Certificate of Incorporation - LeapFrog Enterprises Inc.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
LEAPFROG ENTERPRISES, INC.
A DELAWARE CORPORATION
LEAPFROG ENTERPRISES, INC., a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation"), DOES
HEREBY CERTIFY:
FIRST: The Corporation was originally incorporated under the name
Knowledge Kids Enterprises, Inc. The original Certificate of Incorporation of
the Corporation (the "Original Certificate") was filed with the Secretary of
State of the State of Delaware on August 1, 1997. The Original Certificate was
amended by the Corporation effective February 1, 2001 to change the name of the
Corporation to LeapFrog Enterprises, Inc.
SECOND: This Amended and Restated Certificate of Incorporation of
LeapFrog Enterprises, Inc., has been duly adopted in accordance with the
provisions of Sections 228, 242 and 245 of the General Corporation Law of the
State of Delaware by the directors and stockholders of the Corporation, and
prompt written notice was duly given pursuant to Section 228 of the General
Corporation Law of the State of Delaware to those stockholders who did not
approve the Restated Certificate of Incorporation, as so amended, by written
consent.
THIRD: The Amended and Restated Certificate of Incorporation as
heretofore amended or supplemented and so adopted is hereby amended and restated
now to read in full as follows:
ARTICLE I
The name of the corporation (hereinafter the "Corporation") is LEAPFROG
ENTERPRISES, INC.
ARTICLE II
The address, including street, number, city and county, of the
Corporation's registered office in the State of Delaware is Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New Castle,
Delaware 19801; and the name of the registered agent of the Corporation in the
State of Delaware is The Corporation Trust Company.
ARTICLE III
The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the Delaware General
Corporation Law.
ARTICLE IV
The Corporation is to have perpetual existence.
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ARTICLE V
The Board of Directors of the Corporation (the "Board of Directors") is
authorized to make, alter or repeal the By-Laws of the Corporation.
ARTICLE VI
The Corporation shall indemnify, in the manner and to the full extent
permitted by law, any person (or the estate of any person) who was or is a
party, or is threatened to be made a party to, any threatened, pending or
completed action, suit or proceeding, whether or not by or in the right of the
Corporation, and whether civil, criminal, administrative, investigative or
otherwise, by reason of the fact that such person is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. Where required by law,
the indemnification provided for herein shall be made only as authorized in the
specific case upon a determination in the manner provided by law, that
indemnification of the director, officer, employee or agent is proper under the
circumstances. The Corporation may, to the full extent permitted by law,
purchase and maintain insurance on behalf of any such person against any
liability which may be asserted against him. To the full extent permitted by
law, the indemnification provided herein shall include expenses (including
attorneys' fees) in any action, suit or proceeding, or in connection with any
appeal therein, judgments, fines and amounts paid in settlement, and in the
manner provided by law any such expenses may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding. The
indemnification provided herein shall not be deemed to limit the right of the
Corporation to indemnify any other person for any such expense to the full
extent permitted by law, nor shall it be deemed exclusive of any other rights to
which any person seeking indemnification from the Corporation may be entitled
under any agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
To the extent permitted by law, no director of the Corporation shall be
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.
ARTICLE VII
The Corporation is authorized to issue two classes of stock to be
designated, respectively, Common Stock ("Common Stock") and Preferred Stock
("Preferred Stock"). The total number of shares of stock which the Corporation
is authorized to issue is Two Hundred Million (200,000,000) shares. One Hundred
Eighty Million (180,000,000) shares shall be Common Stock, $0.0001 par value per
share, of which One Hundred Thirty-Nine Million Five Hundred Thousand
(139,500,000) shares shall be designated as Class A Common Stock and Forty
Million Five Hundred Thousand (40,500,000) shares shall be designated as Class B
Common Stock. Twenty Million (20,000,000) shares shall be Preferred Stock,
$0.0001 par value per share,
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of which Two Million (2,000,000) shares shall be designated Series A Preferred
Stock ("Series A Preferred").
The number of shares of Class A Common Stock which the Corporation is
authorized to issue may be increased or decreased (and in connection therewith,
the total number of shares of Common Stock which the Corporation is authorized
to issue may be increased or decreased by the same amount) by a majority of the
votes of the Class A Common Stock, the Class B Common Stock and the Series A
Preferred voting together as a single class with the Class A Common Stock having
one (1) vote per share, the Class B Common Stock having ten (10) votes per share
and the Series A Preferred having the number of votes equal to the number of
shares of Class A Common Stock into which each share of Series A Preferred could
be converted on the record date for such vote.
The remaining shares of Preferred Stock may be issued from time to time
in one or more series. The Board of Directors is expressly authorized to provide
for the issuance of all or any of the remaining shares of the Preferred Stock in
one or more series, and to fix the number of shares and to determine or alter
for each such series, such voting powers, full or limited, or no voting powers,
and such designations, preferences, and relative, participating, optional, or
other rights and such qualifications, limitations, or restrictions thereof, as
shall be stated and expressed in the resolution or resolutions adopted by the
Board of Directors providing for the issuance of such shares and as may be
permitted by the General Corporation Law of the State of Delaware and this
Amended and Restated Certificate of Incorporation.
The Board of Directors is also expressly authorized to increase or
decrease (but not below the number of shares of such series then outstanding)
the number of shares of any series of Preferred Stock other than the Series A
Preferred subsequent to the issuance of shares of that series. In case the
number of shares of any such series shall be so decreased, the shares
constituting such decrease shall resume the status that they had prior to the
adoption of the resolution originally fixing the number of shares of such
series.
ARTICLE VIII
The powers, rights, preferences, privileges and restrictions of the
Common Stock and Series A Preferred are as follows:
SECTION 1. DIVIDENDS AND DISTRIBUTIONS.
(a) SERIES A PREFERRED. The holders of the Series A
Preferred shall be entitled to the payment of dividends when and as declared by
the Board of Directors out of funds legally available therefor.
