to protect the Conversion Right of the holders of the Series B Preferred Stock
against impairment.
8. No Fractional Shares and Certificate as to Adjustments.
(a) No fractional shares of Common Stock will be issued upon the conversion
of any share or shares of the Series B Preferred Stock. All shares of Common
Stock (including fractions thereof) issuable upon conversion of more than one
share
of Series B Preferred Stock by a holder shall be aggregated for purposes
of determining whether the conversion would result in the issuance of any
fractional share. If, after the aforementioned aggregation, the conversion would
result in the issuance of a fraction of a share of Common Stock, the Corporation
shall, in lieu of issuing any fractional share, pay the holder otherwise
entitled to such fraction a sum in cash equal to such fraction multiplied by the
closing price of the Corporation's Common Stock on the Nasdaq National Market
(or any other national securities exchange on which the Common
8.
Stock is then traded) on the day immediately preceding the conversion. All
calculations under Section 4 hereof and this Section 8(a) shall be made to the
nearest cent or to the nearest share, as the case may be.
(b) Upon the occurrence of each adjustment or readjustment of the
Conversion Price pursuant to Section 4 hereof, 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 shares of Series B
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 B Preferred Stock, use its reasonable best efforts to furnish or cause to
be furnished to such holder a like certificate setting forth (i) such adjustment
or readjustment, (ii) the Conversion Price at the time in effect, and (iii) the
number of shares of Common Stock and the amount, if
any, of other property which
at the time would be received upon the conversion of a share of Series B
Preferred Stock.
9. Reservation of Stock Issuable Upon Conversion.
The Corporation shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock, solely for the purpose of
effecting the conversion of the shares of the Series B Preferred Stock, such
number of its shares of Common Stock that shall from time to time be sufficient
to effect the conversion of all outstanding shares of
the Series B Preferred
Stock; and if at any time the number of authorized but unissued shares of Common
Stock not otherwise reserved for issuance shall not be sufficient to effect the
conversion of all then outstanding shares of the Series B Preferred Stock, the
Corporation shall take such corporate action that 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 its Certificate
of
Incorporation.
10. Notices.
Any notice required by the provisions hereof to be given to the holders of
shares of Series B Preferred Stock shall be given in writing and shall be deemed
to have been given (i) in the case of personal or hand delivery, on the date of
such delivery, (ii) in the case of an internationally-recognized overnight
delivery courier, on the second business day after the date when sent, (iii) in
the case of mailing, on the fifth business day following that day on which the
piece
of mail containing such communication is posted, and (iv) in the case of
facsimile transmission, the date of telephone confirmation of receipt.
11. Voting Rights.
Holders of Series B Preferred Stock shall be entitled to vote on all
matters submitted to a vote of the holders of the Corporation's Common Stock,
including with respect to the election of directors of the Corporation, on an as
if converted to Common Stock basis; provided, however, that the number of votes
to which the Series B Preferred Stock is entitled shall be based on a conversion
price
of $5.00 per share, giving effect to any future adjustments pursuant to
Section
9.
4(e) above, but without giving any effect to any future adjustments pursuant to
Section 4(f) above.
12. Protective Provisions.
Subject to the rights of any series of preferred stock that
may from time to
time come into existence, so long as any shares of Series B Preferred Stock are
outstanding, the Corporation shall not 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
separately as a series:
Certificate of Designations) so as to (i) increase the number of authorized
shares
of the Corporation's preferred stock or (ii) affect adversely the shares
of Series B Preferred Stock or any holder thereof, including, without
limitation, by creating any additional series of preferred stock (or issuing
shares under any such series) that is senior or pari passu in liquidation
preference, redemption right, conversion rights or right of payment to the
Series B Preferred Stock;
(b) after the date of this Certificate of Designation, create any new debt
instrument or create or increase any new or existing bank line (or similar
arrangement pursuant to which
the Company is or becomes indebted), so that the Company's total indebtedness pursuant to such instruments, lines or arrangements
exceeds $105,000,000 in the aggregate; or
(c) change the rights of the holders of the Series B Preferred Stock in any
other respect;
provided, however, that the authorization and issuance of additional shares of
Common Stock, and creation of any series of preferred stock (or issuing shares
under any such series) that is junior in right of payment upon
liquidation,
redemption, conversion and payment rights and otherwise to the Series B
Preferred Stock shall not be deemed to adversely affect the rights, preferences
or privileges of the Series B Preferred Stock or any holder thereof or change
the rights of the holders of the Series B Preferred Stock in any other respect.
