As filed with the Securities and Exchange Commission on March 12, 2004.
Registration No. 333-_______
________________________________________________________________________________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TRANSACTION SYSTEMS ARCHITECTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 47-0772104
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
224 South 108th Avenue
Omaha, Nebraska 68154
(Address, including zip code, of registrant's principal executive offices)
Transaction Systems Architects, Inc. 1999 Employee Stock Purchase Plan
(Full title of the plan)
Dennis P. Byrnes
Senior Vice President, General Counsel and Secretary
Transaction Systems Architects, Inc.
224 South 108th Avenue
Omaha, Nebraska 68514
(402) 334-5101
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
_____________________________________________________________________________________________
Title of Proposed maximum Proposed maximum Amount of
securities to Amount to be offering price per aggregate offering registration
be registered registered (1) share (2) price fee
- ----------------------- -------------- ------------------ ------------------ ------------
1999 EMPLOYEE STOCK 750,000 shares $19.445 $14,583,750 $1,847.76
PURCHASE PLAN
Class A Common Stock,
$0.005 par value
_____________________________________________________________________________________________
(1) Pursuant to Rule 416, this Registration Statement also covers any
additional shares of Class A Common Stock which may be issuable under the
Transaction Systems Architects, Inc. 1999 Employee Stock Purchase Plan by
reason of a stock split, stock dividend, recapitalization or the like.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457 (c) and (h). The price is based upon the average of the high
and low prices of Transaction Systems Architects, Inc. Class A Common Stock
on March 5, 2004, as reported on The NASDAQ Stock Market.
EXPLANATORY STATEMENT
This Registration Statement is filed pursuant to General Instruction E to
Form S-8 by Transaction Systems Architects, Inc., a Delaware corporation, in
order to register 750,000 shares of Class A Common Stock, which shares are in
addition to those previously registered on a Registration Statement on Form S-8
(File No. 333-73027) filed with the Securities and Exchange Commission (the
"Commission") on February 26, 1999, and on a Registration Statement on Form S-8
(File No. 333-59630) filed with the Commission on April 27, 2001. The contents
of such Registration Statements on Form S-8 (File Nos. 333-73027 and 333-59630)
are incorporated herein by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed in (a) through (c) below are incorporated by reference
in this Registration Statement and all documents subsequently filed by the
registrant pursuant to Sections 13(a), 13(c), 14 and 15(c) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part thereof from the date of filing of such
documents.
(a) The registrant's annual report on Form 10-K for the fiscal year ended
September 30, 2003.
(b) The registrant's quarterly report on Form 10-Q for the quarter ended
December 31, 2003.
(c) The registrant's current reports on Form 8-K filed on January 27, 2004
and January 30, 2004.
(d) The description of the registrant's Class A Common Stock contained in
the registrant's Registration Statement on Form 8-A (File No.
000-25346) filed with the Commission on January 9, 1995.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides for the
indemnification of officers and directors, subject to certain limitations. The
Certificate of Incorporation of the registrant expressly provides for
indemnification of an officer or director made a party or threatened to be made
a party to proceedings by reason of the fact that such person was an officer or
director to the fullest extent authorized by law. The Certificate of
Incorporation also authorizes the registrant to maintain officer and director
liability insurance, and the registrant currently maintains such a policy. The
Certificate of Incorporation authorizes the use of indemnification agreements
and the registrant has entered into such agreements with its directors and
certain officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Following is a listing of exhibits filed as a part of this Form S-8 or
incorporated by reference:
Exhibit Number Description
-------------- -----------
3.1 Amended and Restated Certificate of Incorporation
of Registrant, and amendments thereto
3.2 Amended and Restated Bylaws of Registrant
4.1* Transaction Systems Architects, Inc. 1999 Employee Stock
Purchase Plan
5.1 Opinion of Jones Day as to validity of securities being
registered
23.1 Independent Auditors' Consent
23.2 Consent of Jones Day (contained in Exhibit 5.1)
24.1 Power of Attorney (included herein following Signature)
-----------------
* Incorporated by reference to annex B to the registrant's Proxy Statement
for the 2004 Annual Meeting of Stockholders.
2
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Omaha, State of Nebraska on this 12th day of March,
2004.
TRANSACTION SYSTEMS ARCHITECTS, INC.
By: /s/ Gregory D. Derkacht
-------------------------------------
Gregory D. Derkacht
President and Chief Executive Officer
3
POWER OF ATTORNEY
We, the undersigned officers and directors of Transaction Systems
Architects, Inc., hereby severally and individually constitute and appoint
Dennis P. Byrnes, David R. Bankhead and Donald P. Newman and each of them, the
true and lawful attorneys and agents of each of us to execute in the name, place
and stead of each of us (individually and in any capacity stated below) any and
all amendments to this Registration Statement on Form S-8, and all instruments
necessary or advisable in connection therewith, and to file the same with the
Commission, each of said attorneys and agents to have power to act with or
without the other and to have full power and authority to do and perform in the
name and on behalf of each of the undersigned every act whatsoever necessary or
advisable to be done in the premises as fully and to all intents and purposes as
any of the undersigned might or could do in person, and we hereby ratify and
confirm our signatures as they may be signed by our said attorneys and agents
and each of them to any and all such amendments and other instruments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Name Title Date
---- ----- ----
/s/ Gregory D. Derkacht President, Chief Executive Officer March 12, 2004
- ------------------------- and Director
Gregory D. Derkacht (Principal Executive Officer)
/s/ David R. Bankhead Senior Vice President, Chief March 12, 2004
- ------------------------- Financial Officer and Treasurer
David R. Bankhead (Principal Financial Officer)
/s/ Donald P. Newman Vice President, Chief Accounting March 12, 2004
- ------------------------- Officer and Controller
Donald P. Newman (Principal Accounting Officer)
/s/ Harlan F. Seymour Chairman of the Board and Director March 12, 2004
- -------------------------
Harlan F. Seymour
/s/ Roger K. Alexander Director March 12, 2004
- -------------------------
Roger K. Alexander
/s/ John D. Curtis Director March 12, 2004
- -------------------------
John D. Curtis
/s/ Jim D. Kever Director March 12, 2004
- -------------------------
Jim D. Kever
/s/ Frank R. Sanchez Director March 12, 2004
- -------------------------
Frank R. Sanchez
/s/ John E. Stokely Director March 12, 2004
- -------------------------
John E. Stokely
4
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
3.1 Amended and Restated Certificate of Incorporation
of Registrant, and amendments thereto
3.2 Amended and Restated Bylaws of Registrant
4.1* Transaction Systems Architects, Inc. 1999 Employee Stock
Purchase Plan
5.1 Opinion of Jones Day as to validity of securities being
registered
23.1 Independent Auditors' Consent
23.2 Consent of Jones Day (contained in Exhibit 5.1)
24.1 Power of Attorney (included herein following Signature)
- -----------------
* Incorporated by reference to annex B to the registrant's Proxy Statement
for the 2004 Annual Meeting of Stockholders.
5
Exhibit 3.1
ACI HOLDING, INC.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
ACI Holding, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, (the
"Corporation"), DOES HEREBY CERTIFY:
1. The name of the Corporation is ACI Holding, Inc. The original
Certificate of Incorporation was filed with the Secretary of the State of
Delaware on November 2, 1993, and the Amended and Restated Certificate of
Incorporation was filed with the Secretary of State of Delaware on December 30,
1993.
2. Pursuant to Sections 242 and 245 of the General Corporation Law
of the State of Delaware, this Amended and Restated Certificate of Incorporation
restates and integrates and further amends the provisions of the Certificate of
Incorporation of the Corporation.
3. The text of the Amended and Restated Certificate of
Incorporation as heretofore amended or supplemented is hereby restated and
further amended to read in its entirety as follows:
FIRST: The name of the corporation (which is hereinafter called
the ("Corporation") is:
ACI Holding, Inc.
SECOND: The address of the registered office in Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County,
Delaware, and the name of the registered agent is The Corporation Trust 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 Delaware.
FOURTH: The amount of the total authorized capital stock of the
Corporation is 15,450,000 shares which are divided into classes of shares
designated, respectively, as Preferred Stock, having a par value of $.01 per
share ("Preferred Stock") and two classes of Common Stock, having a par value of
$.01 per share ("Common Stock"). The total number of shares of Preferred Stock
the Corporation shall have authority to issue is 5,450,000. The total number of
shares of all classes of Common Stock the Corporation shall have authority to
issue is 10,000,000. A portion of the Preferred Stock is designated into Series
as follows:
A series of 1,500,000 shares of Preferred Stock, having a par
value of $.01 each, designated as "Senior Convertible
Preferred Stock, Series A."
A series of 1,000,000 shares of Preferred Stock, having a par
value of $.01 each, designated as "Senior Convertible
Preferred Stock, Series A-2."
A series of 1,000,000 shares of Preferred Stock, having a par
value of $.01 each, designated as "Senior Convertible
Preferred Stock, Series B."
A series of 1,000,000 shares of Preferred Stock, having a par
value of $.01 each, designated as "Senior Convertible
Preferred Stock, Series B-2."
A series of 350,000 shares of Preferred Stock, having a par
value of $.01 each, designated as "Junior Convertible
Preferred Stock, Series A."
A series of 600,000 shares of Preferred Stock, having a par
value of $.01 each, designated as "Junior Convertible
Preferred Stock, Series B."
The Common Stock is designated into Classes as follows:
A class of 8,000,000 shares of Common Stock, having a par
value of $.01 each, designated as "Class A Common Stock."
A class of 2,000,000 shares of Common Stock, having a par
value of $.01 each, designated as "Class B Common Stock."
The relative rights, preferences and privileges of the Class A Common
Stock, the Class B Common Stock, the Senior Convertible Preferred Stock, Series
A (the "Senior Series A Preferred Stock"), the Senior Convertible Preferred
Stock, Series A-2 (the "Senior Series A-2 Preferred Stock"), the Senior
Convertible Preferred Stock, Series B (the "Senior Series B Preferred Stock"),
the Senior Convertible Preferred Stock, Series B-2 (the "Senior Series B-2
Preferred Stock), the Junior Convertible Preferred Stock, Series A (the "Junior
Series A Preferred Stock'), and the Junior Convertible Preferred Stock, Series B
(the "Junior Series B Preferred Stock") are set forth herein. The Senior Series
A Preferred Stock, the Senior Series A-2 Preferred Stock, the Senior Series B
Preferred Stock and the Senior Series B-2 Preferred Stock are hereinafter
collectively referred to as the "Senior Preferred Stock." The Junior Series A
Preferred Stock and the Junior Series B Preferred Stock are
- 2 -
hereinafter collectively referred to as the "Junior Preferred Stock." The Senior
Preferred Stock and the Junior Preferred Stock are hereinafter collectively
referred to as the "Series Preferred Stock." The Class A Common Stock and the
Class B Common Stock are hereinafter collectively referred to as the "Common
Stock." The Senior Series A Preferred Stock, the Senior Series A-2 Preferred
Stock, the Junior Series A Preferred Stock and the Class A Common Stock are
hereinafter collectively referred to as the "A Stock." The Senior Series B
Preferred Stock, the Senior Series B-2 Preferred Stock, the Junior Series B
Preferred Stock and the Class B Common Stock are hereinafter collectively
referred to as the "B Stock."
A. Series Preferred Stock
1. Voting. The Senior Series B Preferred Stock, the Senior
Series B-2 Preferred Stock and the Junior Series B Preferred Stock shall have no
voting rights except as provided by law and by Section 7 hereof. Each share of
Senior Series A Preferred Stock or Junior Series A Preferred Stock shall entitle
the holder thereof to such number of votes per share on any matter or thing to
be considered and acted upon by stockholders as shall equal the number of shares
of Class A Common Stock (including fractions of a share) into which such share
of Senior Series A Preferred Stock or Junior Series A Preferred Stock is then
convertible. Except as may be otherwise required by this Article FOURTH or by
law, the Senior Series A Preferred Stock and the Junior Series A Preferred Stock
shall vote together as a single class with the Class A Common Stock on all such
matters and things.
2. Dividends. From date of issue until the close of business
on the closing date of a Qualified Public Offering (as defined under
subparagraph 4A hereof), the holders of the Senior Preferred Stock shall be
entitled to receive, out of funds legally available therefor, when and if
declared by the board of directors, quarterly dividends, payable on January 1,
April 1, July 1, and October 1 of each year (and on the date of the Qualified
Public Offering) to holders of record on such dates, commencing on April 1,
1994, at the rate per annum of $.70 per share, as adjusted for stock splits,
stock dividends, recapitalizations, reclassifications and similar events which
affect the number of outstanding shares of Senior Preferred Stock (together
referred to herein as "Recapitalization Events") (the "Accruing Dividends"), in
preference to and priority over any payment of dividends on Junior Preferred
Stock or Common Stock. Accruing Dividends shall accrue from day to day, whether
or not earned or declared, and shall be cumulative. No dividends shall be
declared and set aside for any shares of Senior Series A Preferred Stock or
Senior Series B Preferred Stock, respectively, unless at the same time a like
dividend for the same period shall be declared, set aside and paid on all the
then outstanding shares of the other series of Senior Preferred Stock. Until
January 1, 1999, all Accruing Dividends (a) on outstanding shares of Senior
Series A Preferred Stock shall be paid solely in kind by the issuance of a
dividend of additional shares
- 3 -
of Senior Series A Preferred Stock (which shall be Senior Series A-2 Preferred
Stock following the Maximum PIK Conversion Date, as defined below) at the rate
of 7/100 of a share for each $.70 of Accruing Dividends (the "Series A PIK
Dividends") and (b) on outstanding shares of Senior Series B Preferred Stock
shall be paid solely in kind by the issuance of a dividend of Senior Series B
Preferred Stock (which shall be Senior Series B-2 Preferred Stock following the
Maximum PIK Conversion Date, as defined below) at the rate of 7/100 of a share
for each $.70 of Accruing Dividends (the "Series B PIK Dividends" and together
with the Series A PIK Dividends, collectively, the "PIK Dividends"). Beginning
January 1, 1999, Accruing Dividends may be paid in cash or PIK Dividends, at
the option of the Corporation. From and after the date on which the Corporation
has declared and paid an aggregate of 900,000 shares constituting PIK Dividends
(the "Maximum PIK Conversion Date"), PIK Dividends shall only be paid in shares
of Senior Series A-2 Preferred Stock and Senior Series B-2 Preferred Stock,
respectively. No dividend shall be declared, paid or set aside for payment on
any shares of Junior Preferred Stock or Common Stock unless all Accruing
Dividends on Senior Preferred Stock shall have been paid in full.
3. Liquidation. Upon any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary (a "Liquidation"), the
holders of the shares of Senior Preferred Stock shall be entitled, before any
distribution or payment is made upon any Junior Preferred Stock, Common Stock or
other stock ranking on liquidation junior to the Senior Preferred Stock, to be
paid an amount in cash equal to the greater of (i) $10.00 per share
(appropriately adjusted for Recapitalization Events) plus, in the case of each
share, an amount equal to all dividends, if any, accrued and unpaid thereon,
computed to the date payment thereof is made available (accrued and unpaid PIK
Dividends being valued, for such purpose, at $10.00 per share), or (ii) such
amount per share as would have been payable had each such share, and all accrued
and unpaid PIK Dividends thereon been converted to Common Stock pursuant to
paragraph 4 immediately prior to such Liquidation, and the holders of Senior
Preferred Stock shall not be entitled to any further payment, such amount
payable with respect to one share of Senior Preferred Stock being sometimes
referred to as the "Senior Liquidation Payments." If upon such Liquidation, the
assets to be distributed among the holders of Senior Preferred Stock shall be
insufficient to permit payment to the holders of Senior Preferred Stock of the
amount distributable as aforesaid, then the entire assets of the Corporation to
be so distributed shall be distributed ratably among the holders of Senior
Preferred Stock.
Upon any liquidation, after the holders of the Senior Preferred Stock
shall have been paid in full the amounts to which they shall be entitled, the
holders of the shares of Junior Preferred Stock shall be entitled, before any
distribution or payment is made upon any Common Stock or other stock ranking on
liquidation junior to the Junior Preferred Stock, to be paid an amount in cash
equal to the
- 4 -
greater of (i) $10.00 per share (appropriately adjusted for Recapitalization
Events), or (ii) such amount per share as would have been payable had each such
share been converted to Common Stock pursuant to paragraph 4 immediately prior
to such Liquidation, and the holders of Junior Preferred Stock shall not be
entitled to any further payment, such amount payable with respect to one share
of Junior Preferred Stock being sometimes referred to as the "Junior
Liquidation Payments." If upon such Liquidation, the assets to be distributed
among the holders-of Junior Preferred Stock shall be insufficient to permit
payment to the holders of Junior Preferred Stock of the amount distributable as
aforesaid, then the entire assets of the Corporation to be so distributed shall
be distributed ratably among the holders of Junior Preferred Stock.
Upon any Liquidation, after the holders of Series Preferred Stock shall
have been paid in full the amounts to which they shall be entitled, the
remaining net assets of the Corporation may be distributed to the holders of any
class of Preferred Stock ranking junior to the Series Preferred Stock, and,
thereafter to the Common Stock.
Written notice of such Liquidation, stating a payment date, the amount
of any payments to be made to the holders of the Series Preferred Stock and the
place where said payments shall be payable, shall be given by mail, postage
prepaid, or by telex to non-U.S. residents, not less than 20 days prior to the
payment date stated therein, to the holders of record of Series Preferred Stock,
such notice to be addressed to each such holder at its address as shown by the
records of the Corporation. The consolidation or merger of the Corporation into
or with any other entity or entities which results in the exchange of
outstanding shares of the Corporation for securities or other consideration
issued or paid or caused to be issued or paid by any such entity or affiliate
thereof, and the sale or transfer by the Corporation of all or substantially all
its assets, shall be deemed to be a Liquidation, within the meaning of the
provisions of this paragraph 3.
For purposes hereof, Junior Preferred Stock shall rank on Liquidation
junior to the Senior Preferred Stock, and the Common Stock shall rank on
Liquidation junior to the Senior Preferred Stock and the Junior Preferred Stock
and any other series of Preferred Stock.
