<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1998
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission file number 0-27670
ENGINEERING ANIMATION, INC.
[EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER]
DELAWARE 42-1323712
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
2321 NORTH LOOP DRIVE
AMES, IOWA 50010
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
----------------------
(515)296-9908
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
----------------------
INDICATE BY CHECK ( X ) WHETHER THE REGISTRANT (1) HAS FILED ALL
REPORTS REQUIRED TO BE FILED BY SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 DURING THE PRECEDING 12 MONTHS (OR FOR SUCH SHORTER PERIOD THAT THE
REGISTRANT WAS REQUIRED TO FILE SUCH REPORTS), AND (2) HAS BEEN SUBJECT TO SUCH
FILING REQUIREMENTS FOR THE PAST 90 DAYS.
(1) YES X NO
--- ---
(2) YES X NO
--- ---
AS OF AUGUST 7, 1998, THERE WERE 10,420,886 SHARES OF THE REGISTRANT'S
$0.01 PAR VALUE COMMON STOCK OUTSTANDING.
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ENGINEERING ANIMATION, INC.
FORM 10-Q
INDEX
PART I. FINANCIAL INFORMATION PAGE
Item 1. Financial Statements
Condensed Consolidated Balance Sheets
At June 30, 1998 and December 31, 1997 3
Condensed Consolidated Statements of Operations
For the three and six months ended June 30, 1998 and 1997 4
Condensed Consolidated Statements of Cash Flows
For the six months ended June 30, 1998 and 1997 5
Notes to Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 9
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a vote of Security Holders 13
Item 6. Exhibits and Reports on Form 8-K 13
SIGNATURES 14
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PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
ENGINEERING ANIMATION, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)
<TABLE>
<CAPTION>
----------- ------------
June 30, December 31,
1998 1997
----------- ------------
ASSETS (UNAUDITED) (NOTE)
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 14,393 $ 24,892
Short-term investments 17,280 15,406
Accounts receivable:
Billed 17,051 15,617
Unbilled 11,504 6,321
Deferred income taxes 701 701
Prepaid expenses 1,917 1,554
----------- ---------
Total current assets 62,846 64,491
Property and equipment, net 14,571 11,394
Other assets:
Note receivable 1,408 1,408
Software development costs, net 1,384 1,396
Goodwill, net 1,655 1,212
Deferred income taxes 652 -
Other 1,624 601
----------- ---------
Total assets $ 84,140 $ 80,502
=========== =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 5,123 $ 2,885
Accrued compensation and other accrued expenses 4,450 4,146
Deferred revenue 1,641 2,546
Current portion of long-term debt and lease obligations 165 176
Income taxes payable 1,368 270
----------- ---------
Total current liabilities 12,747 10,023
Long-term debt and lease obligations due after one year 1,517 1,495
Deferred income taxes - 653
Stockholders' equity 69,876 68,331
----------- ---------
Total liabilities and stockholders' equity $ 84,140 $ 80,502
=========== =========
</TABLE>
Note: The balance sheet at December 31, 1997 has been derived from the audited
financial statements at that date but does not include all of the
information and footnotes required by generally accepted accounting
principles for complete financial statements.
See accompanying notes.
3
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ENGINEERING ANIMATION, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data; unaudited)
<TABLE>
<CAPTION>
------------------------------ -------------------------------
Three months ended June 30, Six months ended June 30,
1998 1997 1998 1997
---------- --------- ------------- ---------
<S> <C> <C> <C> <C>
Net revenues:
Software products $ 11,891 $ 5,901 $ 22,123 $ 10,973
Interactive products 6,024 5,194 11,588 9,821
--------- ---------- ----------- -----------
Total revenues 17,915 11,095 33,711 20,794
Cost of revenues 5,279 2,985 9,612 5,593
--------- ---------- ----------- -----------
Gross profit 12,636 8,110 24,099 15,201
Operating expenses:
Sales and marketing 4,915 3,587 9,393 6,780
General and administrative 1,637 1,279 3,303 2,421
Research and development 2,720 1,624 5,067 3,025
Acquisition and non-recurring charges 9,080 - 13,329 -
--------- ---------- ----------- -----------
Total operating expenses 18,352 6,490 31,092 12,226
--------- ---------- ----------- -----------
Income (loss) from operations (5,716) 1,620 (6,993) 2,975
Other income, net 554 295 1,109 520
--------- ---------- ----------- -----------
Income (loss) before income taxes
and minority interest (5,162) 1,915 (5,884) 3,495
Income tax expense 1,489 706 1,215 1,322
--------- ---------- ----------- -----------
Net income (loss) before minority interest (6,651) 1,209 (7,099) 2,173
Minority interest - (10) - (68)
Net income (loss) $ (6,651) $ 1,199 $ (7,099) $ 2,105
========= ========== =========== ===========
Earnings (loss) per share:
Basic $ (0.65) $ 0.15 $ (0.71) $ 0.26
========= ========== =========== ===========
Diluted $ (0.65) $ 0.13 $ (0.71) $ 0.23
========= ========== =========== ===========
Weighted average shares outstanding 10,250 8,171 10,066 8,018
========= ========== =========== ===========
Weighted average shares outstanding
and assumed conversion 10,250 9,557 10,066 9,348
========= ========== =========== ===========
</TABLE>
See accompanying notes.
4
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ENGINEERING ANIMATION, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands; unaudited)
<TABLE>
<CAPTION>
---------------------------
Six months ended June 30,
1998 1997
--------- ---------
<S> <C> <C>
NET CASH PROVIDED (USED) BY OPERATING ACTIVITIES $ (4,387) $ 1,509
INVESTING ACTIVITIES
Purchases of property and equipment (4,254) (3,244)
Development of software (259) (574)
Maturities of marketable securities 32,445 14,500
Purchases of marketable securities (34,318) (26,100)
Cash acquired in Sense8 transaction 79 -
Purchase of other assets (1,178) -
---------- ---------
Net cash used by investing activities (7,485) (15,418)
FINANCING ACTIVITIES
Decrease in restricted cash 71 140
Proceeds from long-term debt - 250
Payments on long-term debt and lease obligations (303) (198)
Net proceeds from issuance of common stock and exercise of options 1,602 26,688
Foreign currency translation loss 3 -
---------- ---------
Net cash provided by financing activities 1,373 26,880
---------- ---------
Net increase (decrease) in cash and cash equivalents (10,499) 12,971
Cash and cash equivalents at beginning of period 24,892 10,786
---------- ---------
Cash and cash equivalents at end of period $ 14,393 $ 23,757
========== =========
</TABLE>
See accompanying notes.
