exv4w1



 






Exhibit 4.1




AMENDED AND RESTATED CERTIFICATE OF INCORPORATION




OF




SEABRIGHT INSURANCE HOLDINGS, INC.

a Delaware corporation




SeaBright Insurance Holdings, Inc., a corporation organized and existing under the laws of the
State of Delaware (the “Corporation”), hereby certifies as follows:




     1. The name of the Corporation is SeaBright Insurance Holdings, Inc.



     2. The Corporation’s original Certificate of Incorporation was filed with the Secretary of
State of Delaware on June 19, 2003 under the name Eagle Insurance Holdings, Inc.



     3. This Amended and Restated Certificate of Incorporation was duly adopted by the written
consent of the Board of Directors and stockholders of the Corporation in accordance with the
provisions of Sections 242, 245, 141(f) and 228 of the Delaware General Corporation Law.



     4. This Amended and Restated Certificate of Incorporation restates and integrates and amends
the certificate of incorporation of the Corporation to read in its entirety as set forth in full on
the attached Exhibit A.



     IN WITNESS WHEREOF, the Corporation has caused this Certificate to be executed this 19th day
of January, 2005.



	 	 	 	 	 
	 	 	SEABRIGHT INSURANCE HOLDINGS, INC.,

a Delaware corporation
	 
	 	 	 	 
	

	 	By:
	 	 /s/ John G. Pasqualetto
	

	 	 	 	 
	

	 	 	 	 John G. Pasqualetto
	

	 	 	 	 Chairman, President and Chief Executive Officer






 









 






Exhibit A




ARTICLE ONE

NAME




     The name of the Corporation is SeaBright Insurance Holdings, Inc. (the “Corporation”).



ARTICLE TWO

REGISTERED OFFICE AND AGENT




     The address of the Corporation’s registered office in the State of Delaware is 9 East
Loockerman Street, Suite #1-B, in the City of Dover, County of Kent, 19901. The name of its
registered agent at such address is National Registered Agents, Inc.



ARTICLE THREE

PURPOSE




     The nature of the business or purposes to be conducted or promoted is to engage in any lawful
act or activity for which corporations may be organized under the Delaware General Corporation Law.



ARTICLE FOUR

CAPITAL STOCK




PART A. AUTHORIZED SHARES




     The total number of shares of capital stock which the Corporation has authority to issue is
85,750,000 shares, consisting of:



     1. 10,000,000 shares of initially undesignated Preferred Stock, par value $0.01 per share (the
“Preferred Stock”);



     2. 750,000 shares of Series A Preferred Stock, par value $0.01 per share (the “Series A
Preferred ”); and



     3. 75,000,000 shares of Common Stock, par value $0.01 per share (the “Common Stock”).



     The Preferred Stock, the Series A Preferred and the Common Stock shall have the rights,
preferences and limitations set forth below.



 









 





PART B. PREFERRED STOCK




     The Board of Directors is authorized, subject to limitations prescribed by law, to provide by
resolution or resolutions for the issuance of shares of Preferred Stock in one or more series, to
establish the number of shares to be included in each such series, and to fix the voting powers (if
any), designations, powers, preferences, and relative, participating, optional or other rights, if
any, of the shares of each such series, and any qualifications, limitations or restrictions
thereof. Irrespective of the provisions of Section 242(b)(2) of the Delaware General Corporation
Law, the number of authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative vote of the holders of a
majority in voting power of the stock of the Corporation entitled to vote, without the separate
vote of the holders of the Preferred Stock as a class.



PART C. SERIES A PREFERRED STOCK




     For so long as shares of Series A Preferred are issued and outstanding, such shares shall have
the rights, preferences and limitations set forth in this Part C of ARTICLE FOUR. Certain
capitalized terms used in this Part C of ARTICLE FOUR have the meanings set forth in Section 9.



     Section 1. Dividends. Holders of the Series A Preferred shall not be entitled to the
payment of any dividends, except as expressly set forth in the next sentence. When, as and if and
to the extent permitted under the Delaware General Corporation Law, the Board of Directors of the
Corporation declares or pays any dividends upon the Common Stock (whether payable in cash,
securities or other property), the Corporation shall also declare and pay to the holders of the
Series A Preferred, out of the assets of the Corporation legally available therefor, at the same
time that it declares and pays such dividends to the holders of the Common Stock, the dividends
which would have been declared and paid with respect to the Common Stock issuable upon conversion
of the Series A Preferred had all of the outstanding Series A Preferred been converted immediately
prior to the record date for such dividend, or if no record date is fixed, the date as of which the
record holders of Common Stock entitled to such dividends are to be determined.



     Section 2. Liquidation. Upon any liquidation, dissolution or winding up of the
Corporation (whether voluntary or involuntary), each holder of Series A Preferred shall be entitled
to be paid, before any distribution or payment is made upon any Junior Securities, an amount in
cash equal to the greater of (i) the aggregate Liquidation Value of all shares held by such holder
(plus all declared and unpaid dividends thereon) and (ii) the amount to which such holder would be
entitled to receive upon such liquidation, dissolution or winding up if all of such holder’s Series
A Preferred were converted into Common Stock immediately prior to such event, and the holders of
Series A Preferred shall not be entitled to any further payment. If upon any liquidation,
dissolution or winding up of the Corporation the Corporation’s assets to be distributed among the
holders of the Series A Preferred in respect of the outstanding Series A Preferred are insufficient
to permit payment to such holders of the aggregate amount which they are entitled to be paid under
this Section 2, then the entire assets available to be distributed to the



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Corporation’s stockholders shall be distributed pro rata among such holders of Series A
Preferred based upon the aggregate Liquidation Value (plus all declared and unpaid dividends) of
the Series A Preferred held by each such holder. Not less than ten (10) days prior to the payment
date stated therein, the Corporation shall mail written notice of any such liquidation, dissolution
or winding up to each record holder of Series A Preferred, setting forth in reasonable detail the
amount of proceeds to be paid with respect to each share in connection with such liquidation,
dissolution or winding up. Upon the written election of the holders of a majority of the
outstanding shares of Series A Preferred, the consolidation or merger of the Corporation into or
with any other entity or entities (whether or not the Corporation is the surviving entity) or any
other form of recapitalization or reorganization affecting the Corporation shall be deemed to be a
liquidation, dissolution or winding up of the Corporation within the meaning of this Section 2.