(b) COMMON STOCK. The holders of the Common Stock shall
be entitled to the payment of dividends when and as declared by the Board of
Directors out of funds legally available therefor. When and as dividends or
other distributions are declared by the Board of Directors on shares of any
class of Common Stock, such dividends or other distributions shall be paid in
equal amounts per share on all shares of Class A Common Stock and Class B Common
Stock. For so long as any shares of Series A Preferred are outstanding, no
dividends (except to the extent they are payable in the form of Common Stock)
shall be declared, paid or set aside for
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payment, and no other distribution shall be declared, made or set aside for
making, on or in respect of any Common Stock, unless, in each case, concurrently
therewith the Board of Directors shall also declare, pay or set aside for
payment, as applicable, the same dividend or distribution on the Series A
Preferred; provided that the amount of such dividend or distribution for each
share of Series A Preferred shall be equal to the amount of such dividend or
distribution for one share of Common Stock multiplied by the number of shares of
Common Stock into which such share of Series A Preferred is convertible as of
the record date fixed for such dividend. In addition for so long as any shares
of Series A Preferred are outstanding, no shares of Common Stock shall be
redeemed, purchased or otherwise acquired (other than redemptions, purchases or
acquisitions of shares of Common Stock (i) owned by persons who were employees
or independent contractors of the Corporation at the time such shares were
acquired or options to acquire such shares were granted or (ii) for total
consideration of not more than $1,000,000 in any calendar year exclusive of
shares referred to in clause (i)) for any consideration (or any consideration be
paid to or made available for a sinking fund for the redemption of any such
shares), by the Corporation, directly or indirectly (including without
limitation by any of its subsidiaries), unless, in each case, a reasonable time
prior thereto the Corporation has offered to redeem, purchase or otherwise
acquire, and concurrently therewith redeems, purchases or otherwise acquires
from the holders of Series A Preferred who accepted the offer on a pro rata
basis, that number of shares of Series A Preferred then convertible into the
number of shares of Common Stock to be so redeemed, purchased or otherwise
acquired by the Corporation at the same price per share of Series A Preferred
that would have been paid by the Corporation for the number of shares of Common
Stock into which one share of Series A Preferred is then convertible and
otherwise on the same terms and conditions as apply to the redemption, purchase
or other acquisition of the Common Stock.
(c) Dividends may be in the form of cash, property or
Common Stock; provided, however, that dividends in the form of Common Stock
shall be payable on Class A Common Stock only in shares of Class A Common Stock
and dividends in the form of Common Stock payable on Class B Common Stock shall
be payable only in shares of Class B Common Stock.
SECTION 2. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) PREFERRED PREFERENCE. In the event of any
liquidation, dissolution or winding up of the Corporation or other distribution
of assets of the Corporation for the purposes of winding up its affairs, whether
voluntary or involuntary, (each, a "Liquidation") after payment or provision for
payment of the debts and liabilities of the Corporation, the holders of Series A
Preferred shall be entitled to be paid in full out of the assets of the
Corporation, prior and in preference to any distribution of any of the assets of
the Corporation to the holders of Common Stock or any other class or series of
shares of the Corporation hereafter authorized over which the Series A Preferred
has preference or priority in the distribution of assets on any Liquidation
("Junior Stock") by reason of their ownership thereof, an amount per share equal
to the greater of (i) twelve dollars and fifty cents ($12.50) (subject to
equitable adjustments for stock dividends, splits, reverse splits, combinations,
recapitalizations and the like occurring after the date hereof) and (ii) the
aggregate amount that would be distributed on such date in connection with such
Liquidation to a holder of the number of shares of Common Stock into which one
share of Series A Preferred is then convertible, assuming conversion of all of
the Series A Preferred prior to
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such Liquidation, in either case together with all declared and unpaid dividends
and all accrued and unpaid Redemption Dividends (as defined in Section 5(f)
below) on the Series A Preferred up to such distribution or payment date (the
"Liquidation Preference"). If upon the occurrence of such event, the assets and
funds thus distributed among the holders of the Series A Preferred shall be
insufficient to permit the payment to such holders of the full Liquidation
Preference, then the entire assets and funds of the Corporation legally
available for distribution shall be distributed ratably among the holders of the
Series A Preferred in proportion to the full Liquidation Preference each such
holder is otherwise entitled to receive.
(b) DISTRIBUTION OF REMAINING ASSETS. After the
distributions under Section 2(a) hereof have been made to the holders of Series
A Preferred that have not been converted pursuant to Section 4(b) and to any
other series of Preferred Stock having priority over the Common Stock, the
holders of shares of Class A Common Stock and Class B Common Stock shall be
entitled, on a pari passu basis, to all remaining assets of the Corporation
available for distribution to its stockholders.
(c) SALE OF ASSETS; MERGERS. A sale of all or
substantially all of the assets of the Corporation or a merger in which the
stockholders of the Corporation immediately prior to the transaction possess
less than 50% of the total voting power of all of the outstanding voting stock
of the surviving entity (or its parent) immediately after the transaction shall
be deemed to be a Liquidation within the meaning of this Section 2; provided
that the holders of Series A Preferred shall be paid in cash or the securities
received in the transaction or in a combination thereof (which combination shall
be in the same proportions as the consideration received in the transaction, if
any shares of Class B Common Stock are then outstanding, by the holders of Class
B Common Stock or, if no shares of Class B Common Stock are then outstanding, by
the holders of the securities into which the Series A Preferred are
convertible); and provided, further, that the holders of Series A Preferred
shall receive in such transaction any registration or other rights, if any,
given in such transaction to, if any shares of Class B Common Stock are then
outstanding, the holders of Class B Common Stock or, if no shares of Class B
Common Stock are then outstanding, the holders of the securities into which the
Series A Preferred are convertible. Any securities to be delivered to the
holders of the Series A Preferred upon a sale of all or substantially all the
assets of the Corporation or any such merger shall be valued as follows:
(i) if traded on a securities exchange, the
value shall be deemed to be the average of the closing prices of the securities
on such exchange over the thirty (30) day period ending three (3) business days
prior to the closing;
(ii) if actively traded over-the-counter, the
value shall be deemed to be the average of the closing bid prices over the
thirty (30) day period ending three (3) business days prior to the closing; and
(iii) if there is no active public market, the
value shall be the fair market value thereof as determined by the Board of
Directors in good faith.