5
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ENGINEERING ANIMATION, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. Basis of Presentation
The consolidated financial statements include the accounts of
Engineering Animation, Inc. and the Company's wholly-owned subsidiaries. All
significant intercompany accounts and transactions have been eliminated in
consolidation. The unaudited condensed consolidated financial statements
included herein reflect all adjustments, consisting only of normal recurring
accruals which in the opinion of management are necessary to fairly state the
Company's financial position, results of operations, and cash flows for the
periods presented. These financial statements should be read in conjunction with
the Company's audited financial statements as included in the Company's 1997
Form 10-K as filed with the Securities and Exchange Commission. The results of
operations for the six month period ended June 30, 1998 are not necessarily
indicative of the results that may be expected for any subsequent quarter or for
the fiscal year ending December 31, 1998. The December 31, 1997 balance sheet
was derived from audited financial statements, but does not include all
disclosures required by generally accepted accounting principles.
The consolidated financial statements are presented giving retroactive
effect to the Company's November, 1997 acquisitions of Technology Company
Ventures, L.L.C. ("TCV") and Cimtech, Inc. ("Cimtech") which have been accounted
for under the pooling of interests method.
Certain prior year financial information has been reclassified to
conform to the 1998 financial statement presentation.
2. Acquisition
On June 17, 1998, EAI completed the acquisition of Sense8 Corporation
("Sense8"), a privately-held company in Mill Valley, California. The Company
issued approximately 158,000 shares of its common stock valued at approximately
$7 million in exchange for all of the outstanding preferred and common stock of
Sense8. This acquisition is being accounted for using the purchase method.
In connection with this acquisition, the Company posted a non-recurring
charge for purchased technology, which resulted in additional net expense of
$9,080,000, and recorded $586,000 of goodwill, which is being amortized on a
straight-line basis over five years. The following table shows the pro forma
consolidated results of operations as if Sense8 had been acquired as of the
beginning of the periods presented.
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<TABLE>
<CAPTION>
--------------------------------------------------
Six months ended Year ended
June 30, 1998 December 31, 1997
------------------------ -----------------------
<S> <C> <C>
Revenues $ 34,322 $ 53,590
Net loss $ (9,202) $ (12,626)
Net loss per share $ (0.91) $ (1.41)
</TABLE>
The pro forma results are not necessarily indicative of what actually would have
occurred if the acquisition had been in effect for the entire periods presented.
In addition, they are not intended to be a projection of future results and do
not reflect any synergies that might be achieved from combined operations.
3. Public Offerings
In June 1997, the Company completed a follow-on offering of 1,000,000
shares of its common stock. The Company received approximately $26.6 million of
cash, net of underwriting discounts and other offering costs. In March 1998,
certain stockholders of the Company sold 966,000 shares of common stock to or
through agents or dealers. The Company did not receive any of the proceeds from
the sale of the common stock.
4. Stock Split
The Company completed a three-for-two stock split in the form of a
stock dividend paid to stockholders effective March 2, 1998. Accordingly, all
share, per share, weighted average share and stock option information has been
restated to reflect the split.
5. Earnings Per Share
In 1997, the Financial Accounting Standards Board issued Statement No.
128, "Earnings per Share", which the Company adopted on December 31, 1997.
Statement 128 replaces the calculation of primary and fully diluted earnings per
share with basic and diluted earnings per share. Unlike primary earnings per
share, basic earnings per share excludes any dilutive effects of options,
warrants and convertible securities. Diluted earnings per share is very similar
to the previously reported fully diluted earnings per share. All earnings per
share amounts for all periods have been presented, and where appropriate,
restated to conform to the Statement 128 requirements.
7
<PAGE> 8
6. Subsequent Events
On July 29, 1998 the Company entered into a definitive agreement to
acquire Variation Systems Analysis, Inc. ("VSA"), a privately held company
headquartered in St. Clair Shores, Michigan, for EAI common stock in a
transaction valued at approximately $26 million. The acquisition of VSA is
expected to be accounted for as a pooling of interests and completed in the
third quarter of 1998, subject to regulatory and shareholder approvals. The
Company expects to operate VSA as a wholly-owned subsidiary of EAI.
On July 29, 1998 the Company entered into a definitive agreement to
acquire Transom Technologies, Inc. ("Transom Technologies"), a privately held
company in Ann Arbor, Michigan, for EAI common stock in a transaction valued at
approximately $13 million. The acquisition of Transom Technologies is expected
be accounted for as a pooling of interests and completed in the third quarter of
1998, subject to regulatory and shareholder approvals.
The Company anticipates posting a non-recurring charge related to these
acquisitions in the third quarter of 1998.
8
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ENGINEERING ANIMATION, INC.
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
RESULTS OF OPERATIONS
NET REVENUES
The Company's revenues are derived from sales of software products and
interactive products. Revenues from sales of software products are recognized
upon delivery of the software product to the customer and satisfaction of
significant related obligations, if any. Revenues from software development
contracts, customer support and maintenance are included in software product
revenues. Customer support and maintenance revenues are deferred and recognized
ratably over the period the customer support services are provided. The Company
recognizes revenues from software development contracts and interactive products
based upon labor and other costs incurred and progress to completion on
contracts.
The Company's revenues increased 61% to $17.9 million for the three months ended
June 30, 1998 from $11.1 million for the three months ended June 30, 1997, and
increased 62% to $33.7 million for the six months ended June 30, 1998 from $20.8
million for the six months ended June 30, 1997. Software products revenue
increased 102% to $11.9 million for the three months ended June 30, 1998 from
$5.9 million for the three months ended June 30, 1997, and increased 102% to
$22.1 million for the six months ended June 30, 1998 from $11.0 million for the
six months ended June 30, 1997, as a result of increased revenues of product
visualization solutions. Interactive product revenues increased 16% to $6.0
million for the three months ended June 30, 1998 from $5.2 million for the three
months ended June 30, 1997, and increased 18% to $11.6 million for the six
months ended June 30, 1998 from $9.8 million for the six months ended June 30,
1997, primarily due to additional projects for interactive products.
