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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 27, 1999
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SEAGATE SOFTWARE, INC.
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(Exact Name of the Registrant as Specified in Its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation)
00-23169 77-0397623
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(Commission File Number) (I.R.S. Employer Identification No.)
915 Disc Drive, Scotts Valley, California 95066
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(Address of Principal Executive Offices) (Zip Code)
(831) 438-6550
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(Registrant's Telephone Number, Including Area Code)
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
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The Registrant's stockholders approved the amendment and restatement
of its Certificate of Incorporation on May 27, 1999. Attached hereto as an
exhibit is the Certificate of Incorporation as amended and restated on May 27,
1999 and filed with the Secretary of State of the State of Delaware on such
date.
Available Information. Statements made in this Current Report on
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Form 8-K concerning the contents of any contract or other document are not
necessarily complete. With respect to each contract or other document filed as
an exhibit hereto, reference is hereby made to that document for a more complete
description of the matter involved and each such statement is hereby qualified
in its entirety by such reference.
Item 7. Financial Statements and Exhibits.
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(c) Exhibits
Exhibit
Number Description
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3.1 Certificate of Incorporation of Registrant, as
amended.
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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 hereunto duly authorized.
Dated: September 15, 1999
SEAGATE SOFTWARE, INC.
By: /s/ Ellen E. Chamberlain
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Ellen E. Chamberlain
Senior Vice President, Chief
Financial Officer and Treasurer
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SEAGATE SOFTWARE, INC.
FORM 8-K
INDEX TO EXHIBITS
Exhibit
Number Exhibit Title
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3.1 Certificate of Incorporation of Registrant, as amended.
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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SEAGATE SOFTWARE, INC.
Stephen J. Luczo and Susan J. Wolfe certify that:
1.They are the Chairman of the Board of Directors and Secretary,
respectively, of Seagate Software, Inc., a Delaware corporation (the
"Corporation").
2.The Certificate of Incorporation of the Corporation, under the name
of ConnerSoft, Inc., was filed on November 10, 1993. This Amended and Restated
Certificate of Incorporation restates, integrates and further amends the Second
Amended and Restated Certificate of Incorporation (the "Second Certificate") was
filed on June 24, 1996 and the Certificate of the Powers, Designations,
Preferences and Rights of the Special Voting Preferred Stock filed on December
26, 1996 (the "Special Voting Certificate"). The text of the Second Certificate
and the Special Voting Certificate are hereby amended and restated in their
entirety to read as follows:
ARTICLE I.
The name of the Corporation (the "Corporation") is Seagate Software,
Inc.
ARTICLE II.
The address, including street, number, city, and county, of the
registered office of the Corporation in the State of Delaware is The Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle; and
the name of the registered agent of the Corporation in the State of Delaware at
such address is The Corporation Trust Company.
1. ARTICLE II
The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful business, promote any lawful purpose,
and engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
ARTICLE IV.
The Corporation is authorized to issue two classes of shares to be
designated, respectively, "Common Stock" and "Preferred Stock". The number of
shares of Common Stock authorized to be issued is Three Hundred Million
(300,000,000), par value $.001 per share, and the number of shares of Preferred
Stock authorized to be issued is Seventy-Three Million (73,000,000), par value
$0.001. Of the Preferred Stock, 54,633,333 shall be designated Series A
Preferred Stock and One (1) share shall be designated Special Voting Preferred
Stock.
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The undesignated 18,366,666 shares of Preferred Stock may be issued
from time to time in one or more series. The Board of Directors is authorized to
determine the number of shares of any such series. The Board of Directors is
also authorized to determine or alter the powers, designations, preferences,
rights and restrictions to be imposed upon any wholly unissued series of
Preferred Stock and, within the limits and restrictions stated in any resolution
or resolutions of the Board of Directors originally fixing the number of shares
constituting any series, to increase (but not above the total number of
authorized shares of the class) or decrease (but not below the number of shares
of such series then outstanding) the number of shares of any series subsequent
to the issue of shares of that series.
The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following: (a) the
number of shares constituting that series and the distinctive designation of
that series; (b) the dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates, and the
relative rights of priority, if any, of payment of dividends on shares of that
series; (c) whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights; (d)
whether that series shall have conversion privileges, and, if so, the terms and
conditions of such conversion, including provision for adjustment of the
conversion rate or conversion price in such events as the Board of Directors
shall determine; (e) whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such redemption, including
the date or date upon or after which they shall be redeemable, and the amount
per share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates; (f) whether that series shall have
a sinking fund for the redemption or purchase of shares of that series, and, if
so, the terms and amount of such sinking fund; (g) the rights of the shares of
that series in the event of voluntary or involuntary liquidation, dissolution or
winding up of the corporation, and the relative rights of priority, if any, of
payment of shares of that series; and (h) any other relative rights, preferences
and limitations of that series.