4. Conversion. The holders of shares of Series Preferred Stock
shall have the following conversion rights:
4A. Right to Convert. Subject to the terms and
conditions of this paragraph 4, the holder of any share or shares of Senior
Series A Preferred Stock (other than shares of Senior Series A Preferred Stock
received as Series A PIK Dividends) or Junior Series A Preferred Stock
(collectively, the "A Preferred Stock") shall have the right, at its option at
any time, to convert any such shares of
- 5 -
A Preferred Stock (except that upon any Liquidation of the Corporation the
right of conversion shall terminate at the close of business on the business
day fixed for payment of the amount distributable on the A Preferred Stock)
into such number of fully paid and nonassessable shares of Class A Common Stock
as is obtained by (a) multiplying the number of shares of A Preferred Stock so
to be converted by $10.00 and (b) dividing the result by the conversion price
per share of $10.00 or, in case an adjustment of such price has taken place
pursuant to the further provisions of this paragraph 4, then by the conversion
price as last adjusted and in effect at the date any share or shares of
A Preferred Stock are surrendered for conversion (the "Conversion Price").
Subject to the terms and conditions of this paragraph 4, the
holder of any share or shares of Senior Series B Preferred Stock (other than
shares of Senior Series B Preferred Stock received as Series B PIK Dividends) or
Junior Series B Preferred Stock (collectively, the "B Preferred Stock") shall
have the right, at its option at any time, to convert any such shares of B
Preferred Stock (except that upon any Liquidation of the corporation the right
of conversion shall terminate at the close of business on the business day fixed
for payment of the amount distributable on the B Preferred Stock) into such
number of fully paid and nonassessable shares of Class B Common Stock (or, if
the Class B Common Stock shall have been converted pursuant to the provisions of
Article FOURTH, Section C hereof, into Class A Common Stock, such number of
shares of Class A Common Stock) as is obtained by (a) multiplying the number of
shares of B Preferred Stock so to be converted by $10.00 and (b) dividing the
result by the Conversion Price.
From and after January 1, 1997, unless a Qualified Public
Offering (as defined below) has occurred, subject to the terms and conditions of
this paragraph 4, (a) the holder of any share or shares of Senior Series A
Preferred Stock received as Series A PIK Dividends shall have the right, at its
option, to convert any such shares of Senior Series A Preferred Stock received
as Series A PIK Dividends (except that upon any Liquidation of the Corporation
the right of conversion shall terminate at the close of business on the business
day fixed for payment of the amount distributable on the Senior Series A
Preferred Stock received as Series A PIK Dividends) into such number of fully
paid and nonassessable shares of Class A Common Stock as is obtained by (i)
multiplying the number of shares of Senior Series A Preferred Stock received as
Series A PIK Dividends so to be converted by $10.00 and (ii) dividing the result
by the Conversion Price, and (b) the holder of any share or shares of Senior
Series B Preferred Stock received as Series B PIK Dividends shall have the
right, at its option, to convert any such shares of Senior Series B Preferred
Stock received as Series B PIK Dividends (except that upon any Liquidation of
the Corporation the right of conversion shall terminate at the close of business
on the business day fixed for payment of the amount distributable on the Senior
Series B Preferred Stock received as Series B PIK Dividends) into such number of
fully paid and nonassessable shares of Class B Common Stock (or, if the
- 6 -
Class B Common Stock shall be been converted pursuant to the provisions of
Article FOURTH, Section C hereof, into Class A Common Stock, such numbers of
Class A Common Stock) as is obtained by (i) multiplying the number of shares of
Senior Series B Preferred Stock received as Series B PIK Dividends so to be
converted by $10.00 and (ii) dividing the result by the Conversion Price.
Shares of Senior Series A-2 Preferred Stock and Senior Series B-2 Preferred
Stock shall not be convertible.
Notwithstanding the foregoing, the option to convert the
Senior Series A Preferred Stock or Senior Series B Preferred Stock received as
PIK Dividends shall not become effective if on or before the close of business
on January 1, 1997 there shall have occurred on the closing date of an
underwritten public offering of Common Stock of the Corporation pursuant to a
Registration Statement filed with the Securities and Exchange Commission
pursuant to the Securities Act of 1933 (a "Public Offering") which results in
net proceeds to the Corporation of at least $15 million; provided that the
product of (i) the sum of (x) the number of shares of Common Stock of the
Corporation outstanding immediately prior to the Public Offering, plus (y) the
number of shares of Common Stock which would have been outstanding had the
shares of Series Preferred Stock outstanding immediately prior to the Public
Offering been converted pursuant to the provisions of this paragraph 4, plus (z)
the number of shares of Common Stock issuable upon exercise of all warrants or
options to purchase Common Stock outstanding immediately prior to the Public
Offering which are then exercisable, times (ii) the price per share at which the
Common Stock is offered to the public in the Public Offering, shall equal or
exceed $125 million. A Public Offering meeting the criteria set forth in this
paragraph is referred to herein as a "Qualified Public Offering".
Such rights of conversion shall be exercised by the holder
thereof by giving written notice that the holder elects to convert a stated
number of shares of Series Preferred Stock into Common Stock and by surrender of
a certificate or certificates for the shares so to be converted to the
Corporation at its principal office (or such other office or agency of the
Corporation as the Corporation may designate by notice in writing to the holders
of the Series Preferred Stock) at any time during its usual business hours on
the date set forth in such notice, together with a statement of the name or
names (with address) in which the certificate or certificates for shares of
Common Stock shall be issued. The Corporation, immediately upon receipt by it of
a written notice by any holder of Series Preferred Stock of its election to
convert all or any of its shares of convertible Series Preferred Stock into
Common Stock, shall deliver to each holder of Series Preferred Stock a true copy
of such notice of election to convert and a statement of the date when same was
received by the Corporation. Any other holder of Series Preferred Stock who,
within 20 days after receipt of such notification, likewise shall elect to
convert all or any of its convertible Series Preferred Stock shall have its
election so made be deemed to have been made simultaneously with and to have the
same force and
- 7 -
effect as if made simultaneously with that of the holder first making such
election to convert.
4B. Issuance of Certificates: Time Conversion
Effected. Promptly after the receipt of the written notice referred to in
subparagraph 4A and surrender of the certificate or certificates for the share
or shares of Series Preferred Stock to be converted, the Corporation shall issue
and deliver, or cause to be issued and delivered, to the holder, registered in
such name or names as such holder may direct, a certificate or certificates for
the number of whole shares of Common Stock issuable upon the conversion of such
share or shares of Series Preferred Stock. To the extent permitted by law, such
conversion shall be deemed to have been effected and the Conversion Price shall
be determined as of the close of business on the date on which such written
notice shall have been received by the Corporation and the certificate or
certificates for such share or shares shall have been surrendered as aforesaid,
and at such time the rights of the holder of such share or shares of Series
Preferred Stock shall cease, and the person or persons in whose name or names
any certificate or certificates for shares of Common Stock shall be issuable
upon such conversion shall be deemed to have become the holder or holders of
record of the shares represented thereby.
4C. Fractional Shares; Dividends; Partial
Conversion. No fractional shares shall be issued upon conversion of Series
Preferred Stock into Common Stock and no payment or adjustment shall be made
upon any conversion on account of any cash dividends on the Common Stock issued
upon such conversion. At the time of each conversion, the Corporation shall pay
in cash (or in additional shares of Series Preferred Stock of the same class
representing accrued but unpaid PIK Dividends, which may, at the option of the
holder, be paid instead in such number of shares of Common Stock (if any) into
which such shares of Series Preferred Stock representing PIK Dividends shall be
convertible, unless such Series Preferred Stock representing PIK Dividends shall
no longer be convertible, in which case the same shall be paid in cash at the
rate of $10.00 per share of Series Preferred Stock representing PIK Dividends)
an amount equal to all dividends, including Accruing Dividends, if any, accrued
and unpaid on the shares of Series Preferred Stock surrendered for conversion to
the date upon which such conversion is deemed to take place as provided in
subparagraph 4B. In case the number of shares of Series Preferred Stock
represented by the certificate or certificates surrendered pursuant to
subparagraph 4A exceeds the number of shares converted, the Corporation shall,
upon such conversion, execute and deliver to the holder, at the expense of the
Corporation, a new certificate or certificates for the number of shares of
Series Preferred Stock represented by the certificate or certificates
surrendered which are not to be converted. If any fractional share of Common
Stock would, except for the provisions of the first sentence of this
subparagraph 4C, be delivered upon such conversion, the Corporation, in lieu of
delivering such fractional share, shall pay to the holder surrendering the
Series Preferred Stock for
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conversion an amount in cash equal to the current market price of such
fractional share as determined in good faith by the Board of Directors of the
Corporation.
4D. Adjustment of Price Upon Issuance of
Common Stock. Except as provided in subparagraph 4E, if and whenever the
Corporation shall issue or sell, or is, in accordance with subparagraphs 4D(1)
through 4D(7), deemed to have issued or sold, any shares of Common Stock for a
consideration-per share less than the Conversion Price, in effect immediately
prior to the time of such issue or sale, then, forthwith upon such issue or
sale, the Conversion Price shall be reduced to the price at which the
Corporation issued or sold, or is deemed to have issued or sold, such shares of
Common Stock.
For purposes of this subparagraph 4D, the following
subparagraphs 4D(1) to 4D(7) shall also be applicable:
4D(1) Issuance of Rights or Options. In case at any
time after the issuance of the Series Preferred Stock the
Corporation shall in any manner grant (whether directly or by
assumption in a merger or otherwise) any warrants or other
rights to subscribe for or to purchase, or any options for the
purchase of, Common Stock or any stock or security convertible
into or exchangeable for Common Stock (such warrants, rights
or options being called "Options" and such Convertible or
exchangeable stock or securities being called "Convertible
Securities"), except for options granted to employees of the
Corporation or its subsidiaries pursuant to a management Stock
Option Plan approved by all members of the Board of Directors
elected by the Series Preferred Stock, whether or not such
Options or the right to convert or exchange any such
Convertible Securities are immediately exercisable, and the
price per share for which Common Stock is issuable upon the
exercise of such Options or upon the conversion or exchange of
such Convertible Securities (determined by dividing (i) the
total amount, if any, received or receivable by the
Corporation as consideration for the granting of such Options,
plus the minimum aggregate amount of additional consideration,
if any, payable upon the issue or sale of such Convertible
Securities and upon the conversion or exchange thereof, by
(ii) the total maximum number of shares of Common Stock
issuable upon the conversion or exchange of all such
Convertible Securities) shall be less than the Conversion
Price in effect immediately prior to the time of the granting
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 have been issued for such price per
share as of the date of granting of such Options or the
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issuance of such Convertible Securities and thereafter shall
be deemed to be outstanding. Except as otherwise provided in
subparagraph 4D(3), no adjustment of the Conversion Price,
shall be made upon the actual issue of such Common Stock or
of such Convertible Securities upon exercise of such Options
or upon the actual issue of such Common Stock upon conversion
or exchange of such Convertible Securities.
4D(2) Issuance of Convertible Securities. In case the
Corporation shall in any manner issue (whether directly or by
assumption in a merger or otherwise) or sell any Convertible
Securities, whether or not the rights to exchange or convert
any such Convertible Securities are immediately exercisable,
and the price per share for which Common Stock is issuable
upon such conversion or exchange (determined by dividing (i)
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 (ii) the total maximum
number of shares of Common Stock issuable upon the conversion
or exchange of all such Convertible Securities) shall be less
than the Conversion Price in effect immediately prior to the
time of such issue or sale, then the total maximum number of
shares of Common Stock issuable upon conversion or exchange of
all such Convertible Securities shall be deemed to have been
issued for such price per share as of the date of the issue or
sale of such Convertible Securities and thereafter shall be
deemed to be outstanding, provided that (a) except as
otherwise provided in subparagraph 4D(3), no adjustment of the
Conversion Price shall be made upon the actual issue of such
Common Stock upon conversion or exchange of such Convertible
Securities and (b) if any such issue or sale of such
Convertible Securities is made upon exercise of any Options to
purchase any such Convertible Securities for which adjustments
of the Conversion Price have been or are to be made pursuant
to other provisions of this subparagraph 4D, no further
adjustment of the Conversion Price shall be made by reason of
such issue or sale.
4D(3) Change in Option Price or Conversion Rate. Upon
the happening of any of the following events, namely, if the
purchase price provided for in any Option referred to in
subparagraph 4D(1), the additional consideration, if any,
payable upon the conversion or exchange of the Convertible
Securities referred to in subparagraph 4D(1) or 4D(2), or the
rate at which Convertible Securities referred to in
subparagraph 4D(1) or 4D(2) are convertible into or
exchangeable for Common Stock shall change at any time
(including, but not limited
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to, changes under or by reason of provisions designed to
protect against dilution), the Conversion Price in effect at
the time of such event shall forthwith be readjusted 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, but only if as a
result of such adjustment the Conversion Price then in effect
hereunder is thereby reduced.
On the expiration of any Option described in subparagraphs
4D(1), (2) or (3) or the termination of any right to convert
or exchange Convertible Securities described in subparagraphs
4D(1), or (2) or (3), the Conversion Price then in effect
hereunder shall forthwith be increased to the Conversion Price
which would have been in effect at the time of such expiration
or termination had such Option or Convertible Securities, to
the extent outstanding immediately prior to such expiration or
termination, never been issued.
4D(4) Stock Dividends. In case the Corporation shall
declare a dividend or make any other distribution upon any
stock of the Corporation payable in Common Stock (except for
dividends or distributions upon the Common Stock), Options or
Convertible Securities (other than PIK Dividends), any Common
Stock, Options or Convertible Securities, as the case may be,
issuable in payment of such dividend or distribution shall be
deemed to have been issued or sold for a consideration of
$.01.
4D(5) Consideration for Stock. In case any shares of
Common Stock, Options or Convertible Securities shall be
issued or sold for cash, the consideration received therefor
shall be deemed to be the amount received by the Corporation
therefor, without deduction therefrom of any expenses incurred
or any underwriting commissions or concessions paid or allowed
by the Corporation in connection therewith. In case any shares
of Common Stock, Options or Convertible Securities shall be
issued or sold for a consideration other than cash, the amount
of the consideration other than cash received by the
Corporation shall be deemed to be the fair value of such
consideration as determined in good faith by the Board of
Directors of the Corporation, without deduction of any
expenses incurred or any underwriting commissions or
concessions paid or allowed by the Corporation in connection
therewith. In case any Options shall be issued in connection
with the issue and sale of other securities of the
Corporation, together comprising one integral transaction in
which no
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specific consideration is allocated to such Options by the
parties thereto, such options shall be deemed to have been
issued for such consideration as determined in good faith
by the Board of Directors of the Corporation.
4D(6) Record Date. In case the Corporation shall take
a record of the holders of its Common Stock for the purpose of
entitling them (i) to receive a dividend or other distribution
payable in Common Stock, Options or Convertible Securities or
(ii) to subscribe for or purchase Common Stock, Options or
Convertible Securities, then such record date shall be deemed
to be the date of the issue or sale of the shares of Common
Stock deemed to have been issued or sold upon the declaration
of such dividend or the making of such other distribution or
the date of the granting of such right or subscription or
purchase, as the case may be.
4D(7) 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, and
the disposition of any such shares shall be considered an
issue or sale of Common Stock for the purpose of this
subparagraph 4D.
4E. Certain Issues of Common Stock Executed.
Anything herein to the contrary notwithstanding, the Corporation shall not be
required to make any adjustment of the Conversion Price in the case of the
issuance of up to (a) an aggregate of 477,744 shares (appropriately adjusted to
reflect the occurrence of any event described in subparagraph 4F) of Class B
Common Stock or options exercisable therefor, to employees of the Corporation in
connection with their employment by the Corporation, (b) an aggregate of 881,420
shares of Common Stock (subject to adjustment by the terms thereof) issuable
pursuant to the exercise of warrants issued on or prior to December 31, 1993,
(c) an aggregate of 5,775 shares of Common Stock (subject to adjustment by the
terms thereof) issuable pursuant to the exercise of warrants to be issued to
Nations Financial Capital Corporation or its assignee(s) and (d) an aggregate of
30,000 shares of Common Stock (subject to adjustment by the terms thereof)
issuable to a qualified employee benefit plan of the Corporation.
4F. Subdivision or Combination of Common
Stock. In case the Corporation shall at any time subdivide (by any stock split,
stock dividend 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, conversely, in case the
outstanding shares of Common Stock shall be combined into a smaller number of
shares, the Conversion Price or in effect immediately prior to such combination
shall be proportionately increased.
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4G. Reorganization or Reclassification. If any
capital reorganization or reclassification of the capital stock of the
Corporation shall be effected in such a way that holders of Common Stock shall
be entitled to receive stock, securities or assets with respect to or in
exchange for Common Stock, then, as a condition of reorganization or
reclassification, lawful and adequate provisions shall be made whereby each
holder of a share or shares of Series Preferred Stock shall thereupon have the
right to receive, upon the basis and upon the terms and conditions specified
herein and in lieu of the shares of Common Stock immediately theretofore
receivable upon the conversion of such share or shares of Series Preferred
Stock, such shares of stock, securities or assets as may be issued or payable
with respect to or in exchange for number of outstanding shares of such Common
Stock equal to the number of shares of such Common Stock immediately theretofore
receivable upon such conversion had such reorganization or reclassification not
taken place, and in any such case appropriate provisions shall be made with
respect to the rights and interests of such holder to the end that the
provisions hereof (including without limitation provisions for adjustments of
the Conversion Price) shall thereafter be applicable, as nearly as may be, in
relation to any shares of stock, securities or assets thereafter deliverable
upon the exercise of such conversion rights.
4H. Notice of Adjustment. Upon any adjustment
of the Conversion Price then and in each such case the Corporation shall give
written notice thereof, by first class mail, postage prepaid, or by telex to
non-US. residents, addressed to each holder of shares of Series Preferred Stock
at the address of such holder as shown on the books of the Corporation, which
notice shall state the Conversion Price resulting from such adjustment, setting
forth in reasonable detail the method upon which such calculation is based.