COST OF REVENUES
The Company's cost of revenues includes cost of production, packaging and
distribution costs, royalties and amortization of capitalized software costs.
The Company's cost of revenues increased 77% to $5.3 million for the three
months ended June 30, 1998 from $3.0 million for the three months ended June 30,
1997, and increased 72% to $9.6 million for the six months ended June 30, 1998
from $5.6 million for the six months ended June 30, 1997, primarily due to
expanded software product sales, software product development contracts and
development costs for interactive products. The Company's cost of revenues as a
percentage of revenues increased to 29% for the three months ended June 30, 1998
from 27% for the three months ended June 30, 1997 and increased to 29% for the
six months ended June 30, 1998 compared to 27% for the six months ended June 30,
1997. The increase in cost of revenues as a percentage of revenues was
9
<PAGE> 10
primarily the result of changes in revenue mix which included increased software
development contracts in 1998, and the personnel costs associated with those
contracts.
OPERATING EXPENSES
Sales and Marketing. Sales and marketing expenses include personnel costs
related to sales, marketing and customer service activities, as well as
advertising, promotional materials, trade shows and other costs. Sales and
marketing expenses increased 37% to $4.9 million for the three months ended June
30, 1998 from $3.6 million for the three months ended June 30, 1997, and
increased 39% to $9.4 million for the six months ended June 30, 1998 from $6.8
million for the six months ended June 30, 1997, primarily due to costs
associated with expansion of the sales force, increased marketing costs and
equipment depreciation. Sales and marketing expenses decreased to 27% of total
revenues for the three months ended June 30, 1998 from 32% for the three months
ended June 30, 1997, and decreased to 28% of total revenues for the six months
ended June 30, 1998 from 33% for the six months ended June 30, 1997. The
decrease in sales and marketing expenses as a percentage of revenues was
primarily the result of spreading expenses over higher revenues.
General and Administrative. General and administrative expenses consist
primarily of salaries and facility costs for administrative, executive and
accounting personnel, as well as certain consulting expenses, insurance costs,
professional fees, depreciation and amortization expenses and other costs.
General and administrative expenses increased 28% to $1.6 million for the three
months ended June 30, 1998 from $1.3 million for the three months ended June 30,
1997, and increased 36% to $3.3 million for the six months ended June 30, 1998
from $2.4 million for the six months ended June 30, 1997, primarily as a result
of increased administrative staff. General and administrative expenses decreased
to 9% of total revenues for the three months ended June 30, 1998 from 12% for
the three months ended June 30, 1997, and decreased to 10% of total revenues for
the six months ended June 30, 1998 from 12% for the six months ended June 30,
1997. The decrease of general and administrative expenses as a percentage of
revenues was primarily a result of spreading expenses over higher revenues.
Research and Development. The Company's research and development focuses on
product development and consists primarily of salaries and benefits, related
facility costs, equipment depreciation and outside consulting fees. The
Company's research and development expenses increased 67% to $2.7 million for
the three months ended June 30, 1998 from $1.6 million for the three months
ended June 30, 1997, and increased 68% to $5.1 million for the six months ended
June 30, 1998 from $3.0 million for the six months ended June 30, 1997. Research
and development expenses remained at 15% of total revenues for the three months
ended June 30, 1998 and 1997, and for the six months ended June 30, 1998 and
1997.
Purchased technology. On June 17, 1998, EAI completed the acquisition of Sense8.
In connection with this acquisition, the Company posted a non-recurring charge
for purchased technology, which resulted in additional expense of $9,080,000.
10
<PAGE> 11
In the first quarter of 1998, EAI formed strategic relationships with General
Electric Corporate Research and Development and Hewlett-Packard Company to
license technology to incorporate into EAI's VisProducts. Both transactions were
accounted for as non-recurring charges to purchased technology expense in the
first quarter of 1998 in the aggregate amount of $4.2 million.
LIQUIDITY AND CAPITAL RESOURCES
The Company historically has satisfied its cash requirements through borrowings,
customer advances, capital lease financing and net proceeds of approximately
$55.6 million from the Company's initial public offering of Common Stock in
February 1996 and follow-on offering of Common Stock in June 1997. As of June
30, 1998, the Company had $31.7 million in cash, cash equivalents and short-term
investments.
Net cash used by operating activities for the six months ended June 30, 1998 was
$4.4 million. This is primarily attributed to acquisition and non-recurring
charges and increased receivables.
Net cash used by investing activities was $7.5 million for the six months
ended June 30, 1998. The use of cash was primarily for office facilities and
leasehold improvements, computer equipment and office furniture to accommodate
the increased number of employees and office locations, and the purchases of
marketable securities partially offset by maturities.
Net cash provided by financing activities was $1.4 million for the six
months ended June 30, 1998. The principal financing source was proceeds from
option exercises.
The Company believes its current cash and short-term investment balances will be
sufficient to meet anticipated cash needs for working capital and capital
expenditures for at least the next twelve months. There can be no assurance that
additional capital beyond the amounts currently forecasted by the Company will
not be required nor that any such required additional capital will be available
on reasonable terms, if at all, at such time as required by the Company.
SAFE HARBOR FOR FORWARD-LOOKING STATEMENTS
The Company or its representatives may, from time to time, make or may have made
certain forward-looking statements, orally or in writing, including, without
limitations, any such statements made or to be made in Management's Discussions
and Analysis of Financial Condition and Results of Operations contained in its
various SEC filings. The Company wishes to ensure that such statements are
accompanied by meaningful cautionary statements, so as to ensure to the fullest
extent possible the protections of the safe harbor established in the Private
Securities Litigation Reform Act of 1995. Accordingly, such statements are
qualified in their entirety by reference to and are accompanied by the following
discussion of certain important factors that could cause actual results to
differ materially from those projected in such forward-looking statements.
