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RESTATED CERTIFICATE OF INCORPORATION
OF
P.N.Y. ELECTRONICS, INC.
P.N.Y. Electronics, Inc. (the "Corporation"), organized and existing
under and by virtue of the laws of the State of Delaware, HEREBY CERTIFIES AS
FOLLOWS:
1. The name of the Corporation is P.N.Y. Electronics, Inc. The date
of filing of its original Certificate of Incorporation by the Secretary of State
was July 26, 1995.
2. This Restated Certificate of Incorporation restates, integrates
and further amends the Certificate of Incorporation to read in its entirety as
follows:
FIRST: The name of the Corporation is P.N.Y. Electronics, Inc.
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SECOND: The address of the Corporation's registered office in the
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State of Delaware is Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle, Delaware 19801. The name of its registered
agent at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful
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act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: 1. Authorized Capital. The total number of shares of all
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classes of capital stock which the Corporation has authority to issue is 275,000
shares, par value $.01 per share, consisting of(i) 250,000 shares of Common
Stock, par value $.01 per share (the "Common Stock") and (ii) 25,000 shares of
Preferred Stock, par value $.01 per share (the 'Preferred Stock").
2. Terms of the Common Stock.
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2.1 Dividends. Subject to the rights of the Preferred
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Stock described in Section 3.2 of this Article FOURTH, dividends may be paid on
the Common Stock as and when declared by the Board of Directors of the
Corporation. Dividends payable in shares of Common Stock or Junior Stock (as
defined in Section 3.10 below) can be paid or set apart for payment to holders
of Common Stock or Junior Stock.
2.2 Ratable Treatment. The Corporation shall not pay a
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dividend, make a distribution (as defined in Section 3.10 below), or effect a
stock split-up, combination, reclassification or recapitalization, in each case,
with respect to its outstanding shares of Common Stock, unless all of its
outstanding shares of Common Stock participate on
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the same basis in such dividend, distribution, split-up, combination,
reorganization, reclassification or recapitalization.
2.3 Voting Rights. Each holder of Common Stock shall be
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entitled to one vote for each share of Common Stock held. Except as required by
law, or as otherwise set forth in this Article FOURTH or as provided by the
Board of Directors in its designation of any series of Preferred Stock pursuant
to Section 3.1 of this Article FOURTH, the holders of shares of Preferred Stock
and Common Stock shall vote as separate classes and shall not vote together as a
single class.
2.4 Liquidation Rights. Subject to the rights of the
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holders of the Preferred Stock described in Section 3.5 of this Article FOURTH
and any other prior and/or superior rights of such holders as provided by law,
upon any voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation, the holders of Common Stock shall be entitled to
receive that portion of any remaining funds and other assets of the Corporation
to be distributed. Such funds and other assets shall be distributed to holders
of the Common Stock on a ratable basis.
2.5 Conversion. No holder of Common Stock shall have the
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right to convert such shares into any other class of stock of the Corporation.
3. Terms of the Preferred Stock.
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3.1 Designation and Number. There is hereby designated a
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series of Preferred Stock to be known as "Series A Preferred Stock". The number
of shares constituting the Series A Preferred Stock shall be 14,000. The Board
of Directors of the Corporation, by vote of a majority of its members, is
authorized in accordance with and subject to limitations prescribed by law and
the provisions of Section 3.9 of this Article FOURTH, to provide by resolution
for the issuance of additional shares of Preferred Stock in series, to establish
from time to time the number or shares to be included in each such series and to
fix the designations, powers, preferences and rights of the shares of each such
series and the qualifications, limitations or restrictions thereof.
3.2 Dividends. (a) The holders of shares of Series A
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Preferred Stock shall be entitled to receive dividends for all periods during
which Series A Preferred Stock is outstanding, for so long as that certain note
issued August 3, 1995 to Gadi Cohen ("Cohen") in the initial principal amount of
$15,000,000 (the "Note") is outstanding, commencing with any period commencing
on or after January 1, 1996. Such dividends shall be paid semi-annually on the
same date on which interest on the Note is paid, at a rate per annum per share
equal to the interest rate paid or payable for the same period on the Note, less
one hundred fifty (150) basis points, applied to the Preferred Amount Per Share.
