CERTIFICATE
OF INCORPORATION
OF
GLOBALSTAR,
INC.
(AS
AMENDED THROUGH SEPTEMBER 24, 2009)
1. The
name of the corporation is Globalstar, Inc. (the “Corporation”). The Corporation
was originally formed on November 21, 2003 as a Delaware limited liability
company named New Operating Globalstar LLC. The Corporation converted to a
Delaware corporation under the name Globalstar, Inc. and filed the original
Certificate of Incorporation of the Corporation with the Secretary of State of
the State of Delaware on March 17, 2006. The Corporation filed an
Amended and Restated Certificate of Incorporation on October 25,
2006. The Corporation filed a Certificate of Designation of Series A
Convertible Preferred Stock on June 19, 2009. The Corporation filed
Amendment #1 to the Amended and Restated Certificate of Incorporation on
September 24, 2009.
2. This
Amended and Restated Certificate of Incorporation has been duly adopted in
accordance with Sections 242 and 245 of the General Corporation Law of the State
of Delaware and written consent has been given in accordance with Section 228 of
the General Corporation Law of the State of Delaware.
3. This
Amended and Restated Certificate of Incorporation hereby amends and restates the
Certificate of Incorporation to read in its entirety as follows:
FIRST
The name
of the Corporation is Globalstar, Inc. (the “
Corporation
”).
SECOND
The
address of the Corporation's registered office in the State of Delaware is 2711
Centerville Road, Suite 400, in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is
Corporation Service Company.
THIRD
The
purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH
The
Corporation shall have the authority to issue One Billion One Hundred Million
(1,100,000,000) total shares of capital stock, consisting of One Hundred Million
(100,000,000) shares of Preferred Stock, $0.0001 par value per share (the “
Preferred Stock
”),
and One Billion (1,000,000,000) shares of common stock, $0.0001 par value per
share (the “
common
stock
”), of which Eight Hundred Sixty-Five Million (865,000,000) shares
shall be Common Stock (the “
Common Stock
”) and
One Hundred Thirty-Five Million (135,000,000) shares shall be Nonvoting Common
Stock (the “
Nonvoting
Common Stock
”).
Subject
to the provisions of law, the rights, preferences and limitations of the common
stock and Series A Convertible Preferred Stock shall be as set forth in this
Article Fourth. The Board of Directors of the Corporation (the “
Board
”) is hereby
authorized, without requirement of the consent, approval or authorization of the
stockholders of the Corporation, except as otherwise expressly required by the
terms of this Certificate (including, without limitation, the terms of any
certificate or resolution designating the rights, powers, preferences,
qualifications, limitations and restrictions of any other series of Preferred
Stock), to authorize, establish, designate, create and issue by resolution of
the Board from time to time one or more other series of the Preferred Stock,
each such series having such rights, powers, preferences, qualifications,
limitations and restrictions as the Board shall designate in such
resolution.
A. COMMON
STOCK
Except as
otherwise expressly provided in this Amendment #1 to the Amended and Restated
Certificate of Incorporation, all outstanding shares of common stock shall be
identical and shall entitle the holders thereof to the same rights and
privileges. The holders of shares of common stock shall have no preemptive or
preferential rights of subscription to any shares of any class of capital stock
of the Corporation.
1.
Dividends.
Subject
to the provisions of law and the rights that may be granted to holders of any
Preferred Stock, the holders of common stock shall be entitled to receive out of
funds legally available therefor a pro rata share of any dividends that the
Board in its sole discretion may declare. The Board may fix a record
date for the determination of holders of shares of common stock entitled to
receive payment of a dividend declared thereon, which record date shall be not
more than sixty (60) days nor less than ten (10) days prior to the date fixed
for payment of the dividend.
2.
Liquidation, Dissolution or
Winding-Up and Distributions
. Subject to the provisions of law
and the rights that may be granted to holders of any Preferred Stock, the assets
available for distribution to holders of common stock upon liquidation,
dissolution or winding up of the Corporation shall be distributed ratably among
the holders of the common stock.
3.
Conversion
Rights.
3.1
Conversion of Nonvoting
Common Stock.
Upon the first to occur of the events described below (the
“
Conversion
Events
”), with respect to a share of Nonvoting Common Stock, such share
of Nonvoting Common Stock shall immediately become convertible at the option of
the holder thereof into one share of Common Stock. Conversion of such share of
Nonvoting Common Stock shall be effected by surrender of such holder’s
certificate, or evidence of ownership if such shares are uncertificated,
representing such share of Nonvoting Common Stock accompanied by a written
notice from such holder addressed to the Corporation requesting the conversion.