Nothing in this Section 2 shall limit the right of any holder of Series
A Preferred to elect to convert any of such shares into Common Stock as set
forth in Section 4 prior to any such sale of assets or merger.
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SECTION 3. VOTING RIGHTS AND POWERS.
(a) Except as otherwise required by law or specifically
provided by this Amended and Restated Certificate of Incorporation, the holders
of Class A Common Stock, Class B Common Stock and Series A Preferred shall have
the sole right and power to vote on all matters on which a vote of stockholders
is to be taken. Except in the election and removal of directors of the
Corporation (voting in respect of which shall be governed by the terms set forth
in Sections 3(d) and 3(e) of this Article VIII), with respect to all matters
upon which stockholders are entitled to vote, each holder of Class A Common
Stock shall be entitled to one (1) vote in person or by proxy for each share of
Class A Common Stock standing in his/her name on the transfer books of the
Corporation, and each holder of Class B Common Stock shall be entitled to ten
(10) votes in person or by proxy for each share of Class B Common Stock standing
in his/her name on the transfer books of the Corporation.
(b) Except as otherwise required by law, the holder of
each share of Series A Preferred shall be entitled to the number of votes equal
to the number of shares of Class A Common Stock into which each share of Series
A Preferred could be converted on the record date for the vote or consent of
stockholders or, if there is no record date, the date of such action. The holder
of each share of Series A Preferred shall be entitled to notice of any
stockholders' meeting in accordance with the By-Laws of the Corporation.
(c) Except in the election and removal of directors of
the Corporation (voting in respect of which shall be governed by the terms set
forth in Sections 3(d) and 3(e) of this Article VIII) and as may be otherwise
required by law, the holders of Class A Common Stock, Class B Common Stock and
Series A Preferred shall vote together as a single class; provided, however:
(i) That the affirmative vote (or written
consent) of a majority of the outstanding shares of Class B Common Stock, voting
separately as a class, shall be required for (1) the authorization or issuance
of any additional shares of Class B Common Stock (except in connection with
stock splits, stock dividends, divisions and combinations of the Class B Common
Stock), and (2) any amendment, alteration or repeal of any of the provisions of,
or the addition of any provision to, this Amended and Restated Certificate of
Incorporation in any manner which adversely affects the powers, privileges,
restrictions or other rights of the Class B Common Stock or any recapitalization
or reorganization affecting any of the outstanding shares of Common Stock; and
(ii) That the affirmative vote (or written
consent) of holders of shares representing at least seventy five percent (75%)
of the outstanding shares of Series A Preferred, voting separately as a class,
shall be required for (1) any increase in the authorized number of shares of
Series A Preferred; (2) the authorization or issuance of any other equity
security, or any security convertible into, exchangeable for or having any
option right to purchase any such equity security, senior to or on parity with
the Series A Preferred as to its right to receive a distribution of assets on
any Liquidation (except for any such parity security whose liquidation
preference does not exceed the purchase price therefor paid to the Corporation
and all of the other terms of which, and of the agreements or arrangements under
which it is issued, are both customary for such securities and at current market
levels) or which by its terms or under any
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agreement or arrangement could be redeemed, repurchased or otherwise acquired
directly or indirectly by the Corporation (including without limitation by any
of its subsidiaries) on or prior to the last date on which the Redemption Price
is payable pursuant to Section 5 below; or (3) any amendment, alteration or
repeal of the provision of, or the addition of any provision to, this Amended
and Restated Certificate of Incorporation (including any amendments effected
through a merger or consolidation that does not constitute a Liquidation
pursuant to Section 2(c)) in any manner which adversely affects the powers,
privileges, restrictions or other rights of the Series A Preferred.
(d) With respect to the election of directors, each
holder of Class A Common Stock shall be entitled to one (1) vote in person or by
proxy for each share of Class A Common Stock standing in his/her name on the
transfer books of the Corporation, each holder of Class B Common Stock shall be
entitled to one (1) vote in person or by proxy for each share of Class B Common
Stock standing in his/her name on the transfer books of the Corporation and each
holder of Series A Preferred shall be entitled to the number of votes in person
or by proxy equal to the number of shares of Class A Common Stock into which
each share of Series A Preferred could be converted on the record date for the
vote or consent of stockholders or, if there is no record date, the date of such
action. The holders of Class B Common Stock shall vote as a separate class and
shall be entitled to elect a majority of the total number of directors
constituting the whole Board of Directors (collectively, the "Class B Directors"
and individually, a "Class B Director"). The holders of Class A Common Stock,
the holders of the Class B Common Stock and the holders of the Series A
Preferred, voting together as a single class, shall be entitled to elect the
remaining directors (collectively, the "Class A/B Directors" and individually, a
"Class A/B Director").
(e) Any Class A/B Director or all of the Class A/B
Directors may be removed, with or without cause, by the affirmative vote (or
written consent) of a majority of the outstanding shares of Class A Common
Stock, Class B Common Stock and Series A Preferred. Any Class B Director or all
of the Class B Directors may be removed, with or without cause, by the
affirmative vote (or written consent) of a majority of the outstanding shares of
Class B Common Stock. Any vacancy in the office of a Class A/B Director may be
filled by a majority of the Class A/B Directors then in office, although less
than a quorum, or by a sole remaining Class A/B Director, and any vacancy in the
office of a Class B Director may be filled by a majority of the Class B
Directors then in office, although less than a quorum, or by a sole remaining
Class B Director. In the absence of an election by the remaining Class A/B
Directors or Class B Directors, as applicable, any vacancy in the office of a
Class A/B Director may be filled by a vote of the holders of Class A Common
Stock, the holders of the Class B Common Stock and the holders of the Series A
Preferred, voting together as a single class, and any vacancy in the office of a
Class B Director may be filled by a vote of the holders of Class B Common Stock
voting separately as a class. Any director filling a vacancy shall serve until
the next annual meeting of stockholders and until his or her successor has been
elected and has qualified or, if earlier, until his or her death, resignation or
removal. If the number of directors of the Board of Directors is increased in
accordance with the By-Laws and applicable provisions of law, any vacancy so
created may be filled by the Board of Directors, provided that a majority of the
enlarged board consists of directors elected by the holders of Class B Common
Stock and/or persons appointed by the Class B Directors to fill vacancies.