The relative designations, rights, preferences and restrictions
granted to or imposed upon the Series A Preferred Stock, the Special Voting
Preferred Stock and the Common Stock are as follows:
(i) Dividends
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(1) Non-Cumulative Dividends. Subject to the provisions
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set forth below, the holders of shares of Series A Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors (the
"Board") out of funds legally available for the purpose, an annual cash dividend
in the amount of $0.45 per share (as adjusted to reflect any stock split, stock
dividend, combination, recapitalization and the like (collectively, a
"Recapitalization") with respect to the Series A Preferred Stock), prior and in
preference to any declaration or payment of any dividend (payable other than in
Common Stock) on the Common Stock of the Corporation. Such dividends shall not
be cumulative, and no right shall accrue to holders of Series A Preferred Stock
by reason of the fact that dividends on such shares are not declared or paid in
any year.
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(2) The Special Voting Preferred Stock shall not be
entitled to receive any dividends declared and paid by the Corporation.
(3) Notwithstanding the provisions of Sections 2(a) and
2(b), the Corporation may at any time, out of funds legally available therefor,
repurchase shares of Common Stock of the Corporation (i) issued to or held by
employees, directors or consultants of the Corporation or its subsidiaries upon
termination of their employment or services, pursuant to any agreement providing
for such right of repurchase, or (ii) issued to or held by any person subject to
the Corporation's right of first refusal to purchase such shares where the
purchase is pursuant to the exercise of such right of first refusal, in either
case whether or not dividends on the Series A Preferred Stock shall have been
declared and paid or funds set aside therefor.
(4) Notwithstanding the provisions of this Section 2 set
forth above, in the event any dividend shall be paid to the holders of Common
Stock such dividend shall be distributed among the holders of the Common Stock
and the Series A Preferred Stock in proportion to the shares of Common Stock
then held by them and the shares of Common Stock which they then have the right
to acquire upon the conversion of the Series A Preferred Stock held by them.
(ii) Liquidation Rights. In the event of any liquidation,
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dissolution or winding up of the Corporation, whether voluntary or involuntary
(a "Liquidation Event"), a distribution shall be made to the holders of Series A
Preferred Stock and the Special Voting Preferred Stock in respect of such Series
A Preferred Stock and the Special Voting Preferred Stock before any amount shall
be paid to the holders of Common Stock in respect of such Common Stock, in the
following manner:
(1) Series A Preferred Stock. The holders of the Series
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A Preferred Stock shall be entitled to receive prior and in preference to any
distribution of the assets of the Corporation to the holders of the Common Stock
by reason of their ownership thereof as a result of a Liquidation Event, an
amount per share equal to (i) $7.50, as adjusted to reflect any Recapitalization
of the Series A Preferred Stock, plus (ii) all accrued or declared but unpaid
dividends, if any. If, upon the occurrence of a Liquidation Event, the assets
and funds thus distributed among the holders of the Series A Preferred Stock
shall be insufficient to permit the payment to such holders of their full
liquidation preference, then the entire assets and funds of the Corporation
legally available for distribution to the holders of capital stock shall be
distributed ratably among the holders of the Series A Preferred Stock.
(2) Special Voting Preferred Stock. In the event of any
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Liquidation Event, and subject to any prior rights of holders of shares of
preferred stock ranking senior to the Special Voting Preferred Stock, a
distribution shall be made to the holder of the share of Special Voting
Preferred Stock in respect of such Special Voting Preferred Stock in an amount
equal to $1.00, together with payment to any class of stock ranking equally with
the Special Voting Preferred Stock, and before payment shall be made to holders
of any stock ranking on liquidation
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junior to the Special Voting Preferred Stock. The Special Voting Preferred Stock
shall rank pari passu with the Series A Preferred Stock of the Corporation in
all respects.
(3) Series A Preferred Stock and Common Stock. After
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payment has been made to the holders of the Series A Preferred Stock and the
Special Voting Preferred Stock of the full amounts to which they shall be
entitled as set forth in Sections 3(a) and 3(b) above, then the entire remaining
assets and funds of the Corporation shall be distributed among the holders of
the Common Stock and the Series A Preferred Stock in proportion to the shares of
Common Stock then held by them and the shares of Common Stock which they then
have the right to acquire upon the conversion of the Series A Preferred Stock
held by them.