Upon conversion, holders of converted shares of Nonvoting Common Stock will be
issued certificates, or evidence of ownership of such shares are uncertificated,
representing the full shares of Common Stock to which they are entitled. A
Conversion Event with respect to a share of Nonvoting Common Stock is
(i) conversion at the discretion of any holder;
provided
,
however
, that if the
holder is Thermo (as defined in Article Sixth), Thermo may not covert any share
of Nonvoting Common Stock if such conversion would cause Thermo to own directly
or indirectly Voting Stock (as defined in the First Supplemental Indenture dated
as of April 15, 2008 relating to the Corporation’s 5.75% Convertible Senior
Notes due 2028) representing 70% or more of the total voting power of all
outstanding Voting Stock of the Corporation, (ii) the transfer (or, in the case
of a transfer pursuant to a registration statement filed with the Securities and
Exchange Commission or Rule 144 under the Securities Act of 1933, as
amended, the proposed transfer) of such share of Nonvoting Common Stock by the
holder thereof to any transferee other than Thermo (as defined in Article
Sixth), (iii) the merger or consolidation of the Corporation with or into
any other corporation (except a subsidiary of the Corporation or of Thermo) or
(iv) the sale of all or substantially all of the Corporation’s
assets.
3.2
No Reissue.
Shares of
Nonvoting Common Stock that are exchanged for shares of Common Stock as provided
in this Article Fourth shall not be reissued.
3.3
No Charge.
The
issuance of certificates or other means of evidencing shares of Common Stock
upon conversion of shares of Nonvoting Common Stock shall be made without charge
to the holders of such shares for any issue tax in respect thereof, or other
cost incurred by the Corporation in connection with such conversion;
provided,
however,
that the
Corporation shall not be required to pay any tax that may be payable in respect
of any transfer involving the issue and delivery of any certificate in a name
other than that of the holder or former holder of the shares of Nonvoting Common
Stock so exchanged.
3.4
Reservation.
The
Corporation will at all times reserve and keep available, out of its authorized
but unissued shares or its treasury, shares of Common Stock solely for the
purpose of issue upon conversion of the shares of Nonvoting Common Stock, as
herein provided, such number of shares of Common Stock as shall be issuable
(irrespective of the occurrence or nonoccurrence of any contingency) upon a
conversion of all outstanding shares of Nonvoting Common Stock. The shares of
Common Stock so issuable shall be, when so issued, duly authorized and validly
issued and will be fully paid and nonassessable.
4.
Stock Dividends and Splits;
Adjustments etc.
If the Corporation shall in any manner subdivide or
combine the outstanding shares of Common Stock or Nonvoting Common Stock, as the
case may be, the outstanding shares of Nonvoting Common Stock, Common Stock or
common stock underlying any convertible Preferred Stock, as the case may
require, shall be proportionately subdivided or combined, as the case may
be. If the Corporation issues any stock dividends on the outstanding
shares of Common Stock, the outstanding shares of Nonvoting Common Stock shall
receive an identical dividend in shares of Nonvoting Common Stock.
5.
Voting
Rights.
5.1
In General.
The
holders of outstanding shares of Common Stock shall have the right to vote on
all matters submitted to the stockholders of the Corporation. Except as
otherwise provided by law or in this paragraph, holders of shares of Nonvoting
Common Stock shall not have any right to vote on any election or removal of
directors of the Corporation, and the shares of Nonvoting Common Stock shall not
be included in determining the number of shares voting or entitled to vote on
any such matters. Holders of shares of Nonvoting Common Stock, together with
holders of shares of Common Stock (considered for this purpose as one class),
shall be entitled to one vote per share on any matter then requiring approval of
the stockholders of the Corporation under Delaware law.
5.2
Procedures at
Meetings.
At every meeting with respect to matters on which the holders
of outstanding shares of Common Stock are entitled to vote, the holders of
outstanding shares of Common Stock shall be entitled to one vote per share. At
every meeting with respect to matters on which the holders of outstanding shares
of Nonvoting Common Stock are entitled to vote as provided herein or by law, the
holders of outstanding shares of Nonvoting Common Stock shall be entitled to one
vote per share.
B. SERIES
A CONVERTIBLE PREFERRED STOCK
1.
Designation, Amount and Par
Value
. The following series of preferred stock shall be designated as the
Corporation’s Series A Convertible Preferred Stock (the “
Series A Preferred
Stock
”), and the number of shares so designated shall be one. Each share
of Series A Preferred Stock shall have a par value of $0.0001 per
share.
2.
Definitions
. In
addition to the terms defined elsewhere in this Amended and Restated Certificate
of Incorporation, as amended, the following terms have the meanings
indicated:
“
Affiliate
” means a
Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such
Person.