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(f) The presence in person or by proxy (or the written
consent) of the holders of a majority of the outstanding shares of Class A
Common Stock, Class B Common Stock and Series A Preferred shall constitute a
quorum of the Class A Common Stock, the Class B Common Stock and the Series A
Preferred for the election of the Class A/B Directors. The presence in person or
by proxy (or the written consent) of the holders of a majority of the
outstanding shares of Class B Common Stock shall constitute a quorum of the
Class B Common Stock for the election of the Class B Directors. The presence in
person or by proxy (or the written consent) of the holders of outstanding shares
of Class A Common Stock, Class B Common Stock and Series A Preferred entitled to
cast a majority of the votes which could be cast by all outstanding shares of
Class A Common Stock, Class B Common Stock and Series A Preferred shall
constitute a quorum of the Class A Common Stock, the Class B Common Stock and
Series A Preferred for all matters other than the election and removal of
directors or where a separate vote by class is required. Where a separate vote
by class is required, the presence in person or by proxy (or the written
consent) of the holders of a majority of the outstanding shares of the class
shall constitute a quorum.
(g) Notwithstanding anything in this Article VIII to the
contrary, but subject to the voting rights otherwise provided to the holders of
Series A Preferred in this Section 3, (i) the holders of Class A Common Stock
shall have exclusive voting power on all matters upon which, pursuant to this
Amended and Restated Certificate of Incorporation or applicable law, the holders
of Common Stock are entitled to vote, at any time when no shares of Class B
Common Stock are issued and outstanding, and (ii) the holders of Class B Common
Stock shall have exclusive voting power on all matters upon which, pursuant to
this Amended and Restated Certificate of Incorporation or applicable law, the
holders of Common Stock are entitled to vote, at any time when no shares of
Class A Common Stock are issued and outstanding.
(h) In this Amended and Restated Certificate of
Incorporation, all references to "vote" or "voting" by the stockholders include
all actions which stockholders may take by voting at an annual or special
stockholder meeting or adjournment thereof and all actions which stockholders
may take by written consent without a stockholder meeting pursuant to the
Delaware General Corporation Law, this Amended and Restated Certificate of
Incorporation or the By-Laws of the Corporation.
SECTION 4. CONVERSION.
(a) COMMON STOCK.
(i) RIGHT TO CONVERT. Each holder of any shares
of Class B Common Stock shall have the right, at the option of the holder in
such holder's sole discretion, to convert each share of Class B Common Stock
into one share of Class A Common Stock (subject to adjustment as provided
herein) at any time in accordance with this Section 4(a) of Article VIII.
(ii) MECHANICS OF CONVERSION.
(1) In order to exercise the conversion
right, the holder of any shares of Class B Common Stock to be converted shall
present and surrender the certificate or certificates representing such shares
during usual business hours at the office or agency
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maintained by the Corporation for the transfer of Class B Common Stock and shall
give written notice to the Corporation at such office or agency that the holder
elects to convert the shares of Class B Common Stock represented by such
certificate or certificates, to the extent specified in such notice. Such notice
shall also state the name or names (with addresses) in which the certificate or
certificates for shares of Class A Common Stock which shall be issuable on such
conversion shall be issued. If required by the Corporation, any certificate for
shares of Class B Common Stock surrendered for conversion shall be duly endorsed
or accompanied by instruments of transfer, in form satisfactory to the
Corporation, duly executed by the holder of such shares or his or her duly
authorized representative.
(2) As promptly as reasonably
practicable after the receipt of such notice and the surrender of the
certificate or certificates representing such shares of Class B Common Stock as
provided above, the Corporation shall issue and shall deliver at such office or
agency to such holder, or on his or her written order, a certificate or
certificates for the number of full shares of Class A Common Stock issuable upon
the conversion of such shares in accordance with the provisions of this Section
4 of Article VIII and any fractional interest in respect of a share of Class A
Common Stock arising upon such conversion shall be settled as provided in
Section 4(a)(iii) below.
(3) Each conversion of shares of Class
B Common Stock shall be deemed to have been effected on the date on which such
notice shall have been received by the office or agency maintained by the
Corporation for such purpose and the certificate or certificates representing
such shares shall have been surrendered (and, unless duly endorsed, subject to
receipt by such office or agency within thirty (30) days thereafter of any
required instruments of transfer as provided above), and the person or persons
in whose name or names any certificate or certificates for shares of Class A
Common Stock shall be issuable upon such conversion shall be deemed to have
become on said date the holder or holders of record of the shares represented
thereby.
(iii) FRACTIONAL SHARES. The Corporation shall not
be required to issue fractional shares upon conversion of Class B Common Stock
into Class A Common Stock. If more than one share of Class B Common Stock shall
be surrendered for conversion at any one time by the same holder, the number of
shares of Class A Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate number of shares of Class B Common Stock
so surrendered. The Corporation may, in lieu of issuing any fractional share,
pay the holder entitled to such fraction a sum in cash equal to the fair market
value of any such fractional interest as it shall appear on the public market,
or if there is no public market for such shares, then as shall be reasonably
determined by the Corporation.
(iv) ADJUSTMENTS FOR SUBDIVISIONS AND
COMBINATIONS OF COMMON STOCK. If the Corporation shall in any manner subdivide
or combine the outstanding shares of Class A Common Stock or Class B Common
Stock, the outstanding shares of the other class will be proportionately
subdivided or combined.