The Series B Preferred Stock shall have no preemptive rights pursuant
hereto.
13. Legend.
The Series B Preferred Stock and any underlying shares of
Common Stock will
be issued under an exemption or exemptions from registration under the Act.
Accordingly, the certificates evidencing the Series B Preferred Stock and the
underlying Common Stock shall, upon issuance, contain a legend, substantially in
the form as follows:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT" ), OR APPLICABLE STATE
SECURITIES LAWS AND NO INTEREST HEREIN MAY BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT
TO
SUCH SECURITIES SHALL BE EFFECTIVE UNDER
10.
THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR (2) SUCH SECURITIES ARE
TRANSFERRED PURSUANT TO RULE 144 PROMULGATED UNDER THE ACT (OR ANY SUCCESSOR
RULE) OR (3) THE ISSUER OF THESE SECURITIES SHALL HAVE RECEIVED AN OPINION OF
COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE ISSUER
THAT
NO VIOLATION OF THE ACT OR SIMILAR STATE SECURITIES LAWS WILL BE INVOLVED
IN SUCH TRANSFER.
14. Status of Converted Stock.
In the event any shares of Series B Preferred Stock shall be converted
pursuant to Section 4 hereof, the shares so converted shall be canceled and
shall not be reissuable by the Corporation.
SECOND: That the authorization of, and the filing of this Certificate of
Designations relating to, the Series B Preferred Stock has been duly approved by
the holders
of the Company 's Series A Preferred Stock in accordance with the Delaware General Corporation Law.
[Signature page follows]
11.
IN WITNESS WHEREOF, said Wireless Facilities, Inc. has caused this
WIRELESS FACILITIES, INC.
-------------------------------------
Title: Chief Executive Officer
12.
CERTIFICATE OF DESIGNATION
OF THE
SERIES C PREFERRED STOCK
OF
WIRELESS FACILITIES, INC.
Pursuant to Section 151 of the General Corporation Law of the State of Delaware
The undersigned officers of Wireless Facilities,
Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the “ Corporation ”), in accordance with the provisions of Section 103 thereof, DO HEREBY CERTIFY :
That, pursuant to the authority conferred upon the Board of Directors of the Corporation by its Amended and Restated Certificate of Incorporation (the “ Certificate ”), the said Board of Directors unanimously adopted the following resolution by written consent on December 16, 2004 , which resolution remains in full force and effect on the date hereof, creating a series of Preferred Stock having a par value of $0.001
per share, designated as Series C Preferred Stock (the “ Series C Preferred Stock ”) out of the Corporation’s shares of preferred stock of the par value of $0.001 per share (the ” Preferred Stock ”):
RESOLVED , that pursuant to the authority vested in the Board of Directors in accordance with the provisions of its Certificate, the Board of Directors does hereby create, authorize and provide for 1,200,000 shares of its authorized Preferred Stock to be designated and issued as the Series C Preferred Stock, having the voting powers, designation, relative, participating, optional and other special rights, preferences and qualifications, limitations and restrictions that are set forth as follows:
2. Voting
Rights . The holders of one one-hundredth (1/100) of a share (a “ Unit ”) of Series C Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each Unit of Series C Preferred Stock shall entitle the holder thereof to one vote on all matters submitted to a vote of the stockholders of the Corporation. In the event the Corporation shall, at any time after the December 16, 2004 (the “ Rights Declaration Date ”), (i) declare any dividend on outstanding shares of Common Stock payable in shares of Common Stock, (ii) subdivide outstanding shares of Common Stock or (iii) combine the outstanding
shares of Common Stock into a smaller number of shares, then in each such case the number of votes per Unit to which holders of Units of Series C Preferred Stock were entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction (y) the numerator of which shall be the number of shares of Common Stock outstanding immediately after such event and (z) the denominator of which shall be the number of shares of Common Stock that were outstanding immediately prior to such event; and
C-1
(B) Except
as otherwise provided herein, in the Certificate or the Bylaws of the Corporation or as required by law, the holders of Units of Series C Preferred Stock and the holders of shares of Common Stock shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation.