“
Bankruptcy Event
”
means any of the following events: (a) the Corporation or a Subsidiary of the
Corporation commences a case or other proceeding under any bankruptcy,
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction relating to the
Corporation or any Subsidiary thereof; (b) there is commenced against the
Corporation or any Subsidiary any such case or proceeding that is not dismissed
within sixty (60) days after commencement; (c) the Corporation or any Subsidiary
is adjudicated insolvent or bankrupt or any order of relief or other order
approving any such case or proceeding is entered; (d) the Corporation or any
Subsidiary suffers any appointment of any custodian or the like for it or any
substantial part of its property that is not discharged or stayed within sixty
(60) days; (e) the Corporation or any Subsidiary makes a general assignment for
the benefit of creditors; (f) the Corporation or any Subsidiary fails to pay, or
states that it is unable to pay or is unable to pay, its debts generally as they
become due; (g) the Corporation or any Subsidiary calls a meeting of its
creditors with a view to arranging a composition, adjustment or restructuring of
its debts; or (h) the Corporation or any Subsidiary, by any act or failure to
act, expressly indicates its consent to, approval of or acquiescence in any of
the foregoing or takes any corporate or other action for the purpose of
effecting any of the foregoing.
“
Business Day
” means
any day other than Saturday, Sunday, any day which shall be a federal legal
holiday in the United States or any day on which banking institutions in The
State of New York are authorized or required by law or other governmental action
to close.
“
Common Stock
” means
the common stock of the Corporation, par value $0.0001 per share, and any
securities into which such common stock may hereafter be reclassified; provided,
however, that Common Stock does not include Nonvoting Common Stock.
“
Conversion Agreement
”
means the Conversion Agreement, dated as of June 19, 2009, among the Corporation
and Thermo Funding Company LLC, as amended from time to time.
“
Conversion Notice
”
has the meaning set forth in
Section
7(a)
.
“
Conversion Shares
”
means 126,174,034 shares of Common Stock, or such combination of Common Stock
and Nonvoting Common Stock required to remain below the Maximum
Percentage.
“
Equity Conditions
”
means, with respect to a specified issuance of Common Stock, that each of the
following conditions is satisfied: (i) the number of authorized but unissued and
otherwise unreserved shares of Common Stock is sufficient for such issuance;
(ii) no Bankruptcy Event has occurred; and (iii) the conversion of the Series A
Preferred Stock is permitted by the Trading Market and all other applicable
laws, rules and regulations.
“
Exchange Act
” means
the Securities Exchange Act of 1934, as amended.
“
Fundamental
Transaction
” means the occurrence of any of the following in one or a
series of related transactions: (i) an acquisition after the date of the
Conversion Agreement by an individual or legal entity or “group” (as described
in Rule 13d-5(b)(1) under the Exchange Act) of more than fifty percent (50%) of
the voting rights or voting equity interests in the Corporation (excluding
Thermo Funding Company LLC and its Affiliates); (ii) a merger or consolidation
of the Corporation or any Subsidiary or a sale of all or substantially all of
the assets of the Corporation in one or a series of related transactions, unless
following such transaction or series of transactions, the holders of the
Corporation’s securities prior to the first such transaction continue to hold at
least half of the voting rights or voting equity interests in of the surviving
entity or acquirer of such assets; (iii) a recapitalization, reorganization or
other transaction involving the Corporation or any Subsidiary that constitutes
or results in a transfer of more than one half of the voting rights or voting
equity interests in the Corporation; (iv) consummation of a “Rule 13e-3
transaction” as defined in Rule 13e-3 under the Exchange Act with respect to the
Corporation; (v) any tender offer or exchange offer (whether by the Corporation
or another Person) is completed pursuant to which holders of more than fifty
percent (50%) of the outstanding Common Stock tender or exchange their shares
for other securities, cash or property (excluding Thermo Funding Company LLC and
its Affiliates); or (vi) the Corporation effects any reclassification of the
Common Stock or any compulsory share exchange pursuant to which the Common Stock
is effectively converted into or exchanged for other securities, cash or
property.
“
Holder
” means any
holder of Series A Preferred Stock.
“
Junior Securities
”
means the Common Stock, the Nonvoting Common Stock and all other equity of the
Corporation that by their terms rank junior to the Series A Preferred Stock as
to dividends and/or upon liquidation.
“
Liquidation Event
”
means any liquidation, dissolution or winding up of the Corporation, either
voluntary or involuntary.
“
Nonvoting Common
Stock
” means any class of nonvoting common stock of the Corporation
approved by the Board of Directors of the Corporation and for which Stockholder
Approval is obtained, and any securities into which such nonvoting common stock
may hereafter be reclassified.
“
Original Issue Date
”
means the date of the first issuance of any shares of the Series A Preferred
Stock, regardless of the number of transfers of any particular shares of Series
A Preferred Stock and regardless of the number of certificates that may be
issued to evidence shares of Series A Preferred Stock.
“
Person
” means any
individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“
Rule 144
” means Rule
144 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Securities and Exchange Commission having substantially the same
effect as such Rule.
“
Series A Preferred
Stock
” has the meaning set forth in
Section
1
.