     Section 3. Priority of Series A Preferred on Dividends and Redemptions. So long as
any Series A Preferred remains outstanding, without the prior written consent of the holders of a
majority of the outstanding shares of Series A Preferred, the Corporation shall not, nor shall it
permit any Subsidiary to, redeem, purchase or otherwise acquire directly or indirectly any Junior
Securities (other than (i) pursuant to the Stockholders Agreement and (ii) repurchases of Common
Stock from present or former employees, directors or consultants of the Corporation or any of its
Subsidiaries upon termination of employment or consultancy in accordance with arrangements approved
by the Corporation’s Board of Directors), nor shall the Corporation directly or indirectly pay or
declare any dividend or make any distribution upon any Junior Securities (other than dividends
payable in shares of Common Stock or payable to holders of Common Stock in compliance with Section
1 of this Part C above).



     Section 4. Redemptions. The Series A Preferred shall not be subject to any required
redemption on any date certain or upon the happening of any particular event or at the option of
the holders thereof or otherwise. The Series A Preferred shall not be subject to any sinking fund
or similar requirements. The Corporation shall not, nor shall it permit any Subsidiary to, redeem
or otherwise acquire any shares of Series A Preferred, except pursuant to (i) the Stockholders
Agreement, (ii) from present or former employees, directors or consultants of the Corporation or
any of its Subsidiaries upon termination of employment, directorship or consultancy in accordance
with arrangements approved by the Corporation’s Board of Directors or (iii) a purchase offer made
by the Corporation pro rata to all holders of Series A Preferred on the basis of the number of
shares owned by each such holder. If the purchase offer made pursuant to clause (iii) above is
accepted by the holders of a majority of the outstanding shares of Series A Preferred, each holder
of Series A Preferred, by his or its acceptance of such Series A Preferred, agrees to sell his or
its pro rata share of the Series A Preferred to be purchased by the Company at a price equal to the
Liquidation Value thereof plus all declared and unpaid dividends thereon.



     Section 5. Conversion of Series A Preferred.



          5A. Conversion Procedure.



          (i) At any time and from time to time, any holder of Series A Preferred may convert all or any
portion of the Series A Preferred held by such holder into a number of shares



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of Conversion Stock computed by multiplying the number of shares to be converted by $100 and
dividing the result by the Conversion Price then in effect.



          (ii) Except as otherwise provided herein, each conversion of Series A Preferred shall be
deemed to have been effected as of the close of business on the date on which the certificate or
certificates representing the Series A Preferred to be converted have been surrendered for
conversion at the principal office of the Corporation. At the time any such conversion has been
effected, the rights of the holder of the shares converted as a holder of Series A Preferred shall
cease and the Person or Persons in whose name or names any certificate or certificates for shares
of Conversion Stock are to be issued upon such conversion shall be deemed to have become the holder
or holders of record of the shares of Conversion Stock represented thereby.



          (iii) Notwithstanding any other provision hereof, if a conversion of Series A Preferred is to
be made in connection with a Public Offering, a Change in Ownership, a Fundamental Change or other
transaction affecting the Corporation or any holder of Series A Preferred, the conversion of any
shares of Series A Preferred may, at the election of the holder thereof, be conditioned upon the
consummation of such transaction, in which case such conversion shall be deemed to be effective
immediately prior to the consummation of such transaction.



          (iv) Promptly (and in any event within two (2) business days in the case of subparagraph (a)
below) after a conversion has been effected (including a conversion pursuant to paragraph 5H
below), the Corporation shall deliver to the converting holder:



                    (a) a certificate or certificates representing the number of shares of Conversion Stock
issuable by reason of such conversion in such name or names and such denomination or denominations
as the converting holder has specified;



                    (b) payment in an amount equal to all dividends declared with respect to each share converted
which have not been paid prior thereto in accordance with the provisions of subparagraph (v) below,
plus the amount payable under subparagraph (ix) below with respect to such conversion; and



                    (c) a certificate representing any shares of Series A Preferred which were represented by the
certificate or certificates delivered to the Corporation in connection with such conversion but
which were not converted.



          (v) If the Corporation is not permitted under applicable law to pay any portion of any
declared and unpaid dividends on the Series A Preferred being converted, the Corporation shall pay
such dividends to the converting holder as soon thereafter as funds of the Corporation are legally
available for such payment. At the request of any such converting holder, the Corporation shall
provide such holder with written evidence of its obligation to such holder.



          (vi) The issuance of certificates for shares of Conversion Stock upon conversion of Series A
Preferred shall be made without charge to the holders of such Series A



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Preferred for any issuance tax in respect thereof (so long as such certificates are issued in
the name of the record holder of such Series A Preferred) or other cost incurred by the Corporation
in connection with such conversion and the related issuance of shares of Conversion Stock. Upon
conversion of each share of Series A Preferred, the Corporation shall take all such actions as are
necessary in order to ensure that the Conversion Stock issuable with respect to such conversion
shall be validly issued, fully paid and nonassessable, free and clear of all taxes (other than any
taxes relating to any dividends paid with respect thereto), liens, charges and encumbrances with
respect to the issuance thereof.



          (vii) The Corporation shall not close its books against the transfer of Series A Preferred or
of Conversion Stock issued or issuable upon conversion of Series A Preferred in any manner which
interferes with the timely conversion of Series A Preferred. The Corporation shall assist and
cooperate with any holder of shares required to make any governmental filings or obtain any
governmental approval prior to or in connection with any conversion of shares hereunder (including,
without limitation, making any filings required to be made by the Corporation and paying all filing
and other fees in connection therewith).



          (viii) The Corporation shall at all times reserve and keep available out of its authorized but
unissued shares of Conversion Stock, solely for the purpose of issuance upon the conversion of the
Series A Preferred, such number of shares of Conversion Stock issuable upon the conversion of all
outstanding Series A Preferred. All shares of Conversion Stock which are so issuable shall, when
issued, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and
charges. The Corporation shall take all such actions as may be necessary to ensure that all such
shares of Conversion Stock may be so issued without violation of any applicable law or governmental
regulation or any requirements of any domestic securities exchange upon which shares of Conversion
Stock may be listed (except for official notice of issuance which shall be immediately delivered by
the Corporation upon each such issuance). The Corporation shall not take any action which would
cause the number of authorized but unissued shares of Conversion Stock to be less than the number
of such shares required to be reserved hereunder for issuance upon conversion of the Series A
Preferred.



          (ix) If any fractional interest in a share of Conversion Stock would, except for the
provisions of this subparagraph (ix), be delivered upon any conversion of the Series A Preferred,
the Corporation, in lieu of delivering the fractional share therefor, shall pay an amount to the
holder thereof equal to the Market Price of such fractional interest as of the date of conversion.



          5B. Conversion Price.



          (i) The initial Conversion Price shall be $6.536091. In order to prevent dilution of the
conversion rights granted under this Section 5, the Conversion Price shall be subject to adjustment
from time to time pursuant to this paragraph 5B.