4I. Other Notices. In case at any time:
(1) the Corporation shall declare any
dividend upon its Common Stock payable in cash or stock or make any other
distribution to the holders of its Common Stock;
(2) the Corporation shall offer for
subscription pro rata to the holders of its Common Stock any additional shares
of stock of any class or other rights;
(3) there shall be any capital
reorganization or reclassification of the capital stock of the Corporation, or a
consolidation or merger of the Corporation with or into, or a sale of all or
substantially all its assets to, another entity or entities; or
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(4) there shall be a Liquidation; and
(5) then, in any one or more of said
cases, the Corporation shall give, by first class mail, postage prepaid, or by
telex to non-US. residents, addressed to each holder of any shares of Series
Preferred Stock at the address of such holder as shown on the books of the
Corporation, (a) at least 20 days' prior written notice of the date on which the
books of the Corporation shall close or a record shall be taken for such
dividend, distribution or subscription rights or for determining rights to vote
in respect of any such reorganization, reclassification, consolidation, merger,
sale, Liquidation and (b) in the case of any such reorganization,
reclassification, consolidation, merger, sale, Liquidation, at least 20 days'
prior written notice of the date when the same shall take place. Such notice in
accordance with the foregoing clause (a) shall also specify, in the case of any
such dividend, distribution or subscription rights, the date on which the
holders of Common Stock shall be entitled thereto and such notice in accordance
with the foregoing clause (b) shall also specify the date on which the holders
of Common Stock shall be entitled to exchange their Common Stock for securities
or other property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, or Liquidation, as the case may be.
4J. Stock to be Reserved. The Corporation
will at all times reserve and keep available out of its authorized Common Stock,
solely for the purpose of issuance upon the conversion of Series Preferred Stock
as herein provided, such number of shares of Common Stock as shall then be
issuable upon the conversion of all outstanding shares of Series Preferred
Stock. The Corporation covenants that all shares of Common Stock which shall be
so issued shall be duly and validly issued and fully paid and nonassessable and
free from all taxes, liens and charges with respect to the issue thereof, and,
without limiting the generality of the foregoing, the Corporation covenants that
it will from time to time take all such action as may be requisite to assure
that the par value per share of the Common Stock is at all times equal to or
less than the Conversion Price in effect at the time. The Corporation will take
all such action as may be necessary to assure that all such shares of Common
Stock may be so issued without violation of any applicable law or regulation, or
of any requirement of any national securities exchange upon which the Common
Stock may be listed. The Corporation will not take any action which results in
any adjustment of the Conversion Price if the total number of shares of Common
Stock issued and issuable after such action upon conversion of the Series
Preferred Stock would exceed the total number of shares of Common Stock then
authorized by this Certificate of Incorporation.
4K. No Reissuance of Series Preferred Stock.
Shares of Series Preferred Stock which are converted into shares of Common Stock
as provided herein shall not be reissued.
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4L. Issue Tax. The issuance of certificates
for shares of Common Stock upon conversion of Series Preferred Stock shall be
made without charge to the holders thereof for any issuance tax in respect
thereof, provided that the Corporation shall not be required to pay any tax
which may be payable in respect of any transfer involved in the issuance and
delivery of any certificate in a name other than that of the holder of the
Series Preferred Stock which is being converted.
4M. Closing of Books. The Corporation will at
no time close its transfer books against the transfer of any Series Preferred
Stock or of any shares of Common Stock issued or issuable upon the conversion of
any shares of Series Preferred Stock in any manner which interferes with the
timely conversion of such Series Preferred Stock, except as may otherwise be
required to comply with applicable securities laws.
4N. Definition of Common Stock. As used in
this paragraph 4, the term "Common Stock" shall mean and include the
Corporation's authorized Class A and Class B Common Stock, $.01 par value, as
constituted on the date of filing of this Amended and Restated Certificate of
Incorporation, and shall also include any capital stock of any class of the
Corporation thereafter authorized which shall neither be limited to a fixed sum
or percentage of par value in respect of the rights of the holder thereof to
participate in dividends nor entitled to a preference in the distribution of
assets upon the voluntary or involuntary liquidation, dissolution or winding up
of the Corporation.
5. Redemption at Option of the Series Preferred Stock.
5A. Redemption Price and Election. If any
holder of then outstanding shares of Series Preferred Stock requests the
Corporation in writing, given at any time or from time to time on or after
December 31, 2003 (the "Redemption Election"), to redeem shares of the
outstanding Series Preferred Stock, the Corporation shall give prompt written
notice thereof to all other holders of Series Preferred Stock whereupon such
other holders shall give written notice to the Corporation (the "Notice Period")
if they desire to have their shares of Series Preferred Stock redeemed, stating
the number of such shares they wish to have so redeemed. Subject to the
conditions set forth in this paragraph 5, the Corporation shall, immediately
after the Notice Period, first redeem all shares of Senior Preferred Stock
specified in such requests at the time, and pursuant to the terms, set forth
below, in each case by paying in cash, out of funds legally available therefor,
a sum per share equal to $10.00 per share (appropriately adjusted for
Recapitalization Events) plus, in the case of each share, an amount equal to all
Accruing Dividends in respect of such shares unpaid thereon (whether or not
declared) and any other dividends declared but unpaid thereon, computed to the
date payment thereof is made available (valuing any accrued but unpaid PIK
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Dividends at $10.00 per share, appropriately adjusted for Recapitalization
Events) (the "Redemption Price"), and then, to the extent funds are legally
available therefor after payment in full to the holders of Senior Preferred
Stock electing to redeem, redeem all shares of Junior Preferred Stock specified
in such requests at the time, and pursuant to the terms, set forth below, in
each case by paying in cash, out of the funds legally available therefor, a sum
per share equal to the Redemption Price.
5B. Redemption Date. Subject to the
Corporation having funds legally available, the closing of the redemption of
shares of Senior Preferred Stock shall occur on or about 60 days following the
date of the Redemption Election (the "Senior Redemption Date") and redemption of
shares of Junior Preferred Stock shall occur thereafter, as determined by the
Board of Directors, provided that it shall not occur more than ten (10) days
after the Senior Redemption Date (the "Junior Redemption Date"). The Senior
Redemption Date and Junior Redemption Date may hereinafter sometime be referred
to as the "Redemption Date" or the "Redemption Dates."
5C. Redemption Notice. If the Redemption
Election has been received, the Corporation shall mail, postage prepaid, not
less than 30 days nor more than 60 days prior to the Redemption Date, written
notice thereof (the "Redemption Notice"), to each holder of record of the Series
Preferred Stock to be redeemed, at his post office address last shown on the
records of the Corporation. Each such Redemption Notice shall state:
(1) The number of shares of Series Preferred Stock
held by the holder that the Corporation shall redeem on the
Redemption Date specified in the
Redemption Notice;
(2) The Redemption Date and Redemption Price;
(3) The date upon which the holder's Conversion
Rights as to such shares terminate which termination shall be
on the close of business on the Redemption Date; and
(4) That the holder is to surrender to the
Corporation, in that manner and at the place designated, his
certificate or certificates representing the shares of Series
Preferred Stock to be redeemed.
5D. Surrender of Certificates; Payment. On or
before each Redemption Date, each holder of shares of Series Preferred Stock to
be redeemed on
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such Redemption Date, unless such holder has exercised his right to convert the
shares as provided in paragraph 4 hereof, shall surrender the certificate or
certificates representing such shares to the Corporation, in the manner and at
the place designated in the Redemption Notice, and thereupon the Redemption
Price for such shares shall be payable to the order of the person whose name
appears on such certificates or certificates as the owner thereof, and each
surrendered certificate shall be canceled and retired. In the event less than
all of the shares represented by such certificate are redeemed, a new
certificate representing the unredeemed shares shall be issued forthwith.
5E. Rights Subsequent to Redemption. If the
Redemption Notice shall have been duly given, and if on each Redemption Date the
applicable Redemption Price therefor is either paid or made available for
payment through the deposit arrangement specified in subparagraph F below, then
notwithstanding that the certificates evidencing any of the shares of Series
Preferred Stock so called for redemption shall not have been surrendered, the
dividends with respect to such shares shall cease to accrue after the applicable
Redemption Date and all rights with respect to such shares shall forthwith
terminate after the applicable Redemption Date, except only the right of the
holders to receive the applicable Redemption Price without interest upon
surrender of their certificate or certificates therefor.
5G. Deposit of Funds. On or prior to each
Redemption Date, the Corporation shall deposit with any bank or trust company,
having capital and surplus of at least $100,000,000 as a trust fund, a sum equal
to the aggregate Redemption Price of all shares of Series Preferred Stock called
for redemption on such Redemption Date and not yet redeemed or converted, with
irrevocable instructions and authority to the bank or trust company to pay, on
and after each such Redemption Date, the applicable Redemption Price to the
respective holders upon the surrender of their share certificates. From and
after the date of such deposit (but not prior to each Redemption Date), the
shares so called for redemption on such Redemption Date shall be redeemed. The
deposit shall constitute full payment of the shares of their holders, and from
and after each Redemption Date the shares redeemed on such Redemption Date shall
be deemed to be no longer outstanding, and the holders thereof shall cease to be
shareholders with respect to such shares and shall have no rights with respect
thereto except the rights to receive, from the bank or trust company, payment of
the applicable Redemption Price of the shares, without interest, upon surrender
of their certificates therefor.
Any funds so deposited and unclaimed at the end of one year from the Redemption
Date shall be released or repaid to the Corporation, after which the holders of
shares called for redemption shall be entitled to receive payment of the
applicable Redemption Price only from the Corporation.
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5H. Funds Unavailable. If the funds of the
Corporation legally available for redemption of shares of Senior Preferred Stock
on the Senior Redemption Date are insufficient to redeem the total number of
outstanding shares of Senior Preferred Stock scheduled to be redeemed on such
date, the holders of shares of Senior Preferred Stock scheduled to be redeemed
shall share ratably in any funds legally available for redemption of such shares
according to the respective amounts which would be payable with respect to the
full number of shares owned by them if all such outstanding shares were redeemed
in full. The shares of Senior Preferred Stock not redeemed shall remain
outstanding and entitled to all rights and preferences provided herein. At any
time thereafter when additional funds of the Corporation are legally available
for the redemption of such shares of Senior Preferred Stock, such funds will be
used, at the end of the next succeeding fiscal quarter, to redeem the balance of
such shares, or such portion thereof for which funds are then legally available,
on the basis set forth above. If the funds of the Corporation legally available
for redemption of shares of Junior Preferred Stock on the Junior Redemption Date
are insufficient to redeem the total number of outstanding shares of Junior
Preferred Stock scheduled to be redeemed on such date, the holders of shares of
Junior Preferred Stock scheduled to be redeemed shall share ratably in any funds
legally available for redemption of such shares according to the respective
amounts which would be payable with respect to the full number of shares owned
by them if all such outstanding shares were redeemed in full. The shares of
Junior Preferred Stock not redeemed shall remain outstanding and entitled to all
rights and preferences provided herein. At any time thereafter when additional
funds of the Corporation are legally available for the redemption of such shares
of Junior Preferred Stock, such funds will be used, at the end of the next
succeeding fiscal quarter, to redeem the balance of such shares, or such portion
thereof for which funds are then legally available, on the basis set forth
above.
5I. Redeemed or Otherwise Acquired Shares to
be Retired. Any shares of Series Preferred Stock redeemed pursuant to this
paragraph 5 or Paragraph 6 or otherwise acquired by the Corporation in any
manner whatsoever shall be canceled and shall not under any circumstances be
reissued; and the Corporation may from time to time take such appropriate
corporate action as may be necessary to reduce accordingly the number of
authorized shares of Series Preferred Stock.
6. Redemption at the Option of the Corporation. In the event
of a Qualified Public Offering, the Corporation shall have the right, beginning
on the date following the closing date of such Qualified Public Offering, to
redeem all shares of Series Preferred Stock issued as PIK Dividends, at the
Redemption Price, computed to the date payment thereof is made. At least thirty
but not more than sixty days prior to the date fixed by the Corporation for such
redemption, the Corporation shall give written notice of its intention to so
redeem to each holder of Series Preferred Stock to be redeemed, in accordance
with Paragraph 5C hereof,
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and on and after such redemption date, the provisions of Paragraph 5E hereof
shall apply.
7. Amendments. No provision of the terms of the Senior
Preferred Stock or the Junior Preferred Stock, respectively, may be amended,
modified or waived without the written consent or affirmative vote of the
holders of at least two-thirds of the then outstanding shares of the Senior
Preferred Stock or the Junior Preferred Stock, respectively, voting separately
by class; provided, however, that in the event that an amendment, modification
or waiver of the terms of one series of Series Preferred Stock would result in
any of the rights of the holders of another series of Series Preferred Stock
being adversely affected, then the amendment, modification or waiver of such
terms may not be effected without the written consent of two-thirds of the
holders of each series of Series Preferred Stock affected, voting separately by
series and class.
B. Preferred Stock
The remaining shares of unclassified Preferred Stock may be
issued from time to time in one or more series. The Board of Directors is
expressly authorized, subject to the limitations prescribed by law and this
Article FOURTH, from time to time, to provide for the issuance of all or any of
the remaining shares of Preferred Stock in one or more series, and by filing a
certificate pursuant to the applicable law of the State of Delaware, (1) to fix
the number of shares to be included in one or more series of Preferred Stock;
(2) to determine the designation of any such series; (3) to determine or alter,
without limitation or restriction, the relative rights, preferences, privileges
and the qualifications, limitations and restrictions granted to or imposed upon
any wholly unissued series of Preferred Stock; and (4) within the limits or
restrictions stated in any resolution or resolutions of the Board of Directors
originally fixing the number of shares constituting any series, to increase (but
not above the total number of authorized shares of the class) or decrease (but
not below the number of shares thereof then outstanding) the number of shares of
any such series subsequent to the issue of shares of that series.
C. Common Stock
1. Definitions. As used herein, the term "Common Stock" used
without reference to the Class A Common Stock or the Class B Common Stock means
the Class A Common Stock and Class B Common Stock, share-for-share alike and
without distinction, except as otherwise set forth herein or as the context
otherwise requires.
2. Voting. Subject to the provisions of Article FOURTH,
Section A, the holder of each outstanding share of Class A Common Stock shall be
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entitled to one vote per share on all matters upon which the stockholders of the
Corporation are entitled to vote. The Class B Common Stock shall have no voting
rights except as provided by law.
3. Dividends. Subject to the preferential rights of the Series
Preferred Stock and any series of Preferred Stock which may be designated from
time to time by the Board of Directors, the holders of Common Stock shall be
entitled to receive, to the extent permitted by law, such dividends as may be
declared from time to time by the Board of Directors.
4. Liquidation. In the event of any Liquidation or
distribution of assets of the Corporation, after distribution in full of any
preferential amount to be distributed to the holders of Series Preferred Stock
and any series of Preferred Stock which may be designated from time to time by
the Board of Directors, the holders of Common Stock shall be entitled to receive
all the remaining assets of the Corporation of whatever kind available for
distribution to stockholders.
5. Conversion into Single Class. On the closing date of a
Public Offering, each outstanding share of Class B Common Stock shall
automatically be converted into one share of Class A Common Stock except any
outstanding share of Class B Common Stock held by Norwest Equity Capital, Inc.,
or any affiliate thereof, that is subject to restrictions on ownership of voting
common stock by reason of the Bank Holding Company Act of 1956 or other statute
or regulation (a "Restricted Owner") shall not be so converted but shall be so
converted automatically and without further act upon the transfer of such share
to any person, firm or entity that is not a Restricted Owner (so long as such
transferee does not own 2% or more of the outstanding voting stock of the
Corporation). On and after such date as no shares of Series A Preferred Stock or
Series A Junior Preferred Stock are outstanding, if not converted prior thereto
pursuant to the preceding sentence, the holders of Class B Common Stock shall
have the right at any time to convert each share of Class B Common Stock into
one share of Class A Common Stock.
If no Series Preferred Stock is outstanding, a consolidation,
merger or reorganization of the Corporation with any other corporation or
corporations, or a sale of all or substantially all of the assets of the
Corporation shall not be considered a Liquidation of the Corporation within the
meaning of these provisions.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: Subject to the limitations set forth in the
Corporation's charter and in furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized:
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(a) To make, alter or repeal By-Laws of the Corporation.
(b) To authorize and cause to be executed mortgages and liens
upon the real and personal property of the Corporation.
(c) To set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for any proper
purposes and to abolish any such reserve in the manner in
which it was created.
(d) To designate one or more committees, each committee to
consist of one or more of the directors of the Corporation.
The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. The
By-Laws may provide, that, in the absence or disqualification
of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified
member. Any such committee, to the extent provided in the
resolution of the Board of Directors, or in the By-Laws of the
Corporation, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or
authority in reference to amending the Certificate of
Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the
Corporation's property and assets recommending to the
stockholders a dissolution of the Corporation or revocation of
a dissolution of the Corporation, or amending the By-Laws of
the Corporation; and, unless the resolution or By-Laws
expressly so provide, no such committee shall have the power
or authority to declare a dividend or to authorize the
issuance of stock.
(e) When and as authorized by the stockholders in accordance
with statute, to sell, lease, exchange or otherwise dispose of
all or substantially all of the property and assets of the
Corporation, including its good will and its corporate
franchises, upon such terms and conditions and for such
consideration, which may consist in whole or in part of money
or property including shares of stock in, and/or other
securities of, any other corporation or corporations, as its
Board of Directors shall deem expedient and for the best
interests of the Corporation.
- 21 -
(f) To fix, determine and vary from time to time the amount
to be maintained as surplus and the amount or amounts to be
set apart as working capital.
(g) To authorize the payment of compensation to the directors
for services to the Corporation, including fees for attendance
at meetings of the Board of Directors and of other committees,
and to determine the amount of such compensation and fees.
(h) To authorize the issuance from time to time of shares of
its stock of any class whether now or hereafter authorized, or
securities convertible into shares of its stock of any class
or classes, whether now or hereafter authorized, for such
consideration as may be deemed advisable by the Board of
Directors and without any action by the stockholders.
SEVENTH: Meetings of stockholders may be held within or
without the State of Delaware, as the By-Laws may provide. The books of the
Corporation may be kept (subject to any provisions contained in the statutes)
outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the By-Laws of the Corporation.