“
Securities Act
” means
the Securities Act of 1933, as amended.
“
Stockholder Approval
”
means the approval by the holders of a majority of the Company’s Common Stock of
an amendment to the Amended and Restated Certificate of Incorporation of the
Corporation creating a class of Non-Voting Common Stock with number and terms
designated by the Corporation’s Board of Directors in accordance with Delaware
General Corporation Law and the rules of the Nasdaq Stock Market, as
applicable.
“
Subsidiary
” means any
“significant subsidiary” of the Corporation as defined in Rule 1-02(w) of
Regulation S-X promulgated by the Commission.
“
Trading Day
” means
(i) a day on which the Common Stock is traded on a Trading Market (other than
the OTC Bulletin Board), or (ii) if the Common Stock is not listed or quoted on
a Trading Market (other than the OTC Bulletin Board), a day on which the Common
Stock is traded in the over-the-counter market, as reported by the OTC Bulletin
Board, or (iii) if the Common Stock is not listed or quoted on any Trading
Market, a day on which the Common Stock is quoted in the over-the-counter market
as reported by the Pink Sheets LLC (or any similar organization or agency
succeeding to its functions of reporting prices); provided, that in the event
that the Common Stock is not listed or quoted as set forth in (i), (ii) and
(iii) hereof, then Trading Day shall mean a Business Day.
“
Trading Market
” means
whichever of the New York Stock Exchange, the NASDAQ Global Select Market, the
NASDAQ Global Market, the NASDAQ Capital Market or OTC Bulletin Board on which
the Common Stock is listed or quoted for trading on the date in
question.
“
Underlying Shares
”
means the shares of Common Stock or Nonvoting Common Stock issuable upon
conversion of the shares of Series A Preferred Stock.
3.
Dividends
. The
Holders of the shares of Series A Preferred Stock shall be entitled to receive
dividends (“
Dividends
”) at the
same rate, if any, paid to the holders of common stock.
4.
Registration of Issuance and
Ownership of Series A Preferred Stock
. The Corporation shall register the
issuance and ownership of shares of the Series A Preferred Stock, upon records
to be maintained by the Corporation or its Transfer Agent for that purpose (the
“
Series A Preferred
Stock Register
”), in the name of the record Holders thereof from time to
time. The Corporation may deem and treat the registered Holder of shares of
Series A Preferred Stock as the absolute owner thereof for the purpose of any
conversion hereof or any distribution to such Holder, and for all other
purposes, absent actual notice to the contrary.
5.
Registration of
Transfers
. The Corporation shall register the transfer of any shares of
Series A Preferred Stock in the Series A Preferred Stock Register, upon
surrender of certificates evidencing such Shares to the Corporation at its
address specified herein. Upon any such registration or transfer, a new
certificate evidencing the shares of Series A Preferred Stock so transferred
shall be issued to the transferee and a new certificate evidencing the remaining
portion of the shares not so transferred, if any, shall be issued to the
transferring Holder.
6.
Liquidation
.
6.1 In
the event of any Liquidation Event, the Holders of Series A Preferred Stock
shall be entitled to receive, prior and in preference to any distribution of any
of the assets or surplus funds of the Corporation to the holders of Junior
Securities by reason of their ownership thereof, an amount per share in cash
equal to the greater of (i) $.01, plus all declared but unpaid dividends on such
Series A Preferred Stock as of the date of such event, and (ii) the amount per
share that would be payable to a holder of Series A Preferred Stock had all
shares of Series A Preferred Stock been converted to Underlying Shares
immediately prior to such Liquidation Event (the “
Series A Stock Liquidation
Preference
”).
6.2 After
the Holders have been paid the full Series A Stock Liquidation Preference to
which they are entitled, the Holders will have no right or claim to any of the
assets or funds of the Corporation.
6.3 The
Corporation shall provide written notice of any Liquidation Event or Fundamental
Transaction to the Holder not less than fifteen (15) days prior to the payment
date or effective date thereof, provided that such information shall be made
known to the public prior to or in connection with such notice being provided to
the Holder. At the request of any Holder, which must be delivered prior to the
effective date of a Fundamental Transaction (or, if later, within five (5)
Trading Days after such Holder receives notice of such Fundamental Transaction
from the Corporation), such Fundamental Transaction will be treated as a
Liquidation Event with respect to such Holder for the purposes of this
Section
6
.
6.4 In
the event that, immediately prior to the closing of a Liquidation Event the cash
distributions required by
Section 6(a)
have not
been made, the Corporation shall forthwith either: (i) cause such closing to be
postponed until such time as such cash distributions have been made, or (ii)
cancel such transaction, in which event the rights, preferences and privileges
of the holders of the Series A Preferred Stock shall revert to and be the same
as such rights, preferences and privileges existing immediately prior to the
date of the first notice by the Corporation delivered pursuant to
Section
6(c)
.