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The Company cautions the reader that this list of factors may not be exhaustive.
The Company operates in a continually changing business environment, and new
risk factors emerge from time to time. Management cannot predict such risk
factors, nor can it assess the impact, if any, of such risk factors on the
Company's business or the extent to which any factors, or combination of
factors, may cause actual results to differ materially from those projected in
any forward-looking statements. Accordingly, forward-looking statements should
not be relied upon as a prediction of actual results.
VARIABILITY OF OPERATING RESULTS
The Company has experienced and expects to continue to experience fluctuations
in its quarterly results. The Company's revenues are affected by a number of
factors, including the timing of the introduction of new software products and
interactive products by the Company and its competitors, seasonality of certain
customer purchases, product mix, general economic conditions and the Company's
ability to obtain agreements from publishers and distributors to market the
Company's products. The Company's operating results also will vary significantly
depending on changes in pricing, changes in customer budgets and changes in the
volume and timing of orders received, which are difficult to forecast. As a
result of the foregoing and other factors, the Company may experience material
fluctuations in future revenues and operating results on a quarterly or annual
basis. Therefore, the Company believes that period to period comparisons of its
revenues and operating results are not necessarily meaningful and should not be
relied upon as indicators of future performance.
YEAR 2000 COMPUTER CONVERSION
The Company has developed and implemented a plan to upgrade its information
technology in order to prepare for the year 2000 and has completed conversion of
all critical data processing systems. All of the Company's systems and
applications are 2000 compliant. The Company has also initiated communications
with its significant vendors to determine the extent to which the Company's
systems may be vulnerable to third parties' failure to remedy their own 2000
issues. Management currently does not anticipate such a failure to be an issue.
However, operating results could be impacted if the systems of other companies
with whom the Company transacts business are not compliant in a timely manner.
For a more complete discussion of other risk factors affecting the Company, see
the Company's 1997 Form 10-K.
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PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
See Item 4 in Part II of the Company's quarterly report Form
10Q for the period ended March 31, 1998.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits - See Index to Exhibits
(b) Reports on Form 8-K.
No Reports on Form 8-K were filed during the quarter
ended June 30, 1998.
13
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: August 12, 1998 ENGINEERING ANIMATION, INC.
-------------------------- (Registrant)
By: /s/ Jerome M. Behar
-------------------------------
Jerome M. Behar
Vice President of Finance and
Chief Financial Officer
(Duly Authorized Officer and
Principal Financial Officer)
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INDEX TO EXHIBITS
Exhibit Description
- - ------- -----------
3.1 Certificate of Incorporation, as amended
27. Financial Data Schedule
15
<PAGE> 1
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
EAI, INC.
FIRST. The name of the corporation is EAI, INC.
SECOND. The address of its registered office in the State of Delaware
is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name
of its registered agent at such address is the Corporation Trust Company.
THIRD. The nature of the business and the objects and purposes to be
conducted or promoted by the Corporation are to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH.
1. Authorized Shares. The total number of shares of stock of all
classes which the Corporation shall have authority to issue is forty million
(40,000,000), of which twenty million (20,000,000) shall be shares of Preferred
Stock of the par value of $0.01 per share, and twenty million (20,000,000) shall
be shares of Common Stock of the par value of $0.01 per share.
2. Preferred Stock.
(a) The Preferred Stock shall be issuable in series, and in connection
with the issuance of any series of Preferred Stock and to the extent now or
hereafter permitted by the laws of the State of Delaware, the Board of Directors
is authorized to fix by resolution the designation of each series, the stated
value of the shares of each series, the dividend rate or rates of each series
(which rate or rates may be expressed in terms of a formula or other method by
which such rate or rates shall be calculated from time to time) and the date or
dates and other provisions respecting the payment of dividends, the provisions,
if any, for a sinking fund for the shares of each series, the preferences of the
shares of each series in the event of the liquidation or dissolution of the
Corporation, the provisions, if any, respecting the redemption of the shares of
each series and, subject to requirements of the laws of the State of Delaware,
the voting rights (except that such shares shall not have more than one vote per
share), the terms, if any, upon which the shares of each series shall be
convertible into or exchangeable for any other shares of stock of the
Corporation and any other relative, participating, optional or other special
rights, and qualifications, limitations or restrictions thereof, of the shares
of each series.
(b) Preferred Stock of any series redeemed, converted, exchanged,
purchased, or otherwise acquired by the Corporation shall constitute authorized
but unissued Preferred Stock.
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(c) All shares of any series of Preferred Stock, as between themselves,
shall rank equally and be identical (except that such shares may have different
dividend provisions); and all series of Preferred Stock, as between themselves,
shall rank equally and be identical except as set forth in resolutions of the
Board of Directors authorizing the issuance of such series.
3. Common Stock.
(a) After dividends to which the holders of Preferred Stock may then be
entitled under the resolutions creating any series thereof have been declared
and after the Corporation shall have set apart the amounts required pursuant to
such resolutions for the purchase or redemption of any series of Preferred
Stock, the holders of Common Stock shall be entitled to have dividends declared
in cash, property, or other securities of the Corporation out of any net profits
or net assets of the Corporation legally available therefor.
(b) In the event of the liquidation or dissolution of the Corporation's
business and after the holders of Preferred Stock shall have received amounts to
which they are entitled under the resolutions creating such series, the holders
of Common Stock shall be entitled to receive ratably the balance of the
Corporation's net assets available for distribution.
(c) Each share of Common Stock shall be entitled to one vote upon all
matters upon which stockholders have the right to vote, but shall not be
entitled to vote for the election of any directors who may be elected by vote of
the Preferred Stock voting as a class if so provided in the resolution creating
such Preferred Stock pursuant to Section 2(a) of this Article FOURTH.
4. Preemptive Rights. No holder of any shares of the Corporation shall
have any preemptive right to subscribe for or to acquire any additional shares
of the Corporation of the same or of any other class whether now or hereafter
authorized or any options or warrants giving the right to purchase any such
shares, or any bonds, notes, debentures or other obligations convertible into
any such shares.