Elections of directors need not be by written ballot unless the By-Laws of the
Corporation shall so provide.
EIGHTH: (a) No contract or transaction between the Corporation
and one or more of its directors or officers, or between the Corporation and any
other corporation, partnership, association, or other organization in which one
or more of the directors or officers of the Corporation are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason or solely because the director or officer is present at or
participates in the meeting of the board or committee thereof which authorizes
the contract or transaction, or solely because his or their votes are counted
for such purpose, if:
(1) the material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known
to the board of directors or the committee, and the board or
committee in good faith authorizes the contract or transaction
by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less
than a quorum; or
(2) The material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known
to the shareholders entitled to vote thereon, and the contract
or transaction is specifically approved in good faith by vote
of the shareholders.
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(b) Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board
of directors or of a committee which authorized the contract
or transaction.
(c) Any contract, transaction or act of the Corporation or of
the Board of Directors which shall be ratified by a quorum of
the stockholders entitled to vote at any annual meetings or at
any special meeting called for that purpose, shall be as valid
and binding as though ratified by every stockholder of the
Corporation; provided, however, that any failure of the
stockholders to approve or ratify such contract, transaction
or act, when and if submitted, shall not be deemed in any way
to invalidate the same or to deprive the Corporation, its
directors or officers of their right to proceed with such
contract, transaction or action.
NINTH: A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law is amended
after approval of this article to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
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.
TENTH: (a) Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or was a
director or officer of the corporation or 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 (hereinafter an "indemnitee"), whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, 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
- 23 -
amendment permits the Corporation to provide broader indemnification rights
than such law permitted the Corporation to provide prior to such amendment),
against all expense, liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts 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 (b) hereof 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 shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance
of its final disposition (hereinafter an "advancement of expenses") provided,
however, that, if the Delaware General Corporation Law requires, an advancement
of expenses incurred by an indemnitee in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking
(hereinafter 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 (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for such
expenses under this Section or otherwise.
(b) If a claim under Section (a) of this Article is not paid
in full by the Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty days, the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any
such suit, or in a suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the indemnitee shall be
entitled to be paid also the expense of prosecuting or defending such suit. In
(i) any suit brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) in any suit by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking the Corporation shall be entitled to recover such expenses upon a
final adjudication that, the indemnitee has not met the applicable standard of
conduct set forth in the Delaware General Corporation Law. 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 suit that indemnification of the indemnitee is proper in the
- 24 -
circumstances because the indemnitee 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 indemnitee has not met such applicable
standard of conduct, shall create a presumption that the indemnitee has not met
the applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article or otherwise shall be on the Corporation.
(c) The rights to indemnification and to the advancement of
expenses conferred in this Article shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the
Corporation's certificate of incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
(d) The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the Delaware General Corporation Law.
(e) The Corporation may, to the extent authorized from time to
time by the board of directors, grant rights to indemnification and to the
advancement of expenses to any employee or agent of the Corporation to the
fullest extent of the provisions of this Section with respect to the
indemnification and advancement of expense of directors and officers of the
Corporation.
ELEVENTH: The Corporation reserves the right from time to time
to make any amendments of its charter which may now or hereafter be authorized
by law, including any amendments changing the terms or contract rights, as
expressly set forth in its charter, of any of its outstanding stock by
classification, reclassification or otherwise; but no such amendment which
changes such terms or contract rights of any of its outstanding stock shall be
valid unless such amendment shall be authorized by not less than a majority of
the aggregate of votes entitled to be cast thereon by the holders of shares of
Preferred Stock or Common Stock affected.
4. In lieu of a meeting and vote of stockholders, the
stockholders have given written consent to this Amended and Restated Certificate
of
- 25 -
Incorporation in accordance with the provisions of Section 228 of the General
Corporation Law of the State of Delaware and written notice has been given to
all holders of the outstanding stock of the Corporation who have not consented
in writing, as provided in Section 228.
5. This Amended and Restated Certificate of Incorporation was
duly adopted in accordance with the applicable provisions of Sections 242 and
245 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, ACI Holding, Inc. has caused this Amended
and Restated Certificate of Incorporation to be signed by its President,
acknowledging the same to be its act and deed, and attested to by its Secretary
this 18th day of August, 1994.
ATTEST: ACI HOLDING, INC.
/s/ David P. Stokes /s/ William E. Fisher
- --------------------- -----------------------
By: David P. Stokes By: William E. Fisher
Title: Secretary Title: President
- 26 -
CERTIFICATE OF AMENDMENT OF
AMENDED AND RESTATED CERTIFICATE
OF INCORPORATION OF ACI HOLDING, INC.
ACI HOLDING, INC., a corporation organized and existing under and by
virtue of the Delaware General Corporation Law (the "Corporation"), does
hereby certify:
FIRST: That Article FIRST of the Corporation's Amended and Restated
Certificate of Incorporation shall be, and hereby is, amended to read as
follows:
"FIRST: The name of the corporation is:
TRANSACTION SYSTEMS ARCHITECTS, INC."
SECOND: That the Amendment was duly adopted in accordance with the
provisions of Section 242 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by William E. Fisher, its President, and David P. Stokes, its Secretary,
this 10th day of October, 1994.
/s/ William E. Fisher
------------------------------
William E. Fisher, President
ATTEST:
/s/ David P. Stokes
- ----------------------------
David P. Stokes, Secretary
CERTIFICATE OF AMENDMENT
TO THE AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TRANSACTION SYSTEMS ARCHITECTS, INC.
(Pursuant to Section 242 of the General Corporation Law of the State of
Delaware)
Transaction Systems Architects, Inc., a corporation organized and
existing under and by the virtue of the General Corporation Law of the State
of Delaware (the "Corporation"), hereby certifies the following:
FIRST: That Article Fourth of the Amended and Restated Certificate
of Incorporation of the Corporation shall
be, and hereby is, amended to read in its entirety as follows:
FOURTH: The amount of the total authorized capital stock of
the Corporation is 60,450,000 shares which are divided into classes of
shares designated, respectively, as Preferred Stock, having a par value
of $.01 per share ("Preferred Stock") and two classes of Common Stock,
having a par value of $.005 per share ("Common Stock"). The total
number of shares of Preferred Stock the Corporation shall have
authority to issue is 5,450,000.
The total number of shares of all classes of Common Stock the
Corporation shall have authority to issue is 55,000,000. A portion of
the Preferred Stock is designated into Series as follows:
A series of 1,500,000 shares of Preferred Stock, having a par
value of $.01 each, designated as "Senior Convertible
Preferred Stock, Series A."
A series of 1,000,000 shares of Preferred Stock, having a par
value of $.01 each, designated as "Senior Convertible
Preferred Stock, Series A-2."
A series of 1,000,000 shares of Preferred Stock, having a par
value of $.01 each, designated as "Senior Convertible
Preferred Stock, Series B."
A series of 1,000,000 shares of Preferred Stock, having a par
value of $.01 each, designated as "Senior Convertible
Preferred Stock, Series B-2."
A series of 350,000 shares of Preferred Stock, having a par
value of $.01 each, designated as "Junior Convertible
Preferred Stock, Series A."
A series of 600,000 shares of Preferred Stock, having a par
value of $.01 each, designated as "Junior Convertible
Preferred Stock, Series B."
The Common Stock is designated into Classes as follows:
A class of 50,000,000 shares of Common Stock, having a par
value of $.005 each, designated as "Class A Common Stock."
A class of 5,000,000 shares of Common Stock, having a par
value of $.005 each, designated as "Class B Common Stock."
The relative rights, preferences and privileges of the Class A
Common Stock, the Class B Common Stock, the Senior Convertible
Preferred Stock, Series A (the "Senior Series A Preferred Stock"), the
Senior Convertible Preferred Stock, Series A-2 (the "Senior Series A-2
Preferred Stock"), the Senior Convertible Preferred Stock, Series B
(the "Senior Series B Preferred Stock"), the Senior Convertible
Preferred Stock, Series B-2 (the "Senior Series B-2 Preferred Stock),
the Junior Convertible Preferred Stock, Series A (the "Junior Series A
Preferred Stock'), and the Junior Convertible Preferred Stock, Series B
(the "Junior Series B Preferred Stock") are set forth herein. The
Senior Series A Preferred Stock, the Senior Series A-2 Preferred Stock,
the Senior Series B Preferred Stock and the Senior Series B-2 Preferred
Stock are
hereinafter collectively referred to as the "Senior Preferred
Stock." The Junior Series A Preferred Stock and the Junior Series B
Preferred Stock are hereinafter collectively referred to as the "Junior
Preferred Stock." The Senior Preferred Stock and the Junior Preferred
Stock are hereinafter collectively referred to as the "Series
Preferred Stock." The Class A Common Stock and the Class B Common Stock
are hereinafter collectively referred to as the "Common Stock." The
Senior Series A Preferred Stock, the Senior Series A-2 Preferred Stock,
the Junior Series A Preferred Stock and the Class A Common Stock are
hereinafter collectively referred to as the "A Stock." The Senior
Series B Preferred Stock, the Senior Series B-2 Preferred Stock, the
Junior Series B Preferred Stock and the Class B Common Stock are
hereinafter collectively referred to as the "B Stock."
A. Series Preferred Stock
1. Voting. The Senior Series B Preferred Stock, the Senior
Series B-2 Preferred Stock and the Junior Series B Preferred Stock
shall have no voting rights except as provided by law and by Section 7
hereof. Each share of Senior Series A Preferred Stock or Junior Series
A Preferred Stock shall entitle the holder thereof to such number of
votes per share on any matter or thing to be considered and acted upon
by stockholders as shall equal the number of shares of Class A Common
Stock (including fractions of a share) into which such share of Senior
Series A Preferred Stock or Junior Series A Preferred Stock is then
convertible. Except as may be otherwise required by this Article FOURTH
or by law, the Senior Series A Preferred Stock and the Junior Series A
Preferred Stock shall vote together as a single class with the Class A
Common Stock on all such matters and things.
2. Dividends. From date of issue until the close of
business on the closing date of a Qualified Public Offering (as defined
under subparagraph 4A hereof); the holders of the Senior Preferred
Stock shall be entitled to receive, out of funds legally available
therefor, when and if declared by the board of directors, quarterly
dividends, payable on January 1, April 1, July 1, and October 1 of each
year (and on the date of the Qualified Public Offering) to holders of
record on such dates, commencing on April 1, 1994, at the rate per
annum of $.70 per share, as adjusted for stock splits, stock dividends,
recapitalizations, reclassifications and similar events which affect
the number of outstanding shares of Senior Preferred Stock (together
referred to herein as "Recapitalization Events") (the "Accruing
Dividends"), in preference to and priority over any payment of
dividends on Junior Preferred Stock or Common Stock. Accruing Dividends
shall accrue from day to day, whether or not earned or declared, and
shall be cumulative. No dividends shall be declared and set aside for
any shares of Senior Series A Preferred Stock or Senior Series B
Preferred Stock, respectively, unless at the same time a like dividend
for the same period shall be declared, set aside and paid on all the
then outstanding shares of the other series of Senior Preferred Stock.
Until January 1, 1999, all Accruing Dividends (a) on outstanding shares
of Senior Series A Preferred Stock shall be paid solely in kind by the
issuance of a dividend of additional shares of Senior Series A
Preferred Stock (which shall be Senior Series A-2 Preferred Stock
following the Maximum PIK Conversion Date, as defined below) at the
rate of 7/100 of a share for each $.70 of Accruing Dividends (the
"Series A PIK Dividends") and (b) on outstanding shares of Senior
Series B Preferred Stock shall be paid solely in kind by the issuance
of a dividend of Senior Series B Preferred Stock (which shall be Senior
Series B-2 Preferred Stock following the Maximum PIK Conversion Date,
as defined below) at the rate of 7/100 of a share for each $.70 of
Accruing Dividends (the "Series B PIK Dividends" and together with the
Series A PIK Dividends, collectively, the "PIK Dividends"). Beginning
January 1, 1999, Accruing Dividends may be paid in cash or PIK
Dividends, at the option of the Corporation. From and after the date on
which the Corporation has declared and paid an aggregate of 900,000
shares constituting PIK Dividends (the "Maximum PIK Conversion Date"),
PIK Dividends shall only be paid in shares of Senior Series A-2
Preferred Stock and Senior Series B-2 Preferred Stock, respectively. No
dividend shall be declared, paid or set aside for payment on any shares
of Junior Preferred Stock or Common Stock unless all Accruing Dividends
on Senior Preferred Stock shall have been paid in full.
3. Liquidation. Upon any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary (a
"Liquidation"), the holders of the shares of Senior Preferred Stock
shall be entitled, before any distribution or payment is made upon any
Junior Preferred Stock, Common Stock or other stock ranking on
liquidation junior to the Senior Preferred Stock, to be paid an amount
in cash equal to the greater of (i) $10.00 per. share (appropriately
adjusted for Recapitalization Events) plus, in the case of each share,
an amount equal to all dividends, if any, accrued and unpaid thereon,
computed to the date payment thereof is made available (accrued and
unpaid PIK Dividends being valued, for such purpose, at $10.00 per
share), or (ii) such amount per share as would have been payable had
each such share, and all accrued and unpaid PIK Dividends thereon been
converted to Common Stock pursuant to paragraph 4 immediately prior
2
to such Liquidation, and the holders of Senior Preferred Stock shall
not be entitled to any further payment, such amount payable with
respect to one share of Senior Preferred Stock being sometimes referred
to as the "Senior Liquidation Payments." If upon such Liquidation, the
assets to be distributed among the holders of Senior Preferred Stock
shall be insufficient to permit payment to the holders of Senior
Preferred Stock of the amount distributable as aforesaid, then the
entire assets of the Corporation to be so distributed shall be
distributed ratably among the holders of Senior Preferred Stock.
Upon any liquidation, after the holders of the Senior
Preferred Stock shall have been paid in full the amounts to which they
shall be entitled, the holders of the shares of Junior Preferred Stock
shall be entitled, before any distribution or payment is made upon any
Common Stock or other stock ranking on liquidation junior to the Junior
Preferred Stock, to be paid an amount in cash equal to the greater of
(i) $10.00 per share (appropriately adjusted for Recapitalization
Events), or (ii) such amount per share as would have been payable had
each such share been converted to Common Stock pursuant to paragraph 4
immediately prior to such Liquidation, and the holders of Junior
Preferred Stock shall not be entitled to any further payment, such
amount payable with respect to one share of Junior Preferred Stock
being sometimes referred to as the "Junior Liquidation Payments." If
upon such Liquidation, the assets to be distributed among the
holders-of Junior Preferred Stock shall be insufficient to permit
payment to the holders of Junior Preferred Stock of the amount
distributable as aforesaid, then the entire assets of the Corporation
to be so distributed shall be distributed ratably among the holders of
Junior Preferred Stock.
Upon any Liquidation, after the holders of Series Preferred
Stock shall have been paid in full the amounts to which they shall be
entitled, the remaining net assets of the Corporation may be
distributed to the holders of any class of Preferred Stock ranking
junior to the Series Preferred Stock, and, thereafter to the Common
Stock.
Written notice of such Liquidation, stating a payment date,
the amount of any payments to be made to the holders of the Series
Preferred Stock and the place where said payments shall be payable,
shall be given by mail, postage prepaid, or by telex to non-U.S.
residents, not less than 20 days prior to the payment date stated
therein, to the holders of record of Series Preferred Stock, such
notice to be addressed to each such holder at its address as shown by
the records of the Corporation. The consolidation or merger of the
Corporation into or with any other entity or entities which results in
the exchange of outstanding shares of the Corporation for securities or
other consideration issued or paid or caused to be issued or paid by
any such entity or affiliate thereof, and the sale or transfer by the
Corporation of all or substantially all its assets, shall be deemed to
be a Liquidation, within the meaning of the provisions of this
paragraph 3.
For purposes hereof, Junior Preferred Stock shall rank on
Liquidation junior to the Senior Preferred Stock, and the Common Stock
shall rank on Liquidation junior to the Senior Preferred Stock and the
Junior Preferred Stock and any other series of Preferred Stock.
4. Conversion. The holders of shares of Series Preferred
Stock shall have the following conversion rights:
4A. Right to Convert. Subject to the
terms and conditions of this paragraph 4, the holder of any share or
shares of Senior Series A Preferred Stock (other than shares of Senior
Series A Preferred Stock received as Series A PIK Dividends) or Junior
Series A Preferred Stock (collectively, the "A Preferred Stock") shall
have the right, at its option at any time, to convert any such shares
of A Preferred Stock (except that upon any Liquidation of the
Corporation the right of conversion shall terminate at the close of
business on the business day fixed for payment of the amount
distributable on the A Preferred Stock) into such number of fully paid
and nonassessable shares of Class A Common Stock as is obtained by (a)
multiplying the number of shares of A Preferred Stock so to be
converted by $10.00 and (b) dividing the result by the conversion price
per share of $10.00 or, in case an adjustment of such price has taken
place pursuant to the further provisions of this paragraph 4, then by
the conversion price as last adjusted and in effect at the date any
share or shares of A Preferred Stock are surrendered for conversion
(the "Conversion Price").
Subject to the terms and conditions of this paragraph 4,
the holder of any share or shares of Senior Series B Preferred Stock
(other than shares of Senior Series B Preferred Stock received as
Series B PIK Dividends) or Junior Series B Preferred Stock
(collectively, the "B Preferred Stock") shall have the right, at its
option at any time, to convert any such shares of B Preferred Stock
(except that upon any Liquidation of the Corporation the right of
conversion shall terminate at
3
the close of business on the business day fixed for payment of the
amount distributable on the B Preferred Stock) into such number of
fully paid and nonassessable shares of Class B Common Stock (or, if
the Class B Common Stock shall have been converted pursuant to the
provisions of Article FOURTH, Section C hereof, into Class A Common
Stock, such number of shares of Class A Common Stock) as is obtained
by (a) multiplying the number of shares of B Preferred Stock so to be
converted by $10.00 and (b) dividing the result by the Conversion
Price.
