which more than 50% of
the shares of the voting stock or other voting interests are owned or
controlled, or the ability to select or elect more than 50% of the directors or
similar managers is held, directly or indirectly, by such first Person or one or
more of its Subsidiaries or by such first Person and one or more of its
Subsidiaries; provided, however, that no Joint Venture shall be considered (i) a
"Subsidiary" of the Corporation or (ii) a "Subsidiary" of any Subsidiary of the
Corporation.
"Threshold" means 39.999% of the aggregate voting power of all outstanding
securities issued by the Corporation at any time and from time to time (assuming
the conversion of all of the then outstanding shares of Series A-1 Preferred
Stock).
"Transfer Restriction" shall have the meaning assigned to such term in the
Securities Purchase Agreement.
3 [To be included if stockholders do not approve the Non-Voting Securities
Proposal (as defined in the Securities Purchase Agreement).]
4 [This provision to be included if the Exchange Proposal Approval is not
approved when this Restated Certificate is filed with the Secretary of State of
the State of Delaware.]
5 [This provision to be included if the Exchange Proposal Approval occurs
simultaneously with the Class B Non-Voting Stock Authorization.]
6 [To be removed if stockholders approve the Non-Voting Securities Proposal (as
defined in the Securities Purchase Agreement).]
8
IN WITNESS WHEREOF, the Corporation has caused this Second Amended and Restated
Certificate of Incorporation to be signed and attested by its duly authorized
officers on this
day of
, 200
.
Avi Katz
Vice President and Secretary
ATTEST:
Janet Yeung
Vice President and Assistant Secretary
9
EXHIBIT D
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
10
EXHIBIT E
CORPORATION SCHEDULE OF EXCEPTIONS
11
EXHIBIT F
INTENTIONALLY OMITTED
12
EXHIBIT G
FORM OF OPINION OF WILLKIE FARR & GALLAGHER LLP
13
EXHIBIT H
FORM OF AMENDMENT TO AMENDED AND RESTATED BYLAWS
14
EXHIBIT I
FORM OF BRING-DOWN CERTIFICATE
15
EXHIBIT J
FORM OF BRING-DOWN OPINION
16
EXHIBIT K
FORM OF THRESHOLD CONVERSION NOTICE
17
EXHIBIT L
FORM OF NOTICE OF CONFIRMATION
18
EXHIBIT M
FORM OF NOTICE OF DISAGREEMENT
19
EXHIBIT N
FORM OF JOINDER AGREEMENT
20