7.
Conversion
.
7.1
Conversion at Option of
Holder
. At the option of any Holder, the share of Series A Preferred
Stock held by such Holder may be converted into the Conversion Shares. Subject
to the limitations set forth in
Section 7(b)
and
Section 7(c)
, a
Holder may convert shares of Series A Preferred Stock into Common Stock pursuant
to this paragraph at any time and from time to time after the Original Issue
Date, by delivering to the Corporation a conversion notice (the “
Conversion Notice
”),
in the form attached hereto as
Exhibit A
,
appropriately completed and duly signed, and the date any such Conversion Notice
is delivered to the Corporation (as determined in accordance with the notice
provisions hereof) is a “
Conversion
Date
.”
7.2
Conversion
Limitation
. Notwithstanding anything to the contrary contained herein,
the aggregate number of shares of Common Stock that may be acquired by the
Holder upon any conversion of the Series A Preferred Stock shall be limited to
the extent necessary to insure that, following such conversion (or other
issuance), the total number of shares of Common Stock then beneficially owned by
such Holder and its Affiliates and any other Persons whose beneficial ownership
of Common Stock would be aggregated with the Holder’s for purposes of Section
13(d) of the Exchange Act, does not exceed 50% (or 70%, if such Person is Thermo
Funding Company LLC) (the “
Maximum Percentage
”)
of the total voting power of all outstanding Voting Stock of the Corporation.
For such purposes, beneficial ownership shall be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder.
7.3
Stockholder Approval
.
Notwithstanding anything to the contrary contained herein, none of the shares of
Series A Preferred Stock may be converted into or exchanged for shares of Common
Stock or Nonvoting Common Stock until the Stockholder Approval has
occurred.
8.
Mechanics of
Conversion
.
8.1 The
number of Underlying Shares issuable upon any conversion of shares of Series A
Preferred Stock hereunder shall be the Conversion Shares.
8.2 Upon
conversion of any shares of Series A Preferred Stock, the Corporation shall
promptly (but in no event later than three (3) Trading Days after the Conversion
Date) issue or cause to be issued and cause to be delivered to or upon the
written order of the Holder and in such name or names as the Holder may
designate a certificate for the Underlying Shares issuable upon such conversion.
The Holder agrees to the imprinting of a restrictive legend on any such
certificate evidencing any of the Underlying Shares, until such time as the
Underlying Shares are no longer required to contain such legend or any other
legend. Certificates evidencing the Underlying Shares shall not be required to
contain such legend or any other legend (i) while a registration statement
covering the resale of the Underlying Shares is effective under the Securities
Act, (ii) following any sale of such Underlying Shares pursuant to Rule 144 if
the Holder provides the Corporation with a legal opinion reasonably acceptable
to the Corporation to the effect that the Underlying Shares can be sold under
Rule 144, (iii) if the Underlying Shares are eligible for sale under Rule 144
without any volume limitation, or (iv) if the Holder provides the Corporation
with a legal opinion reasonably acceptable to the Corporation to the effect that
the legend is not required under applicable requirements of the Securities Act
(including controlling judicial interpretations and pronouncements issued by the
Staff of the SEC). The Holder, or any Person so designated by the Holder to
receive Underlying Shares, shall be deemed to have become holder of record of
such Underlying Shares as of the Conversion Date. If the shares are then not
required to bear a restrictive legend, the Corporation shall, upon request of
the Holder, deliver Underlying Shares hereunder electronically through The
Depository Trust Corporation (“
DTC
”) or another
established clearing corporation performing similar functions, and shall credit
the number of shares of Common Stock to which the Holder shall be entitled to
the Holder’s or its designee’s balance account with DTC through its Deposit
Withdrawal Agent Commission System.
8.3 A
Holder shall deliver the original certificate(s) evidencing the Series A
Preferred Stock being converted in connection with the conversion of such Series
A Preferred Stock. Upon surrender of a certificate following one or more partial
conversions, the Corporation shall promptly deliver to the Holder a new
certificate representing the remaining shares of Series A Preferred
Stock.
8.4 The
Corporation’s obligations to issue and deliver Underlying Shares upon conversion
of Series A Preferred Stock in accordance with the terms hereof are absolute and
unconditional, irrespective of any action or inaction by any Holder to enforce
the same, any waiver or consent with respect to any provision hereof, the
recovery of any judgment against any Person or any action to enforce the same,
or any setoff, counterclaim, recoupment, limitation or termination, or any
breach or alleged breach by any Holder or any other Person of any obligation to
the Corporation or any violation or alleged violation of law by any Holder or
any other Person, and irrespective of any other circumstance which might
otherwise limit such obligation of the Corporation to any Holder in connection
with the issuance of such Underlying Shares.
9.