(v) ADJUSTMENTS FOR CAPITAL REORGANIZATIONS. The
number of shares of Class A Common Stock into which the shares of Class B Common
Stock may be converted shall be subject to adjustment from time to time in the
event of any capital reorganization,
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reclassification of stock of the Corporation or consolidation or merger of the
Corporation with or into another corporation. Each share of Class B Common Stock
shall thereafter be convertible into such kind and amount of securities or other
assets, or both, as are issuable or distributable in respect of the number of
shares of Class A Common Stock into which each share of Class B Common Stock is
convertible immediately prior to such reorganization, reclassification,
consolidation or merger. In any such case, appropriate adjustments shall be made
by the Board of Directors in the application of the provisions herein set forth
with respect to the rights and interests thereafter of the holders of Class B
Common Stock to the end that the provisions set forth herein (including
provisions for adjustment of the conversion rate) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any securities or
other assets thereafter deliverable on conversion of the Class B Common Stock.
(vi) RESERVATION OF STOCK ISSUABLE UPON
CONVERSION. The Corporation shall at all times reserve and keep available out of
its authorized but unissued shares of Class A Common Stock, solely for the
purpose of effecting the conversion of the shares of Class B Common Stock, such
number of shares of Class A Common Stock as shall from time to time be
sufficient to effect a conversion of all outstanding shares of Class B Common
Stock and if, at any time, the number of authorized but unissued shares of Class
A Common Stock shall not be sufficient to effect conversion of the then
outstanding Class B Common Stock, the Corporation shall take such corporate
action as may be necessary to increase the number of authorized but unissued
shares of Class A Common Stock to such number as shall be sufficient for such
purposes.
(vii) ISSUANCE TAXES. The Corporation shall pay
any and all issue and other taxes that may be payable in respect of any issue or
delivery of shares of Class A Common Stock on conversion of Class B Common Stock
pursuant thereto; provided, however, the Corporation shall not be required to
pay any tax which may be payable in respect of the issue of any Class A Common
Stock in a name other than that in which the Class B Common Stock so converted
was registered, and no such issue or delivery shall be made unless and until the
person requesting such issue has paid to the Corporation the amount of any such
tax, or has established, to the satisfaction of the Corporation, that such tax
has been paid or provided for.
(viii) LISTING OF STOCK ISSUABLE UPON CONVERSION.
If any shares of Class A Common Stock to be reserved for the purpose of
conversion of shares of Class B Common Stock require registration or listing
with, or approval of, any governmental authority, stock exchange or other
regulatory body under any federal or state law or regulation or otherwise,
before such shares may be validly issued or delivered upon conversion, the
Corporation will in good faith and as expeditiously as possible endeavor to
secure such registration, listing or approval, as the case may be.
(ix) VALIDLY ISSUED SHARES. All shares of Class A
Common Stock which may be issued upon conversion of shares of Class B Common
Stock will upon issuance by the Corporation be validly issued, fully paid and
non-assessable and free from all taxes, liens and charges with respect to the
issuance thereof.
(x) STATUS OF CONVERTED STOCK. All certificates
representing Class B Common Stock surrendered for conversion shall be
appropriately canceled on the books of the
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Corporation, and the shares of Class B Common Stock so converted shall be
canceled, retired and eliminated from the shares which the Corporation shall be
authorized to issue.
(b) SERIES A PREFERRED. The holders of Series A Preferred
shall have conversion rights as follows:
(i) RIGHT TO CONVERT. Each holder of any shares
of Series A Preferred shall have the right, at the option of the holder in such
holder's sole discretion, to convert each share of Series A Preferred into such
number of shares of Class A Common Stock as is determined by dividing $12.50 by
the Conversion Price applicable to such share, determined as hereafter provided,
in effect on the date the certificate is surrendered for conversion. The initial
Conversion Price per share of Series A Preferred shall be $12.50. Such initial
Conversion Price shall be subject to adjustment as provided herein. Upon any
conversion under this Section 4(b)(i) or Section 4(b)(ii) below, (A) all
declared and unpaid dividends and all accrued and unpaid Redemption Dividends on
the Series A Preferred shall be paid and (B) any dividend or other distribution
payable on the Series A Preferred surrendered for conversion during the period
from the close of business on any record date for the payment of such dividend
or distribution on such shares to the opening of business on the date of payment
of such dividend shall be payable to the holder of record of such shares as of
such record date notwithstanding such conversion.
(ii) AUTOMATIC CONVERSION. Subject to Section
5(f) below, each share of Series A Preferred shall automatically be converted
into shares of Class A Common Stock:
(1) immediately upon the closing of an
underwritten public offering of Class A Common Stock pursuant to an effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), in which (A) the public offering price equals or exceeds
$18.75 per share (subject to equitable adjustments for stock dividends, splits,
reverse splits, combinations, recapitalizations and the like occurring after the
date hereof) and (B) the aggregate gross proceeds raised equals or exceeds
$100,000,000; or
(2) in the event that, subsequent to a
public offering of the Class A Common Stock which does not satisfy the
requirements of Section 4(b)(ii)(1), the closing price of the Class A Common
Stock has equaled or exceeded $18.75 (subject to equitable adjustments for stock
dividends, splits, reverse splits, combinations, recapitalizations and the like
occurring after the date hereof) for thirty (30) consecutive trading days and
the aggregate value of all of the outstanding Class A Common Stock (excluding
therefrom the aggregate value of (A) any shares then owned by persons who are
affiliates (as defined in Rule 405 under the Securities Act) of the Corporation
and (B) any "restricted securities" (as defined in Rule 144 under the Securities
Act) that cannot be sold pursuant to Rule 144(k) under the Securities Act on the
last such trading day) equals or exceeds $100,000,000 (based on the closing
price on the last such trading day).
(iii) MECHANICS OF CONVERSION.