          (ii) If and whenever following the date of filing of this Amended and Restated Certificate of
Incorporation the Corporation issues or sells, or in accordance with paragraph 5C below is deemed
to have issued or sold, any shares of Common Stock for a consideration per



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share less than the Conversion Price in effect immediately prior to the time of such issue or
sale, then immediately upon such issue or sale or deemed issue or sale the Conversion Price shall
be reduced to the Conversion Price determined by dividing (a) the sum of (1) the product derived by
multiplying the Conversion Price in effect immediately prior to such issue or sale by the number of
shares of Common Stock Deemed Outstanding immediately prior to such issue or sale, plus (2) the
consideration, if any, received by the Corporation upon such issue or sale, by (b) the number of
shares of Common Stock Deemed Outstanding immediately after such issue or sale.



          (iii) Notwithstanding the foregoing, there shall be no adjustment to the Conversion Price
hereunder with respect to the granting of stock options to employees, officers, directors and
consultants of the Corporation and its Subsidiaries or the exercise thereof for an aggregate of
773,780.50 shares of Common Stock (as such number of shares is appropriately adjusted for
subsequent stock splits, stock combinations, stock dividends and recapitalizations).



          5C. Effect on Conversion Price of Certain Events. For purposes of determining the
adjusted Conversion Price under paragraph 5B above, the following shall be applicable:



          (i) Issuance of Rights or Options. If the Corporation in any manner following the
date of filing of this Amendment to the Amended and Restated Certificate of Incorporation grants or
sells any Options and the price per share for which Common Stock is issuable upon the exercise of
such Options, or upon conversion or exchange of any Convertible Securities issuable upon exercise
of such Options, is less than the Conversion Price in effect immediately prior to the time of the
granting or sale of such Options, then the total maximum number of shares of Common Stock issuable
upon the exercise of such Options or upon conversion or exchange of the total maximum amount of
such Convertible Securities issuable upon the exercise of such Options shall be deemed to be
outstanding and to have been issued and sold by the Corporation at the time of the granting or sale
of such Options for such price per share. For purposes of this paragraph, the “price per share
for which Common Stock is issuable” shall be determined by dividing (A) the total amount, if
any, received or receivable by the Corporation as consideration for the granting or sale of such
Options, plus the minimum aggregate amount of additional consideration payable to the Corporation
upon exercise of all such Options, plus in the case of such Options which relate to Convertible
Securities, the minimum aggregate amount of additional consideration, if any, payable to the
Corporation upon the issuance or sale of such Convertible Securities and the conversion or exchange
thereof, by (B) the total maximum number of shares of Common Stock issuable upon the exercise of
such Options or upon the conversion or exchange of all such Convertible Securities issuable upon
the exercise of such Options. No further adjustment of the Conversion Price shall be made when
Convertible Securities are actually issued upon the exercise of such Options or when Common Stock
is actually issued upon the exercise of such Options or the conversion or exchange of such
Convertible Securities.



          (ii) Issuance of Convertible Securities. If the Corporation in any manner following
the date of filing of this Amendment to the Amended and Restated Certificate of Incorporation
issues or sells any Convertible Securities and the price per share for which Common Stock is
issuable upon conversion or exchange thereof is less than the Conversion Price in effect
immediately prior to the time of such issue or sale, then the maximum number of shares



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of Common Stock issuable upon conversion or exchange of such Convertible Securities shall be
deemed to be outstanding and to have been issued and sold by the Corporation at the time of the
issuance or sale of such Convertible Securities for such price per share. For the purposes of this
paragraph, the “price per share for which Common Stock is issuable” shall be determined by
dividing (A) the total amount received or receivable by the Corporation as consideration for the
issue or sale of such Convertible Securities, plus the minimum aggregate amount of additional
consideration, if any, payable to the Corporation upon the conversion or exchange thereof, by (B)
the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all
such Convertible Securities. No further adjustment of the Conversion Price shall be made when
Common Stock is actually issued upon the conversion or exchange of such Convertible Securities, and
if any such issue or sale of such Convertible Securities is made upon exercise of any Options for
which adjustments of the Conversion Price had been or are to be made pursuant to other provisions
of this Section 5, no further adjustment of the Conversion Price shall be made by reason of such
issue or sale.



          (iii) Change in Option Price or Conversion Rate. If the purchase price provided for
in any Options, the additional consideration, if any, payable upon the conversion or exchange of
any Convertible Securities or the rate at which any Convertible Securities are convertible into or
exchangeable for Common Stock changes at any time following the date of filing of this Amendment to
the Amended and Restated Certificate of Incorporation, the Conversion Price in effect at the time
of such change shall be immediately adjusted to the Conversion Price which would have been in
effect at such time had such Options or Convertible Securities still outstanding provided for such
changed purchase price, additional consideration or conversion rate, as the case may be, at the
time initially granted, issued or sold.



          (iv) Treatment of Expired Options and Unexercised Convertible Securities. Upon the
expiration of any Option or the termination of any right to convert or exchange any Convertible
Security without the exercise of any such Option or right, the Conversion Price then in effect
hereunder shall be adjusted immediately to the Conversion Price which would have been in effect at
the time of such expiration or termination had such Option or Convertible Security, to the extent
outstanding immediately prior to such expiration or termination, never been issued.



          (v) Calculation of Consideration Received. If any Common Stock, Option or Convertible
Security is issued or sold or deemed to have been issued or sold for cash, the consideration
received therefor shall be deemed to be the amount received by the Corporation therefor (net of
discounts, commissions and related expenses). If any Common Stock, Option or Convertible Security
is issued or sold for a consideration other than cash, the amount of the consideration other than
cash received by the Corporation shall be the fair value of such consideration, except where such
consideration consists of securities, in which case the amount of consideration received by the
Corporation shall be the Market Price thereof as of the date of receipt. If any Common Stock,
Option or Convertible Security is issued to the owners of the non-surviving entity in connection
with any merger in which the Corporation is the surviving corporation, the amount of consideration
therefor shall be deemed to be the fair value of such portion of the net assets and business of the
non-surviving entity as is attributable to such Common Stock, Option or Convertible Security, as
the case may be. The fair value of any



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consideration other than cash and securities shall be determined jointly by the Corporation
and the holders of a majority of the outstanding Series A Preferred. If such parties are unable to
reach agreement within a reasonable period of time, the fair value of such consideration shall be
determined by an independent appraiser experienced in valuing such type of consideration jointly
selected by the Corporation and the holders of a majority of the outstanding Series A Preferred.
The determination of such appraiser shall be final and binding upon the parties, and the fees and
expenses of such appraiser shall be borne by the Corporation.



          (vi) Integrated Transactions. In case any Option is issued in connection with the
issue or sale of other securities of the Corporation, together comprising one integrated
transaction in which no specific consideration is allocated to such Option by the parties thereto,
the Option shall be deemed to have been issued for such consideration as shall be determined in
good faith by the Corporation’s Board of Directors.