FIFTH. The name and mailing address of the incorporator is as follows:
NAME MAILING ADDRESS
- - ---- ---------------
Jamie A. Wade Des Moines, Iowa
SIXTH. The Corporation is to have perpetual existence.
SEVENTH. The private property of the stockholders shall not be subject
to the payment of corporate debts to any extent whatever.
EIGHTH. Except as may otherwise be fixed by resolution of the Board of
Directors pursuant to the provisions of Article FOURTH hereof relating to the
rights of the holders of
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Preferred Stock to elect directors as a class, the number of directors of the
Corporation shall be fixed from time to time by or pursuant to the By-Laws of
the Corporation. The directors, other than those who may be elected by the
holders of Preferred Stock, shall be classified, with respect to the time for
which they severally hold office, into three classes, as nearly equal in number
as possible. The first class shall be initially elected for a term expiring at
the next ensuing annual meeting, the second class shall be initially elected for
a term expiring one year thereafter, and the third class shall be elected for a
term expiring two years thereafter, with each member of each class to hold
office until his successor is elected and qualified. At each annual meeting of
the stockholders of the Corporation held after the initial classification and
election of directors, the successors of the class of directors whose term
expires at that meeting shall be elected to hold office for a term expiring at
the annual meeting of stockholders held in the third year following the year of
their election.
Advance notice of stockholder nominations for the election of directors
shall be given in the manner provided in the By-Laws of the Corporation.
Except as may otherwise be fixed by resolution of the Board of
Directors pursuant to the provisions of Article FOURTH hereof relating to the
rights of the holders of Preferred Stock to elect directors as a class, newly
created directorships resulting from any increase in the number of directors and
any vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or any other cause shall be filled by the affirmative
vote of a majority of the remaining directors then in office, even though less
than a quorum of the Board of Directors. Any director elected in accordance with
the preceding sentence shall hold office for the remainder of the full term of
the class of directors in which the new directorship was created (subject to the
requirements of this Article EIGHTH that all classes be as nearly equal in
number as possible) or in which the vacancy occurred and until such director's
successor shall have been elected and qualified. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of an
incumbent director.
Subject to the rights of the holders of Preferred Stock to elect
directors as a class, a director may be removed only for cause and only by the
affirmative vote of the holders of 80% of the combined voting power of the then
outstanding shares of stock entitled to vote generally in the election of
directors, voting together as a single class.
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
1. To adopt, amend and repeal the By-Laws of the Corporation. Any
By-Laws adopted by the directors under the powers conferred hereby may be
amended or repealed by the directors or by the stockholders. Notwithstanding the
foregoing or any other provision in this Certificate of Incorporation or the
By-Laws of the Corporation to the contrary, Article II, Sections 3 and 7 and
Article III, Sections 1, 2 and 3 of the By-Laws shall not be amended or repealed
and no provision inconsistent therewith shall be adopted without the affirmative
vote of the holders of at least 80% of the voting power of all the shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class.
18
<PAGE> 4
2. To fix and determine, and to vary the amount of, the working
capital of the Corporation, and to determine the use or investment of any assets
of the Corporation, to set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for any proper purpose and to
abolish any such reserve or reserves.
3. To authorize the purchase or other acquisition of shares of stock
of the Corporation or any of its bonds, debentures, notes, scrip, warrants or
other securities or evidence of indebtedness.
4. Except as otherwise provided by law, to determine the places within
or without the State of Delaware, where any or all of the books of the
Corporation shall be kept.
5. To authorize the sale, lease or other disposition of any part or
parts of the properties of the Corporation and to cease to conduct the business
connected therewith or again to resume the same, as it may deem best.
6. To authorize the borrowing of money, the issuance of bonds,
debentures and other obligations or evidences of indebtedness of the
Corporation, secured or unsecured, and the inclusion of provisions as to
redeemability and convertibility into shares of stock of the Corporation or
otherwise; and the mortgaging or pledging, as security for money borrowed or
bonds, notes, debentures or other obligations issued by the Corporation, of any
property of the Corporation, real or personal, then owned or thereafter acquired
by the Corporation.
7. To authorize the negotiation and execution on behalf of the
Corporation of agreements with officers and other employees of the corporation
relating to the payment of severance compensation to such officers or employees.
In addition to the powers and authorities herein or by statute
expressly conferred upon it, the Board of Directors may exercise all such powers
and do all such acts and things as may be exercised or done by the Corporation,
subject, nevertheless, to the provisions of the laws of the State of Delaware,
of this Certificate of Incorporation and of the By-Laws of the Corporation.
Subject to any limitation in the By-Laws, the members of the Board of
Directors shall be entitled to reasonable fees, salaries, or other compensation
for their services, as determined from time to time by the Board of Directors,
and to reimbursement for their expenses as such members. Nothing herein
contained shall preclude any director from serving the Corporation or its
subsidiaries or affiliates in any other capacity and receiving compensation
therefor.
Notwithstanding anything contained in this Certificate of Incorporation
to the contrary, the affirmative vote of the holders of at least 80% of the
voting power of all shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required to
alter, amend, adopt any provision inconsistent with or repeal this Article
EIGHTH.
19
<PAGE> 5
NINTH. Both stockholders and directors shall have power, if the By-Laws
so provide, to hold their meetings and to have one or more offices within or
without the State of Delaware.
Except as may otherwise be fixed by resolution of the Board of
Directors pursuant to the provisions of Article FOURTH hereof relating to the
rights of the holders of Preferred Stock, any action required or permitted to be
taken by the stockholders of the Corporation may be effected by a written
consent of the stockholders, provided that upon a Public Offering, any such
action must be effected at a duly called annual or special meeting of such
holders and may not be effected by any consent in writing by such holders. A
"Public Offering" means a public offering and sale of Common Stock pursuant to
an effective registration statement under the Securities Act of 1933, as
amended. Except as otherwise required by law and subject to the rights of the
holders of Preferred Stock, special meetings of stockholders may be called only
by the Chairman, if any, on his own initiative, the President on his own
initiative or by the Board of Directors pursuant to a resolution approved by a
majority of the entire Board of Directors. Notwithstanding anything contained in
this Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 80% of the voting power of all shares of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to alter, amend, adopt any provision
inconsistent with or repeal this Article NINTH.