(1) In order to exercise the conversion
right, the holder of any shares of Series A Preferred to be converted shall
present and surrender the certificate or
<PAGE>
certificates representing such shares during usual business hours at the office
or agency maintained by the Corporation for the transfer of Series A Preferred
and shall give written notice to the Corporation at such office or agency that
the holder elects to convert the shares of Series A Preferred represented by
such certificate or certificates, to the extent specified in such notice (except
that no such written notice of election to convert shall be necessary in the
event of an automatic conversion pursuant to Section 4(b)(ii) hereof). Such
notice shall also state the name or names (with addresses) in which the
certificate or certificates for shares of Class A Common Stock which shall be
issuable on such conversion shall be issued. If required by the Corporation, any
certificate for shares of Series A Preferred surrendered for conversion shall be
duly endorsed or accompanied by instruments of transfer, in form satisfactory to
the Corporation, duly executed by the holder of such shares or his or her duly
authorized representative.
(2) As promptly as reasonably
practicable after the receipt of such notice and the surrender of the
certificate or certificates representing such shares of Series A Preferred as
provided above, the Corporation shall issue and shall deliver at such office or
agency to such holder, or on his or her written order, a certificate or
certificates for the number of full shares of Class A Common Stock issuable upon
the conversion of such shares in accordance with the provisions of this Section
4 of Article VIII, and any fractional interest in respect of a share of Class A
Common Stock arising upon such conversion shall be settled as provided in
Section 4(b)(iv) below.
(3) Each conversion of shares of Series
A Preferred shall be deemed to have been effected immediately prior to the close
of business on the date on which such notice shall have been received by the
office or agency maintained by the Corporation for such purpose and the
certificate or certificates representing such shares shall have been surrendered
(and, unless duly endorsed, subject to receipt by such office or agency within
thirty (30) days thereafter of any required instruments of transfer as provided
above) (except that in the case of an automatic conversion pursuant to Section
4(b)(ii) hereof such conversion shall be deemed to have been made immediately
prior to the closing of the offering referred to in Section 4(b)(ii)(1) or at
the close of business on the last day on which the price of the Class A Common
Stock has met the requirements referred to in Section 4(b)(ii)(2)), and the
person or persons in whose name or names any certificate or certificates for
shares of Class A Common Stock or other securities shall be issuable upon such
conversion shall be deemed to have become on said date the holder or holders of
record of the shares represented thereby. In the event some but not all of the
Series A Preferred represented by a certificate or certificates surrendered by a
holder are converted, the Corporation shall execute and deliver to the holder a
new certificate representing the number of shares of Series A Preferred which
were not converted.
(iv) FRACTIONAL SHARES. The Corporation shall not
be required to issue fractional shares upon conversion of Series A Preferred
into Class A Common Stock. If more than one share of Series A Preferred shall be
surrendered for conversion at any one time by the same holder, the number of
shares of Class A Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate number of shares of Series A Preferred so
surrendered. The Corporation may, in lieu of issuing any fractional share, pay
the holder entitled to such fraction a sum in cash equal to the fair market
value of any such fractional interest, based upon the fair market value of the
shares of Class A Common Stock, as it shall appear on the
<PAGE>
public market, or if there is no public market for such shares, then as shall be
reasonably determined by the Corporation.
(v) RESERVATION OF STOCK ISSUABLE UPON
CONVERSION. The Corporation shall at all times reserve and keep available out of
its authorized but unissued shares of Class A Common Stock, solely for the
purpose of effecting the conversion of the shares of Series A Preferred, such
number of shares of Class A Common Stock as shall from time to time be
sufficient to effect a conversion of all outstanding shares of Series A
Preferred and if, at any time, the number of authorized but unissued shares of
Class A Common Stock shall not be sufficient to effect conversion of the then
outstanding Series A Preferred, the Corporation shall take such corporate action
as may be necessary to increase the number of authorized but unissued shares of
Class A Common Stock to such number as shall be sufficient for such purposes.
(vi) ADJUSTMENTS FOR SPLITS, SUBDIVISIONS OR
STOCK DIVIDENDS. If the number of shares of Common Stock outstanding at any time
after the date the Series A Preferred is first issued by the Corporation is
increased by a stock dividend payable in shares of Common Stock or by a
subdivision or split-up of shares of Common Stock, then, on the record date
fixed for the determination of the holders of Common Stock entitled to receive
such dividend or on the effective date of such subdivision or split-up, the
Conversion Price of the Series A Preferred shall be appropriately decreased so
that the number of shares of Common Stock issuable on conversion of any shares
of the Series A Preferred shall be increased in proportion to such increase of
outstanding shares.
(vii) ADJUSTMENTS FOR COMBINATIONS. If the number
of shares of Common Stock outstanding at any time after the date the Series A
Preferred is first issued by the Corporation is decreased by a combination of
the outstanding shares of Common Stock, then, on the effective date of such
combination, the Conversion Price for the Series A Preferred shall be
appropriately increased so that the number of shares of Common Stock issuable on
conversion of each share of Series A Preferred shall be decreased in proportion
to such decrease in outstanding shares.
(viii) ADJUSTMENTS FOR STOCK DIVIDENDS AND OTHER
DISTRIBUTIONS. In the event the Corporation shall declare a distribution
(excluding repurchases of securities by the Corporation not made on a pro rata
basis) payable in securities of the Corporation (other than shares of Common
Stock covered by Section 4(b)(vi)), securities of other persons, evidences of
indebtedness issued by the Corporation or other persons, assets (excluding cash
dividends) or options or rights (other than dividends covered by Section
4(b)(vi)), then, in each such case for the purpose of this Section 4(b)(viii),
the holders of Series A Preferred shall be entitled to receive concurrently
therewith a proportionate share of any such distribution as though they were the
holders of the number of shares of Class A Common Stock of the Corporation into
which their shares of Series A Preferred are convertible as of the record date
fixed for the determination of the holders of Common Stock of the Corporation
entitled to receive such distribution.