          (vii) Treasury Shares. The number of shares of Common Stock outstanding at any given
time shall not include shares owned or held by or for the account of the Corporation or any
Subsidiary, and the disposition of any shares so owned or held shall be considered an issue or sale
of Common Stock.



          (viii) Record Date. If the Corporation takes a record of the holders of Common Stock
for the purpose of entitling them (a) to receive a dividend or other distribution payable in Common
Stock, Options or in Convertible Securities or (b) to subscribe for or purchase Common Stock,
Options or Convertible Securities, then such record date shall be deemed to be the date of the
issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the
declaration of such dividend or upon the making of such other distribution or the date of the
granting of such right of subscription or purchase, as the case may be.



          5D. Subdivision or Combination of Common Stock. If the Corporation at any time
subdivides (by any stock split, stock dividend, recapitalization or otherwise) its outstanding
shares of Common Stock into a greater number of shares, the Conversion Price in effect immediately
prior to such subdivision shall be proportionately reduced, and if the Corporation at any time
combines (by reverse stock split or otherwise) its outstanding shares of Common Stock into a
smaller number of shares, the Conversion Price in effect immediately prior to such combination
shall be proportionately increased.



          5E. Organic Change. Prior to the consummation of any Organic Change, the Corporation
shall make appropriate provisions (in form and substance satisfactory to the holders of a majority
of the Series A Preferred then outstanding) to ensure that each of the holders of Series A
Preferred shall thereafter have the right to acquire and receive, in lieu of or in addition to (as
the case may be) the shares of Conversion Stock immediately theretofore acquirable and receivable
upon the conversion of such holder’s Series A Preferred, such shares of stock, securities or assets
as such holder would have received in connection with such Organic Change if such holder had
converted its Series A Preferred immediately prior to such Organic Change (plus all declared and
unpaid dividends on the Series A Preferred held by such holder immediately prior to such Organic
Change). In each such case, the Corporation shall also make appropriate provisions (in form and
substance satisfactory to the holders of a majority of the



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Series A Preferred then outstanding) to ensure that the provisions of this Section 5 and
Sections 6, 7, 8 and 9 below shall thereafter be applicable to the Series A Preferred (including,
in the case of any such consolidation, merger or sale in which the successor entity or purchasing
entity is other than the Corporation, an immediate adjustment of the Conversion Price to the value
for the Common Stock reflected by the terms of such consolidation, merger or sale, and a
corresponding immediate adjustment in the number of shares of Conversion Stock acquirable and
receivable upon conversion of the Series A Preferred, if the value so reflected is less than the
Conversion Price in effect immediately prior to such consolidation, merger or sale). The
Corporation shall not effect any such consolidation, merger or sale, unless prior to the
consummation thereof, the successor entity (if other than the Corporation) resulting from such
consolidation or merger or the entity purchasing such assets assumes by written instrument (in form
and substance satisfactory to the holders of a majority of the Series A Preferred then
outstanding), the obligation to deliver to each such holder such shares of stock, securities or
assets as, in accordance with the foregoing provisions, such holder may be entitled to acquire.



          5F. Certain Events. If any event occurs of the type contemplated by the provisions
of this Section 5 but not expressly provided for by such provisions (including, without limitation,
the granting of stock appreciation rights, phantom stock rights or other rights with equity
features), then the Corporation’s Board of Directors shall make an appropriate adjustment in the
Conversion Price so as to protect the rights of the holders of Series A Preferred; provided
that no such adjustment shall increase the Conversion Price as otherwise determined
pursuant to this Section 5 or decrease the number of shares of Conversion Stock issuable upon
conversion of each share of Series A Preferred.



          5G. Notices.



          (i) Promptly after any adjustment of the Conversion Price, the Corporation shall give written
notice thereof to all holders of Series A Preferred, setting forth in reasonable detail and
certifying the calculation of such adjustment.



          (ii) The Corporation shall give written notice to all holders of Series A Preferred at least
20 days prior to the date on which the Corporation closes its books or takes a record (a) with
respect to any dividend or distribution upon Common Stock, (b) with respect to any pro rata
subscription offer to holders of Common Stock or (c) for determining rights to vote with respect to
any Organic Change, dissolution or liquidation.



          (iii) The Corporation shall also give written notice to the holders of Series A Preferred at
least 20 days prior to the date on which any Organic Change shall take place.



          5H. Automatic Conversion. All of the outstanding shares of Series A Preferred shall
automatically convert into Conversion Stock upon the written consent of the holders of at least
66-2/3% of the Series A Preferred then outstanding. The Corporation shall provide written notice
of such automatic conversion to all holders of Series A Preferred at least three business days
prior to such conversion.



     Section 6. Voting Rights.



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          6A. General. The holders of the Series A Preferred shall be entitled to notice of
all stockholder meetings in accordance with the Corporation’s Bylaws, and in addition to any
circumstances in which the holders of the Series A Preferred shall be entitled to vote as a
separate class under the Delaware General Corporation Law, the holders of the Series A Preferred
shall be entitled to vote on all matters (including the election of directors) submitted to the
stockholders for a vote together with the holders of Common Stock voting together as a single class
with each share of Common Stock entitled to one vote per share and each share of Series A Preferred
entitled to a number of votes (including fractions thereof) equal to the number of shares of Common
Stock (including fractions thereof) issuable upon conversion of such share as of the record date
for such vote (or, if no record date is specified, as of the date of such vote).



          6B. Protective Provisions. So long as any Series A Preferred remains outstanding,
the Corporation shall not, without the vote or written consent of the holders of a majority of the
Series A Preferred then outstanding:



          (i) authorize, issue or enter into any agreement providing for the issuance (contingent or
otherwise) of, (a) any notes or debt securities containing equity features (including, without
limitation, any notes or debt securities convertible into or exchangeable for capital stock or
other equity securities, any notes or debt securities issued in connection with the issuance of
capital stock or other equity securities or containing profit participation features), (b) any
capital stock or other equity securities (or any securities convertible into or exchangeable for
any capital stock or other equity securities) which are senior to or on a parity with the Series A
Preferred with respect to the payment of dividends, redemptions or distributions upon liquidation
or otherwise or (c) any additional shares of Series A Preferred;



          (ii) sell or transfer or permit any Subsidiary to sell or transfer more than 25% of the assets
of the Corporation and its Subsidiaries on a consolidated basis (computed on the basis of the
greater of (i) book value in accordance with generally accepted accounting principles consistently
applied or (ii) fair market value determined in the reasonable good faith judgment of the
Corporation’s Board of Directors) in any transaction or series of transactions (including any sale
or other disposition of capital stock of any of the Corporation’s Subsidiaries (whether by merger,
consolidation or otherwise), but excluding sales of inventory in the ordinary course of business);



          (iii) merge or consolidate with any Person or permit any Subsidiary to merge or consolidate
with any Person (other than a merger or consolidation between or among Wholly-Owned Subsidiaries);



          (iv) liquidate, dissolve or effect a recapitalization or reorganization in any form of
transaction (including, without limitation, any reorganization into a limited liability company, a
partnership or any other non-corporate entity which is treated as a partnership for federal income
tax purposes, but excluding any stock split, stock dividend, stock combination or like event);



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          (v) increase the number of authorized shares of Series A Preferred or alter, change or
otherwise impair or adversely affect the rights, preferences or powers or the relative preferences
and priorities of the holders of the Series A Preferred; or



          (vi) consummate any Public Offering.



