Attached files
| file | filename |
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| 8-K - TRANSWITCH CORP /DE | v167250_8k.htm |
| EX-3.1 - TRANSWITCH CORP /DE | v167250_ex3-1.htm |
| EX-99.1 - TRANSWITCH CORP /DE | v167250_ex99-1.htm |
AMENDED CERTIFICATE
OF DESIGNATION
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
TRANSWITCH CORPORATION
(Pursuant
to Section 151 of the
Delaware
General Corporation Law)
TranSwitch
Corporation, a corporation organized and existing under the General Corporation
Law of the State of Delaware (hereinafter called the “Corporation”), in
accordance with the provisions of Section 103 thereof, DOES HEREBY
CERTIFY:
FIRST: That a
Certificate of Designation of Series A Junior Participating Preferred Stock was
originally filed with the Secretary of State of the State of Delaware on
November 6, 2001, and as amended by a Certificate of Increase on April 19,
2005.
SECOND: That no
shares of Series A Junior Participating Preferred Stock have been issued as of
the date of this Amended Certificate of Designation.
THIRD: That, at a
meeting of the Board of Directors held on March 18, 2009, the Board of Directors
of the Corporation duly and validly adopted the following
resolutions:
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RESOLVED:
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That
the designation and amount, and relative rights, preferences, voting
powers and other special rights of the shares of the Corporation’s Series
A Junior Participating Preferred Stock, and the qualifications,
limitations or restrictions thereof, shall be amended and restated as set
forth in Exhibit
A attached hereto.
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RESOLVED:
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That
the President, Chief Financial Officer or any Vice President and the
Secretary or any Assistant Secretary of the Corporation be, and they
hereby are, authorized and directed, in the name and on behalf of the
Corporation, to file the Amended Certificate of Designation in
accordance with the provisions of Delaware General Corporation Law and to
take such actions as they may deem necessary or appropriate to carry out
the intent of the foregoing
resolution.
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FOURTH: That the
aforesaid resolutions were duly and validly adopted in accordance with the
applicable provisions of Section 151 of the General Corporation Law of the State
of Delaware and the Certificate of Incorporation and By-Laws of the
Corporation.
[Remainder
of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the
Corporation has caused this Amended Certificate of Designation to be executed by
its President, Chief Executive Officer, this 23rd day of
November, 2009.
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TRANSWITCH
CORPORATION
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By:
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/s/ Santanu Das
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Name:
Dr. Santanu Das
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Title:
President, Chief Executive
Officer
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EXHIBIT
A
Section
1. Designation and
Amount. The shares of this series shall be designated as
“Series A Junior Participating
Preferred Stock” (the “Series A Preferred Stock”)
and the number of shares constituting the Series A Junior Preferred Stock shall
be twenty-five thousand (25,000). Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Series A Junior Preferred Stock to a number
less than the number of shares then outstanding plus the number of shares
reserved for issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities issued by the
Corporation convertible into Series A Junior Preferred Stock.
Section
2. Dividends and
Distributions.
(a)
Subject to the rights of the holders of any shares of any series of Preferred
Stock (or any other stock) ranking prior and superior to the Series A Junior
Preferred Stock with respect to dividends, the holders of shares of Series A
Junior Preferred Stock shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the last day of March, June, September and December
in each year (each such date being referred to herein as a “Quarterly Dividend Payment
Date”), commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of Series A Junior Preferred
Stock, in an amount (if any) per share (rounded to the nearest cent), subject to
the provision for adjustment hereinafter set forth, equal to one hundred
twenty-five (125) times the aggregate per share amount of all cash dividends,
and one hundred twenty-five (125) times the aggregate per share amount (payable
in kind) of all non-cash dividends or other distributions, other than a dividend
payable in shares of Common Stock, par value $.001 per share (the “Common Stock”), of the
Corporation or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Junior Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount to which holders of shares of Series A Junior Preferred Stock were
entitled immediately prior to such event under the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) The
Corporation shall declare a dividend or distribution on the Series A Junior
Preferred Stock as provided in paragraph (a) of this Section immediately after
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock).