Any dividends to the holders of shares of Series A Preferred Stock payable
pursuant to this Section 3.2(a) may be paid in cash or, at the Corporation's
option, may be paid to any or all of such holders in subordinated promissory
notes
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of the Corporation, which notes shall have a principal amount equal to the
amount of the dividend due to any such holder and not being paid in cash and
shall have substantially the same terms and conditions as the Note (provided
that the interest rate on any such note shall automatically be deemed to have
increased or decreased in the event of and contemporaneously with any increase
or decrease in the rate of interest on the Note (including by amendment thereof)
and provided further that any mandatory prepayment of such notes shall
automatically be deemed to have been waived in proportion to any waiver of
prepayment of the Note).
(b) In addition, the holders of shares of Series A Preferred
Stock shall be entitled to dividends when and as declared by the Board of
Directors; provided, however, that holders of Series A Preferred Stock shall be
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entitled to receive dividends equivalent on a per share basis to any dividends
received by the holders of Common Stock, based upon the number of full shares of
Common Stock into which such shares of Series A Preferred Stock could be
converted pursuant to the provisions of Section 3.6 of this Article FOURTH, at
the record date for the determination of shareholders entitled to such
dividends.
3.3 Voting Rights. In addition to any voting rights
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provided by law, the holder of each share of Series A Preferred Stock shall be
entitled to vote on all matters and shall be entitled to the number of votes
equal to the number of votes a holder of the shares of Common Stock, whole or
fractional, into which such share of Series A Preferred Stock is convertible
pursuant to Section 3.6 of this Article FOURTH is entitled to, at the record
date for the determination of the stockholders entitled to vote on all matters
or, if no such record date is established, at the date such vote is taken or any
written consent of stockholders is solicited. Except as required by law, or as
otherwise set forth in this Article FOURTH or as provided by the Board of
Directors in its designation of any series of Preferred Stock pursuant to
Section 3.1 of this Article FOURTH, the holders of shares of Series A Preferred
Stock and Common Stock shall vote together as a single class and not as separate
classes.
3.4 Reacquired Shares. Except as provided herein, any
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shares of Series A Preferred Stock converted, purchased or otherwise acquired by
the Corporation in any manner whatsoever shall be retired and canceled promptly
after the acquisition thereof. None of such shares of Series A Preferred Stock
shall be reissued by the Corporation, except that shares of Series A Preferred
Stock issued to members of key management of the Corporation pursuant to Section
4.3 of the Preferred Stock and Warrant Purchase Agreement, dated as of August 4,
1995, by and among the Corporation, Goldman Sachs Capital Partners II, L.P.
("GSCP"), GS Capital Partners II Offshore, L.P., Goldman, Sachs & Co.
Verwaltungs GmbH, Stone Street Fund 1995, L.P., Bridge Street Fund 1995, L.P.
and Cohen (the "Purchase Agreement"), which are subsequently repurchased by the
Corporation from one or more of such members of key management, may be reissued
from time to time to any other member of key management of the Corporation at
the time of such reissuance.
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3.5 Liquidation, Dissolution or Winding Up. (a) Upon the
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voluntary or involuntary dissolution, liquidation or winding up (each, a
"Liquidation") of the Corporation, the holders of the shares of the Series A
Preferred Stock shall be entitled to receive and to be paid out of the assets of
the Corporation available for distribution to its stockholders, before any
payment or distribution shall be made on any Junior Stock, the Preferred Amount
Per Share (as defined below) with respect to each outstanding share of Series A
Preferred Stock; provided, however, that, if the amount which would have been
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paid in such liquidation, dissolution or winding up in respect of the number of
shares of Common Stock into which the Preferred Stock is then convertible,
divided by the number of shares of Series A Preferred Stock issued by the
Corporation, is greater than the Preferred Amount Per Share, then the holders of
Preferred Stock shall be entitled to receive in such liquidation, dissolution or
winding up such greater amount for each share of Preferred Stock then issued and
outstanding.
(b) If, upon any such Liquidation, whether voluntary or
involuntary, the assets to be distributed to the holders of the Series A
Preferred Stock shall be insufficient to permit payment of the full amount of
the Preferred Amount Per Share with respect to each share of Series A Preferred
Stock, then the entire assets of the Corporation to be distributed among the
holders of the Series A Preferred Stock shall be distributed ratably among such
holders.
(c) After the payment to the holders of shares of the Series A
Preferred Stock of the full amount of the liquidating distribution to which they
are entitled under this Section 3.5, the holders of the Series A Preferred Stock
as such shall have no right or claim to any of the remaining assets of the
Corporation.