     Section 7. Registration of Transfer. The Corporation shall keep at its principal
office a register for the registration of Series A Preferred. Upon the surrender of any
certificate representing Series A Preferred at such place and subject to compliance with any
applicable securities laws, the Corporation shall, at the request of the record holder of such
certificate, execute and deliver (at the Corporation’s expense) a new certificate or certificates
in exchange therefor representing in the aggregate the number of shares represented by the
surrendered certificate. Each such new certificate shall be registered in such name and shall
represent such number of shares as is requested by the holder of the surrendered certificate and
shall be substantially identical in form to the surrendered certificate.



     Section 8. Replacement. Upon receipt of evidence reasonably satisfactory to the
Corporation (an affidavit of the registered holder shall be satisfactory) of the ownership and the
loss, theft, destruction or mutilation of any certificate evidencing shares of Series A Preferred,
and in the case of any such loss, theft or destruction, upon receipt of indemnity reasonably
satisfactory to the Corporation (provided that if the holder is a financial institution or other
institutional investor or investment fund, its own agreement shall be satisfactory) or, in the case
of any such mutilation upon surrender of such certificate, the Corporation shall (at its expense)
execute and deliver in lieu of such certificate a new certificate of like kind representing the
number of shares of such class represented by such lost, stolen, destroyed or mutilated certificate
and dated the date of such lost, stolen, destroyed or mutilated certificate, and dividends shall
accrue on the Series A Preferred represented by such new certificate from the date to which
dividends have been fully paid on such lost, stolen, destroyed or mutilated certificate.



     Section 9. Definitions. For purposes of Part C of this ARTICLE FOUR, the following
terms shall have the following meanings:



     “Change in Ownership” means any sale, transfer or issuance or series of sales,
transfers and/or issuances of shares of the Corporation’s capital stock by the Corporation or any
holders thereof which results in any Person or group of Persons (as the term “group” is used under
the Securities Exchange Act of 1934, as amended), other than the holders of Common Stock and Series
A Preferred as of the date of the Purchase Agreement, owning capital stock of the Corporation
possessing the voting power (under ordinary circumstances) to elect a majority of the Corporation’s
Board of Directors.



     “Common Stock” means the Corporation’s Common Stock and any other capital stock of any
class of the Corporation hereafter authorized which is not limited to a fixed sum or percentage of
par or stated value in respect to the rights of the holders thereof to participate in dividends or
in the distribution of assets upon any liquidation, dissolution or winding up of the Corporation.



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     “Common Stock Deemed Outstanding” means, at any given time, the number of shares of
Common Stock actually outstanding at such time, plus the number of shares of Common Stock deemed to
be outstanding pursuant to subparagraphs 5C(i) and 5C(ii) hereof whether or not the Options or
Convertible Securities are actually exercisable at such time.



     “Conversion Stock” means shares of Common Stock; provided that if
there is a change such that the securities issuable upon conversion of the Series A Preferred are
issued by an entity other than the Corporation or there is a change in the type or class of
securities so issuable, then the term “Conversion Stock” shall mean one share of the
security issuable upon conversion of the Series A Preferred if such security is issuable in shares,
or shall mean the smallest unit in which such security is issuable if such security is not issuable
in shares.



     “Convertible Securities” means any stock or securities directly or indirectly
convertible into or exchangeable for Common Stock.



     “Fundamental Change” means (a) any sale or transfer of more than 50% of the assets of
the Corporation and its Subsidiaries on a consolidated basis (computed on the basis of the greater
of (i) book value in accordance with generally accepted accounting principles consistently applied
or (ii) fair market value determined in the reasonable good faith judgment of the Corporation’s
Board of Directors) in any transaction or series of related transactions (other than sales of
inventory in the ordinary course of business) and (b) any merger or consolidation to which the
Corporation is a party, except for (x) a merger which is effected solely to change the state of
incorporation of the Corporation or (y) a merger in which the Corporation is the surviving
corporation, the terms of the Series A Preferred are not changed or altered in any respect, the
Series A Preferred is not exchanged for cash, securities or other property, and after giving effect
to such merger, the holders of Common Stock and Series A Preferred as of the date of the Purchase
Agreement shall continue to own the Corporation’s outstanding capital stock possessing the voting
power (under ordinary circumstances) to elect a majority of the Corporation’s Board of Directors.



     “Junior Securities” means any capital stock or other equity securities of the
Corporation, except for the Series A Preferred.



     “Liquidation Value” of any share of Series A Preferred as of any particular date shall
be equal to $100.00.



     “Market Price” of any security means the average of the closing prices of such
security’s sales on the principal securities exchanges on which such security may at the time be
listed, or, if there has been no sales on any such exchange on any day, the average of the highest
bid and lowest asked prices on all such exchanges at the end of such day, or, if on any day such
security is not so listed, the average of the representative bid and asked prices quoted in the
NASDAQ System as of 4:00 P.M., New York time, or, if on any day such security is not quoted in the
NASDAQ System, the average of the highest bid and lowest asked prices on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau, Incorporated, or any similar
successor organization, in each such case averaged over a period of 21 days consisting of the day
prior to the day as of which “Market Price” is being determined and the 20



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consecutive business days prior to such day. If at any time such security is not listed on
any securities exchange or quoted in the NASDAQ System or the over-the-counter market, the
“Market Price” shall be the fair value thereof determined jointly by the Corporation and
the holders of a majority of the Series A Preferred. If such parties are unable to reach agreement
within a reasonable period of time, such fair value shall be determined by an independent appraiser
experienced in valuing securities jointly selected by the Corporation and the holders of a majority
of the Series A Preferred. The determination of such appraiser shall be final and binding upon the
parties, and the Corporation shall pay the fees and expenses of such appraiser.



     “Options” means any rights, warrants or options to subscribe for or purchase Common
Stock or Convertible Securities.



     “Organic Change” means any recapitalization, reorganization, reclassification,
consolidation, merger, sale of all or substantially all of the Corporation’s assets or other
transaction, in each case which is effected in such a manner that the holders of Common Stock are
entitled to receive (either directly or upon subsequent liquidation) stock, securities or assets
with respect to or in exchange for Common Stock.