Voting Rights
. Except
as provided in
Section
7(b)
or otherwise provided herein or as required by applicable law, the
Holders of the Series A Preferred Stock shall be entitled to vote on all matters
on which holders of Common Stock are entitled to vote, including, without
limitation, the election of directors. For such purposes, each Holder shall be
entitled to a number of votes in respect of the Underlying Shares owned by it
equal to the number of shares of Common Stock into which such shares of Series A
Preferred Stock are convertible as of the record date for the determination of
stockholders entitled to vote on such matter, or if no record date is
established, at the date such vote is taken or any written consent of
stockholders is solicited. Except as otherwise provided herein, in any relevant
agreement or as required by applicable law, the holders of the Series A
Preferred Stock and Common Stock, respectively, shall vote together as a single
class on all matters submitted to a vote or consent of stockholders;
provided
that so long as any
Underlying Shares are outstanding, the Corporation shall not, without the
affirmative vote of the Holders of a majority of the Underlying Shares then
outstanding, (a) alter or change adversely the powers, preferences or rights
given to the Series A Preferred Stock or alter or amend this Certificate of
Designation (whether by merger, reorganization, consolidation or otherwise), (b)
authorize or create any class of stock ranking as to dividends, redemption or
distribution of assets upon a Liquidation Event or Fundamental Transaction
senior to or
pari passu
with the Series A Preferred Stock, (c) amend its certificate of
incorporation or other charter documents so as to affect adversely any rights of
the Holders (whether by merger, reorganization, consolidation or otherwise), (d)
increase the authorized number of shares of Series A Preferred Stock, (e) pay or
declare any dividend or make any distribution on any Junior Securities, except
pro rata stock dividends on the Common Stock payable in additional shares of
Common Stock, or (f) enter into any agreement with respect to the
foregoing.
10.
Priority
. The Series
A Preferred Stock, whether now or hereafter issued, shall, with respect to
rights on liquidation, winding up or dissolution, whether voluntary or
involuntary, rank senior to the Common Stock of the Corporation and to any other
series of Preferred Stock established hereafter by the Board of Directors the
terms of which shall specifically provide that such series shall rank junior to
the Series A Preferred Stock with respect to rights on liquidation, winding up
or dissolution. The Corporation shall not, without the prior approval of Holders
of the shares of Series A Preferred Stock then outstanding, voting as a separate
class, issue any additional shares of the Series A Preferred Stock, or create
any other class or series of capital stock that ranks senior to or on a parity
with the Series A Preferred Stock.
11.
Charges, Taxes and
Expenses
. Issuance of certificates for shares of Series A Preferred Stock
and for Underlying Shares issued on conversion of (or otherwise in respect of)
the Series A Preferred Stock shall be made without charge to the Holders for any
issue or transfer tax, withholding tax, transfer agent fee or other incidental
tax or expense in respect of the issuance of such certificates, all of which
taxes and expenses shall be paid by the Corporation. The Holder shall be
responsible for all other tax liability that may arise as a result of holding or
transferring the Series A Preferred Stock or receiving Underlying Shares in
respect of the Series A Preferred Stock.
12.
Replacement
Certificates
. If any certificate evidencing Series A Preferred Stock or
Underlying Shares is mutilated, lost, stolen or destroyed, or a Holder fails to
deliver such certificate as may otherwise be provided herein, the Corporation
shall issue or cause to be issued in exchange and substitution for and upon
cancellation thereof, or in lieu of and substitution for such certificate, a new
certificate, but only upon receipt of evidence reasonably satisfactory to the
Corporation of such loss, theft or destruction (in such case) and, in each case,
customary and reasonable indemnity, if requested. Applicants for a new
certificate under such circumstances shall also comply with such other
reasonable regulations and procedures and pay such other reasonable third-party
costs as the Corporation may prescribe.
13.
Reservation of Underlying
Shares
. The Corporation covenants that it shall at all times reserve and
keep available out of the aggregate of its authorized but unissued and otherwise
unreserved Common Stock or Nonvoting Common Stock (after receipt of Stockholder
Approval), solely for the purpose of enabling it to issue Underlying Shares as
required hereunder, the number of Underlying Shares which are then issuable and
deliverable upon the conversion of (and otherwise in respect of) all outstanding
Series A Preferred Stock, free from preemptive rights or any other contingent
purchase rights of Persons other than the Holder. The Corporation covenants that
all Underlying Shares so issuable and deliverable shall, upon issuance in
accordance with the terms hereof, be duly and validly authorized, issued and
fully paid and nonassessable. The Corporation covenants that it shall use its
reasonable efforts to satisfy each of the Equity Conditions. The Corporation has
reserved, or after Stockholder Approval of the Nonvoting Common Stock, will
reserve, from its duly authorized capital stock the maximum number of shares of
Common Stock and Nonvoting Common Stock issuable upon conversion of the Series A
Preferred Stock.
14.
Fractional Shares
.