TENTH. Except as otherwise provided in this Certificate of
Incorporation, the Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
ELEVENTH.
(a) A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law of the
State of Delaware, or (iv) for any transaction from which the director derived
an improper personal benefit. If the General Corporation Law of the State of
Delaware, or any other applicable law, is amended to authorize corporation
action further eliminating or limiting the personal liability of directors, then
the liability of a director of the Corporation shall be eliminated or limited to
the fullest extent permitted by the General Corporation Law of the State of
Delaware, or any other applicable law, as so amended. Any repeal or modification
of this Section (a) by the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation existing at the
time of such repeal or modification.
(b) (1) Each person who has or is made a party or is threatened to be
made a party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she or a person of
20
<PAGE> 6
whom he or she is the legal representative is or was a director or officer of
the Corporation or is or was serving at the request of the Corporation as a
director, officer or employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is an
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the General Corporation Law of the State of Delaware, or
any other applicable law, as the same exists or may hereafter be amended (but,
in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against all
expenses, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that except as provided in
paragraph (2) of this Section (b) with respect to proceedings seeking to enforce
rights to indemnification, the Corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section (b) shall be a contract right and
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that if the General Corporation Law of the State of Delaware, or any
other applicable law, requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding shall be made
only upon delivery to the Corporation of an undertaking by or on behalf of such
director or officer to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Section (b) or otherwise.
(2) If a claim under paragraph (1) of this Section (b) is not paid in
full by the Corporation within thirty days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standard of conduct which make it permissible under the
General Corporation Law of the State of Delaware, or any other applicable law,
for the Corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation. Neither the failure
of the Corporation (including its Board of Directors, stockholders or
independent legal counsel) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set
21
<PAGE> 7
forth in the General Corporation Law of the State of Delaware, or any other
applicable law, nor an actual determination by the Corporation (including its
Board of Directors, stockholders or independent legal counsel) that the claimant
has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met the applicable
standard of conduct.
(3) The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition conferred in this
Section (b) shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, provision of this Certificate of
Incorporation, By-Law, agreement, vote of stockholders or disinterested
directors or otherwise.
(4) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the General Corporation Law of the State of Delaware, or any other
applicable law.
(5) The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification, and rights to be paid
by the Corporation the expenses incurred in defending any proceeding in advance
of its final disposition, to any employee or agent of the Corporation to the
fullest extent of the provisions of this Section (b) with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
(6) Any repeal or modification of this Section (b) by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director, officer, employee or agent of the Corporation existing at the time of
such repeal or modification.
TWELFTH. In determining whether an "Acquisition Proposal" is in the
best interests of the Corporation and its stockholders, the Board of Directors
shall consider all factors it deems relevant including, without limitation, the
following:
(a) The consideration being offered in the Acquisition Proposal, not
only in relation to the then current market price, but also in relation to the
then current value of the Corporation in a freely negotiated transaction and in
relation to the Board of Directors' estimate of the future value of the
Corporation as an independent entity; and
(b) Such other factors the Board of Directors determines to be
relevant, including among others the social, legal and economic effects upon
employees, suppliers, customers and the communities in which the Corporation is
located, as well as on the long term business prospects of the Corporation.
"Acquisition Proposal" means any proposal of any person (i) for a
tender offer, exchange offer or any other method of acquiring any equity
securities of the Corporation with a view to acquiring control of the
Corporation, (ii) to merge or consolidate the Corporation with another
22
<PAGE> 8
corporation, or (iii) to purchase or otherwise acquire all or substantially all
of the properties and assets of the Corporation.
This Article TWELFTH shall not be interpreted to create any rights on
behalf of third persons, such as employees, suppliers, or customers.
THE UNDERSIGNED, being the sole incorporator hereinafter named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this Certificate, hereby declaring and certifying
that this is his act and deed and the facts herein stated are true, and
accordingly has set his hand this 12th day of December, 1995.
/s/ Jamie A. Wade
---------------------------
Jamie A. Wade, Incorporator
23
<PAGE> 9
CERTIFICATE OF OWNERSHIP AND MERGER
of
Engineering Animation, Inc.
(an Iowa corporation)
into
EAI, Inc.
(a Delaware corporation)
It is hereby certified that:
1. Engineering Animation, Inc. (the "Corporation") is a
corporation of the State of Iowa, the laws of which permit a merger of a
corporation of that jurisdiction with a corporation of another jurisdiction.
2. The Corporation, as the owner of all of the outstanding
shares of common stock of EAI, Inc., hereby merges itself into EAI, Inc., a
corporation of the State of Delaware ("EAI").
3. The following is a copy of the resolutions adopted on the
18th day of December, 1995, by the Board of Directors of the Corporation to
merge the Corporation into EAI:
RESOLVED, that this Corporation be reincorporated in
the State of Delaware by merging itself into EAI pursuant to
the laws of the State of Iowa and the State of Delaware as
hereinafter provided, so that the separate existence of this
Corporation shall cease as soon as the merger shall become
effective, and thereupon this Corporation and EAI will become
a single corporation, which shall continue to exist under, and
be governed by, the laws of the State of Delaware.
RESOLVED that the terms and conditions of the proposed merger
are as follows:
(a) From and after the effective time of the merger, all of the estate,
property, rights, privileges, powers, and franchises of this
Corporation shall become vested in and be held by EAI as fully and
entirely and without change or diminution as the same were before held
and enjoyed by this Corporation and EAI shall assume all of the
obligations of this
<PAGE> 10
Corporation pursuant to Section 253 of the General Corporation Law of
the State of Delaware.
(b) Each share of capital stock of this Corporation which shall be
issued and outstanding immediately prior to the effective time of the
merger shall be converted into one issued and outstanding share of
common stock, $0.01 par value, of EAI, and, from and after the
effective time of the merger, the holders of all of said issued and
outstanding shares of capital stock of this Corporation shall
automatically be and become holders of shares of EAI upon the basis
above specified, whether or not certificates representing said shares
are then issued and delivered.