(4) Events Deemed a Liquidation. A consolidation or
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merger of the Corporation with or into any other corporation or the sale or
other transfer in a single transaction or a series of related transactions of
all or substantially all of the assets of this Corporation, or any other
reorganization of this Corporation shall be deemed a Liquidation Event of the
Corporation for purposes of this Section 2; provided that the merger or
consolidation of the Corporation with or into a wholly-owned subsidiary of the
Corporation or into another corporation or person or entity in which the holders
of the capital stock of the Corporation hold at least 50% of the voting
securities of the surviving entity shall not be deemed to be a Liquidation Event
of the Corporation; provided further, however, that the contribution of
substantially all of the assets related to the Network & Storage Management
Group business of the Corporation to a third party for which the consideration
received is capital stock of the third party shall not be a Liquidation Event.
(5) Valuation of Property. In the event the Corporation
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proposes to distribute assets other than cash in connection with any Liquidation
Event of the Corporation, the value of the assets to be distributed upon the
occurrence of a Liquidation Event shall be determined in good faith by the Board
of Directors of the Corporation.
(iii) Voting Rights.
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(1) Subject to the provision for adjustment hereinafter
set forth, the holder of each share of Series A Preferred Stock shall be
entitled to the number of votes equal to the number of shares of Common Stock
into which such share of Series A Preferred Stock could be converted at the
record date for the determination of the stockholders entitled to vote on such
matters, or, if no such record date is established, at the date such vote is
taken or any written consent of the stockholders is solicited. Holders of Series
A Preferred Stock shall be entitled to notice of any stockholders' meeting in
accordance with the Bylaws of the Corporation. Fractional votes by the holders
of Series A Preferred Stock shall not, however, be permitted and any fractional
voting rights shall (after aggregating all shares into which shares of Series A
Preferred Stock held by each holder could be converted) be rounded down to the
nearest whole number.
(2) Except as otherwise required by law and
notwithstanding Section 3(a) of Article V below, so long as Seagate Technology
International Holdings, a Cayman Islands corporation ("Seagate Cayman
Holdings"), is the holder of record of the share of Special Voting Preferred
Stock, then Seagate Cayman Holdings shall have a number of votes equal to the
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number of votes that Seagate Cayman Holdings, as holder of outstanding Class B
Exchangeable Shares (the "Exchangeable Shares") of Seagate Software Information
Management Group, Inc. ("Seagate Canada"), from time to time would be entitled
to if all such Exchangeable Shares were exchanged by Seagate Cayman Holdings, at
the record date for the determination of the stockholders entitled to vote on
such matters or, if no such record date is established, at the date such vote is
taken or any written consent of the stockholders is solicited, for shares of the
Series A Preferred pursuant to the terms of the Exchangeable Shares, in each
case for the election of directors and on all matters submitted to a vote of the
stockholders of the Corporation.
(3) Except as otherwise provided herein or by law, the
holders of shares of Series A Preferred Stock, the holder of the Special Voting
Preferred Stock and the holders of shares of Common Stock shall vote together as
one class on all matters submitted to a vote of stockholders of the Corporation,
and except as required by law, holders of Series A Preferred Stock or the
Special Voting Preferred Stock shall have no special voting rights.
(iv) Conversion. The Special Voting Preferred Stock shall not be
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convertible. The holders of the Series A Preferred Stock have conversion rights
as follows:
(1) Right to Convert. Each share of Series A Preferred
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Stock shall initially be convertible, at the option of the holder thereof, at
any time after the date of issuance of such share, at the office of the
Corporation or any transfer agent for the Series A Preferred Stock, into such
number of fully paid and nonassessable shares of Common Stock as is determined
by dividing $7.50 by the Conversion Price, determined as provided below, at the
time of conversion. The price at which shares of Common Stock shall be
deliverable upon conversion of the shares of Series A Preferred Stock without
the payment of any additional consideration by the holders thereof, shall
initially be $7.50 per share of Common Stock (the "Conversion Price"). Such
initial Conversion Price shall be subject to adjustment, in order to adjust the
number of shares of Common Stock into which the Series A Preferred Stock is
convertible, as provided below. Upon conversion, the holder's right to any
accrued or declared but unpaid dividends on such shares to be converted shall be
forfeited and the holder shall no longer be entitled to any such dividends.
(2) Automatic Conversion. Each share of Series A
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Preferred Stock shall automatically be converted into shares of Common Stock at
the then effective Conversion Price upon the closing of a firm commitment
underwritten public offering pursuant to an effective registration statement
under the Securities Act of 1933, as amended, covering the offer and sale of
securities for the account of the Corporation to the public. Upon conversion,
the holder's right to any accrued or declared but unpaid dividends on such
shares to be converted shall be forfeited and the holder shall no longer be
entitled to any such dividends.
