CERTIFICATE
OF DESIGNATION
OF
SERIES
A JUNIOR PARTICIPATING
PREFERRED
STOCK
OF
CLARUS
CORPORATION
(Pursuant
to Section 151 of the General Corporation Law of the State of
Delaware)
Clarus
Corporation (the “Company”), a corporation organized and existing under the
General Corporation Law of the State of Delaware (the “DGCL”), DOES HEREBY
CERTIFY:
That,
pursuant to authority vested in the Board of Directors of the Company by its
Amended and Restated Certificate of Incorporation, as amended (the “Certificate
of Incorporation”), and pursuant to the provisions of Section 151 of the DGCL,
the Board of Directors of the Company has adopted the following resolution
providing for the issuance of a series of Preferred Stock:
RESOLVED,
that
pursuant to the authority expressly granted to and vested in the Board of
Directors of the Company (the “Board”) by the Amended and Restated Certificate
of Incorporation of the Company, a series of Preferred Stock, par value $0.0001
per share (the “Preferred Stock”), of the Company be, and it hereby is, created,
and that the designation and amount thereof and the powers, designations,
preferences and relative, participating, optional and other special rights
of
the shares of such series, and the qualifications, limitations or restrictions
thereof are as follows:
Section
1. Designation
and Amount.
The
shares of such series will be designated as Series A Junior Participating
Preferred Stock (the “Series A Preferred”) and the number of shares constituting
the Series A Preferred is 1,000,000. Such number of shares may be increased
or
decreased by resolution of the Board; provided,
however,
that no
decrease will reduce the number of shares of Series A Preferred 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 Company any
convertible into Series A Preferred.
Section
2. Dividends
and Distributions.
(a) Subject
to the rights of the holders of any shares of any series of Preferred Stock
ranking prior to the Series A Preferred with respect to dividends, the holders
of shares of Series A Preferred, in preference to the holders of Common Stock,
par value $0.0001 per share (the “Common Stock”), of the Company, and of any
other junior stock, will be entitled to receive, when, as and if declared by
the
Board out of funds legally available for the purpose, dividends payable in
cash
(except as otherwise provided below) on such dates as are from time to time
established for the payment of dividends on the Common Stock (each such date
being referred to herein as a “Dividend Payment Date”), commencing on the first
Dividend Payment Date after the first issuance of a share or fraction of a
share
of Series A Preferred (the “First Dividend Payment Date”), in an amount per
share (rounded to the nearest cent) equal to, subject to the provision for
adjustment hereinafter set forth, one hundred (100) times the aggregate per
share amount of all cash dividends, and one hundred (100) times the aggregate
per share amount (payable in kind) of all non-cash dividends, other than a
dividend payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise), declared on the
Common Stock since the immediately preceding Dividend Payment Date or, with
respect to the First Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred. In the event that the
Company at any time (i) declares a dividend on the outstanding shares of Common
Stock payable in shares of Common Stock, (ii) subdivides the outstanding shares
of Common Stock, (iii) combines the outstanding shares of Common Stock into
a
smaller number of shares or (iv) issues any shares of its capital stock in
a
reclassification of the outstanding shares of Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), then, in each such case
and
regardless of whether any shares of Series A Preferred are then issued or
outstanding, the amount to which holders of shares of Series A Preferred would
otherwise be entitled immediately prior to such event under clause (ii) of
the
preceding sentence will be adjusted by multiplying such amount by a fraction,
(1) the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and (2) the denominator of which is the number
of
shares of Common Stock that were outstanding immediately prior to such event.
(b) The
Company will declare a dividend on the Series A Preferred as provided in
paragraph (a) of this Section 2 immediately after it declares a dividend on
the
Common Stock (other than a dividend payable in shares of Common Stock). Each
such dividend on the Series A Preferred will be payable immediately prior to
the
time at which the related dividend on the Common Stock is payable.
(c) Dividends
will accrue on outstanding shares of Series A Preferred from the Dividend
Payment Date next preceding the date of issue of such shares, unless (i) the
date of issue of such shares is prior to the record date for the First Dividend
Payment Date, in which case dividends on such shares will accrue from the date
of the first issuance of a share of Series A Preferred or (ii) the date of
issue
is a Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred entitled to receive
a
dividend and before such Dividend Payment Date, in either of which events such
dividends will accrue from such Dividend Payment Date. Accrued but unpaid
dividends will cumulate from the applicable Dividend Payment Date but will
not
bear interest. Dividends paid on the shares of Series A Preferred in an amount
less than the total amount of such dividends at the time accrued and payable
on
such shares will be allocated pro rata on a share-by-share basis among all
such
shares at the time outstanding. The Board may fix a record date for the
determination of holders of shares of Series A Preferred entitled to receive
payment of a dividend or distribution declared thereon, which record date will
be not more than 60 calendar days prior to the date fixed for the payment
thereof.
Section
3. Voting
Rights.
The
holders of shares of Series A Preferred will have the following voting
rights:
(a) Subject
to the provision for adjustment hereinafter set forth, each share of Series
A
Preferred will entitle the holder thereof to one hundred (100) votes on all
matters submitted to a vote of the stockholders of the Company. In the event
the
Company at any time (i) declares a dividend on the outstanding shares of Common
Stock payable in shares of Common Stock, (ii) subdivides the outstanding shares
of Common Stock, (iii) combines the outstanding shares of Common Stock into
a
smaller number of shares or (iv) issues any shares of its capital stock in
a
reclassification of the outstanding shares of Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), then, in each such case
and
regardless of whether any shares of Series A Preferred are then issued or
outstanding, the number of votes per share to which holders of shares of Series
A Preferred would otherwise be entitled immediately prior to such event will
be
adjusted by multiplying such number by a fraction, (1) the numerator of which
is
the number of shares of Common Stock outstanding immediately after such event
and (2) 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 herein, in 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 Preferred and the holders of shares of Common Stock and any other
capital stock of the Company having general voting rights will vote together
as
one class on all matters submitted to a vote of stockholders of the
Company.