From and after January 1, 1997, unless a Qualified Public
Offering (as defined below) has occurred, subject to the terms and
conditions of this paragraph 4, (a) the holder of any share or shares
of Senior Series A Preferred Stock received as Series A PIK Dividends
shall have the right, at its option, to convert any such shares of
Senior Series A Preferred Stock received as Series A PIK Dividends
(except that upon any Liquidation of the Corporation the right of
conversion shall terminate at the close of business on the business day
fixed for payment of the amount distributable on the Senior Series A
Preferred Stock received as Series A PIK Dividends) into such number of
fully paid and nonassessable shares of Class A Common Stock as is
obtained by (i) multiplying the number of shares of Senior Series A
Preferred Stock received as Series A PIK Dividends so to be converted
by $10.00 and (ii) dividing the result by the Conversion Price, and (b)
the holder of any share or shares of Senior Series B Preferred Stock
received as Series B PIK Dividends shall have the right, at its option,
to convert any such shares of Senior Series B Preferred Stock received
as Series B PIK Dividends (except that upon any Liquidation of the
Corporation the right of conversion shall terminate at the close of
business on the business day fixed for payment of the amount
distributable on the Senior Series B Preferred Stock received as Series
B PIK Dividends) into such number of fully paid and nonassessable
shares of Class B Common Stock (or, if the Class B Common Stock shall
be been converted pursuant to the provisions of Article FOURTH, Section
C hereof, into Class A Common Stock, such numbers of Class A Common
Stock) as is obtained by (i) multiplying the number of shares of Senior
Series B Preferred Stock received as Series B PIK Dividends so to be
converted by $10.00 and (ii) dividing the result by the Conversion
Price. Shares of Senior Series A-2 Preferred Stock and Senior Series
B-2 Preferred Stock shall not be convertible.
Notwithstanding the foregoing, the option to convert the
Senior Series A Preferred Stock or Senior Series B Preferred Stock
received as PIK Dividends shall not become effective if on or before
the close of business on January 1, 1997 there shall have occurred on
the closing date of an underwritten public offering of Common Stock of
the Corporation pursuant to a Registration Statement filed with the
Securities and Exchange Commission pursuant to the Securities Act of
1933 (a "Public Offering") which results in net proceeds to the
Corporation of at least $15 million; provided that the product of (i)
the sum of (x) the number of shares of Common Stock of the Corporation
outstanding immediately prior to the Public Offering, plus (y) the
number of shares of Common Stock which would have been outstanding had
the shares of Series Preferred Stock outstanding immediately prior to
the Public Offering been converted pursuant to the provisions of this
paragraph 4, plus (z) the number of shares of Common Stock issuable
upon exercise of all warrants or options to purchase Common Stock
outstanding immediately prior to the Public Offering which are then
exercisable, times (ii) the price per share at which the Common Stock
is offered to the public in the Public Offering, shall equal or exceed
$125 million. A Public Offering meeting the criteria set forth in this
paragraph is referred to herein as a "Qualified Public Offering".
Such rights of conversion shall be exercised by the holder
thereof by giving written notice that the holder elects to convert a
stated number of shares of Series Preferred Stock into Common Stock and
by surrender of a certificate or certificates for the shares so to be
converted to the Corporation at its principal office (or such other
office or agency of the Corporation as the Corporation may designate by
notice in writing to the holders of the Series Preferred Stock) at any
time during its usual business hours on the date set forth in such
notice, together with a statement of the name or names (with address)
in which the certificate or certificates for shares of Common Stock
shall be issued. The Corporation, immediately upon receipt by it of a
written notice by any holder of Series Preferred Stock of its election
to convert all or any of its shares of convertible Series Preferred
Stock into Common Stock, shall deliver to each holder of Series
Preferred Stock a true copy of such notice of election to convert and a
statement of the date when same was received by the Corporation. Any
other holder of Series Preferred Stock who, within 20 days after
receipt of such notification, likewise shall elect to convert all or
any of its convertible Series Preferred Stock shall have its election
so made be deemed to have been made simultaneously with and to have the
same force and effect as if made simultaneously with that of the holder
first making such election to convert.
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4B. Issuance of Certificates: Time
Conversion Effected. Promptly after the receipt of the written notice
referred to in subparagraph 4A and surrender of the certificate or
certificates for the share or shares of Series Preferred Stock to be
converted, the Corporation shall issue and deliver, or cause to be
issued and delivered, to the holder, registered in such name or names
as such holder may direct, a certificate or certificates for the number
of whole shares of Common Stock issuable upon the conversion of such
share or shares of Series Preferred Stock. To the extent permitted by
law, such conversion shall be deemed to have been effected and the
Conversion Price shall be determined as of the close of business on the
date on which such written notice shall have been received by the
Corporation and the certificate or certificates for such share or
shares shall have been surrendered as aforesaid, and at such time the
rights of the holder of such share or shares of Series Preferred Stock
shall cease, and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be
issuable upon such conversion shall be deemed to have become. the
holder or holders of record of the shares represented thereby.
4C. Fractional Shares: Dividends; Partial
Conversion. No fractional shares shall be issued upon conversion of
Series Preferred Stock into Common Stock and no payment or adjustment
shall be made upon any conversion on account of any cash dividends on
the Common Stock issued upon such conversion. At the time of each
conversion, the Corporation shall pay in cash (or in additional shares
of Series Preferred Stock of the same class representing accrued but
unpaid PIK Dividends, which may, at the option of the holder, be paid
instead in such number of shares of Common Stock (if any) into which
such shares of Series Preferred Stock representing PIK Dividends shall
be convertible, unless such Series Preferred Stock representing PIK
Dividends shall no longer be convertible, in which case the same shall
be paid in cash at the rate of $10.00 per share of Series Preferred
Stock representing PIK Dividends) an amount equal to all dividends,
including Accruing Dividends, if any, accrued and unpaid on the shares
of Series Preferred Stock surrendered for conversion to the date upon
which such conversion is deemed to take place as provided in
subparagraph 4B. In case the number of shares of Series Preferred Stock
represented by the certificate or certificates surrendered pursuant to
subparagraph 4A exceeds the number of shares converted, the Corporation
shall, upon such conversion, execute and deliver to the holder, at the
expense of the Corporation, a new certificate or certificates for the
number of shares of Series Preferred Stock represented by the
certificate or certificates surrendered which are not to be converted.
If any fractional share of Common Stock would, except for the
provisions of the first sentence of this subparagraph 4C, be delivered
upon such conversion, the Corporation, in lieu of delivering such
fractional share, shall pay to the holder surrendering the Series
Preferred Stock for conversion an amount in cash equal to the current
market price of such fractional share as determined in good faith by
the Board of Directors of the Corporation.
4D. Adjustment of Price Upon Issuance of
Common Stock. Except as provided in subparagraph 4E, if and whenever
the Corporation shall issue or sell, or is, in accordance with
subparagraphs 4D(1) through 4D(7), deemed to have issued or sold, any
shares of Common Stock for a consideration-per share less than the
Conversion Price, in effect immediately prior to the time of such issue
or sale, then, forthwith upon such issue or sale, the Conversion Price
shall be reduced to the price at which the Corporation issued or sold,
or is deemed to have issued or sold, such shares of Common Stock.
For purposes of this subparagraph 4D, the following
subparagraphs 4D(1) to 4D(7) shall also be applicable:
4D(1) Issuance of Rights or Options. In case at
any time after the issuance of the Series Preferred Stock
the Corporation shall in any manner grant (whether
directly or by assumption in a merger or otherwise) any
warrants or other rights to subscribe for or to purchase,
or any options for the purchase of, Common Stock or any
stock or security convertible into or exchangeable for
Common Stock (such warrants, rights or options being
called "Options" and such Convertible or exchangeable
stock or securities being called "Convertible
Securities"), except for options granted to employees of
the Corporation or its subsidiaries pursuant to a
management Stock Option Plan approved by all members of
the Board of Directors elected by the Series Preferred
Stock, whether or not such Options or the right to convert
or exchange any such Convertible Securities are
immediately exercisable, and the price per share for which
Common Stock is issuable upon the exercise of such Options
or upon the conversion or exchange of such Convertible
Securities (determined by dividing (i) the total amount,
if any, received or receivable by the Corporation as
consideration for the granting of such Options, plus the
minimum
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aggregate amount of additional consideration, if any,
payable upon the issue or sale of such Convertible
Securities and upon the conversion or exchange thereof, by
(ii) the total maximum number of shares of Common Stock
issuable upon the conversion or exchange of all such
Convertible Securities) shall be less than the Conversion
Price in effect immediately prior to the time of the
granting 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 have
been issued for such price per share as of the date of
granting of such Options or the issuance of such
Convertible Securities and thereafter shall be deemed to
be outstanding. Except as otherwise provided in
subparagraph 4D(3), no adjustment of the Conversion Price,
shall be made upon the actual issue of such Common Stock
or of such Convertible Securities upon exercise of such
Options or upon the actual issue of such Common Stock upon
conversion or exchange of such Convertible Securities.
4D(2) Issuance of Convertible Securities. In case
the Corporation shall in any manner issue (whether
directly or by assumption in a merger or otherwise) or
sell any Convertible Securities, whether or not the rights
to exchange or convert any such Convertible Securities are
immediately exercisable, and the price per share for which
Common Stock is issuable upon such conversion or exchange
(determined by dividing (i) 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 (ii) the total maximum number of
shares of Common Stock issuable upon the conversion or
exchange of all such Convertible Securities) shall be less
than the Conversion Price in effect immediately prior to
the time of such issue or sale, then the total maximum
number of shares of Common Stock issuable upon conversion
or exchange of all such Convertible Securities shall be
deemed to have been issued for such price per share as of
the date of the issue or sale of such Convertible
Securities and thereafter shall be deemed to be
outstanding, provided that (a) except as otherwise
provided in subparagraph 4D(3), no adjustment of the
Conversion Price shall be made upon the actual issue of
such Common Stock upon conversion or exchange of such
Convertible Securities and (b) if any such issue or sale
of such Convertible Securities is made upon exercise of
any Options to purchase any such Convertible Securities
for which adjustments of the Conversion Price have been or
are to be made pursuant to other provisions of this
subparagraph 4D, no further adjustment of the Conversion
Price shall be made by reason of such issue or sale.
4D(3) Change in Option Price or Conversion Rate.
Upon the happening of any of the following events, namely,
if the purchase price provided for in any Option referred
to in subparagraph 4D(1), the additional consideration, if
any, payable upon the conversion or exchange of the
Convertible Securities referred to in subparagraph 4D(1)
or 4D(2), or the rate at which Convertible Securities
referred to in subparagraph 4D(1) or 4D(2) are convertible
into or exchangeable for Common Stock shall change at any
time (including, but not limited to, changes under or by
reason of provisions designed to protect against
dilution), the Conversion Price in effect at the time of
such event shall forthwith be readjusted 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, but only if as
a result of such adjustment the Conversion Price then in
effect hereunder is thereby reduced.
On the expiration of any Option described in subparagraphs
4D(1), (2) or (3) or the termination of any right to
convert or exchange Convertible Securities described in
subparagraphs 4D(1), or (2) or (3), the Conversion Price
then in effect hereunder shall forthwith be increased to
the Conversion Price which would have been in effect at
the time of such expiration or termination had such Option
or Convertible Securities, to the extent outstanding
immediately prior to such expiration or termination, never
been issued.
4D(4) Stock Dividends. In case the Corporation
shall declare a dividend or make any other distribution
upon any stock of the Corporation payable in Common Stock
(except for dividends or
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distributions upon the Common Stock), Options or
Convertible Securities (other than PIK Dividends), any
Common Stock, Options or Convertible Securities, as the
case may be, issuable in payment of such dividend or
distribution shall be deemed to have been issued or sold
for a consideration of $.01.
4D(5) Consideration for Stock. In case any shares
of Common Stock, Options or Convertible Securities shall
be issued or sold for cash, the consideration received
therefor shall be deemed to be the amount received by the
Corporation therefor, without deduction therefrom of any
expenses incurred or any underwriting commissions or
concessions paid or allowed by the Corporation in
connection therewith. In case any shares of Common Stock,
Options or Convertible Securities shall be issued or sold
for a consideration other than cash, the amount of the
consideration other than cash received by the Corporation
shall be deemed to be the fair value of such consideration
as determined in good faith by the Board of Directors of
the Corporation, without deduction of any expenses
incurred or any underwriting commissions or concessions
paid or allowed by the Corporation in connection
therewith. In case any Options shall be issued in
connection with the issue and sale of other securities of
the Corporation, together comprising one integral
transaction in which no specific consideration is
allocated to such Options by the parties thereto, such
options shall be deemed to have been issued for such
consideration as determined in good faith by the Board of
Directors of the Corporation.
4D(6) Record Date. In case the Corporation shall
take a record of the holders of its Common Stock for the
purpose of entitling them (i) to receive a dividend or
other distribution payable in Common Stock, Options or
Convertible Securities or (ii) to subscribe for or
purchase Common Stock, Options or Convertible Securities,
then such record date shall be deemed to be the date of
the issue or sale of the shares of Common Stock deemed to
have been issued or sold upon the declaration of such
dividend or the making of such other distribution or the
date of the granting of such right or subscription or
purchase, as the case may be.
4D(7) 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, and the disposition of any such shares shall
be considered an issue or sale of Common Stock for the
purpose of this subparagraph 4D.
4E. Certain Issues of Common Stock Executed.
Anything herein to the contrary notwithstanding, the Corporation shall
not be required to make any adjustment of the Conversion Price in the
case of the issuance of up to (a) an aggregate of 477,744 shares
(appropriately adjusted to reflect the occurrence of any event
described in subparagraph 4F) of Class B Common Stock or options
exercisable therefor, to employees of the Corporation in connection
with their employment by the Corporation, (b) an aggregate of 881,420
shares of Common Stock (subject to adjustment by the terms thereof)
issuable pursuant to the exercise of warrants issued on or prior to
December 31, 1993, (c) an aggregate of 5,775 shares of Common Stock
(subject to adjustment by the terms thereof) issuable pursuant to the
exercise of warrants to be issued to Nations Financial Capital
Corporation or its assignee(s) and (d) an aggregate of 30,000 shares of
Common Stock (subject to adjustment by the terms thereof) issuable to a
qualified employee benefit plan of the Corporation.
4F. Subdivision or Combination of Common
Stock. In case the Corporation shall at any time subdivide (by any
stock split, stock dividend 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, conversely, in case the outstanding shares of Common
Stock shall be combined into a smaller number of shares, the Conversion
Price or in effect immediately prior to such combination shall be
proportionately increased.
4G. Reorganization or Reclassification. If
any capital reorganization or reclassification of the capital stock of
the Corporation shall be effected in such a way that holders of Common
Stock shall be entitled to receive stock, securities or assets with
respect to or in exchange for Common Stock, then, as a condition of
reorganization or reclassification, lawful and adequate provisions
shall be made whereby each holder of a share or shares of Series
Preferred Stock shall thereupon have the right to receive, upon the
basis and upon the terms and conditions specified herein and in lieu
7
of the shares of Common Stock immediately theretofore receivable upon
the conversion of such share or shares of Series Preferred Stock, such
shares of stock, securities or assets as may be issued or payable with
respect to or in exchange for number of outstanding shares of such
Common Stock equal to the number of shares of such Common Stock
immediately theretofore receivable upon such conversion had such
reorganization or reclassification not taken place, and in any such
case appropriate provisions shall be made with respect to the rights
and interests of such holder to the end that the provisions hereof
(including without limitation provisions for adjustments of the
Conversion Price) shall thereafter be applicable, as nearly as may be,
in relation to any shares of stock, securities or assets thereafter
deliverable upon the exercise of such conversion rights.
4H. Notice of Adjustment. Upon any adjustment
of the Conversion Price then and in each such case the Corporation
shall give written notice thereof, by first class mail, postage
prepaid, or by telex to non-US. residents, addressed to each holder of
shares of Series Preferred Stock at the address of such holder as shown
on the books of the Corporation, which notice shall state the
Conversion Price resulting from such adjustment, setting forth in
reasonable detail the method upon which such calculation is based.
4I. Other Notices. In case at any time:
(1) the Corporation shall declare any
dividend upon its Common Stock payable in cash or stock (except in
connection with a stock split) or make any other distribution to the
holders of its Common Stock;
(2) the Corporation shall offer for
subscription pro rata to the holders of its Common Stock any
---------
additional shares of stock of any class or other rights;
(3) there shall be any capital
reorganization of the capital stock of the Corporation, or a
consolidation or merger of the Corporation with or into, or a sale of
all or substantially all its assets to, another entity or entities; or
(4) there shall be a Liquidation; and
(5) then, in any one or more of said
cases, the Corporation shall give, by first class mail, postage
prepaid, or by telex to non-US. residents, addressed to each holder of
any shares of Series Preferred Stock at the address of such holder as
shown on the books of the Corporation, (a) at least 20 days' prior
written notice of the date on which the books of the Corporation shall
close or a record shall be taken for such dividend, distribution or
subscription rights or for determining rights to vote in respect of any
such reorganization, reclassification, consolidation, merger, sale,
Liquidation and (b) in the case of any such reorganization,
reclassification, consolidation, merger, sale, Liquidation, at least 20
days' prior written notice of the date when the same shall take place.
Such notice in accordance with the foregoing clause (a) shall also
specify, in the case of any such dividend, distribution or subscription
rights, the date on which the holders of Common Stock shall be entitled
thereto and such notice in accordance with the foregoing clause (b)
shall also specify the date on which the holders of Common Stock shall
be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, or Liquidation, as the case may be.
4J. Stock to be Reserved. The Corporation
will at all times reserve and keep available out of its authorized
Common Stock, solely for the purpose of issuance upon the conversion of
Series Preferred Stock as herein provided, such number of shares of
Common Stock as shall then be issuable upon the conversion of all
outstanding shares of Series Preferred Stock. The Corporation covenants
that all shares of Common Stock which shall be so issued shall be duly
and validly issued and fully paid and nonassessable and free from all
taxes, liens and charges with respect to the issue thereof, and,
without limiting the generality of the foregoing, the Corporation
covenants that it will from time to time take all such action as may be
requisite to assure that the par value per share of the Common Stock is
at all times equal to or less than the Conversion Price in effect at
the time. The Corporation will take all such action as may be necessary
to assure that all such shares of Common Stock may be so issued without
violation of any applicable law or regulation, or of any requirement of
any national securities exchange upon which the Common Stock may be
listed. The Corporation will not take any action which results in any
adjustment of the Conversion Price if the total number of shares of
Common Stock issued
8
and issuable after such action upon conversion of the Series Preferred
Stock would exceed the total number of shares of Common Stock then
authorized by this Certificate of Incorporation.