(3) Mechanics of Conversion. No fractional shares of
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Common Stock shall be issued upon conversion of the Series A Preferred Stock. In
lieu of any fractional shares to which the holder would otherwise be entitled,
the Corporation at its election shall either (i) pay cash equal to such fraction
multiplied by the then effective Conversion Price, or (ii) issue one
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whole share of Common Stock for each fractional share to which the holder would
otherwise be entitled.
Before any holder of Series A Preferred Stock shall be entitled to
convert the same into shares of Common Stock and to receive certificates
therefor, he or she shall surrender the certificate or certificates therefor,
duly endorsed, at the office of the Corporation or of any transfer agent for the
Series A Preferred Stock and shall give written notice to the Corporation at
such office that he or she elects to convert the same; provided, however, that
in the event of an automatic conversion pursuant to Section 4(b) hereof, the
outstanding shares of Series A Preferred Stock shall be converted automatically
without any further action by the holders of such shares and whether or not the
certificates representing such shares are surrendered to the Corporation or its
transfer agent; and provided further that the Corporation shall not be obligated
to issue certificates evidencing the shares of Common Stock issuable upon such
automatic conversion unless and until the certificates evidencing such shares of
Series A Preferred Stock are either delivered to the Corporation or its transfer
agent as provided above, or the holder notifies the Corporation or its transfer
agent that such certificates have been lost, stolen or destroyed and executes an
agreement satisfactory to the Corporation to indemnify the Corporation from any
loss incurred by it in connection with such certificates. The Corporation shall,
as soon as practicable after such delivery, or after such agreement and
indemnification, issue and deliver at such office to such holder of Series A
Preferred Stock, a certificate or certificates for the number of shares of
Common Stock to which he or she shall be entitled as aforesaid and a check
payable to the holder in the amount of any cash amounts payable as the result of
a conversion into fractional shares of Common Stock. Such conversion shall be
deemed to have been made immediately prior to the close of business on the date
of such surrender of the shares of Series A Preferred Stock to be converted, or,
in the case of automatic conversion, immediately prior to the occurrence of the
event leading to such automatic conversion, and the person or persons entitled
to receive the shares of Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such shares of
Common Stock on such date.
(4) Adjustments to Conversion Price for Diluting Issues.
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a) Special Definitions. For purposes of this
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Section 4(d), the following definitions shall apply:
i) "Option" shall mean rights, options or
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warrants to subscribe for, purchase or otherwise acquire either
Common Stock or Convertible Securities.
ii) "Original Issue Date" shall mean April 4,
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1996.
iii) "Convertible Securities" shall mean any
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evidences of indebtedness, shares or other securities convertible
into or exchangeable for Common Stock.
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iv) "Additional Shares of Common Stock"
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shall mean all shares of Common Stock issued (or, pursuant to
Section 4(d)(iii), deemed to be issued) by the Corporation after
the Original Issue Date, other than shares of Common Stock issued
or issuable:
i) upon conversion of shares of Series
A Preferred Stock;
ii) as a dividend or distribution on
Series A Preferred Stock or any event for which adjustment is made pursuant to
Section 4(d)(vi) hereof;
iii) pursuant to equipment lease
financing transactions approved by the Board of Directors;
iv) to directors and employees of, and
consultants to, the Corporation, its parent company or subsidiaries, in a manner
determined by the Board of Directors including, without limitation, any options
or Common Stock issuable pursuant to the 1996 Stock Option Plan, as such plan
may be amended from time to time by the Board of Directors of the Corporation;
or
v) by way of dividend or other
distribution on shares of Common Stock excluded from the definition of
Additional Shares of Common Stock by the foregoing clause(s) (A), (B), (C), (D)
or this clause (E).
b) No Adjustment of Conversion Price. No adjustment
---------------------------------
in the number of shares of Common Stock into which the Series A Preferred Stock
is convertible shall be made, by adjustment in the Conversion Price of such
Series A Preferred Stock in respect of the issuance of Additional Shares of
Common Stock or otherwise, unless the consideration per share (determined
pursuant to Section 4(d)(v) below) for an Additional Share of Common Stock
issued or deemed to be issued by the Corporation is less than the Conversion
Price of such Series A Preferred Stock in effect on the date of, and immediately
prior to, the issue of such Additional Share of Common Stock.
c) Deemed Issuances of Additional Shares of Common
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Stock.