(c)
Dividends due pursuant to paragraph (a) of this Section shall begin to accrue
and be cumulative on outstanding shares of Series A Junior Preferred Stock from
the Quarterly Dividend Payment Date next preceding the date of issue of such
shares, unless the date of issue of such shares is prior to the record date for
the first Quarterly Dividend Payment Date, in which case dividends on such
shares shall begin to accrue from the date of issue of such shares, or unless
the date of issue is a Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of Series A Junior
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid on the
shares of Series A Junior Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series A Junior Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which record date shall
be not more than 60 days prior to the date fixed for the payment
thereof.
Section
3. Voting
Rights. The holders of shares of Series A Junior Preferred
Stock shall have the following voting rights:
(a)
Subject to the provision for adjustment hereinafter set forth, each share of
Series A Junior Preferred Stock shall entitle the holder thereof to one hundred
twenty-five (125) votes on all matters submitted to a vote of the stockholders
of the Corporation. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes per share to which holders of
shares of Series A Junior Preferred Stock were entitled immediately prior to
such event shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
(b)
Except as otherwise provided in the Certificate of Incorporation, including any
other Certificate of Designations creating a series of Preferred Stock or any
similar stock, or by law, the holders of shares of Series A Junior Preferred
Stock and the holders of shares of Common Stock and any other capital stock of
the Corporation having general voting rights shall vote together as one class on
all matters submitted to a vote of stockholders of the Corporation.
(c)
Except as set forth herein, or as otherwise required by law, holders of Series A
Junior Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for taking any corporate
action.
Section
4. Certain
Restrictions.
(a)
Whenever quarterly dividends or other dividends or distributions payable on the
Series A Junior Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Junior Preferred Stock outstanding shall
have been paid in full, the Corporation shall not:
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(i)
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declare
or pay dividends, or make any other distributions, on any shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Preferred
Stock;
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(ii)
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declare
or pay dividends, or make any other distributions, on any shares of stock
ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Junior Preferred Stock,
except dividends paid ratably on the Series A Junior Preferred Stock and
all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares
are then entitled; or
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(iii)
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redeem
or purchase or otherwise acquire for consideration shares of any stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares
of any such junior stock in exchange for shares of any stock of the
Corporation ranking junior (as to dividends and upon dissolution,
liquidation or winding up) to the Series A Junior Preferred
Stock.
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(b) The
Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation
unless the Corporation could, under paragraph (a) of this Section 4, purchase or
otherwise acquire such shares at such time and in such manner.
Section
5. Reacquired
Shares. Any shares of Series A Junior Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein or in
the Restated Certificate of Incorporation, including any Certificate of
Designations creating a series of Preferred Stock or any similar stock, or as
otherwise required by law.
Section
6. Liquidation, Dissolution or
Winding Up. Upon any liquidation, dissolution or winding up of
the Corporation the holders of shares of Series A Junior Preferred Stock shall
be entitled to receive an aggregate amount per share, subject to the provision
for adjustment hereinafter set forth, equal to one hundred twenty-five (125)
times the aggregate amount to be distributed per share to holders of shares of
Common Stock plus an amount equal to any accrued and unpaid dividends. In the
event the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the aggregate amount to which holders of shares of Series A Junior
Preferred Stock were entitled immediately prior to such event under the
preceding sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
Section
7. Consolidation, Merger,
etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case each share of Series A Junior
Preferred Stock shall at the same time be similarly exchanged or changed into an
amount per share, subject to the provision for adjustment hereinafter set forth,
equal one hundred twenty-five (125) times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series A Junior Preferred Stock shall be
adjusted by multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section
8. Amendment. The
Restated Certificate of Incorporation shall not be amended in any manner,
including in a merger or consolidation, which would alter, change, or repeal the
powers, preferences or special rights of the Series A Junior Preferred Stock so
as to affect them adversely without the affirmative vote of the holders of at
least two-thirds of the outstanding shares of Series A Junior Preferred Stock,
voting together as a single class.
Section
9. Rank. The
Series A Junior Preferred Stock shall rank, with respect to the payment of
dividends and upon liquidation, dissolution and winding up, junior to all series
of Preferred Stock.