(c) Except
as
set forth in the Certificate of Incorporation or herein, or as otherwise
provided by law, holders of shares of Series A Preferred will have no voting
rights.
Section
4. Certain
Restrictions.
(a) Whenever
dividends or other dividends or distributions payable on the Series A Preferred
are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred
outstanding have been paid in full, the Company will not:
| |
(i)
|
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 shares of Series A
Preferred;
|
| |
(ii)
|
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 shares of Series A Preferred,
except
dividends paid ratably on the shares of Series A Preferred 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;
|
| |
(iii)
|
redeem,
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 shares of Series A Preferred; provided,
however,
that the Company may at any time redeem, purchase or otherwise acquire
shares of any such junior stock in exchange for shares of any stock
of the
Company ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the shares of Series A Preferred;
or
|
|
|
(iv) |
redeem,
purchase or otherwise acquire for consideration any shares of Series
A
Preferred, or any shares of stock ranking on a parity with the shares
of
Series A Preferred, except in accordance with a purchase offer made
in
writing or by publication (as determined by the Board) to all holders
of
such shares upon such terms as the Board, after consideration of
the
respective annual dividend rates and other relative rights and preferences
of the respective series and classes, may determine in good faith
will
result in fair and equitable treatment among the respective series
or
classes.
|
(b) The
Company will not permit any majority-owned subsidiary of the Company to purchase
or otherwise acquire for consideration any shares of stock of the Company unless
the Company 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 Preferred purchased or otherwise acquired by the Company
in
any manner whatsoever will be retired and canceled promptly after the
acquisition thereof. All such shares will 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, in the Certificate of Incorporation of the Company,
or in any other 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 Company, no distribution will
be
made (a) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the shares of
Series A Preferred unless, prior thereto, the holders of shares of Series A
Preferred have received $100 per share; provided,
however,
that
the holders of shares of Series A Preferred will be entitled to receive an
aggregate amount per share, subject to the provision for adjustment hereinafter
set forth, equal to one hundred (100) times the aggregate amount to be
distributed per share to holders of shares of Common Stock or (b) to the holders
of shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the shares of Series A Preferred,
except distributions made ratably on the shares of Series A Preferred and all
such parity stock in proportion to the total amounts to which the holders of
all
such shares are entitled upon such liquidation, dissolution or winding up.
In
the event the Company at any time (i) declares a dividend on the outstanding
shares of Common Stock payable in shares of Common Stock, (ii) subdivides the
outstanding shares of Common Stock, (iii) combines the outstanding shares of
Common Stock into a smaller number of shares or (iv) issues any shares of its
capital stock in a reclassification of the outstanding shares of Common Stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation), then,
in each such case and regardless of whether any shares of Series A Preferred
are
then issued or outstanding, the aggregate amount to which each holder of shares
of Series A Preferred would otherwise be entitled immediately prior to such
event under the proviso in clause (a) of the preceding sentence will be adjusted
by multiplying such amount by a fraction, (1) the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
(2) 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 the
event that the Company enters 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
each such case, each share of Series A Preferred will at the same time be
similarly exchanged for or changed into an amount per share, subject to the
provision for adjustment hereinafter set forth, equal to one hundred (100)
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 Company at any time
(a)
declares a dividend on the outstanding shares of Common Stock payable in shares
of Common Stock, (b) subdivides the outstanding shares of Common Stock, (c)
combines the outstanding shares of Common Stock in a smaller number of shares
or
(d) issues any shares of its capital stock in a reclassification of the
outstanding shares of Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
or surviving corporation), then, in each such case and regardless of whether
any
shares of Series A Preferred are then issued or outstanding, the amount set
forth in the preceding sentence with respect to the exchange or change of shares
of Series A Preferred will be adjusted by multiplying such amount by a fraction,
(1) the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and (2) the denominator of which is the number
of
shares of Common Stock that were outstanding immediately prior to such
event.
Section
8. Redemption.
The
shares of Series A Preferred are not redeemable.
Section
9. Rank.
The
Series A Preferred rank, with respect to the payment of dividends and the
distribution of assets, junior to all other series of the Company’s Preferred
Stock.
Section
10. Amendment.
Notwithstanding anything contained in the Certificate of Incorporation of the
Company to the contrary and in addition to any other vote required by applicable
law, the Certificate of Incorporation of the Company may not be amended in
any
manner that would materially alter or change the powers, preferences or special
rights of the Series A Preferred so as to affect them adversely without the
affirmative vote of the holders of at least 51% of the outstanding shares of
Series A Preferred, voting together as a single series.
[REMAINDER
OF PAGE LEFT INTENTIONALLY BLANK]
IN
WITNESS WHEREOF, this Certificate of Designation is executed on behalf of the
Company by the undersigned on ________ __, 2008.
|
CLARUS
CORPORATION
|
| |
|
| |
|
|
By:
|
|
| |
Name:
|
| |
Title:
|