(c) After the effective time of the merger, each holder of record of
any outstanding certificate or certificates theretofore representing
capital stock of this Corporation may surrender the same to EAI at its
office in Ames, Iowa and such holder shall be entitled upon such
surrender to receive in exchange therefor a certificate or certificates
representing an equal number of shares of common stock of EAI.
Until so surrendered, each outstanding certificate which prior to the
effective time of the merger represented one or more shares of capital
stock of this Corporation shall be deemed for all corporate purposes to
evidence ownership of an equal number of shares of common stock of EAI.
(d) From and after the effective time of the merger, the name of EAI
shall be amended to "Engineering Animation, Inc."
(e) From and after the effective time of the merger, the Certificate of
Incorporation and the By-Laws of EAI, Inc. shall be the Certificate of
Incorporation and the By-Laws of EAI as in effect immediately prior to
such effective time, except that the name of EAI shall be amended to be
"Engineering Animation, Inc.," and such Certificate of Incorporation
and By-laws shall continue in full force and effect until amended and
changed in the manner prescribed by the provisions of such documents
and the General Corporation Law of the State of Delaware.
PAGE 2
<PAGE> 11
(f) The officers of EAI shall be the corresponding officers of the
Corporation immediately before the effective time of the merger and the
members of the Board of Directors shall be as follows, which directors
are to serve in office until the annual meeting of stockholders in the
year indicated below, or until their successors shall have been elected
and qualified:
Name of Director Expiration of Term
---------------- ------------------
Laurence J. Kirshbaum 1997
Michael Crow 1998
Jamie A. Wade 1996
Matthew Rizai 1998
Martin Vanderploeg 1997
RESOLVED that, in the event that the proposed merger shall not
be terminated, the proper officers of this Corporation be and
they hereby are authorized and directed to make and execute a
Certificate of Ownership and Merger setting forth a copy of
these resolutions to merge itself into EAI and the date of
adoption thereof, and to cause the same to be filed and
recorded as provided by law, and to do all acts and things
whatsoever, within the State of Iowa and Delaware in any other
appropriate jurisdiction, necessary or proper to effect this
merger.
4. The proposed merger herein certified has been adopted,
approved, certified, executed, and acknowledged by this Corporation in
accordance with the laws of the State of Iowa.
Signed on December 18, 1995
Engineering Animation, Inc.,
an Iowa corporation
By: /s/ Matthew M. Rizai
-------------------------
Name: Matthew M. Rizai
---------------------
Its: President
---------------------
Attested:
By: /s/ Jamie A. Wade
-----------------------
Name: Jamie A. Wade
-------------------
Its: Secretary
-------------------
PAGE 3
<PAGE> 12
ENGINEERING ANIMATION, INC.
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
ENGINEERING ANIMATION, INC., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), pursuant to Section 242
of The General Corporation Law of the State of Delaware (the "Corporation Law"),
DOES HEREBY CERTIFY:
FIRST: That the Certificate of Incorporation be amended to add the
following as ARTICLE THIRTEENTH:
"THIRTEENTH. Simultaneously with the effective date of this amendment
(the "Effective Date"), each share of Common Stock, par value $.01 per
share, issued and outstanding immediately prior to the Effective Date
(the "Old Common Stock") shall automatically and without any action on
the part of the holder thereof be reclassified and changed into
one-half of a share of the Corporation's Common Stock, par value $.01
per share (the "New Common Stock"), subject to the treatment of
fractional share interests as described below. Each holder of a
certificate or certificates which immediately prior to the Effective
Date represented outstanding shares of Old Common Stock (the "Old
Certificates") shall be entitled to receive upon surrender of such Old
Certificates to the Corporation's transfer agent for cancellation a
certificate or certificates (the "New Certificates") representing such
number of whole shares of the New Common Stock into which and for which
the shares of the Old Common Stock formerly represented by such Old
Certificates so surrendered are reclassified under the terms hereof.
From and after the Effective Date, Old Certificates shall represent
only the right to receive New Certificates pursuant to the provisions
hereof. No certificates or scrip representing fractional share
interests in New Common Stock will be issued by the Corporation as a
result of the reverse stock split contemplated hereby. In lieu thereof,
each stockholder whose shares of Old Common Stock are not evenly
divisible by two will receive one additional share of New Common Stock
for the fractional share that such stockholder would otherwise be
entitled to as a result of such reverse stock split. If more than one
Old Certificate shall be surrendered at one time for the account of the
same stockholder, the number of full shares of New Common Stock for
which new certificates shall be issued shall be computed on the basis
of the aggregate number of shares represented by the Old Certificates
so surrendered. In the event that the Corporation's transfer agent
PAGE 4
<PAGE> 13
determines that a holder of Old Certificates has not tendered all his
certificates for exchange, the transfer agent shall carry forward any
fractional share until all certificates of that holder have been
presented for exchange. If any New Certificate is to be issued in the
name other than that in which the Old Certificates surrender for
exchange are issued, the Old Certificates so surrendered shall be
properly endorsed and otherwise in proper form for transfer, and the
person or persons requesting such exchange shall affix any requisite
stock transfer tax stamps to the Old Certificates surrendered, or
provide funds for their purchase, or establish to the satisfaction of
the transfer agent that such taxes are not payable. From and after the
Effective Date, the amount of capital represented by the shares of the
New Common Stock into which and for which the shares of the Old Common
Stock are reclassified under the terms hereof shall be the same as the
amount of capital represented by the shares of Old Common Stock so
reclassified, until thereafter reduced or increased in accordance with
applicable law."
SECOND: That the foregoing amendment to the Certificate of
Incorporation of the Corporation was duly approved and adopted by written
consent of the shareholders of the Corporation dated February 16, 1996, pursuant
to the provisions of Sections 228 and 242 of the Corporation Law.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed by its President and attested by its Secretary on the 20th day of
February, 1996.
ENGINEERING ANIMATION, INC.