3. Reacquired Shares . Any Units of Series C Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such Units shall, upon their cancellation, become authorized but unissued shares (or fractions of shares) of Preferred Stock and may be reissued as part of a new series of Preferred
Stock to be created by resolution or resolutions of the Board of Directors, subject to the conditions and restrictions on issuance set forth herein.
4. Liquidation, Dissolution or Winding Up . (A) Upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, no distribution shall be made (i) to the holders of shares of junior stock, unless the holders of Units of Series C Preferred Stock shall have received, subject to adjustment as hereinafter provided in paragraph (B), the greater of either (a) $0.01 per Unit plus an amount equal to accrued and unpaid dividends and distributions thereon to the date of such payment, or (b) the amount equal to the aggregate per share amount to be distributed to holders of shares of Common Stock, or (ii) to the
holders of shares of parity stock, unless simultaneously therewith distributions are made ratably on Units of Series C Preferred Stock and all other shares of such parity stock in proportion to the total amounts to which the holders of Units of Series C Preferred Stock are entitled under clause (i)(a) of this sentence and to which the holders of shares of such parity stock are entitled, in each case upon such liquidation, dissolution or winding up.
(B) In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on outstanding shares of Common Stock payable in shares of Common Stock, (ii) subdivide outstanding shares of Common Stock, or (iii) combine outstanding shares of Common Stock into a smaller number of shares, then in each such case the aggregate amount
to which holders of Units of Series C Preferred Stock were entitled immediately prior to such event pursuant to clause (i)(b) of paragraph (A) of this Section 3 shall be adjusted by multiplying such amount by a fraction (y) the numerator of which shall be the number of shares of Common Stock that are outstanding immediately after such event and (z) the denominator of which shall be the number of shares of Common Stock that were outstanding immediately prior to such event.
6. Consolidation, Merger, etc . In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or converted into other stock or securities, cash and/or any other property, then in any such case
Units of Series C Preferred Stock shall at the same time be similarly exchanged for or converted into an amount per Unit (subject to the provision for adjustment hereinafter set forth) equal to the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is converted or exchanged. In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on outstanding shares of Common Stock payable in shares of Common Stock, (ii) subdivide outstanding shares of Common Stock, or (iii) combine outstanding Common Stock into a smaller number of shares, then in each such case the amount set forth in
C-2
the
immediately preceding sentence with respect to the exchange or conversion of Units of Series C Preferred Stock shall be adjusted by multiplying such amount by a fraction (y) the numerator of which shall be the number of shares of Common Stock that are outstanding immediately after such event and (z) the denominator of which shall be the number of shares of Common Stock that were outstanding immediately prior to such event.
7. Redemption . The Units of Series C Preferred Stock and shares of Series C Preferred Stock shall not be redeemable.
8. Ranking . The Units of Series C Preferred
Stock and shares of Series C Preferred Stock shall rank junior to all other series and any other class of Preferred Stock (now or hereafter authorized or issued by the Corporation) as to the payment of dividends, conversion, redemption or liquidation rights and the distribution of assets, unless the terms of any such series or class shall provide otherwise.
9. Fractional Shares . The Series C Preferred Stock may be issued in Units or other fractions of a share, which Units or fractions shall entitle the holder, in proportion to such holder’s units or fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the benefit of all other rights of holders of Series C Preferred Stock.