(d) Neither the consolidation, merger or other business
combination of the Corporation with or into any other Person (as defined in
Section 3.10 below) or Persons nor the sale of all or substantially all the
assets of the Corporation shall be deemed to be a Liquidation for purposes of
this Section 3.5 of this Article FOURTH.
(e) "Preferred Amount Per Share" shall mean, with respect to
each share of Series A Preferred Stock, $1,153.85.
3.6 Conversion. (a) Each share of Series A Preferred Stock shall
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automatically be converted into a number of shares of Common Stock, equal to the
quotient of the Preferred Amount Per Share divided by the Conversion Price (as
defined in Section 3.10 below) (such quotient being referred to herein as the
"Conversion Ratio"), upon the consummation of a Qualified IPO (as defined in
Section 3.10 below). In addition, at the option of the holder of any Series A
Preferred Stock, such holder shall have the right, at any time and from time to
time prior to the consummation of a Qualified IPO, by written notice to the
Corporation, to convert any share of Series A Preferred Stock owned by such
holder into a number of shares of Common Stock, at the then effective Conversion
Ratio.
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(b) The Corporation shall at all times reserve and keep
available for issuance upon the conversion of the Series A Preferred Stock, free
from any preemptive rights, such number of its authorized but unissued shares of
Common Stock as will from time to time be necessary to permit the conversion of
all outstanding shares of Series A Preferred Stock into shares of Common Stock,
and shall take all action required to increase the authorized number of shares
of Common Stock if necessary to permit the conversion of all outstanding shares
of Series A Preferred Stock.
(c) The Conversion Price shall be subject to adjustment
from time to time as follows:
(i) In case the Corporation shall at any time or from
time to time after the date hereof (A) pay any dividend, or make any
distribution, on the outstanding shares of Common Stock in shares of Common
Stock, (B) subdivide the outstanding shares of Common Stock, (C) combine the
outstanding shares of Common Stock into a smaller number of shares or (D) issue
by reclassification of the shares of Common Stock any shares of capital stock of
the Corporation, then, and in each such case, the Conversion Price in effect on
the record date therefor, if applicable, or the effective date thereof,
whichever is earlier, shall be adjusted so that the holder of any shares of
Series A Preferred Stock thereafter convertible into Common Stock pursuant to
this Section 3.6 of this Article FOURTH shall be entitled to receive the number
and type of shares of Common Stock or other securities of the Corporation which
such holder would have owned or have been entitled to receive after the
happening of any of the events described above, had such shares of Series A
Preferred Stock been converted into Common Stock immediately prior to the
happening of such event or the record date therefor, as applicable. An
adjustment made pursuant to this clause (i) shall become effective (x) 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 shares of Common
Stock entitled to receive such dividend or distribution, or (y) in the case of
such subdivision, reclassification or combination, at the close of business on
the day upon which such corporate action becomes effective.
(ii) Except with respect to Excluded Securities (as
defined below), in case the Corporation shall issue any shares of Common Stock
(or Common Stock Equivalents) after the date the first share of Series A
Preferred Stock is issued (the "Issue Date") at a price per share (or having a
conversion or exercise price per share) more than one percent (1%) less than the
current Conversion Price, in each such case, the Conversion Price shall be
appropriately reduced to a price (calculated to the nearest cent) determined by
dividing (x) the sum of (A) the number of shares of Common Stock outstanding
(calculated as set forth in Section 3.6(c)(iii) hereof) immediately prior to
such issue or sale, multiplied by the then existing Conversion Price, plus (B)
the difference between (a) the consideration received by the Corporation upon
issue or sale of additional shares of Common Stock or Common Stock Equivalents
since the Issue Date and (b) the value of dividends paid (other than dividends
paid in cash out of retained earnings or in Common Stock) since the Issue Date,
by (y) the total number
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of shares of Common Stock outstanding after such issue or sale. No
adjustment of the Conversion Price shall be required unless such adjustment
would require a change in the amount of at least one percent (1%) of the
Conversion Price; provided, however, that any such lesser adjustment not made
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shall be carried forward and shall be made at the time that such adjustment
together with any adjustments to the Series A Preferred Stock, as applicable,
shall amount to one percent (1%) of the Conversion Price or more. An adjustment
made pursuant to this clause (ii) shall be made on the next Business Day