By: /s/ Matthew M. Rizai
------------------------------
Matthew M. Rizai, President
ATTEST:
/s/ Jamie A. Wade
- - -------------------------------
Jamie A. Wade, Secretary
PAGE 5
<PAGE> 14
CERTIFICATE OF DESIGNATIONS
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
ENGINEERING ANIMATION, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
------------------------------
Engineering Animation, Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware (hereinafter called the
"Corporation"), hereby certifies that the following resolution was adopted by
the Board of Directors of the Corporation as required by Section 151 of the
General Corporation Law by unanimous written consent dated December 18, 1995:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the Certificate
of Incorporation, the Board of Directors hereby creates a series of Preferred
Stock, par value $0.01 per share (the "Preferred Stock"), of the Corporation and
hereby states the designation and number of shares, and fixes the relative
rights, preferences, and limitations thereof as follows:
Series A Junior Participating Preferred Stock:
Section 1 Designation and Amount. The shares of such 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 Preferred
Stock shall be 200,000. 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 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 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 similar stock) ranking prior and
superior to the Series A Preferred Stock with respect to dividends, the
holders of shares of Series A Preferred Stock, in preference
<PAGE> 15
to the holders of Common Stock, par value $0.01 per share (the "Common
Stock"), of the Corporation, and of any other junior 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 first 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 Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $1 or (b) subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate
per share amount of all cash dividends, and 100 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
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 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 Preferred Stock were entitled immediately
prior to such event under clause (b) of 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 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);
provided that, in the event no dividend or distribution shall have been
declared on the Common stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $1 per share on the Series A Preferred
Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A 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 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
2
<PAGE> 16
Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A 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 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
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder
thereof to 100 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 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 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
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 provided by
law, holders of Series A 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.
3
<PAGE> 17
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A 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 Preferred Stock outstanding shall have been paid in full, the
Corporation shall 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 Series A Preferred Stock;
(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 Series A Preferred Stock, except
dividends paid ratably on the Series A 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;
(iii) 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 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 (either as to dividends or
upon dissolution, liquidation or winding up) to the Series A
Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any
shares of stock ranking on a parity with the Series A
Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such terms as
the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and
preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(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. Required Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled 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
4
<PAGE> 18
Preferred Stock subject to the conditions and restrictions on issuance set forth
herein, in the Certificate of Incorporation, 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 Corporation, no distribution shall
be made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series A
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of shares of
Common Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except distributions made ratably on the Series A
Preferred Stock 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 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 Preferred Stock were entitled immediately prior to
such event under the proviso in clause (1) of 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 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 to 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 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 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.
5
<PAGE> 19
Section 8. No Redemption. The shares of Series A Preferred Stock
shall not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets, junior to all series
of any other class of the Corporation's Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A 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 Preferred Stock, voting
together as a single class.
IN WITNESS WHEREOF, this Certificate of Designations is executed on
behalf of the Corporation by its President and attested by its Secretary this
20th day of February, 1996.
ENGINEERING ANIMATION, INC.
/s/ Matthew M. Rizai
----------------------------
Name: Matthew M. Rizai
Title: President
Attest:
/s/ Jamie A. Wade
- - --------------------------
Name: Jamie A. Wade
Title: Secretary
6
<PAGE> 20
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ENGINEERING ANIMATION, INC.
FIRST: That by unanimous written consent, dated February 11, 1998, in accordance
with Section 141(f) of the General Corporation Law of the State of Delaware, the
Board of Directors of Engineering Animation, Inc. (the "Corporation") duly
adopted resolutions setting forth a proposed amendment of the Certificate of
Incorporation of said Corporation, declaring said amendment to be advisable and
submitting such amendment to the stockholders of said Corporation for
consideration thereof. The resolution setting forth the proposed amendment is as
follows:
RESOLVED, that the Certificate of Incorporation of this Corporation be amended
by changing Section 1 of Article Fourth thereof so that, as amended, said
Section shall be and read as follows:
"1. Authorized Shares. The total number of shares of stock
of all classes which the Corporation shall have authority to issue is
eighty million (80,000,000), of which twenty million (20,000,000) shall
be shares of Preferred Stock of the par value of $0.01 per share, and
sixty million (60,000,000) shall be shares of Common Stock of the par
value of $0.01 per share."
SECOND: That thereafter, pursuant to resolution of its Board of Directors, a
majority of the holders of Common Stock of said Corporation, by action of such
stockholders at the annual meeting of the stockholders of the corporation, on
May 1, 1998 in accordance with Section 242 of the General Corporation Law of the
State of Delaware, voted as follows: of the 9,890,949 shares of outstanding
Common Stock entitled to vote thereon, (1) the holders of 6,155,394 shares of
the outstanding stock voted in favor of the approval of said amendment; (2) the
holders of 1,322,084 shares of the outstanding stock entitled to vote thereon
voted against the approval of said amendment and (3) the holders of 11,589
shares of the outstanding stock did not vote on said amendment.
There were no shares of outstanding Preferred Stock entitled to vote thereon.
THIRD: That said amendment was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Board of Directors has caused this certificate to be
signed by Jamie A. Wade, its Vice President, this eleventh day of May, 1998.
By: /s/ Jamie A. Wade
---------------------
Vice President
<PAGE> 21
CERTIFICATE OF MERGER
OF
SENSE8 CORPORATION
INTO
ENGINEERING ANIMATION, INC.
The undersigned corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
Name State of Incorporation
---- ----------------------
Sense8 Corporation California
Engineering Animation, Inc. Delaware
SECOND: That an agreement and plan of merger between the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
252 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation of the merger is
Engineering Animation, Inc.
FOURTH: That the certificate of incorporation of Engineering Animation,
Inc., a Delaware corporation, the surviving corporation, shall be its
certificate of incorporation.
FIFTH: That the authorized stock for the non-surviving corporation is
Ten Million (10,000,000) shares of common stock with no par value.
SIXTH: That the executed agreement and plan of merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is 2321 North Loop
Drive, Ames, Iowa 50010.
SEVENTH: That a copy of the agreement and plan of merger will be
furnished by the surviving corporation, on request and without cost to any
stockholder of any constituent corporation.
ENGINEERING ANIMATION, INC.
DATED: June 8, 1998 BY: /s/ Jamie Wade
----------------------
Jamie Wade
ITS: Vice President and General Counsel
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