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i) Options and Convertible Securities. Except as
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otherwise provided in Section 4(d)(ii), in the event the
Corporation at any time or from time to time after the Original
Issue Date shall issue any Options or Convertible Securities,
then the maximum number of shares (as set forth in the instrument
relating thereto without regard to any provisions contained
therein for a subsequent adjustment of such number) of Common
Stock issuable upon the exercise of such Options or, in the case
of Convertible Securities and Options therefor, the conversion or
exchange of such Convertible Securities, shall be deemed to be
Additional Shares of Common Stock issued as of the
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time of such issue, provided that in any such case in which
Additional Shares of Common Stock are deemed to be issued:
vi) no further adjustment in the Conversion
Price shall be made upon the subsequent issue of Convertible Securities or
shares of Common Stock upon the exercise of such Options or conversion or
exchange of such Convertible Securities;
vii) if such Options or Convertible Securities by
their terms provide, with the passage of time or otherwise, for any increase or
decrease in the consideration payable to the Corporation, or decrease or
increase in the number of shares of Common Stock issuable, upon the exercise,
conversion or exchange thereof, the Conversion Price computed upon the original
issue thereof (or upon the occurrence of a record date with respect thereto),
and any subsequent adjustments based thereon, shall, upon any such increase or
decrease becoming effective, be recomputed to reflect such increase or decrease
insofar as it affects such Options or the rights of conversion or exchange under
such Convertible Securities;
viii) upon the expiration of any such Options or
any rights of conversion or exchange under such Convertible Securities which
shall not have been exercised, the Conversion Price computed upon the original
issue thereof (or upon the occurrence of a record date with respect thereto) and
any subsequent adjustments based thereon shall, upon such expiration, be
recomputed as if:
(x)in the case of Convertible Securities or Options for Common Stock,
the only Additional Shares of Common Stock issued were the shares of Common
Stock, if any, actually issued upon the exercise of such Options or the
conversion or exchange of such Convertible Securities and the consideration
received therefor was the consideration actually received by the Corporation for
the issue of such exercised Options plus the consideration actually received by
the Corporation upon such exercise or for the issue of all such Convertible
Securities which were actually converted or exchanged, plus the additional
consideration, if any, actually received by the Corporation upon such conversion
or exchange, and
(y)in the case of Options for Convertible Securities only the
Convertible Securities, if any, actually issued upon the exercise thereof were
issued at the time of issue of such Options, and the consideration received by
the Corporation for the Additional Shares of Common Stock deemed to have been
then issued was the consideration actually received by the Corporation for the
issue of such exercised Options, plus the consideration deemed to have been
received by the Corporation (determined pursuant to Section 4(d)(v), upon the
issue of the Convertible Securities with respect to which such Options were
actually exercised;
ix) no readjustment pursuant to clauses (B) or
(C) above shall have the effect of increasing the Conversion Price to an amount
which exceeds the lower of (i) the Conversion Price on the original adjustment
date, or (ii) the Conversion Price that would have resulted from any issuance of
Additional Shares of Common Stock between the original adjustment date and such
readjustment date; and
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x) in the case of any Options which expire by
their terms not more than 30 days after the date of issue thereof, no adjustment
of the Conversion Price shall be made until the expiration or exercise of all
such Options issued on the same date, whereupon such adjustment shall be made in
the same manner provided in clause (C) above.
ii) Stock Dividends, Stock Distributions and
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Subdivisions. In the event the Corporation at any time or from
------------
time to time after the Original Issue Date shall declare or pay
any dividend or make any other distribution on the Common Stock
payable in Common Stock, or effect a subdivision of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in Common Stock), then
and in any such event, Additional Shares of Common Stock shall be
deemed to have been issued:
xi) in the case of any such dividend or
distribution, immediately after the close of business on the record date for the
determination of holders of any class of securities entitled to receive such
dividend or distribution, or
xii) in the case of any such subdivision, at the
close of business on the date immediately prior to the date upon which such
corporate action becomes effective.