The Corporation is permitted but not be required to issue or cause to be issued
fractional shares of Common Stock or Nonvoting Common Stock on conversion of
Series A Preferred Stock. If any fractional share of a Common Stock or Nonvoting
Common Stock would, except for the provisions of this Section, be issuable upon
conversion of Series A Preferred Stock, the number of shares of Common Stock or
Nonvoting Common Stock to be issued may be rounded up to the nearest whole
share.
15.
Notices
. Any and all
notices or other communications or deliveries hereunder (including without
limitation any Conversion Notice) shall be in writing and shall be deemed given
and effective on the earliest of (i) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified in
this Section prior to 4:30 p.m. (New York City time) on a Trading Day, (ii) the
next Trading Day after the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number specified in this Section on
a day that is not a Trading Day or later than 4:30 p.m. (New York City time) on
any Trading Day, (iii) the Trading Day following the date of mailing, if sent by
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The addresses for such
communications shall be: (i) if to the Corporation, to 461 South Milpitas
Boulevard, Bldg 5, Milpitas, CA 95035, Attention: Chief Financial Officer, or
(ii) if to a Holder, to the address or facsimile number appearing on the
Corporation’s stockholder records or such other address or facsimile number as
such Holder may provide to the Corporation in accordance with this
Section.
16.
Miscellaneous
.
16.1 The
headings herein are for convenience only and shall not be deemed to limit or
affect any of the provisions hereof.
16.2 No
provision of the terms of the Series A Preferred Stock may be amended, except in
a written instrument signed by the Corporation and Holders of at least a
majority of the shares of Series A Preferred Stock then outstanding. Any of the
rights of the Holders of Series A Preferred Stock set forth herein, including
any Equity Conditions or any other similar conditions for the Holders’ benefit,
may be waived by the affirmative vote of Holders of at least a majority of the
shares of Series A Preferred Stock then outstanding. No waiver of any default
with respect to any provision, condition or requirement of the Series A
Preferred Stock shall be deemed to be a continuing waiver in the future or a
waiver of any subsequent default or a waiver of any other provision, condition
or requirement hereof, nor shall any delay or omission of either party to
exercise any right hereunder in any manner impair the exercise of any such
right.
FIFTH
The
Corporation shall have perpetual existence.
SIXTH
In
furtherance and not in limitation of the powers conferred upon the Board of
Directors by law, the Board shall have power to adopt, amend and repeal the
Bylaws of the Corporation from time to time
.
The Bylaws of the
Corporation may also be amended or repealed or new bylaws of the Corporation may
be adopted, by the vote of the holders of at least 66 2/3% in voting power of
the outstanding shares of capital stock of the Corporation then entitled to vote
in the election of the directors. Notwithstanding the foregoing, if
Thermo Capital Partners, L.L.C. and its Affiliates (as defined in the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder)
(“Thermo”) owns beneficially a majority in voting power of the outstanding
shares of capital stock of the Corporation then entitled to vote in the election
of the directors, the Bylaws of the Corporation may also be amended or repealed
by the vote of the holders of a majority in voting power of the outstanding
shares of capital stock of the Corporation then entitled to vote in the election
of the directors.
SEVENTH
Meetings
of stockholders may be held within or without the State of Delaware, as the
Bylaws may provide. The books of the Corporation may be kept outside
the State of Delaware at such place or places as may be designated from time to
time by the Board or in the Bylaws. Elections of directors need not
be by written ballot unless the Bylaws shall so provide. If Thermo
owns beneficially a majority in voting power of the outstanding shares of
capital stock of the Corporation entitled to vote in the election of the
directors, directors may be removed with or without cause. If Thermo
does not own beneficially a majority in voting power of the outstanding shares
of the Corporation entitled to vote in the election of the directors, directors
may be removed only for cause by the holders of at least 66 2/3% in voting power
of the outstanding shares of capital stock of the Corporation then entitled to
vote in the election of the directors.
If Thermo
owns beneficially a majority in voting power of the outstanding shares of
capital stock of the Corporation entitled to vote in the election of the
directors
,
any action
that is required to be or that may be taken at any annual or special meeting of
the stockholders of the Corporation may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding capital stock
having not less than the minimum number of votes that would be necessary to
authorize or take the action at a meeting at which all shares entitled to vote
on the action were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in
writing. If Thermo does not own beneficially a majority in voting
power of the outstanding shares of capital stock of the Corporation entitled to
vote in the election of the directors, no action may be taken by the
stockholders of the Corporation without a meeting and any action required to be
taken by the stockholders may be taken only at an annual or special meeting of
the stockholders called in accordance with law and the Bylaws of the
Corporation.
EIGHTH
A
director of the Corporation shall not be liable to the Corporation or the
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent that exculpation from liability is not permitted under the
General Corporation Law of the State of Delaware as in effect at the time such
liability is determined. No amendment or repeal of this Article
Eighth shall apply to or have any effect on the liability of any director with
respect to acts or omission of such director prior to such amendment or
repeal.