10. Amendment.
At any time when any Units of Series C Preferred Stock are outstanding, neither the Certificate of the Corporation nor this Certificate of Designation shall be amended in any manner that would materially alter or change the powers, preferences or special rights of the Units of Series C Preferred Stock so as to affect them adversely without the affirmative vote of the holders of a majority or more of the outstanding Units of Series C Preferred Stock, voting separately as a class.
11. Certain Definitions . As used in this resolution with respect to the Series C Preferred Stock, the following terms shall have the following meanings:
(A) The
term “Common Stock” shall mean the class of stock designated as the common stock, par value $0.001 per share, of the Corporation at the date hereof or any other class of stock resulting from successive changes or reclassification of the common stock.
(B) The term “junior stock” shall mean the Common Stock and any other class or series of capital stock of the Corporation over which the Series C Preferred Stock has preference or priority in the distribution of assets on any liquidation, dissolution or winding up of the Corporation.
(C) The term “parity stock” shall mean any class or series of capital stock ranking pari
passu with the Series C Preferred Stock in the distribution of assets on any liquidation, dissolution or winding up.
IN WITNESS WHEREOF , Wireless Facilities, Inc. has caused this Certificate of Designation to be signed by its Chief Executive Officer and President and its Sr. Vice President and Chief Financial Officer this 16th day of December, 2004.
C-3
WIRELESS
FACILITIES, INC.
By:
/s/ / Eric M. DeMarco
Name: Eric M. DeMarco
Title: Chief Executive Officer and President
By:
Title: Senior Vice President and Chief Financial Officer
C-4
CERTIFICATE
OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT
OF
WIRELESS FACILITIES, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "corporation" ) is:
WIRELESS FACILITIES, INC.
1. The registered office of the corporation within the State of Delaware is hereby changed to 2711 Centerville Road, Suite 400, City of Wilmington 19808, County of New Castle.
2. The
registered agent of the corporation within the State of Delaware is hereby changed to Corporation Service Company, the business office of which is identical with the registered office of the corporation as hereby changed.
3. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors.
Name: /s/James R. Edwards
Title: Senior Vice President
CERTIFICATE
OF OWNERSHIP AND MERGER
OF
KRATOS DEFENSE & SECURITY SOLUTIONS, INC. (A DELAWARE CORPORATION)
INTO
WIRELESS FACILITIES, INC. (A DELAWARE CORPORATION)
It is hereby certified that:
1. Wireless Facilities, Inc. (hereinafter sometimes. referred to as the “Corporation” ) is a business corporation of the State of Delaware.
2. The Corporation is the owner of all of the outstanding shares of the common stock of Kratos Defense & Security Solutions, Inc. which is also a business corporation of the State of Delaware.
3.
On September 5, 2007 , the Board of Directors of the Corporation adopted the following resolutions to merge Kratos Defense & Security Solutions, Inc. into the Corporation: NOW THEREFORE, BE IT RESOLVED , that Kratos Defense & Security Solutions, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Kratos Defense & Security Solutions, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Kratos Defense & Security Solutions, Inc. in its name;
RESOLVED FURTHER , that this Corporation shall assume all of the obligations of Kratos Defense & Security Solutions, Inc.;
RESOLVED
FURTHER , that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the State of Delaware and within any other appropriate jurisdiction;
RESOLVED
FURTHER , that this Corporation shall change its corporate name to Kratos Defense & Security Solutions, Inc.;
RESOLVED FURTHER , that the effective time of the Certificate of Ownership and Merger setting forth a copy of these resolutions, and the time when the merger therein provided for, shall become effective shall be September 12, 2007 . ********
Executed on September 7 th , 2007
WIRELESS FACILITIES, INC.
CERTIFICATE OF AMENDMENT TO
OF
KRATOS DEFENSE & SECURITY SOLUTIONS, INC.
Kratos Defense & Security Solutions, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation” ), does hereby certify:
FIRST: The name under which the Corporation was originally incorporated was Wireless Facilities, Inc.