If such record date shall have been fixed and such dividend shall not
have been paid on the date fixed therefor, the adjustment previously made in the
Conversion Price which became effective on such record date shall be canceled as
of the close of business on such record date, and thereafter the Conversion
Price shall be adjusted pursuant to this Section 4(d)(iii) as of the time of
actual payment of such dividend.
d) Adjustment of Conversion Price Upon Issuance of
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Additional Shares of Common Stock. In the event the Corporation shall issue
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Additional Shares of Common Stock (including Additional Shares of Common Stock
deemed to be issued pursuant to Section 4(d)(iii)(1), but excluding Additional
Shares of Common Stock issued pursuant to Section 4(d)(iii)(2), which event is
dealt with in Section 4(d)(vi) hereof), without consideration or for a
consideration per share less than the Conversion Price in effect on the date of
and immediately prior to such issue, then and in such event, the Conversion
Price shall be reduced, concurrently with such issue, to a price (calculated to
the nearest cent) determined by multiplying the Conversion Price by a fraction
(x) the numerator of which shall be (1) the number of shares of Common Stock
outstanding immediately prior to such issue, plus (2) the number of shares of
Common Stock which the aggregate consideration received by the Corporation for
the total number of Additional Shares of Common Stock so issued would purchase
at that Conversion Price, and (y) the denominator of which shall be (1) the
number of shares of Common Stock outstanding immediately prior to such issue
plus (2) the number of such Additional Shares of Common Stock so issued,
provided that for the purposes of this Section 4(d)(iv), all shares of Common
Stock issuable upon exercise, conversion or exchange of outstanding Options or
Convertible Securities, as the case may be, shall be deemed to be
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outstanding, and immediately after any Additional Shares of Common Stock are
deemed issued pursuant to Section 4(d)(iii) above, such Additional Shares of
Common Stock shall be deemed to be outstanding, and provided further that the
Conversion Price shall not be so reduced at such time if the amount of such
reduction would be an amount less than $0.01, but any such amount shall be
carried forward and reduction with respect thereto made at the time of and
together with any subsequent reduction which, together with such amount and any
other amount or amounts so carried forward, shall aggregate $0.01 or more.
e) Determination of Consideration. For purposes of
------------------------------
this Section 4(d), the consideration received by the Corporation for the issue
of any Additional Shares of Common Stock shall be computed as follows:
i) Cash and Property. Such consideration
-----------------
shall:
xiii) insofar as it consists of cash, be
computed at the aggregate amount of cash received by the Corporation excluding
amounts paid or payable for accrued interest or accrued dividends and prior to
any commissions or expenses paid by the Corporation;
xiv) insofar as it consists of property
other than cash, be computed at the fair value thereof at the time of such
issue, as determined in good faith by the Board of Directors; and
xv) in the event Additional Shares of
Common Stock are issued together with other shares or securities or other assets
of the Corporation for consideration which covers both, be the proportion of
such consideration so received, computed as provided in clauses (A) and (B)
above, as determined in good faith by the Board.
ii) Options and Convertible Securities. The
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consideration per share received by the Corporation for
Additional Shares of Common Stock deemed to have been issued
pursuant to Section 4(d)(iii)(1), relating to Options and
Convertible Securities, shall be determined by dividing
xvi) the total amount, if any, received
or receivable by the Corporation as consideration for the issue of such Options
or Convertible Securities, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating thereto, without regard
to any provision contained therein for a subsequent adjustment of such
consideration) payable to the Corporation upon the exercise of such Options or
the conversion or exchange of such Convertible Securities, or in the case of
Options for Convertible Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such Convertible Securities, by
xvii) the maximum number of shares of
Common Stock (as set forth in the instruments relating thereto, without regard
to any provision
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contained therein for a subsequent adjustment of such number) issuable upon the
exercise of such Options or the conversion or exchange of such Convertible
Securities, as determined in Section 4(d)(iii) above.
f) Subdivisions, Combinations, or Consolidations of
------------------------------------------------
Common Stock. In the event the outstanding shares of Common Stock shall be
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subdivided, combined or consolidated, by stock split, stock dividend, reverse
stock split, combination or like event, into a greater or lesser number of
shares of Common Stock, the Conversion Price then in effect shall concurrently
with the effectiveness of such subdivision, combination or consolidation, be
proportionately adjusted.
g) Distributions Other Than Cash Dividends Out of
----------------------------------------------
Retained Earnings. In case the Corporation shall declare a cash dividend upon
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its Common Stock payable otherwise than out of retained earnings or shall
distribute to holders of its Common Stock shares of its capital stock (other
than Common Stock), stock or other securities of other persons, evidences of
indebtedness issued by the Corporation or other persons, assets (excluding cash
dividends out of retained earnings) or options or rights (excluding options to
purchase and rights to subscribe for Common Stock or other securities of the
Corporation convertible into or exchangeable for Common Stock), then, in each
such case, the holders of shares of Series A Preferred Stock shall, concurrently
with the distribution to holders of Common Stock, receive a like distribution
based upon the number of shares of Common Stock into which such share of Series
A Preferred Stock is then convertible.