     “Person” means an individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political subdivision thereof.



     “Public Offering” means any offering by the Corporation of its equity or debt
securities to the public pursuant to an effective registration statement under the Securities Act
of 1933, as then in effect, or any comparable statement under any similar federal statute then in
force.



     “Stockholders Agreement” means that certain Stockholders Agreement, dated on or about
September 30, 2003, by and among the Corporation and the other Persons signatory thereto (as the
same may be amended from time to time in accordance with its terms).



     “Subsidiary” means, with respect to any Person, any corporation, limited liability
company, partnership, association or other business entity of which (i) if a corporation, a
majority of the total voting power of shares of stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company,
partnership, association or other business entity, a majority of the partnership or other similar
ownership interest thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a limited liability
company, partnership, association or other business entity if such Person or Persons shall be
allocated a majority of the limited liability company, partnership, association or other business
entity gains or losses or shall be or control the managing general partner of such limited
liability company, partnership, association or other business entity.



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     “Wholly-Owned Subsidiary” means, with respect to any Person, a Subsidiary of which all
of the issued and outstanding capital stock or other ownership interests are owned by such Person
or another Wholly-Owned Subsidiary of such Person.



     Section 10. Amendment and Waiver. No amendment, modification or waiver shall be
binding or effective with respect to any provision of Sections 1 to 11 of this Subdivision B
without the prior written consent of the holders of a majority of the Series A Preferred
outstanding at the time such action is taken (in which case any such amendment, modification or
waiver shall be binding and effective with respect to all of the holders of the Series A
Preferred); provided that no change in the terms hereof may be accomplished by
merger or consolidation of the Corporation with another Person unless the Corporation has obtained
the prior written consent of the holders of a majority of the Series A Preferred then outstanding.



     Section 11. Notices. All notices, demands or other communications to be given or
delivered hereunder shall be in writing and shall be deemed to have been given when delivered
personally to the recipient or one (1) business day after being sent to the recipient by reputable
overnight courier service (charges prepaid) or five (5) business days after being mailed to the
recipient by certified or registered mail, return receipt requested and postage prepaid. Such
notices, demands and other communications shall be sent (i) to the Corporation, at its principal
executive offices and (ii) to any stockholder, at such holder’s address as it appears in the stock
records of the Corporation (unless otherwise indicated by any such holder).



PART D. COMMON STOCK




     Section 1. General. Except as (1) otherwise required by law or (2) expressly
provided in this Certificate of Incorporation, each share of Common Stock shall have the same
powers, rights and privileges and shall rank equally, share ratably and be identical in all
respects as to all matters.



     Section 2. Voting Rights. Except as otherwise provided by the Delaware General
Corporation Law or this Certificate of Incorporation and subject to the rights of holders of any
series of Preferred Stock, all of the voting power of the stockholders of the Corporation shall be
vested in the holders of the Common Stock, and each holder of Common Stock shall have one vote for
each share held by such holder on all matters voted upon by the stockholders of the Corporation.



     Section 3. Dividends. Subject to the rights of the holders of Preferred Stock, and
to the other provisions of this Certificate of Incorporation, holders of Common Stock shall be
entitled to receive equally, on a per share basis, such dividends and other distributions in cash,
securities or other property of the Corporation as may be declared thereon by the Board of
Directors from time to time out of assets or funds of the Corporation legally available therefor.



     Section 4. Liquidation Rights. In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary or involuntary, after payment or
provision for



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payment of the Corporation’s debts and subject to the rights of the holders of shares of
Preferred Stock upon such dissolution, liquidation or winding up, the remaining net assets of the
Corporation shall be distributed among holders of shares of Common Stock equally on a per share
basis. A merger or consolidation of the Corporation with or into any other corporation or other
entity, or a sale or conveyance of all or any part of the assets of the Corporation (which shall
not in fact result in the liquidation of the Corporation and the distribution of assets to its
stockholders) shall not be deemed to be a voluntary or involuntary liquidation or dissolution or
winding up of the Corporation within the meaning of this Section 4.



     Section 5. Conversion Rights. The Common Stock shall not be convertible into, or
exchangeable for, shares of any other class or classes or of any other series of the same class of
the Corporation’s capital stock.



     Section 6. Preemptive Rights. No holder of Common Stock shall have any preemptive
rights with respect to the Common Stock or any other securities of the Corporation, or to any
obligations convertible (directly or indirectly) into securities of the Corporation whether now or
hereafter authorized.



ARTICLE FIVE

DURATION




     The Corporation is to have perpetual existence.



ARTICLE SIX

BOARD OF DIRECTORS




     Section 1. Number of Directors. Subject to any rights of the holders of any class or
series of Preferred Stock to elect additional directors under specified circumstances, the number
of directors which shall constitute the Board of Directors shall be fixed from time to time by
resolution adopted by the affirmative vote of a majority of the total number of directors then in
office.



     Section 2. Election and Term of Office. The directors shall be elected by a plurality
of the votes of the shares present in person or represented by proxy at the meeting and entitled to
vote in the election of directors; provided that, whenever the holders of any class or series of
capital stock of the Corporation are entitled to elect one or more directors pursuant to the
provisions of this Certificate of Incorporation (including, but not limited to, any duly authorized
certificate of designation), such directors shall be elected by a plurality of the votes of such
class or series present in person or represented by proxy at the meeting and entitled to vote in
the election of such directors. The directors shall be elected and shall hold office only in this
manner, except as provided in Section 3 of this ARTICLE SIX. Each director shall hold office until
a successor is duly elected and qualified or until his or her earlier death, resignation or
removal. Elections of directors need not be by written ballot unless the Bylaws of the Corporation
shall so provide.



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     Section 3. Newly-Created Directorships and Vacancies. Subject to the rights of the
holders of any series of Preferred Stock then outstanding, newly created directorships resulting
from any increase in the number of directors or any vacancies in the Board of Directors resulting
from death, resignation, retirement, disqualification, removal from office or any other cause may
be filled, so long as there is at least one remaining director, only by the Board of Directors,
provided that a quorum is then in office and present, or by a majority of the directors then in
office, if less than a quorum is then in office, or by the sole remaining director. Directors
elected to fill a newly created directorship or other vacancies shall hold office until such
director’s successor has been duly elected and qualified or until his or her earlier death,
resignation or removal as hereinafter provided.



     Section 4. Removal of Directors. Subject to the rights of the holders of any series
of Preferred Stock then outstanding, any director may be removed from office at any time for cause,
at a meeting called for that purpose, but only by the affirmative vote of the holders of at least
66-2/3% of the voting power of all outstanding shares of Common Stock entitled to vote generally in
the election of directors, voting together as a single class.