(ix) ADJUSTMENTS FOR CAPITAL REORGANIZATIONS. If
any capital reorganization, reclassification of stock of the Corporation or,
except as provided for in a transaction subject to Section 2(c), any
consolidation or merger of the Corporation with or into
<PAGE>
another corporation occurs, then each share of Series A Preferred shall
thereafter be convertible into such kind and amount of securities or other
assets, or both, as are issuable or distributable in respect of the number of
shares of Class A Common Stock into which each share of Series A Preferred is
convertible immediately prior to such reorganization, reclassification,
consolidation or merger. In any such case, appropriate adjustments shall be made
by the Board of Directors in the application of the provisions herein set forth
with respect to the rights and interests thereafter of the holders of Series A
Preferred to the end that the provisions set forth herein (including provisions
for adjustment of the conversion rate) shall thereafter be applicable, as nearly
as reasonably may be, in relation to any securities or other assets thereafter
deliverable on conversion of the Series A Preferred.
(x) ISSUANCE TAXES. The Corporation shall pay
any and all issue and other taxes that may be payable in respect of any issue or
delivery of shares of Class A Common Stock on conversion of Series A Preferred
pursuant thereto; provided, however, the Corporation shall not be required to
pay any tax which may be payable in respect of the issue of any Class A Common
Stock in a name other than that in which the Series A Preferred so converted was
registered, and no such issue or delivery shall be made unless and until the
person requesting such issue has paid to the Corporation the amount of any such
tax, or has established, to the satisfaction of the Corporation, that such tax
has been paid or provided for.
(xi) RESERVATION OF STOCK ISSUABLE UPON
CONVERSION. If any shares of Class A Common Stock to be reserved for the purpose
of conversion of shares of Series A Preferred require registration or listing
with, or approval of, any governmental authority, stock exchange or other
regulatory body under any federal or state law or regulation or otherwise,
before such shares may be validly issued or delivered upon conversion, the
Corporation will in good faith and as expeditiously as possible endeavor to
secure such registration, listing or approval, as the case may be.
(xii) VALIDLY ISSUED SHARES. All shares of Class A
Common Stock which may be issued upon conversion of shares of Series A Preferred
will upon issuance by the Corporation be validly issued, fully paid and
non-assessable and free from all taxes, liens and charges with respect to the
issuance thereof.
(xiii) CERTIFICATE AS TO ADJUSTMENTS. Upon the
occurrence of each adjustment of the Conversion Price for the Series A
Preferred, the Corporation at its expense shall promptly compute such adjustment
in accordance with the terms hereof and furnish to each holder of Series A
Preferred a certificate setting forth such adjustment and showing in detail the
facts upon which such adjustment is based. The Corporation shall, upon the
reasonable written request at any time of any holder of Series A Preferred,
furnish or cause to be furnished to such holder a like certificate setting forth
(i) such adjustments, (ii) the Conversion Price for the Series A Preferred at
the time in effect, and (iii) the number of shares of Common Stock and the
amount, if any, of other property which at the time would be received upon the
conversion of each share of Series A Preferred.
(xiv) NOTICES OF RECORD DATE. In the event of any
taking by the Corporation of a record of the holders of the Series A Preferred
or the Common Stock for the purpose of determining the holders thereof who are
entitled to receive any dividend or other
<PAGE>
distribution, the Corporation shall mail to each holder of Series A Preferred at
least ten (10) days prior to such record date a notice specifying the date on
which any such record is to be taken for the purpose of such dividend or
distribution.
(xv) STATUS OF REPURCHASED, REDEEMED OR CONVERTED
STOCK. All certificates representing Series A Preferred repurchased, redeemed or
otherwise acquired by the Corporation, or surrendered for conversion, shall be
appropriately canceled on the books of the Corporation, and the shares of Series
A Preferred so repurchased, redeemed, acquired or converted, as the case may be,
shall be canceled, retired and returned to the status of authorized but unissued
Preferred Stock without designation; provided, however, that the authorized
number of shares of Series A Preferred shall be reduced by the number of shares
so repurchased, redeemed or otherwise acquired or surrendered for conversion.
SECTION 5. REDEMPTION RIGHT.
(a) SERIES A PREFERRED. Subject to the provisions of this
Section 5, each holder of Series A Preferred shall have the right to require the
Corporation to redeem all or any portion of the shares of Series A Preferred
held by such holder on September 22, 2006 (the "Redemption Date"), for cash at a
price per share (the "Redemption Price") equal to the greater of (a) twelve
dollars and fifty cents ($12.50) (subject to equitable adjustments for stock
dividends, splits, reverse splits, combinations, recapitalizations and the like
occurring after the date hereof) together with all declared and unpaid dividends
thereon up to the Redemption Date or (b) the Fair Market Value of one share of
the Series A Preferred as of the Redemption Date as determined in accordance
with Section 5(c) below (the "Redemption Right"). The Redemption Right shall be
exercised by a holder of Series A Preferred (an "Exercising Holder") giving the
Corporation written notice not less than ninety (90) and not more than one
hundred eighty (180) days prior to the Redemption Date, of its election to
exercise the Redemption Right and specifying the number of shares of Series A
Preferred as to which the Redemption Right is exercised.
(b) TERMINATION OF REDEMPTION RIGHT. The Redemption Right
shall automatically terminate and be of no further force or effect on the first
date the Series A Preferred is subject to automatic conversion under Section
4(b)(ii) above.
(c) PAYMENT. Subject to Section 5(f) below, payment of
the Redemption Price, upon exercise of the Redemption Right, shall be made by
the Corporation in cash, by cashier's check or wire transfer (i) with respect to
Exercising Holders other than Disputing Holders (as defined below), within
fifteen (15) business days following the date of delivery of the Company Notice
(as defined below), or (ii) with respect to Disputing Holders (as defined
below), within five (5) business days following the date Fair Market Value is
finally determined in accordance with Section 5(e) below.
(d) STATUS OF REDEEMED SHARES. The shares of Series A
Preferred to be redeemed by the Corporation shall be redeemed, and the
Redemption Price paid therefor pursuant to Section 5(c), only upon surrender of
the certificates for such shares properly endorsed or assigned for transfer.