4K. Reissuance of Series Preferred Stock.
Shares of Series Preferred Stock which are converted into shares of
Common Stock as provided herein shall , upon their conversion, become
authorized but unissued shares of Preferred Stock which may be issued
as part of one or more series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors in accordance with
Article FOURTH, Section B.
4L. Issue Tax. The issuance of certificates
for shares of Common Stock upon conversion of Series Preferred Stock
shall be made without charge to the holders thereof for any issuance
tax in respect thereof, provided that the Corporation shall not be
required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any certificate in a name
other than that of the holder of the Series Preferred Stock which is
being converted.
4M. Closing of Books. The Corporation will at
no time close its transfer books against the transfer of any Series
Preferred Stock or of any shares of Common Stock issued or issuable
upon the conversion of any shares of Series Preferred Stock in any
manner which interferes with the timely conversion of such Series
Preferred Stock, except as may otherwise be required to comply with
applicable securities laws.
4N. Definition of Common Stock. As used in
this paragraph 4, the term "Common Stock" shall mean and include the
Corporation's authorized Class A and Class B Common Stock, $.005 par
value, as constituted on the date of filing of this Amended and
Restated Certificate of Incorporation, and shall also include any
capital stock of any class of the Corporation thereafter authorized
which shall neither be limited to a fixed sum or percentage of par
value in respect of the rights of the holder thereof to participate in
dividends nor entitled to a preference in the distribution of assets
upon the voluntary or involuntary liquidation, dissolution or winding
up of the Corporation.
5. Redemption at Option of the Series Preferred Stock.
5A. Redemption Price and Election. If any
holder of then outstanding shares of Series Preferred Stock requests
the Corporation in writing, given at any time or from time to time on
or after December 31, 2003 (the "Redemption Election"), to redeem
shares of the outstanding Series Preferred Stock, the Corporation shall
give prompt written notice thereof to all other holders of Series
Preferred Stock whereupon such other holders shall give written notice
to the Corporation (the "Notice Period") if they desire to have their
shares of Series Preferred Stock redeemed, stating the number of such
shares they wish to have so redeemed. Subject to the conditions set
forth in this paragraph 5, the Corporation shall, immediately after the
Notice Period, first redeem all shares of Senior Preferred Stock
specified in such requests at the time, and pursuant to the terms, set
forth below, in each case by paying in cash, out of funds legally
available therefor, a sum per share equal to $10.00 per share
(appropriately adjusted for Recapitalization Events) plus, in the case
of each share, an amount equal to all Accruing Dividends in respect of
such shares unpaid thereon (whether or not declared) and any other
dividends declared but unpaid thereon, computed to the date payment
thereof is made available (valuing any accrued but unpaid PIK Dividends
at $10.00 per share, appropriately adjusted for Recapitalization
Events) (the "Redemption Price"), and then, to the extent funds are
legally available therefor after payment in full to the holders of
Senior Preferred Stock electing to redeem, redeem all shares of Junior
Preferred Stock specified in such requests at the time, and pursuant to
the terms, set forth below, in each case by paying in cash, out of the
funds legally available therefor, a sum per share equal to the
Redemption Price.
5B. Redemption Date. Subject to the
Corporation having funds legally available, the closing of the
redemption of shares of Senior Preferred Stock shall occur on or about
60 days following the date of the Redemption Election (the "Senior
Redemption Date") and redemption of shares of Junior Preferred Stock
shall occur thereafter, as determined by the Board of Directors,
provided that it shall not occur more than ten (10) days after the
Senior Redemption Date (the "Junior Redemption Date"). The Senior
Redemption Date and Junior Redemption Date may hereinafter sometime be
referred to as the "Redemption Date" or the "Redemption Dates."
9
5C. Redemption Notice. If the Redemption
Election has been received, the Corporation shall mail, postage
prepaid, not less than 30 days nor more than 60 days prior to the
Redemption Date, written notice thereof (the "Redemption Notice"), to
each holder of record of the Series Preferred Stock to be redeemed, at
his post office address last shown on the records of the Corporation.
Each such Redemption Notice shall state:
(1) The number of shares of Series Preferred
Stock held by the holder that the Corporation shall redeem
on the Redemption Date specified in the Redemption Notice;
(2) The Redemption Date and Redemption Price;
(3) The date upon which the holder's Conversion
Rights as to such shares terminate which termination shall
be on the close of business on the Redemption Date; and
(4) That the holder is to surrender to the
Corporation, in that manner and at the place designated,
his certificate or certificates representing the shares of
Series Preferred Stock to be redeemed.
5D. Surrender of Certificates; Payment. On or
before each Redemption Date, each holder of shares of Series Preferred
Stock to be redeemed on such Redemption Date, unless such holder has
exercised his right to convert the shares as provided in paragraph 4
hereof, shall surrender the certificate or certificates representing
such shares to the Corporation, in the manner and at the place
designated in the Redemption Notice, and thereupon the Redemption Price
for such shares shall be payable to the order of the person whose name
appears on such certificates or certificates as the owner thereof, and
each surrendered certificate shall be canceled and retired. In the
event less than all of the shares represented by such certificate are
redeemed, a new certificate representing the unredeemed shares shall be
issued forthwith.
5E. Rights Subsequent to Redemption. If the
Redemption Notice shall have been duly given, and if on each Redemption
Date the applicable Redemption Price therefor is either paid or made
available for payment through the deposit arrangement specified in
subparagraph F below, then notwithstanding that the certificates
evidencing any of the shares of Series Preferred Stock so called for
redemption shall not have been surrendered, the dividends with respect
to such shares shall cease to accrue after the applicable Redemption
Date and all rights with respect to such shares shall forthwith
terminate after the applicable Redemption Date, except only the right
of the holders to receive the applicable Redemption Price without
interest upon surrender of their certificate or certificates therefor.
5F. [Omitted.]
5G. Deposit of Funds. On or prior to each
Redemption Date, the Corporation shall deposit with any bank or trust
company, having capital and surplus of at least $100,000,000 as a trust
fund, a sum equal to the aggregate Redemption Price of all shares of
Series Preferred Stock called for redemption on such Redemption Date
and not yet redeemed or converted, with irrevocable instructions and
authority to the bank or trust company to pay, on and after each such
Redemption Date, the applicable Redemption Price to the respective
holders upon the surrender of their share certificates. From and after
the date of such deposit (but not prior to each Redemption Date), the
shares so called for redemption on such Redemption Date shall be
redeemed. The deposit shall constitute full payment of the shares of
their holders, and from and after each Redemption Date the shares
redeemed on such Redemption Date shall be deemed to be no longer
outstanding, and the holders thereof shall cease to be shareholders
with respect to such shares and shall have no rights with respect
thereto except the rights to receive, from the bank or trust company,
payment of the applicable Redemption Price of the shares, without
interest, upon surrender of their certificates therefor. Any funds so
deposited and unclaimed at the end of one year from the Redemption Date
shall be released or repaid to the Corporation, after which the holders
of shares called for redemption shall be entitled to receive payment of
the applicable Redemption Price only from the Corporation.
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5H. Funds Unavailable. If the funds of the
Corporation legally available for redemption of shares of Senior
Preferred Stock on the Senior Redemption Date are insufficient to
redeem the total number of outstanding shares of Senior Preferred Stock
scheduled to be redeemed on such date, the holders of shares of Senior
Preferred Stock scheduled to be redeemed shall share ratably in any
funds legally available for redemption of such shares according to the
respective amounts which would be payable with respect to the full
number of shares owned by them if all such outstanding shares were
redeemed in full. The shares of Senior Preferred Stock not redeemed
shall remain outstanding and entitled to all rights and preferences
provided herein. At any time thereafter when additional funds of the
Corporation are legally available for the redemption of such shares of
Senior Preferred Stock, such funds will be used, at the end of the next
succeeding fiscal quarter, to redeem the balance of such shares, or
such portion thereof for which funds are then legally available, on the
basis set forth above. If the funds of the Corporation legally
available for redemption of shares of Junior Preferred Stock on the
Junior Redemption Date are insufficient to redeem the total number of
outstanding shares of Junior Preferred Stock scheduled to be redeemed
on such date, the holders of shares of Junior Preferred Stock scheduled
to be redeemed shall share ratably in any funds legally available for
redemption of such shares according to the respective amounts which
would be payable with respect to the full number of shares owned by
them if all such outstanding shares were redeemed in full. The shares
of Junior Preferred Stock not redeemed shall remain outstanding and
entitled to all rights and preferences provided herein. At any time
thereafter when additional funds of the Corporation are legally
available for the redemption of such shares of Junior Preferred Stock,
such funds will be used, at the end of the next succeeding fiscal
quarter, to redeem the balance of such shares, or such portion thereof
for which funds are then legally available, on the basis set forth
above.
5I. Redeemed or Otherwise Acquired Shares to
be Retired. Any shares of Series Preferred Stock redeemed pursuant to
this paragraph 5 or paragraph 6 or otherwise acquired by the
Corporation in any manner whatsoever shall be canceled and shall not
under any circumstances be reissued; and the Corporation may from time
to time take such appropriate corporate action as may be necessary to
reduce accordingly the number of authorized shares of Series Preferred
Stock.
6. Redemption at the Option of the Corporation. In the
event of a Qualified Public Offering, the Corporation shall have the
right, beginning on the date following the closing date of such
Qualified Public Offering, to redeem all shares of Series Preferred
Stock issued as PIK Dividends, at the Redemption Price, computed to the
date payment thereof is made. At least thirty (30) but not more than
sixty (60) days prior to the date fixed by the Corporation for such
redemption, the Corporation shall give written notice of its intention
to so redeem to each holder of Series Preferred Stock to be redeemed,
in accordance with Paragraph 5C hereof, and on and after such
redemption date, the provisions of paragraph 5E hereof shall apply.
7. Amendments. No provision of the terms of the Senior
Preferred Stock or the Junior Preferred Stock, respectively, may be
amended, modified or waived without the written consent or affirmative
vote of the holders of at least two-thirds of the then outstanding
shares of the Senior Preferred Stock or the Junior Preferred Stock,
respectively, voting separately by class; provided, however, that in
the event that an amendment, modification or waiver of the terms of one
series of Series Preferred Stock would result in any of the rights of
the holders of another series of Series Preferred Stock being adversely
affected, then the amendment, modification or waiver of such terms may
not be effected without the written consent of two-thirds of the
holders of each series of Series Preferred Stock affected, voting
separately by series and class.
B. Preferred Stock
The remaining shares of unclassified Preferred Stock may be
issued from time to time in one or more series. The Board of Directors
is expressly authorized, subject to the limitations prescribed by law
and this Article FOURTH, from time to time, to provide for the issuance
of all or any of the remaining shares of Preferred Stock in one or more
series, and by filing a certificate pursuant to the applicable law of
the State of Delaware, (1) to fix the number of shares to be included
in one or more series of Preferred Stock; (2) to determine the
designation of any such series; (3) to determine or alter, without
limitation or restriction, the relative rights, preferences, privileges
and the qualifications, limitations and restrictions granted to or
imposed upon any wholly unissued series of Preferred Stock; and (4)
within the limits or restrictions stated in any resolution or
resolutions of the Board of Directors originally fixing the number of
shares constituting any series, to increase
11
(but not above the total number of authorized shares of the class) or
decrease (but not below the number of shares thereof then outstanding)
the number of shares of any such series subsequent to the issue of
shares of that series.
C. Common Stock
1. Definitions. As used herein, the term "Common Stock" used
without reference to the Class A Common Stock or the Class B Common
Stock means the Class A Common Stock and Class B Common Stock,
share-for-share alike and without distinction, except as otherwise set
forth herein or as the context otherwise requires.
2. Voting. Subject to the provisions of Article FOURTH,
Section A, the holder of each outstanding share of Class A Common Stock
shall be entitled to one vote per share on all matters upon which the
stockholders of the Corporation are entitled to vote. The Class B
Common Stock shall have no voting rights except as provided by law.
3. Dividends. Subject to the preferential rights of the Series
Preferred Stock and any series of Preferred Stock which may be
designated from time to time by the Board of Directors, the holders of
Common Stock shall be entitled to receive, to the extent permitted by
law, such dividends as may be declared from time to time by the Board
of Directors.
4. Liquidation. In the event of any Liquidation or
distribution of assets of the Corporation, after distribution in full
of any preferential amount to be distributed to the holders of Series
Preferred Stock and any series of Preferred Stock which may be
designated from time to time by the Board of Directors, the holders of
Common Stock shall be entitled to receive all the remaining assets of
the Corporation of whatever kind available for distribution to
stockholders.
5. Conversion into Single Class. On the closing date of a
Public Offering, each outstanding share of Class B Common Stock shall
automatically be converted into one share of Class A Common Stock
except any outstanding share of Class B Common Stock held by Norwest
Equity Capital, Inc., or any affiliate thereof, that is subject to
restrictions on ownership of voting common stock by reason of the Bank
Holding Company Act of 1956 or other statute or regulation (a
"Restricted Owner") shall not be so converted but shall be so converted
automatically and without further act upon the transfer of such share
to any person, firm or entity that is not a Restricted Owner (so long
as such transferee does not own 2% or more of the outstanding voting
stock of the Corporation). On and after such date as no shares of
Series A Preferred Stock or Series A Junior Preferred Stock are
outstanding, if not converted prior thereto pursuant to the preceding
sentence, the holders of Class B Common Stock shall have the right at
any time to convert each share of Class B Common Stock into one share
of Class A Common Stock.
If no Series Preferred Stock is outstanding, a consolidation,
merger or reorganization of the Corporation with any other corporation
or corporations, or a sale of all or substantially all of the assets of
the Corporation shall not be considered a Liquidation of the
Corporation within the meaning of these provisions.
SECOND: That on the close of business on the effective date of
this Certificate of Amendment (the "Effective Date"), each share of
Class A Common Stock and Class B Common Stock of the Corporation issued
and outstanding at the close of business on the Effective Date shall be
split into two shares of such class of Common Stock, as the case may
be, without change in the aggregate amount of capital represented by
the issued shares, such two-for-one split to be accomplished by issuing
to each holder of the Corporation's Class A Common Stock and Class B
Common Stock of record at the close of business on the Effective Date a
certificate or certificates at the rate of one additional share of such
class of Common Stock for each share of such class of Common Stock held
of record on the stock transfer records of the Corporation at the close
of business on the Effective Date.
THIRD: That the foregoing amendment to the Article Fourth of
the Amended and Restated Certificate of Incorporation and resolution
pertaining thereto were duly appointed by the board of directors of the
Corporation in accordance with Section 242 of the General Corporation
Law of the State of Delaware.
FOURTH: That the foregoing amendment to Article Fourth of the
Amended and Restated Certificate of Incorporation and resolution
pertaining thereto were adopted and approved by the holders of Class A
Common Stock, Class
12
B Common Stock, Senior Preferred Stock and Junior Preferred Stock of
the Corporation by written consent in lieu of a meeting thereof, in
accordance with the provisions of the Amended and Restated Certificate
of Incorporation and Securities 228 and 242 of the General Corporation
Law of the State of Delaware. Notice of such action was sent to each
nonconsenting holder of shares of the Corporation's capital stock in
accordance with Section 228 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, this instrument has been executed for, and
on behalf of, and in the name of the Corporation by its officers
thereunto duly authorized on January 4, 1995.
TRANSACTION SYSTEMS ARCHITECTS, INC.
By: /s/ William E. Fisher
---------------------------------
ATTEST:
By: /s/ David P. Stokes
---------------------
13
CERTIFICATE OF AMENDMENT
TO THE AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TRANSACTION SYSTEMS ARCHITECTS, INC.
(Pursuant to Section 242 of the
General Corporation Law of the State of Delaware)
Transaction Systems Architects, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation"), hereby certifies the following:
FIRST: That Article Fourth of the Amended and Restated Certificate of
Incorporation of the Corporation shall be, and hereby is, amended by adding the
following to paragraph 4 of Section A thereof:
4O. Conversion in Event of Public Offering. Notwithstanding
anything to the contrary in this Article FOURTH, each
outstanding share of Series Preferred Stock (other than Series
Preferred Stock received as Series A PIK Dividends or Series B
PIK Dividends, as the case maybe) shall automatically be
converted immediately prior to the closing of a Public
Offering (the "Closing") into such number of fully paid and
nonassessable shares of Class A Common Stock as is obtained by
(a) multiplying the number of shares of such Series Preferred
Stock so to be converted by $10.00 and (b) dividing by the
then effective Conversion Price; provided, however, that any
Series Preferred Stock held by Norwest Equity Capital, Inc. or
other Restricted Owner (as defined at paragraph 5 of Article
FOURTH, Section C) shall be automatically converted
immediately prior to the Closing into such resulting number of
shares of Class B Common Stock; and all amounts payable to
holders upon conversion pursuant to paragraph 4C hereof shall
be paid contemporaneously with the Closing.
SECOND: That the Amended and Restated Certificate of Incorporation of
the Corporation shall be, and hereby is, amended by adding the following Article
Twelvth thereto:
TWELVTH: The Corporation shall be subject to Section 203 of
the General Corporation Law of the State of Delaware (and any
successor provision thereto) in accordance with its terms.
THIRD: That the effectiveness of the foregoing amendments to the
Amended and Restated Certificate of Incorporation of the Corporation shall be
subject to, and conditioned upon, the closing of a Public Offering (as defined
at Article Fourth of the Amended and Restated Certificate of Incorporation of
the Corporation) within five (5) business days following the filing of this
Certificate of Amendment in accordance with Section 103 of the General
Corporation Law of the State of Delaware. In the event such closing does not
occur within the prescribed time, the foregoing amendments to the Amended and
Restated Certificate of Incorporation of the Corporation shall be void and
without effect.