To the
maximum extent permitted from time to time under the law of the State of
Delaware, the Corporation renounces any interest or expectancy of the
Corporation in, or in being offered an opportunity to participate in, business
opportunities that are from time to time being presented to its officers,
directors or stockholders, other than (i) those officers, directors or
stockholders who are employees of the Corporation and (ii) those opportunities
demonstrated by the Corporation to have been presented to officers or directors
of the Corporation in their capacity as such. No amendment or repeal
of this Article Eighth shall apply to or have any effect on any opportunities
which such officer, director or stockholder becomes aware prior to such
amendment or repeal.
NINTH
The
Corporation shall, to the maximum extent permitted from time to time under the
law of the State of Delaware, indemnify upon request and after receipt of an
undertaking to repay such amount it if shall be ultimately determined that the
requesting person is not entitled to be indemnified by the Corporation advance
expenses to any person who is or was a party or is threatened to be made a party
to any threatened, pending or completed action, suit, proceeding or claim,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director or officer of the Corporation or, while a
director or officer of the Corporation, is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee or agent of any
corporation, partnership, joint venture, trust, limited liability company or
other enterprise, including service with respect to employee benefit plans,
against expenses (including attorney's fees and expenses), judgments, fines,
penalties, amounts paid in settlement and expenses actually and reasonably
incurred by him or her in connection with the investigation, preparation to
defend or defense of such action, suit, proceeding or claim;
provided,
howeve
r, that the
foregoing shall not require the Corporation to indemnify or advance expenses to
any person in connection with any action, suit, proceeding or claim initiated by
or on behalf of such person or any counterclaim against the Corporation
initiated by or on behalf of such person. Such indemnification shall
not be exclusive of other indemnification rights arising under any bylaw,
agreement, vote of directors or stockholders or otherwise and shall inure to the
benefit of the heirs and legal representatives of such person. Any
person seeking indemnification under this Article Ninth shall be deemed to have
met the standard of conduct required for such indemnification unless the
contrary shall be established. Any repeal or modification of the
foregoing provisions of this Article Ninth shall not adversely affect any right
or protection of a director or officer of the Corporation with respect to any
acts or omissions of such director or officer occurring prior to such repeal or
modification.
To the
fullest extent permitted by law as it presently exists, or may hereafter be
amended from time to time, the Corporation may purchase and maintain insurance
or make other financial arrangements on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, stockholder, member,
partner, trustee, employee or agent of any other person, joint venture,
corporation, trust, limited liability company, partnership or other enterprise,
for any liability asserted against him or her and expenses incurred by him or
her in his or her capacity as a director, officer, stockholder, member, partner,
employee or agent, or arising out of his or her status as such, whether or not
the Corporation has the authority to indemnify him or her against such liability
and expenses.
To the
fullest extent permitted by law as it presently exists, or may hereafter be
amended from time to time, other financial arrangements made by the Corporation
pursuant to this Article Ninth may include (i) the creation of a trust fund;
(ii) the establishment of a program of self insurance; and (iii) the
establishment of a letter of credit, guaranty or surety. No financial
arrangement made pursuant to this Article Ninth may provide protection for a
person adjudged by a court of competent jurisdiction to be liable for
intentional misconduct, fraud, or a knowing violation of law, except with
respect to the advancement of expenses or indemnification ordered by a
court.
To the
fullest extent permitted by law as it presently exists, or may hereafter be
amended from time to time, in the absence of intentional misconduct, fraud or a
knowing violation of law: (i) the decision of the Corporation as to
the propriety of the terms and conditions of any insurance or other financial
arrangement made pursuant to this Article Ninth, and the choice of the person to
provide the insurance or other financial arrangement, shall be conclusive; and
(ii) the insurance or other financial arrangement shall not (1) be void or
voidable or (2) subject any director or stockholder approving it to personal
liability for his or her action, even if the director or stockholder is a
beneficiary of the insurance or arrangement.
TENTH
The
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders herein are
granted subject to this reservation, provided, however, the Corporation shall
not amend this Certificate of Incorporation without the prior affirmative vote
of the holders of at least 66 2/3% in voting power of the outstanding shares of
capital stock of the Corporation then entitled to vote in the election of the
directors. Notwithstanding the foregoing, if Thermo owns beneficially
a majority in voting power of the outstanding shares of capital stock of the
Corporation then entitled to vote in the election of the directors, this
Certificate of Incorporation may also be amended, altered, changed or repealed
by the vote of the holders of a majority in voting power of the outstanding
shares of capital stock of the Corporation then entitled to vote in the election
of the directors.
ELEVENTH
This
Certificate of Incorporation shall be effective upon filing with the Delaware
Secretary of State (the “Effective Date”).