Upon the payment in full of the Redemption Price therefor, the shares of Series
A Preferred specified in the notice set forth in Section 5(a) shall no longer be
<PAGE>
outstanding, and all rights of the holders thereof as stockholders of the
Corporation, with respect to such shares of Series A Preferred, shall cease. In
the event that fewer than all of the shares represented by any share certificate
are redeemed, a new certificate or certificates shall be issued representing the
unredeemed shares without cost to the holder thereof. All certificates
representing Series A Preferred redeemed pursuant to this Section 5 shall be
appropriately canceled on the books of the Corporation, and the shares of Series
A Preferred so redeemed shall be canceled, retired and returned to the status of
authorized but unissued Preferred Stock without designation; provided, however,
that the authorized number of shares of Series A Preferred shall be reduced by
the number of shares so redeemed.
(e) FAIR MARKET VALUE. The "Fair Market Value" of the
Series A Preferred to be purchased by the Corporation under this Section 5 shall
be determined in good faith by the Board (excluding any member of the Board
appointed or designated by the holders of Series A Preferred) and the
Corporation shall give written notice of such determination and the basis
therefor in reasonable detail to the Exercising Holders within five (5) business
days after the Redemption Date (the "Company Notice"). If any Exercising Holder
disagrees with the Fair Market Value determined by the Board, then such
Exercising Holder shall so notify the Board in writing (the "Appraisal Notice")
within ten (10) business days after delivery of the Company Notice (any
Exercising Holder who delivers an Appraisal Notice, a "Disputing Holder"). The
Board's determination of Fair Market Value shall be final and binding (i) on all
Exercising Holders in the event no Appraisal Notice is delivered to the
Corporation within such ten (10) business day period and (ii) on all Exercising
Holders other than the Disputing Holders in the event one or more Appraisal
Notices are delivered to the Corporation. If there are any Disputing Holders,
within ten (10) days after the last date on which an Appraisal Notice can be
delivered, the Board (excluding any member of the Board appointed or designated
by the holders of Series A Preferred) and holders of at least a majority of the
shares held by the Disputing Holders shall each appoint a professional appraiser
to determine the Fair Market Value. Each appraiser shall have at least five (5)
years' experience in appraising companies. The two appraisers shall within the
succeeding twenty (20) day period after their selection, attempt to reach
agreement on the Fair Market Value. If the appraisers reach such agreement,
their agreement shall be final and binding on the Corporation and the Disputing
Holders. If the appraisers fail to agree during such twenty (20) day period,
they shall within five (5) days thereafter select a third appraiser with the
same qualification requirements, and the three (3) appraisers shall establish
the Fair Market Value by majority vote within the succeeding twenty (20) day
period after the selection of the third appraiser and such determination of Fair
Market Value shall be final and binding on the Corporation and the Disputing
Holders. If the Fair Market Value determined by the appraisers is more than five
percent (5%) greater than the amount determined by the Board, then the
Corporation shall pay all costs associated with the appraisers. If the Fair
Market Value determined by the appraisers is not more than five percent (5%)
greater than the value as determined by the Board, then the Disputing Holders
shall pay all costs associated with the appraisers, on a pro rata basis. Any of
the time periods set forth in this Section 5 may be extended by the written
consent of all of the parties affected thereby.
(f) LIMITATION ON REDEMPTION. If the Corporation is
unable to redeem any shares of Series A Preferred as to which the Redemption
Right has been exercised because the Corporation does not have funds legally
available therefor or is restricted by the terms of any material credit or loan
agreement to which the Corporation is party, the Corporation shall redeem
<PAGE>
as many shares of the Series A Preferred as it is able to do so from the
Exercising Holders pro rata based on the number of shares with respect to which
they have exercised the Redemption Right and the Corporation shall not be
required to redeem the remaining shares of the Series A Preferred (the
"Unredeemed Shares") unless and until it has funds legally available therefor
and is no longer restricted by the terms of any such material credit or loan
agreement. In such case, from and after the Redemption Date the Unredeemed
Shares shall begin to accrue cumulative dividends at the rate of ten percent
(10%) per annum, compounded semi-annually, on the Redemption Price (the
"Redemption Dividends"). As soon as the Corporation shall have funds legally
available to redeem a material portion of the Unredeemed Shares and pay the
accrued Redemption Dividends thereon and is not restricted from doing so under
the terms of any material credit or loan agreement to which it is a party, then
the Corporation shall redeem such portion of Unredeemed Shares and pay the
accrued Redemption Dividends thereon from the holders thereof pro rata based on
the number of Unredeemed Shares held by them. So long as any Unredeemed Shares
are outstanding, no dividends (except to the extent they are payable in Common
Stock) shall be declared, paid or set aside for payment, and no other
distributions shall be declared, made or set aside for making, on or in respect
of any Common Stock or Junior Stock, nor shall any Common Stock, Junior Stock or
shares of the Corporation ranking on a parity with the Series A Preferred as to
its right to receive a distribution of assets on any Liquidation be redeemed,
purchased or otherwise acquired for any consideration (or any consideration be
paid to or made available for a sinking fund for the redemption of any such
shares), by the Corporation, directly or indirectly (including without
limitation by any of its subsidiaries), unless, in each case, all of the
Unredeemed Shares shall have been redeemed and all accrued Redemption Dividends
thereon shall have been paid in full. Notwithstanding anything to the contrary
herein, Section 4(b)(ii) shall not apply to Unredeemed Shares.
ARTICLE IX
The Corporation reserves the right to amend, alter, change, or repeal
any provisions contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon the stockholders herein are granted subject to this right.
FOURTH: The foregoing Amendment and Restatement of the Certificate of
Incorporation has been duly approved by the Board of Directors.
FIFTH: The stockholders of the Corporation have approved this Amendment
and Restatement of the Certificate of Incorporation in accordance with Sections
242 and 245 of the General Corporation Law of the State of Delaware. The number
of shares voting in favor of the foregoing amendment equaled or exceeded the
vote required.
<PAGE>
IN WITNESS WHEREOF, LEAPFROG ENTERPRISES, INC. has caused this
Certificate to be signed by Stanley E. Maron, its Secretary, this 9th day of
April, 2002.
LEAPFROG ENTERPRISES, INC.
a Delaware corporation
By /s/ Stanley E. Maron
-----------------------
Stanley E. Maron
Secretary