h) Adjustments for Reclassification, Exchange and
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Substitution. If the Common Stock issuable upon conversion of the Series A
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Preferred Stock shall be changed into the same or a different number of shares
of any other class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination of shares
provided for above), the Conversion Price then in effect shall, concurrently
with the effectiveness of such reorganization or reclassification, be
proportionately adjusted such that the Series A Preferred Stock shall be
convertible into, in lieu of the number of shares of Common Stock which the
holders would otherwise have been entitled to receive, a number of shares of
such other class or classes of stock equivalent to the number of shares of
Common Stock that would have been subject to receipt by the holders upon
conversion of the Series A Preferred Stock immediately before that change.
i) Reorganization, Mergers, Consolidations, or Sales
-------------------------------------------------
of Assets. Subject to Section 2 hereof, if at any time or from time to time
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there shall be a capital reorganization of the Common Stock (other than a
subdivision, combination, reclassification, or exchange of shares provided for
elsewhere in this Section 4) or a merger or consolidation of this Corporation
with or into another corporation, or the sale of all or substantially all of
this Corporation's properties and assets to any other person, then, as a part of
such reorganization, merger, consolidation, or sale, provision shall be made so
that the holders of the Series A Preferred Stock shall thereafter be entitled to
receive upon conversion of the Series A Preferred Stock held by them, the number
of shares of stock or other securities or property of this Corporation, or of
the
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<PAGE>
successor corporation resulting from such merger or consolidation or sale, to
which a holder of Common Stock deliverable upon conversion would have been
entitled upon such capital reorganization, merger, consolidation, or sale. In
any such case, appropriate adjustment shall be made in the application of the
provisions of this Section 4 with respect to the rights of the holders of the
Series A Preferred Stock after the reorganization, merger, consolidation, or
sale to the end that the provisions of this Section 4 (including adjustment of
the Conversion Price then in effect and the number of shares purchasable upon
conversion of the Series A Preferred Stock) shall be applicable after that event
as nearly equivalent as may be practicable.
(5) Status of Converted Stock. In case any shares of
-------------------------
Series A Preferred Stock shall be converted pursuant to Section 4 hereof, the
shares so converted shall be canceled, shall not be reissuable and shall cease
to be a part of the authorized capital stock of the Corporation.
(6) Reservation of Stock Issuable Upon Conversion.
---------------------------------------------
The Corporation shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock, solely for the purpose of
effecting the conversion of the shares of Series A Preferred Stock, such number
of its shares of Common Stock as shall from time to time be sufficient to effect
the conversion of all outstanding shares of Series A Preferred Stock. If at any
time the number of authorized but unissued shares of Common Stock shall not be
sufficient to effect the conversion of all then-outstanding shares of Series A
Preferred Stock, the Corporation will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such
purpose.
(7) No Impairment. The Corporation will not, by
-------------
amendment of its Certificate of Incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by the
Corporation but will at all times in good faith assist in the carrying out of
all the provisions of this Section 4 and in the taking of all such action as may
be necessary or appropriate in order to protect the conversion rights of the
holders of the Series A Preferred Stock against impairment.
(8) Certificate as to Adjustments. Upon the
-----------------------------
occurrence of each adjustment or readjustment of the Conversion Price pursuant
to this Section 4, the Corporation at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and furnish to
each holder of Series A Preferred Stock a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Corporation shall, upon the written
request at any time of any holder of Series A Preferred Stock, furnish or cause
to be furnished to such holder a like certificate setting forth (i) such
adjustments and readjustments, (ii) the Conversion Price at the time in effect,
and (iii) the number of shares of Common Stock and the amount, if any, of other
property which at the time would be received upon the conversion of Series A
Preferred Stock.
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<PAGE>
(9) Notices of Record Date. In the event of any
----------------------
taking by the Corporation of a record of the holders of any class of securities
for the purpose of determining the holders thereof who are entitled to receive
any dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, the Corporation
shall mail to each holder of Series A Preferred Stock, at least twenty (20) days
prior to the date specified therein, a notice specifying the date on which any
such record is to be taken for the purpose of such dividend, distribution or
right, and the amount and character of such dividend, distribution or right.
(v) Cancellation of the Special Voting Preferred Stock.
--------------------------------------------------
At such time as the Special Voting Preferred Stock has no votes attached to it
because there are no Exchangeable Shares of Seagate Canada outstanding which are
owned of record by Seagate Cayman Holdings, the share of Special Voting
Preferred Stock shall automatically be deemed canceled.