     Section 5. Rights of Holders of Preferred Stock. Notwithstanding the provisions of
this ARTICLE SIX, whenever the holders of one or more series of Preferred Stock issued by the
Corporation shall have the right, voting separately or together by series, to elect directors at an
annual or special meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorship shall be governed by the rights of such Preferred Stock as set
forth in the certificate of designations governing such series.



     Section 6. Bylaws. The Board of Directors is expressly authorized to adopt, amend or
repeal the bylaws of the Corporation. Notwithstanding the foregoing and anything contained in this
Amended and Restated Certificate of Incorporation to the contrary, the bylaws of the Corporation
shall not be amended or repealed by the stockholders, and no provision inconsistent therewith shall
be adopted by the stockholders, without the affirmative vote of the holders of 66-2/3% of the
voting power of all outstanding shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class.



ARTICLE SEVEN

LIMITATION OF LIABILITY AND INDEMNIFICATION




     Section 1. Limitation of Liability.



     (a) To the fullest extent permitted by the Delaware General Corporation Law as it now exists
or may hereafter be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than permitted prior
thereto), no director of the Corporation shall be liable to the Corporation or its stockholders for
monetary damages arising from a breach of fiduciary duty owed to the Corporation or its
stockholders.



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     (b) Any repeal or modification of the foregoing paragraph by the stockholders of the
Corporation shall not adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.



     Section 2. Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved (including involvement as a witness) in
any action, suit or proceeding, whether civil, criminal, administrative or investigative (a
“proceeding”), by reason of the fact that he or she 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, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (an “indemnitee”), whether the basis of such proceeding is alleged
action in an official capacity as a director or officer or in any other capacity while serving as a
director or officer, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than permitted prior thereto), against all
expense, liability and loss (including attorneys’ fees and related disbursements, judgments, fines,
excise taxes or penalties under the Employee Retirement Income Security Act of 1974, as amended
from time to time (“ERISA”), penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such indemnitee in connection therewith and such indemnification shall
continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the indemnitee’s heirs, executors and administrators; provided, however,
that, except as provided in Section 3 of this ARTICLE SEVEN with respect to proceedings to enforce
rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a
proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof)
was authorized by the Board of Directors of the Corporation. The right to indemnification
conferred in this Section 2 of this ARTICLE SEVEN shall be a contract right and shall include the
obligation of the Corporation to pay the expenses incurred in defending any such proceeding in
advance of its final disposition (an “advance of expenses”); provided, however, that an
advance of expenses incurred by an indemnitee shall be made only upon delivery to the Corporation
of an undertaking (an “undertaking”), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial decision from which
there is no further right to appeal (a “final adjudication”) that such indemnitee is not
entitled to be indemnified for such expenses under this Section 2 or otherwise. The Corporation
may, by action of its Board of Directors, provide indemnification to employees and agents of the
Corporation with the same or lesser scope and effect as the foregoing indemnification of directors
and officers.



     Section 3. Procedure for Indemnification. Any indemnification of a director or
officer of the Corporation or advance of expenses under Section 2 of this ARTICLE SEVEN shall be
made promptly, and in any event within forty-five days (or, in the case of an advance of expenses,
twenty days, provided that the director or officer has delivered the undertaking contemplated by
Section 2 of this ARTICLE SEVEN), upon the written request of the director or officer. If a
determination by the Corporation that the director or officer is entitled to indemnification
pursuant to this ARTICLE SEVEN is required, and the Corporation fails to



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respond within sixty days to a written request for indemnity, the Corporation shall be deemed
to have approved the request. If the Corporation denies a written request for indemnification or
advance of expenses, in whole or in part, or if payment in full pursuant to such request is not
made within forty-five days (or, in the case of an advance of expenses, twenty days, provided that
the director or officer has delivered the undertaking contemplated by Section 2 of this ARTICLE
SEVEN), the right to indemnification or advances as granted by this ARTICLE SEVEN shall be
enforceable by the director or officer in any court of competent jurisdiction. Such person’s costs
and expenses incurred in connection with successfully establishing his or her right to
indemnification, in whole or in part, in any such action shall also be indemnified by the
Corporation. It shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of expenses where the undertaking required pursuant to Section 2 of this
ARTICLE SEVEN, if any, has been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the Delaware General Corporation Law for the
Corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall
be on the Corporation. Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the Corporation (including its Board of Directors,
independent legal counsel or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. The procedure for indemnification of other employees
and agents for whom indemnification is provided pursuant to Section 2 of this ARTICLE SEVEN shall
be the same procedure set forth in this Section 3 for directors or officers, unless otherwise set
forth in the action of the Board of Directors providing indemnification for such employee or agent.



     Section 4. Insurance. The Corporation may purchase and maintain insurance on its own
behalf and on behalf of any person who is or was a director, officer, employee or agent of the
Corporation or was serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss asserted against him or her and incurred by him or her in any such
capacity, whether or not the Corporation would have the power to indemnify such person against such
expenses, liability or loss under the Delaware General Corporation Law.



     Section 5. Service for Subsidiaries. Any person serving as a director, officer,
employee or agent of another corporation, partnership, limited liability company, joint venture or
other enterprise, at least 50% of whose equity interests are owned by the Corporation (a
“subsidiary” for this ARTICLE SEVEN) shall be conclusively presumed to be serving in such
capacity at the request of the Corporation.



     Section 6. Reliance. Persons who after the date of the adoption of this provision
become or remain directors or officers of the Corporation or who, while a director or officer of
the Corporation, become or remain a director, officer, employee or agent of a subsidiary, shall be
conclusively presumed to have relied on the rights to indemnity, advance of expenses and other
rights contained in this ARTICLE SEVEN in entering into or continuing such service. The rights



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to indemnification and to the advance of expenses conferred in this ARTICLE SEVEN shall apply
to claims made against an indemnitee arising out of acts or omissions which occurred or occur both
prior and subsequent to the adoption hereof.



     Section 7. Non-Exclusivity of Rights. The rights to indemnification and to the
advance of expenses conferred in this ARTICLE SEVEN shall not be exclusive of any other right which
any person may have or hereafter acquire under this Certificate of Incorporation or under any
statute, by-law, agreement, vote of stockholders or disinterested directors or otherwise.



     Section 8. Merger or Consolidation. For purposes of this ARTICLE SEVEN, references to
the “Corporation” shall include, in addition to the resulting Corporation, any constituent
Corporation (including any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and authority to indemnify its
directors, officers and employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent Corporation, or is or was serving at the request of such
constituent Corporation as a director, officer, employee or agent of another Corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same position under this
ARTICLE SEVEN with respect to the resulting or surviving Corporation as he or she would have with
respect to such constituent Corporation if its separate existence had continued.



