Specific Proposed Amendments
The proposed amended and restated version of Articles 5 and 9 of the Certificate of
Incorporation would reduce the stockholder vote required to adopt, amend or repeal (i) any provision of our by-laws, (ii) any provision set forth in Articles 4(B), 5, 6, 7, 8 and 9 of the Certificate of Incorporation and (iii) any provision
which would have the effect of modifying or permitting the circumvention of the provisions set forth in any of Articles 4(B), 5, 6, 7, 8 and 9 of the Certificate of Incorporation, in each case, from the current Supermajority Approval
Requirement to the Majority Approval Requirement.
Article 5 of the Certificate of Incorporation provides, in relevant part, that the
stockholders may adopt, amend or repeal the bylaws only with the affirmative vote of the holders of not less than 66 2/3% of the voting power of all outstanding securities of Alpha generally entitled to vote in the election of directors, voting
together as a single class. If our stockholders approve the amendment, Article 5 would be amended and restated as follows (additions are indicated by bold and underlining and deletions are indicated by strikeouts):
The Board of Directors shall have the power to adopt, amend or repeal the bylaws of the
Corporation (the “Bylaws”).
The stockholders may adopt, amend or repeal the Bylaws only with the affirmative vote of
the holders of not less than
66 2/3%
a majority
of the voting power of all outstanding securities of the Corporation generally entitled to vote in the election of directors, voting together as a single class.
Article 9 of the Certificate of Incorporation provides, in relevant part, that the
provisions set forth in Articles 4(B), 5, 6, 7, 8 and 9 of the Certificate of Incorporation may not be repealed or amended in any respect, and no other provision may be adopted, amended or repealed which would have the effect of modifying
or permitting the circumvention of the provisions set forth in any of Articles 4(B), 5, 6, 7, 8 or 9, unless such action is approved by the affirmative vote of the holders of not less than 66 2/3% of the total voting power of all outstanding
securities of Alpha generally entitled to vote in the election of directors, voting together as a single class.
Article 4(B) sets forth the voting rights of the holders of the Company’s common stock and
any preferred stock. Article 5 is described above. Article 6 sets forth matters related to the board, including the power of the Board to manage the business and affairs of the Company, determine the size of the board, the standard for the
election of directors, filling vacancies on the board, removal of directors and the rights of any preferred stock directors. Article 7 sets forth matters related to stockholder meetings, including the Board’s determination of annual and special
meetings of stockholders and the prohibition of stockholder actions by written consent. Article 8 sets forth the limited liability of the board and the rights of indemnification of the Board and the officers and of others as designated by the
board.
If our stockholders approve the amendment, Article 9 would be amended and restated as
follows (additions are indicated by bold and underlining and deletions are indicated by strikeouts):
The Corporation reserves the right to amend this Second Amended and Restated Certificate of
Incorporation in any manner permitted by the Delaware Law and all rights and powers conferred upon stockholders, directors and officers herein are granted subject to this reservation. Notwithstanding the foregoing, the provisions set forth in
Articles 4(B), 5, 6, 7, 8 and this Article 9 may not be repealed or amended in any respect, and no other provision may be adopted, amended or repealed which would have the effect of modifying or permitting the circumvention of the
provisions set forth in any of Articles 4(B), 5, 6, 7, 8 or this Article 9, unless such action is approved by the