(vi) Covenants. In addition to any other rights provided
---------
by law, so long as any Series A Preferred Stock shall be outstanding, the
Corporation shall not, without first obtaining the affirmative vote or written
consent of the holders of not less than a majority of such outstanding shares of
Series A Preferred Stock:
(1) amend or repeal any provision of, or add any
provision to, the Corporation's Certificate of Incorporation or Bylaws if such
action would alter or change the rights, preferences, privileges or powers of,
or the restrictions provided for the benefit of, any Series A Preferred Stock,
or increase or decrease the number of shares of Series A Preferred Stock
authorized hereby;
(2) authorize or reclassify any Common Stock or other
stock of the Corporation into shares having any preference or priority as to
dividends or assets superior to or on a parity with any such preference or
priority of the Series A Preferred Stock; or
(3) pay or declare any dividend on any Common Stock
(except dividends payable solely in shares of Common Stock) while the Series A
Preferred Stock remains outstanding;
(4) repurchase, acquire or retire any shares of Common
Stock other than pursuant to the terms of any stock repurchase agreement between
the Corporation and any stockholder in connection with the employment of, or the
rendering of consulting services by, such stockholder;
(5) enter into any agreement for, or engage in, any
merger or consolidation of the Corporation with or into any other corporation
(other than a merger or consolidation where the stockholders of the Corporation
immediately prior to such merger of consolidation hold one hundred percent
(100%) of the outstanding capital stock of the Corporation immediately following
such merger or consolidation);
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<PAGE>
(6) enter into any agreement for, or engage in, any
sale, lease, exchange or distribution (in one transaction or a series of
transactions) of all or substantially all of the property and assets of the
Corporation; or
(7) authorize or adopt any plan or proposal for the
liquidation, dissolution or winding up of the Corporation.
ARTICLE V
To the fullest extent permitted by the General Corporation Law of
Delaware as the same exists or as may hereafter be amended, 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.
The Corporation shall indemnify to the fullest extent permitted by law
any person made or threatened to be made a party to an action or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact
that such person, such person's testator or intestate is or was a director or
officer of the Corporation or any predecessor of the Corporation or serves or
served at any other enterprise as a director, officer or employee at the request
of the Corporation or any predecessor to the Corporation.
Neither any amendment nor repeal of this Article V, nor the adoption
of any provision of this Certificate of Incorporation inconsistent with this
Article V, shall eliminate or reduce the effect of this Article V, in respect of
any matter occurring, or any cause of action, suit, claim or proceeding that,
but for this Article V, would accrue or arise, prior to such amendment, repeal
or adoption of an inconsistent provision.
ARTICLE VI
This 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 or this Certificate of Incorporation, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
ARTICLE VII
In furthermore and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter, amend or
repeal the Bylaws of the Corporation.
ARTICLE VIII
The number of directors which constitute the entire Board of Directors
of the Corporation shall be as specified in the Bylaws of the Corporation. At
each annual meeting of stockholders, directors of the Corporation shall be
elected to hold office until the expiration for the term for which they are
elected and until their successors have been duly elected and qualified; except
that if any
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<PAGE>
such election shall not be so held, such election shall take place at a
stockholders' meeting called and held in accordance with the General Corporation
Law of Delaware.
ARTICLE IX
This Corporation is to have perpetual existence.
3.The total number of outstanding shares of the Corporation is
1,092,728 shares of Common Stock, 47,433,333 shares of Series A Preferred Stock
and one (1) share of Special Voting Preferred Stock. The foregoing amendment and
restatement of the Second Amended and Restated Certificate of Incorporation of
the Corporation and the Certificate of the Powers, Designations, Preferences and
Rights of the Special Voting Preferred Stock has been duly approved in an action
by written consent by the stockholders of the Corporation's not less than 50% of
each of the Common Stock and the Series A Preferred Stock and by the holder of
the Special Voting Preferred Stock in accordance with Sections 228 and 242 of
the General Corporation Law of Delaware.
4.The foregoing amendment and restatement of the Second Amended and
Restated Certificate of Incorporation of the Corporation and the Certificate of
the Powers, Designations, Preferences and Rights of the Special Voting Preferred
Stock has been adopted in accordance with the provisions of Sections 242 and 245
of the General Corporation Law of Delaware.
IN WITNESS WHEREOF, said Seagate Software, Inc. has duly caused this
Certificate to be signed by its Chairman, and attested to by its Secretary, this
27th day of May 1999.
SEAGATE SOFTWARE, INC.
a Delaware Corporation
By: /s/ Stephen J. Luczo
-----------------------------
Stephen J. Luczo, Chairman
ATTEST:
By: /s/ Susan J. Wolfe
-----------------------------
Susan J. Wolfe, Secretary
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