FOURTH: That the foregoing amendments to the Amended and Restated
Certificate of Incorporation and resolution pertaining thereto were duly adopted
by the board of directors of the Corporation in accordance with Section 242 of
the General Corporation Law of the State of Delaware.
FIFTH: That the foregoing amendments to the Amended and Restated
Certificate of Incorporation and resolution pertaining thereto were adopted and
approved by the holders of Class A Common Stock, Class B Common Stock, Senior
Preferred Stock and Junior Preferred Stock of the Corporation by written consent
in lieu of a meeting thereof, in accordance with the provisions of the Amended
and Restated Certificate of Incorporation and Sections 228 and 242 of the
General Corporation Law of the State of Delaware. Notice of such action was sent
to each nonconsenting holder of
shares of the Corporation's capital stock in accordance with Section 228 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, this instrument has been executed for, and on
behalf of, and in the name of the Corporation by its officers thereunto duly
authorized on February 24, 1995.
TRANSACTION SYSTEMS ARCHITECTS, INC.
By: /s/ William E. Fisher
---------------------------------
ATTEST:
By: /s/ David P. Stokes
---------------------
2
CERTIFICATE OF DESIGNATIONS
OF
SPECIAL PREFERRED VOTING STOCK
OF
TRANSACTION SYSTEMS ARCHITECTS, INC.
Pursuant to the provisions of Section 151(g) of the General Corporation
Law of the State of Delaware (the "DGCL") and pursuant to its Amended and
Restated Certificate of Incorporation, the undersigned, Transaction Systems
Architects. Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Corporation"), in accordance with
the provisions of Section 103 thereof, DOES HEREBY CERTIFY:
That pursuant to the authority vested in the Board of Directors in
accordance with the provisions of the Amended and Restated Certificate of
Incorporation of the Corporation, the Board of Directors on January 5, 2001,
adopted the following resolution creating a series of Preferred Stock, par value
$.01, designated as "Special Preferred Voting Stock":
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board by the Amended and Restated Certificate of Incorporation,
the Board hereby authorizes the creation of a series of preferred stock, par
value $.01 per share, of the Corporation, such series to be designated Special
Preferred Voting Stock (the "Special Preferred Voting Stock"), and hereby fixes
the designation and number of shares thereof and the other powers, preferences
and relative, participating, optional and other special rights, and the
qualifications, limitations and restrictions thereof as follows:
Section 1. Special Preferred Voting Stock Designated. A series of
Preferred Stock consisting of one share of such stock, is hereby designated as
"Special Preferred Voting Stock." The outstanding share of Special Preferred
Voting Stock shall be entitled at any relevant date on all matters presented to
the holders of Class A Common Stock of the Corporation to the number of votes
equal to the number of Exchangeable Shares (as such term is defined in the
Voting and Exchange Trust Agreement dated as of January 11,2001, among the
Corporation, Transaction Systems Architects Nova Scotia Company, TSA Exchangeco
Limited, and Wells Fargo Bank Minnesota, N.A.) outstanding from time to time,
other than Exchangeable Shares held by the Corporation and its affiliates. The
Special Preferred Voting Stock and Class A Common Stock shall vote together as a
single class. The Special Preferred Voting Stock shall have no other voting
rights except as required by law. No dividend shall be paid to the holder of
Special Preferred Voting Stock. The Special Preferred Voting Stock is not
convertible into any other class or series of the capital stock of the
Corporation or into cash, property or other rights. The holder of the Special
Preferred Voting Stock shall not be entitled to participate in any payment or
distribution upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation. Any share of Special Preferred Voting Stock
purchased or otherwise acquired by the Corporation shall be deemed retired and
shall be canceled and may not thereafter be reissued
or otherwise disposed of by the Corporation. So long as any Exchangeable Shares
shall be outstanding, the number of shares comprising the Special Preferred
Voting Stock shall not be increased or decreased and no other term of the
Special Preferred Voting Stock shall be amended, except upon the approval of
the holder of the outstanding share of Special Preferred Voting Stock. At such
time as no Exchangeable Shares shall be outstanding, the Special Preferred
Voting Stock shall automatically be cancelled.
IN WITNESS WHEREOF, the undersigned has executed this Certificate and
does affirm the foregoing as true this 5th day of January, 2001.
TRANSACTION SYSTEMS ARCHITECTS, INC.
By: /s/ David P. Stokes
------------------------------------
David Stokes
Vice President - Legal and Secretary
- 2 -
Exhibit 3.2
TRANSACTION SYSTEMS ARCHITECTS, INC.
AMENDED AND RESTATED BYLAWS
As Adopted and in
Effect on March 9, 2004
Table of Contents
-----------------
Page
----
STOCKHOLDERS MEETINGS........................................................1
1. Time and Place of Meetings.......................................1
2. Annual Meeting...................................................1
3. Special Meetings.................................................1
4. Notice of Meetings...............................................1
5. Inspectors.......................................................2
6. Quorum...........................................................2
7. Voting; Proxies..................................................2
8. Order of Business................................................3
DIRECTORS....................................................................5
9. Function.........................................................5
10. Number, Election and Terms.......................................5
11. Vacancies and Newly Created Directorships........................5
12. Nominations of Directors; Election...............................5
13. Resignation......................................................7
14. Regular Meetings.................................................7
15. Special Meetings.................................................7
16. Quorum...........................................................7
17. Participation in Meetings by Remote Communications...............7
18. Committees.......................................................8
19. Compensation.....................................................9
20. Rules............................................................9
NOTICES......................................................................9
21. Generally........................................................9
22. Waivers..........................................................9
OFFICERS.....................................................................9
23. Generally........................................................9
24. Compensation....................................................10
25. Succession......................................................10
26. Authority and Duties............................................10
STOCK.......................................................................10
Table of Contents
-----------------
(continued)
Page
----
27. Certificates....................................................10
28. Classes of Stock................................................10
29. Lost, Stolen or Destroyed Certificates..........................10
30. Record Dates....................................................11
GENERAL.....................................................................11
31. Contracts, Checks, Etc..........................................11
32. Fiscal Year.....................................................12
33. Seal............................................................12
34. Reliance Upon Books, Reports and Records........................12
35. Time Periods....................................................12
36. Amendments......................................................12
37. Insurance.......................................................12
38. Certificate of Incorporation and Applicable Law.................13
(ii)
STOCKHOLDERS MEETINGS
1. Time and Place of Meetings. All meetings of the stockholders for the
election of the members of the Board of Directors (the "Directors") or
for any other purpose will be held at such time and place, within or
without the State of Delaware, as may be designated by the Board of
Directors of the Company (the "Board") or, in the absence of a designation
by the Board, the Chairman of the Board (the "Chairman"), the Chief
Executive Officer, the President or the Secretary, and stated in the
notice of meeting. Notwithstanding the foregoing, the Board may, in its
sole discretion, determine that meetings of the stockholders shall not be
held at any place, but may instead be held by means of remote
communications, subject to such guidelines and procedures as the Board may
adopt from time to time. The Board may postpone and reschedule any
previously scheduled annual or special meeting of the stockholders.
2. Annual Meeting. An annual meeting of the stockholders will be held at
such date and time as may be designated from time to time by the Board,
at which meeting the stockholders will elect by a plurality vote the
Directors, and will transact such other business as may properly be
brought before the meeting in accordance with Bylaw 8.
3. Special Meetings. Special meetings of the stockholders may be called
only by (i) the Chairman, (ii) the President or (iii) the Secretary within
10 calendar days after receipt of the written request of a majority of the
total number of Directors that the Company would have if there were no
vacancies (the "Whole Board"). Any such request by a majority of the
Whole Board must be sent to the Chairman and the Secretary and must state
the purpose or purposes of the proposed meeting. Special meetings of
holders of the outstanding Preferred Stock of the Company (the "Preferred
Stock"), if any, may be called in the manner and for the purposes provided
in the applicable Preferred Stock Designation (as defined in the
certificate of incorporation of the Company, as amended from time to time
(the "Certificate of Incorporation")).
4. Notice of Meetings. Written notice of every meeting of the stockholders,
stating the place, if any, date and time thereof, the means of remote
communications, if any, by which stockholders and proxy holders may be
deemed to be present in person and vote at such meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting
is called, will be given not less than 10 nor more than 60 calendar days
before the date of the meeting to each stockholder of record entitled to
vote at such meeting, except as otherwise provided herein or by law.
When a meeting is adjourned to another place, date, or time, written
notice need not be given of the adjourned meeting if the place, if any,
date and time thereof, and the means of remote communications, if any, by
which stockholders and proxy holders may be deemed to be present in person
and vote at such adjourned meeting are announced at the meeting at which
the adjournment is taken; provided, however, that if the adjournment is
for more than 30 calendar days, or if after the adjournment a new record
date is fixed for the adjourned
meeting, written notice of the place, if any, date and time thereof, and
the means of remote communications, if any, by which stockholders and
proxy holders may be deemed to be present in person and vote at such
adjourned meeting must be given in conformity herewith. At any adjourned
meeting, any business may be transacted which properly could have been
transacted at the original meeting.
5. Inspectors. The Board may appoint one or more inspectors of election to
act as judges of the voting and to determine those entitled to vote at any
meeting of the stockholders, or any adjournment thereof, in advance of
such meeting. The Board may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of stockholders, the presiding
officer of the meeting may appoint one or more substitute inspectors.
6. Quorum. Except as otherwise provided by law or in a Preferred Stock
Designation, the holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy,
will constitute a quorum at all meetings of the stockholders for the
transaction of business thereat. If, however, such quorum is not present
or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, will
have the power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum is present or
represented.
7. Voting; Proxies. Except as otherwise provided by law, by the Company's
Certificate of Incorporation, or in a Preferred Stock Designation, each
stockholder will be entitled at every meeting of the stockholders to one
vote for each share of stock having voting power standing in the name of
such stockholder on the books of the Company on the record date for the
meeting and such votes may be cast either in person or by proxy. Every
proxy must be authorized in a manner permitted by Section 212 of the
Delaware General Corporation Law (or any successor provision). Without
affecting any vote previously taken, a stockholder may revoke any proxy
that is not irrevocable by attending the meeting and voting in person, by
revoking the proxy by giving notice to the Secretary of the Company, or by
a later appointment of a proxy. The vote upon any question brought before
a meeting of the stockholders may be by voice vote, unless otherwise
required by the Certificate of Incorporation or these Bylaws or unless the
Chairman or the holders of a majority of the outstanding shares of all
classes of stock entitled to vote thereon present in person or by proxy at
such meeting otherwise determine. Every vote taken by written ballot
will be counted by the inspectors of election. When a quorum is present
at any meeting, the affirmative vote of the holders of a majority of the
stock present in person or represented by proxy at the meeting and
entitled to vote on the subject matter and which has actually been voted
(the "Voting Stock") will be the act of the stockholders, except in the
election of Directors or as otherwise provided in these Bylaws, the
Certificate of Incorporation, a Preferred Stock Designation, or by law.
(2)
8. Order of Business. (a) The Chairman, or such other officer of the
Company designated by a majority of the Whole Board, will call meetings
of the stockholders to order and will act as presiding officer thereof.
Unless otherwise determined by the Board prior to the meeting, the
presiding officer of the meeting of the stockholders will also determine
the order of business and have the authority in his or her sole
discretion to regulate the conduct of any such meeting, including without
limitation by imposing restrictions on the persons (other than
stockholders of the Company or their duly appointed proxies) that may
attend any such stockholders' meeting, by ascertaining whether any
stockholder or his proxy may be excluded from any meeting of the
stockholders based upon any determination by the presiding officer, in his
sole discretion, that any such person has disrupted or is likely to
disrupt the proceedings thereat, and by determining the circumstances in
which any person may make a statement or ask questions at any meeting of
the stockholders.
(b) At an annual meeting of the stockholders, only such business will be
conducted or considered as is properly brought before the annual
meeting. To be properly brought before an annual meeting, business
must be (i) specified in the notice of the annual meeting (or any
supplement thereto) given by or at the direction of the Board in
accordance with Bylaw 4, (ii) otherwise properly brought before the
annual meeting by the presiding officer or by or at the direction of
a majority of the Whole Board, or (iii) otherwise properly requested
to be brought before the annual meeting by a stockholder of the
Company in accordance with Bylaw 8(c).
(c) For business to be properly requested by a stockholder to be brought
before an annual meeting, (i) the stockholder must be a stockholder
of the Company of record at the time of the giving of the notice for
such annual meeting provided for in these Bylaws, (ii) the
stockholder must be entitled to vote at such meeting, (iii) the
stockholder must have given timely notice thereof in writing to the
Secretary and (iv) if the stockholder, or the beneficial owner on
whose behalf any business is brought before the meeting, has provided
the Company with a Proposal Solicitation Notice, as that term is
defined in this Bylaw 8(c), such stockholder or beneficial owner must
have delivered a proxy statement and form of proxy to the holders of
at the least the percentage of shares of the Company entitled to vote
required to approve such business that the stockholder proposes to
bring before the annual meeting and included in such materials. To
be timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the Company not less
than 60 nor more than 90 calendar days prior to the first anniversary
of the date on which the Company first mailed its proxy materials for
the preceding year's annual meeting of stockholders; provided,
however, that if the date of the annual meeting is advanced more than
30 calendar days prior to or delayed by more than 30 calendar days
after the anniversary of the preceding year's annual meeting, notice
by the stockholder to be timely must be so delivered not later than
the close of business on the later of the
(3)
90th calendar day prior to such annual meeting or the 10th calendar
day following the day on which public disclosure of the date of such
meeting is first made. In no event shall the public disclosure of an
adjournment of an annual meeting commence a new time period for the
giving of a stockholder's notice as described above. A stockholder's
notice to the Secretary must set forth as to each matter the
stockholder proposes to bring before the annual meeting (A) a
description in reasonable detail of the business desired to brought
before the annual meeting and the reasons for conducting such
business at the annual meeting, (B) the name and address, as they
appear on the Company's books, of the stockholder proposing such
business and the beneficial owner, if any, on whose behalf the
proposal is made, (C) the class and series and number of shares of
capital stock of the Company that are owned beneficially and of
record by the stockholder proposing such business and by the
beneficial owner, if any, on whose behalf the proposal is made,
(D) a description of all arrangements or understandings among such
stockholder and any other person or persons (including their names)
in connection with the proposal of such business by such stockholder
and any material interest of such stockholder in such business,
(E) whether either such stockholder or beneficial owner intends to
deliver a proxy statement and form of proxy to holders of at least
the percentage of shares of the Company entitled to vote required to
approve the proposal (an affirmative statement of such intent, a
"Proposal Solicitation Notice"), and (F) a representation that such
stockholder intends to appear in person or by proxy at the annual
meeting to bring such business before the annual meeting.
Notwithstanding the foregoing provisions of this Bylaw 8(c), a
stockholder must also comply with all applicable requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (the "Exchange Act") with respect to matters set forth in
this Bylaw 8(c). For purposes of this Bylaw 8 and Bylaw 12, "public
disclosure" means disclosure in a press release reported by the Dow
Jones News Service, Associated Press or comparable national news
service or in a document filed by the Company with the Securities and
Exchange Commission pursuant to the Exchange Act or furnished by the
Company to stockholders. Nothing in this Bylaw 8(c) will be deemed
to affect any rights of stockholders to request inclusion of
proposals in the Company's proxy statement pursuant to Rule 14a-8
under the Exchange Act.
(d) At a special meeting of stockholders, only such business may be
conducted or considered as is properly brought before the meeting.
To be properly brought before a special meeting, business must be
(i) specified in the notice of the meeting (or any supplement
thereto) given by or at the direction of the Chairman, the President
or a majority of the Whole Board in accordance with Bylaw 4 or
(ii) otherwise properly brought before the meeting by the presiding
officer or by or at the direction of a majority of the Whole Board.
(4)
(e) The determination of whether any business sought to be brought before
any annual or special meeting of the stockholders is properly brought
before such meeting in accordance with this Bylaw 8 will be made by
the presiding officer of such meeting. If the presiding officer
determines that any business is not properly brought before such
meeting, he or she will so declare to the meeting and any such
business will not be conducted or considered.
DIRECTORS
---------
9. Function. The business and affairs of the Company will be managed under
the direction of its Board.
10. Number, Election and Terms. Subject to the rights, if any, of any series
of Preferred Stock to elect additional Directors under circumstances
specified in a Preferred Stock Designation, and to any minimum and maximum
number of authorized Directors provided in the Certificate of
Incorporation, the authorized number of Directors may be determined from
time to time only by a vote of a majority of the Whole Board, but such
number shall be no fewer than three nor more than nine.
11. Vacancies and Newly Created Directorships. Subject to the rights, if any,
of the holders of any series of Preferred Stock to elect additional
Directors under circumstances specified in a Preferred Stock Designation,
newly created directorships resulting from any increase in the number of
Directors and any vacancies on the Board resulting from death,
resignation, disqualification, removal, or other cause will be filled
solely by the affirmative vote of a majority of the remaining Directors
then in office, even though less than a quorum of the Board, or by a sole
remaining Director. Any Director elected in accordance with the
preceding sentence will hold office for the remainder of the full term of
the class of Directors in which the new directorship was created or the
vacancy occurred and until such Director's successor is elected and
qualified. No decrease in the number of Directors constituting the Board
will shorten the term of an incumbent Director.
12. Nominations of Directors; Election. (a) Subject to the rights, if any, of
the holders of any series of Preferred Stock to elect additional Directors
under circumstances specified in a Preferred Stock Designation, only
persons who are nominated in accordance with this Bylaw 12 will be
eligible for election at a meeting of stockholders as Directors of the
Company.
(b) Nominations of persons for election as Directors of the Company may
be made only at an annual meeting of stockholders (i) by or at the
direction of the Board or a committee thereof or (ii) by any
stockholder that is a stockholder of record at the time of giving of
notice provided for in this Bylaw 12, who is entitled to vote for the
election of Directors at such annual meeting, and who complies with
the procedures set forth in this
(5)
Bylaw 12. If a stockholder, or a beneficial owner on whose behalf
any such nomination is made, has provided the Company with a
Nomination Solicitation Notice, as that term is defined in this Bylaw
12 below, such stockholder or beneficial owner must have delivered a
proxy statement and form of proxy to the holders of at least the
percentage of shares of the Company entitled to vote required to
approve such nomination and included in such materials the Nomination
Solicitation Notice. All nominations by stockholders must be made
pursuant to timely notice in proper written form to the Secretary.