     Section 9. Savings Clause. If this ARTICLE SEVEN or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each person entitled to indemnification under Section 2 of this ARTICLE
SEVEN as to all expense, liability and loss (including attorneys’ fees and related disbursements,
judgments, fines, ERISA excise taxes and penalties, penalties and amounts paid or to be paid in
settlement) actually and reasonably incurred or suffered by such person and for which
indemnification is available to such person pursuant to this ARTICLE SEVEN to the full extent
permitted by any applicable portion of this ARTICLE SEVEN that shall not have been invalidated and
to the full extent permitted by applicable law.



ARTICLE EIGHT

ACTION BY WRITTEN CONSENT/SPECIAL MEETINGS OF STOCKHOLDERS




     For so long as the Corporation’s Common Stock is registered under Section 12 of the Securities
Exchange Act of 1934, as amended: (i) the stockholders of the Corporation may not take any action
by written consent in lieu of a meeting, and must take any actions at a duly called annual or
special meeting of stockholders and the power of stockholders to consent in writing without a
meeting is specifically denied and (ii) special meetings of stockholders of the Corporation may be
called only by either the Board of Directors pursuant to a resolution adopted by the affirmative
vote of the majority of the total number of directors then in office or by the chief executive
officer of the Corporation.



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ARTICLE NINE

CERTAIN TRANSACTIONS




     Section 1. Certain Acknowledgments. In recognition and anticipation that: (i) the
directors, officers, members, managers and/or employees of Summit Partners, LLC, Summit Master
Company, LLC or affiliates and investment funds of such entities (collectively, “Summit”)
may serve as directors and/or officers of the Corporation, (ii) Summit may engage in the same or
similar activities or related lines of business as those in which the Corporation, directly or
indirectly, may engage and/or other business activities that overlap with or compete with those in
which the Corporation, directly or indirectly, may engage, and (iii) that the Corporation and its
subsidiaries may engage in material business transactions with Summit and that the Corporation is
expected to benefit therefrom, the provisions of this ARTICLE NINE are set forth to regulate and
define the conduct of certain affairs of the Corporation as they may involve Summit and its
directors, officers, members, managers and/or employees, and the powers, rights, duties and
liabilities of the Corporation and its officers, directors and stockholders in connection
therewith.



     Section 2. Competition and Corporate Opportunities. Summit shall not have any duty to
refrain from engaging directly or indirectly in the same or similar business activities or lines of
business as the Corporation or any of its subsidiaries. In the event that Summit acquires
knowledge of a potential transaction or matter which may be a corporate opportunity for itself and
the Corporation or any of its subsidiaries, neither the Corporation nor any of its subsidiaries
shall have any expectancy in such corporate opportunity, and Summit shall not have any duty to
communicate or offer such corporate opportunity to the Corporation or any of its subsidiaries and
may pursue or acquire such corporate opportunity for itself or direct such corporate opportunity to
another person.



     Section 3. Allocation of Corporate Opportunities. In the event that a director or
officer of the Corporation who is also a director, officer, member, manager and/or employee of
Summit acquires knowledge of a potential transaction or matter which may be a corporate opportunity
for the Corporation or any of its subsidiaries and Summit, neither the Corporation nor any of its
subsidiaries shall have any expectancy in such corporate opportunity unless such corporate
opportunity is expressly offered to such person solely in his or her capacity as a director or
officer of the Corporation.



     Section 4. Certain Matters Deemed Not Corporate Opportunities. In addition to and
notwithstanding the foregoing provisions of this ARTICLE NINE, a corporate opportunity shall not be
deemed to belong to the Corporation if it is a business opportunity that the Corporation is not
financially able or contractually permitted or legally able to undertake, or that is, from its
nature, not in the line of the Corporation’s business or is of no practical advantage to it or that
is one in which the Corporation has no interest or reasonable expectancy.



     Section 5. Agreements and Transactions with Summit. In the event that Summit enters
into an agreement or transaction with the Corporation or any of its subsidiaries, a director or
officer of the Corporation who is also a director, officer, member, manager and/or employee of



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Summit shall have fully satisfied and fulfilled the fiduciary duty of such director or officer
to the Corporation and its stockholders with respect to such agreement or transaction, if:




     (a) The agreement or transaction was approved, after being made aware of the material
facts of the relationship between each of the Corporation or subsidiary thereof and Summit
and the material terms and facts of the agreement or transaction, by (i) an affirmative vote
of a majority of the members of the Board of Directors of the Corporation who are not
persons or entities with a material financial interest in the agreement or transaction
(“Interested Persons”) or (ii) an affirmative vote of a majority of the members of a
committee of the Board of Directors of the Corporation consisting of members who are not
Interested Persons;




     (b) The agreement or transaction was fair to the Corporation at the time the agreement
or transaction was entered into by the Corporation; or




     (c) The agreement or transaction was approved by an affirmative vote of a majority of
the shares of the Corporation’s Common Stock entitled to vote, excluding Summit and any
Interested Person; provided that if no Common Stock is then outstanding a majority of the
voting power of the Corporation’s capital stock entitled to vote, excluding Summit and any
Interested Person.



     Section 6. Amendment of this Article. Notwithstanding anything to the contrary
elsewhere contained in this Certificate of Incorporation, the affirmative vote of the holders of at
least 80% of the voting power of all shares of Common Stock then outstanding, voting together as a
single class, shall be required to alter, amend or repeal, or to adopt any provision inconsistent
with, this ARTICLE NINE.



     Section 7. Deemed Notice. Any person or entity purchasing or otherwise acquiring any
interest in any shares of the Corporation shall be deemed to have notice or and to have consented
to the provisions of this ARTICLE NINE.



ARTICLE TEN

AMENDMENT




     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 herein and by the
laws of the state of Delaware, and all rights conferred upon stockholders herein are granted
subject to this reservation. Notwithstanding any other provision of this Certificate of
Incorporation or the Bylaws of the Corporation, and notwithstanding the fact that a lesser
percentage or separate class vote may be specified by law, this Certificate of Incorporation, the
Bylaws of the Corporation or otherwise, but in addition to any affirmative vote of the holders of
any particular class or series of the capital stock required by law, this Certificate of
Incorporation, the Bylaws of the Corporation or otherwise, the affirmative vote of the holders of
at least 66-2/3% of the voting power of all outstanding shares of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall be required to
adopt any



21









 





provision inconsistent with, to amend or repeal any provision of, or to adopt a bylaw
inconsistent with, ARTICLES SIX, SEVEN, EIGHT and TEN of this Certificate of Incorporation.




ARTICLE ELEVEN

SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW




     The Corporation expressly elects to be governed by Section 203 of the Delaware General
Corporation Law.



* * * * * *





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