THIRD: The Board of Directors of the Corporation, acting in accordance with the provisions of Section 141 and 142 of the General Corporation Law of the State of Delaware adopted resolutions to amend paragraph (A) of ARTICLE IV of the Amended and Restated Certificate of Incorporation of the Corporation to read in its entirety as follows:
“A. This corporation is authorized to issue two classes of stock to be designated, respectively, “Common Stock” and “Preferred Stock.” The total number of shares which the corporation is authorized to issue is two hundred million (200,000,000) shares. One hundred ninety five million (195,000,000)
shares shall be Common Stock, each having a par value of one tenth of one cent ($0.001). Five million (5,000,000) shares shall be Preferred Stock, each having a par value of one tenth of one cent ($0.001). Effective as of 5:00 p.m., Eastern Time, on the date this Certificate of Amendment to Amended and Restated Certificate of Incorporation is filed with the Secretary of State of the State of Delaware, each ten (10) shares of this corporation’s Common Stock, par value $0.001 per share, issued and outstanding shall, automatically and without any action on the part of the respective holders thereof, be combined and converted into one (1) share of Common Stock, par value $0.001 per share, of this corporation. No fractional shares shall be issued and, in lieu thereof, any holder of less than one share of Common Stock shall be entitled to receive cash for such holder’s fractional share
based upon the fair market value of the Common Stock as of the date this Certificate of Amendment is filed with the Secretary of State of the State of Delaware as determined by this corporation’s Board of Directors.”
FOURTH: This Certificate of Amendment to Amended and Restated Certificate of Incorporation was submitted to the stockholders of the Corporation and was duly approved by the required vote of the stockholders of the Corporation in accordance with Sections 222 and 242 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, Kratos Defense & Security Solutions, Inc. has caused this Certificate of Amendment to be signed by its Executive Vice President and Chief Financial Officer as of
September 10, 2009 .
By:
Executive
Vice President and Chief Financial Officer
CERTIFICATE OF OWNERSHIP AND MERGER MERGING
ACQUISITION CO. LANZA PARENT
(a Delaware corporation) WITH AND INTO
KRATOS DEFENSE & SECURITY SOLUTIONS, INC.
(a Delaware corporation) April4 ,
2011
Pursuant to Section 253 of the General Corporation Law of th e State of Delaware (the " DGCL " ) , Kratos Defen se & Security Solutions , Inc . , a Delawar e corporation (the “ Company”), hereby certifies the following
information relating to the merger (the " Merger " ) of Acquisition Co. Lanza Parent, a Delaware corporation (the “ Sub ”) , with and into the Company:
1. The Company is the owner of 100% of the outstanding shares of common stock, par value $0.00 l per share (the “Common Stock”)
of Sub. The Common Stock con st itutes the sole outstanding class of capital stock of Sub.
2. The board of directors of the Company, at a meeting held on March 10 , 2011 , duly adopted the resolutions attached hereto as Exhibit A, which have not been
amended or r es cind e d and are now in full force and effect , to merge Sub with and into the Company , with the Company being the surviving corporation (the “ Surviving Corporation ” ).
3.
The
Merger s hall become effective upon the filing of this Certificate of
Owner s hip and Merger.
[Remainder of this page intentionally left blank]
IN
WITNESS WHEREOF , the Co mpan y has caused this Certificate of Ownership and M e rger to be executed by its duly a uthorized officer on the dat e fir st written above.
KRATOS DEFENSE & SECURITY SOLUTIONS, INC.
Title: Executive Vice President & Chief
Financial Officer
and Documents Incorporated by ReferenceThis ‘10-K’ Filing Date Other Filings Filed on: 2/27/17 8-K For Period end: 12/25/16 9/10/09 9/12/07 8-K 9/5/07 4 5/2/05 2/28/05 12/16/04 8-K 7/29/04 11/30/03 11/28/03 4/29/03 5/30/02 5/28/02 5/16/02 4/A 10/29/01 10/9/01 7/7/97 List all Filings
23 Subsequent Filings that Reference this Filing ↑ Top Filing Submission 0001069258-17-000009 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.) Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.About — Privacy — Redactions — Help —
Sat., Apr. 27, 1:14:25.3pm ET 