(c) To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Company not
less than 60 nor more than 90 calendar days prior to the first
anniversary of the date on which the Company first mailed its proxy
materials for the preceding year's annual meeting of stockholders;
provided, however, that if the date of the annual meeting is advanced
more than 30 calendar days prior to or delayed by more than 30
calendar days after the anniversary of the preceding year's annual
meeting, notice by the stockholder to be timely must be so delivered
not later than the close of business on the later of the 90th
calendar day prior to such annual meeting or the 10th calendar day
following the day on which public disclosure of the date of such
meeting is first made. In no event shall the public disclosure of an
adjournment of an annual meeting commence a new time period for the
giving of a stockholder's notice as described above. To be in
proper written form, such stockholder's notice must set forth or
include (i) the name and address, as they appear on the Company's
books, of the stockholder giving the notice and of the beneficial
owner, if any, on whose behalf the nomination is made; (ii) a
representation that the stockholder giving the notice is a holder of
record of stock of the Company entitled to vote at such annual
meeting and intends to appear in person or by proxy at the annual
meeting to nominate the person or persons specified in the notice;
(iii) the class and number of shares of stock of the Company owned
beneficially and of record by the stockholder giving the notice and
by the beneficial owner, if any, on whose behalf the nomination is
made; (iv) a description of all arrangements or understandings
between or among any of (A) the stockholder giving the notice,
(B) the beneficial owner on whose behalf the notice is given,
(C) each nominee, and (D) any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations
are to be made by the stockholder giving the notice; (v) such other
information regarding each nominee proposed by the stockholder
giving the notice as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and
Exchange Commission had the nominee been nominated, or intended to be
nominated, by the Board; (vi) the signed consent of each nominee to
serve as a Director of the Company if so elected; (vii) whether
either such stockholder or beneficial owner intends to deliver a
proxy statement and form of proxy to holders of at least the
percentage of shares of the
(6)
Company entitled to vote required to elect such nominee or nominees
(an affirmative statement of such intent, a "Nomination Solicitation
Notice"); and (viii) a representation that such stockholder intends
to appear in person or by proxy at the meeting to nominate the
persons named in the notice. At the request of the Board, any person
nominated by the Board for election as a Director must furnish to the
Secretary that information required to be set forth in a
stockholder's notice of nomination that pertains to the nominee. The
presiding officer of any annual meeting will, if the facts warrant,
determine that a nomination was not made in accordance with the
procedures prescribed by this Bylaw 12, and if he or she should so
determine, he or she will so declare to the meeting and the defective
nomination will be disregarded. Notwithstanding the foregoing
provisions of this Bylaw 12, a stockholder must also comply with all
applicable requirements of the Exchange Act with respect to the
matters set forth in this Bylaw 12.
13. Resignation. Any Director may resign at any time by giving notice in
writing or by electronic transmission of his or her resignation to the
Chairman or the Secretary. Any resignation will be effective upon actual
receipt by any such person or, if later, as of the date and time specified
in such written notice.
14. Regular Meetings. Regular meetings of the Board may be held immediately
after the annual meeting of the stockholders and at such other time and
place either within or without the State of Delaware as may from time to
time be determined by the Board. Notice of regular meetings of the Board
need not be given.
15. Special Meetings. Special meetings of the Board may be called by the
Chairman or the President on one day's notice to each Director by whom
such notice is not waived, given either personally or by mail, courier,
telephone, facsimile, or similar medium of communication, and will be
called by the Chairman or the President, in like manner and on like
notice, on the written request of a majority of the Whole Board. Special
meetings of the Board may be held at such time and place either within or
without the State of Delaware as is determined by the Board or specified
in the notice of any such meeting.
16. Quorum. At all meetings of the Board, a majority of the Whole Board will
constitute a quorum for the transaction of business. Except for the
designation of committees as hereinafter provided and except for actions
required by these Bylaws or the Certificate of Incorporation to be taken
by a majority of the Whole Board, the act of a majority of the Directors
present at any meeting at which there is a quorum will be the act of the
Board. If a quorum is not present at any meeting of the Board, the
Directors present thereat may adjourn the meeting from time to time to
another place, time, or date, without notice other than announcement at
the meeting, until a quorum is present.
17. Participation in Meetings by Remote Communications. Members of the Board
or any committee designated by the Board may participate in a meeting of
the Board
(7)
or any such committee, as the case may be, by means of telephone
conference or other means by which all persons participating in the
meeting can hear each other, and such participation in a meeting will
constitute presence in person at the meeting.
18. Committees. (a) The Board, by resolution passed by a majority of the
Whole Board, may designate one or more committees. Each such committee
will consist of one or more Directors and will have such lawfully
delegable powers and duties as the Board may confer; provided, however,
that no committee shall exercise any power or duty expressly required by
the Delaware General Corporation Law, as it may be amended from time to
time, to be acted upon by the Board. Any such committee designated by the
Board will have such name as may be determined from time to time by
resolution adopted by the Board.
(b) The members of each committee of the Board will serve in such
capacity at the pleasure of the Board or as may be specified in any
resolution from time to time adopted by the Board. The Board may
designate one or more Directors as alternate members of any such
committee, who may replace any absent or disqualified member at any
meeting of such committee. In lieu of such designation by the Board,
in the absence or disqualification of any member of a committee of
the Board, the members thereof present at any such meeting of such
committee and not disqualified from voting, whether or not they
constitute a quorum, may unanimously appoint another member of the
Board to act at the meeting in the place of any such absent or
disqualified member.
(c) Except as otherwise provided in these Bylaws, by law or in any
resolution from time to time adopted by the Board, any committee of
the Board will have and may exercise all the powers and authority of
the Board in the direction of the management of the business and
affairs of the Company. Any such committee designated by the Board
will have such name as may be determined from time to time by
resolution adopted by the Board. Unless otherwise prescribed by the
Board, meetings of any committee of the Board may be held in the same
manner as provided in Bylaw 17 or by unanimous written consent in
lieu of a meeting, a majority of the members of any such committee
will constitute a quorum for the transaction of business, and the act
of a majority of the members present at a meeting at which there is a
quorum will be the act of such committee. Each committee of the
Board may prescribe its own rules for calling and holding meetings
and its method of procedure, subject to any rules prescribed by the
Board, will keep minutes of its proceedings and all actions taken by
it, and will report its proceedings to the Board when required or
when requested by a Director to do so.
(8)
19. Compensation. The Board may establish the compensation for, and
reimbursement of the expenses of, Directors for membership on the Board
and on committees of the Board, attendance at meetings of the Board or
committees of the Board, and for other services by Directors to the
Company or any of its majority-owned subsidiaries.
20. Rules. The Board may adopt rules and regulations for the conduct of
meetings and the oversight of the management of the affairs of the
Company.
NOTICES
-------
21. Generally. Except as otherwise provided by law, these Bylaws, or the
Certificate of Incorporation, whenever by law or under the provisions of
the Certificate of Incorporation or these Bylaws notice is required to be
given to any Director or stockholder, it will not be construed to require
personal notice, but such notice may be given in writing, by mail or
courier service, addressed to such Director or stockholder, at the address
of such Director or stockholder as it appears on the records of the
Company, with postage thereon prepaid, and such notice will be deemed to
be given at the time when the same is deposited in the United States mail.
Notice to Directors may also be given by telephone, facsimile, electronic
transmission or similar medium of communication or as otherwise may be
permitted by these Bylaws.
22. Waivers. Whenever any notice is required to be given by law or under the
provisions of the Certificate of Incorporation or these Bylaws, a waiver
thereof in writing, signed by the person or persons entitled to such
notice, or a waiver by electronic transmission by the person or persons
entitled to such notice, whether before or after the time of the event for
which notice is to be given, will be deemed equivalent to such notice.
Attendance of a person at a meeting will constitute a waiver of notice of
such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or convened.
OFFICERS
--------
23. Generally. The officers of the Company will be elected by the Board and
will consist of a Chairman, a President, a Secretary and a Treasurer. The
Board may also choose any or all of the following: one or more Vice
Chairmen, one or more Assistants to the Chairman, one or more Vice
Presidents (who may be given particular designations with respect to
authority, function, or seniority), one or more Assistant Secretaries, one
or more Assistant Treasurers and such other officers as the Board may from
time to time determine. Notwithstanding the foregoing, by specific action
the Board may authorize the Chairman to appoint any person to any office
other than Chairman, Chief Executive Officer, President, Secretary or
Treasurer. Any number of offices may be held by the same person. Any of
the offices may be left vacant from time to time as the Board may
(9)
determine. In the case of the absence or disability of any officer of the
Company or for any other reason deemed sufficient by a majority of the
Board, the Board may delegate the absent or disabled officer's powers or
duties to any other officer or to any Director.
24. Compensation. The compensation of all officers and agents of the Company
who are also Directors of the Company will be fixed by the Board or by a
committee of the Board. The Board may fix, or delegate the power to fix,
the compensation of other officers and agents of the Company to an officer
of the Company.
25. Succession. The officers of the Company will hold office until their
successors are elected and qualified. Any officer may be removed at any
time by the affirmative vote of a majority of the Whole Board. Any vacancy
occurring in any office of the Company may be filled by the Board or by
the Chairman as provided in Bylaw 23.
26. Authority and Duties. Each of the officers of the Company will have such
authority and will perform such duties as are customarily incident to
their respective offices or as may be specified from time to time by the
Board.
STOCK
-----
27. Certificates. Certificates representing shares of stock of the Company
will be in such form as is determined by the Board, subject to applicable
legal requirements. Each such certificate will be numbered and its
issuance recorded in the books of the Company, and such certificate will
exhibit the holder's name and the number of shares and will be
mechanically signed with a facsimile of the signature of the President or
a Vice President, and a facsimile of the signature of the Secretary or an
Assistant Secretary, and shall also be signed by, or bear the facsimile
signature of, a duly authorized officer or agent of any properly
designated transfer agent of the Company. Any or all of the signatures and
the seal of the Company, if any, upon such certificates may be facsimiles,
engraved, or printed. Such certificates may be issued and delivered
notwithstanding that the person whose facsimile signature appears thereon
may have ceased to be such officer at the time the certificates are issued
and delivered.
28. Classes of Stock. The designations, powers, preferences and relative
participating, optional or other special rights of the various classes of
stock or series thereof, and the qualifications, limitations or
restrictions thereof, will be set forth in full or summarized on the face
or back of the certificates which the Company issues to represent its
stock or, in lieu thereof, such certificates will set forth the office of
the Company from which the holders of certificates may obtain a copy of
such information at no charge.
29. Lost, Stolen or Destroyed Certificates. An executive officer or the
Secretary may direct a new certificate or certificates to be issued in
place of any certificate or certificates theretofore issued by the Company
alleged to have been lost, stolen or
(10)
destroyed, upon the making of an affidavit of that fact, satisfactory to
such executive officer or the Secretary, by the person claiming the
certificate of stock to be lost, stolen or destroyed. As a condition
precedent to the issuance of a new certificate or certificates, such
executive officer or the Secretary may require the owners of such lost,
stolen or destroyed certificate or certificates to advertise the alleged
loss, theft or destruction in such a manner as such executive officer or
the Secretary may require, and/or to give the Company a bond in such sum
and with such surety or sureties as such executive officer or the
Secretary may direct as indemnity against any claims that may be made
against the Company with respect to the certificate alleged to have been
lost, stolen or destroyed or the issuance of the new certificate.
30. Record Dates. (a) In order that the Company may determine the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, the Board may fix a record date,
which will not be more than 60 nor less than 10 calendar days before the
date of such meeting. If no record date is fixed by the Board, the record
date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders will be at the close of business on the calendar
day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the calendar day next preceding the
day on which the meeting is held. A determination of stockholders of
record entitled to notice of or to vote at a meeting of the stockholders
will apply to any adjournment of the meeting; provided, however, that the
Board may fix a new record date for the adjourned meeting.
(b) In order that the Company may determine the stockholders entitled to
receive payment of any dividend or other distribution or allotment of
any rights or the stockholders entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board may fix a record date,
which record date will not be more than 60 calendar days prior to
such action. If no record date is fixed, the record date for
determining stockholders for any such purpose will be at the close of
business on the calendar day on which the Board adopts the resolution
relating thereto.
(c) The Company will be entitled to treat the person in whose name any
share of its stock is registered as the owner thereof for all
purposes, and will not be bound to recognize any equitable or other
claim to, or interest in, such share on the part of any other person,
whether or not the Company has notice thereof, except as expressly
provided by applicable law.
GENERAL
-------
31. Contracts, Checks, Etc. All contracts, agreements, checks, drafts, notes,
bonds, bills of exchange and orders for the payment of money shall be
signed or endorsed by the persons whom the Board of Directors prescribes
therefor.
(11)
32. Fiscal Year. The fiscal year of the Company shall commence on October 1
of each year and shall end the following September 30.
33. Seal. The Board may adopt a corporate seal and use the same by causing it
or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
34. Reliance Upon Books, Reports and Records. Each Director, each member of a
committee designated by the Board, and each officer of the Company will,
in the performance of his or her duties, be fully protected in relying in
good faith upon the records of the Company and upon such information,
opinions, reports, or statements presented to the Company by any of the
Company's officers or employees, or committees of the Board, or by any
other person or entity as to matters the Director, committee member, or
officer believes are within such other person's professional or expert
competence and who has been selected with reasonable care by or on behalf
of the Company.
35. Time Periods. In applying any provision of these Bylaws that requires
that an act be performed or not be performed a specified number of days
prior to an event or that an act be performed during a period of a
specified number of days prior to an event, calendar days will be used
unless otherwise specified, the day of the doing of the act will be
excluded, and the day of the event will be included.
36. Amendments. Except as otherwise provided by law or by the Certificate of
Incorporation or these Bylaws, these Bylaws or any of them may be amended
in any respect or repealed at any time, either (i) at any meeting of
stockholders, provided that any amendment or supplement proposed to be
acted upon at any such meeting has been described or referred to in the
notice of such meeting, or (ii) at any meeting of the Board, provided that
no amendment adopted by the Board may vary or conflict with any amendment
adopted by the stockholders in accordance with the Certificate of
Incorporation and these Bylaws. Notwithstanding the foregoing and
anything contained in these Bylaws to the contrary, Bylaws 1, 3, 8, 10,
11, 12 and 36 may not be amended or repealed by the stockholders, and no
provision inconsistent therewith may be adopted by the stockholders,
without the affirmative vote of the holders of at least a majority of all
classes of voting stock issued and outstanding.
37. Insurance. The Company shall purchase and maintain insurance on behalf of
any person who is a director or officer of the Company, or is a director
or officer of the Company serving at the request of the Company as a
director, officer, employee or agent of another company or of a
partnership, joint venture, trust or other enterprise, against any
expense, liability and loss asserted against and incurred or suffered by
such person or on such person's behalf in any such capacity, or arising
out of such person's status as such, whether or not the Company would have
the power to indemnify such against such liability under the provisions
of the Certificate of Incorporation or applicable law, provided that such
insurance is available on reasonably acceptable terms as determined by
(i) the
(12)
executive officer(s) responsible for purchasing or maintaining such
insurance; or (ii) a vote of a majority of the Whole Board.
38. Certificate of Incorporation and Applicable Law. These Bylaws are subject
to the provisions of the Certificate of Incorporation and applicable law.
(13)
Exhibit 5.1
OPINION OF JONES DAY
March 11, 2004
Transaction Systems Architects, Inc.
224 South 108th Avenue
Omaha, Nebraska 68154
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We are acting as counsel to Transaction Systems Architects, Inc., a
Delaware corporation (the "Company"), in connection with the registration of
750,000 shares (the "Shares") of the Company's Class A Common Stock, par value
$0.005 per share, pursuant to a Registration Statement on Form S-8 to be filed
by the Company on or about March 12, 2004 (the "Registration Statement").
We have examined such documents, records, and matters of law as we have
deemed necessary for purposes of this opinion. Based on such examination and on
the assumptions set forth below, we are of the opinion that the Shares that may
be issued and sold pursuant to the Company's Amended and Restated 1999 Employee
Stock Purchase Plan (the "Plan") and authorized forms of stock agreements
thereunder will be, when issued and sold in accordance with the Plan and such
agreements, duly authorized, validly issued, fully paid and nonassessable.
In rendering the foregoing opinion, we have (i) relied as to certain
factual matters upon certificates of officers of the Company and public
officials, and we have not independently checked or verified the accuracy of the
statements contained therein, (ii) assumed that the signatures on all documents
examined by us are genuine and that where any such signature purports to have
been made in a corporate, governmental, fiduciary, or other capacity, the person
who affixed such signature to such documents had authority to do so, and (iii)
assumed the authenticity of all documents submitted to us as originals and the
conformity to original or certified copies of all copies submitted to us as
certified or reproduction copies. In addition, our examination of matters of law
has been limited to the General Corporation Law of the State of Delaware and the
federal laws of the United States of America, in each case as in effect on the
date hereof.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Jones Day
Exhibit 23.1
Independent Auditors' Consent
To the Board of Directors
Transaction Systems Architects, Inc.
We consent to the incorporation by reference in the registration statement on
Form S-8 of Transaction Systems Architects, Inc. of our report dated October 27,
2003, with respect to the consolidated balance sheets of Transaction Systems
Architects, Inc. as of September 30, 2003 and 2002, and the related consolidated
statements of operations, stockholders' equity and comprehensive income, and
cash flows for each of the years in the three-year period ended September 30,
2003, which report appears in the September 30, 2003, annual report on Form 10-K
of Transaction Systems Architects, Inc. Our report refers to the Company's
adoption of Statement of Financial Accounting Standards (SFAS) No. 142 "Goodwill
and Other Intangible Assets," as of October 1, 2001.
/s/ KPMG LLP
Omaha, Nebraska
March 12, 2004