following the date on which any such issuance is made and shall be effective
retroactively to the close of business on the date of such issuance. For
purposes of this clause (ii), the consideration receivable by the Corporation in
connection with the issuance of additional shares of Common Stock or of Common
Stock Equivalents since the Issue Date shall be deemed to be equal to the sum of
the aggregate offering price (before deduction of underwriting discounts or
commissions and expenses payable to third parties, if any) of all such Common
Stock and/or Common Stock Equivalents plus the minimum aggregate amount, if any,
payable upon conversion, exchange or exercise of any such Common Stock
Equivalents. The issuance or reissuance of any shares of Common Stock (whether
treasury shares or newly issued shares) pursuant to a dividend or distribution
on, or subdivision, combination or reclassification of, the outstanding shares
of Common Stock requiring an adjustment in the Conversion Price pursuant to
clause (i) of this paragraph (c) of this Section 3.6 of this Article FOURTH,
shall not be deemed to constitute an issuance of Common Stock or Common Stock
Equivalents by the Corporation to which this clause (ii) applies. Upon the
expiration or termination of any unconverted, unexchanged or unexercised Common
Stock Equivalents for which an adjustment has been made pursuant to this clause
(ii), the adjustments shall forthwith be reversed to effect such Conversion
Price as would have been in effect at the time of such expiration or termination
had such Common Stock Equivalents, to the extent outstanding immediately prior
to such expiration or termination, never been issued. "Excluded Securities"
shall mean (i) shares of Common Stock and/or Common Stock Equivalents issuable
or issued to employees or outside directors of the Corporation directly or
pursuant to a stock option plan, restricted stock plan or similar employee plan
or agreement (including any employment agreement) approved by the Board in
accordance with Section 9 of the Stockholder Agreement, dated as of August 4,
1995, by and among the Corporation, Goldman Sachs Capital Partners II, L.P., GS
Capital Partners II Offshore, LP., Goldman, Sachs & Co. Verwaltungs GmbH, Stone
Street Fund 1995, L.P., Bridge Street Fund 1995, L.P. and Cohen (the
"Stockholder Agreement"), if applicable, the primary purpose of which is not to
raise additional equity capital for the Corporation; (ii) Common Stock issued or
issuable upon conversion or exercise of any securities outstanding upon the
Issue Date, upon conversion or exercise of the Common Stock Equivalents referred
to in clauses (i), (iii), (iv) or (v) hereof or upon exercise of securities
issued or issuable pursuant to the Stockholder Agreement; (iii) Common Stock
and/or Common Stock Equivalents issued or issuable as direct consideration for
the acquisition by the Corporation of capital stock or assets of another
business entity or in connection with a merger or consolidation; (iv) Common
Stock and/or Common Stock Equivalents issued in any registered public offering
of the Corporation's securities; or (v) Series A Preferred Stock issued or
issuable
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to key members of management, as contemplated by the Purchase Agreement, the
total number of such shares not to exceed one percent (1%) of the number of
shares of Common Stock outstanding (calculated as set forth in Section
3.6(c)(iii) hereof).
(iii) For purposes of this paragraph (c) of this
Section 3.6 of this Article FOURTH, the number of shares of Common Stock at any
time outstanding shall mean the aggregate of all shares of Common Stock then
outstanding (other than any shares of Common Stock then owned or held by or for
the account of the Corporation) treating for purposes of this calculation all
Common Stock Equivalents then outstanding as having been converted, exchanged or
exercised.
(iv) If the Corporation shall take a record of the
holders of its Common Stock for the purpose of entitling them to receive a
dividend or other distribution and shall thereafter, and before such dividend or
distribution is paid or delivered to stockholders entitled thereto, legally
abandon its plan to pay or deliver such dividend or distribution, then no
adjustment in the Conversion Price then in effect shall be made by reason of the
taking of such record, and any such adjustment previously made as a result of
the taking of such record shall be reversed.
(d) The issuance of certificates for shares of Common Stock upon
conversion of the Series A Preferred Stock shall be made without charge to the
holders thereof for any issuance tax in respect thereof, provided that the
Corporation shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issuance and delivery of any certificate in a
name other than that of the holder of the Series A Preferred Stock which is
being converted.
(e) The Corporation will at no time close its transfer books against
the transfer of any Series A Preferred Stock, or of any shares of Common Stock
issued or issuable upon the conversion of any shares of Series A Preferred Stock
in any manner which interferes with the timely conversion of such Series A
Preferred Stock, except as may otherwise be required to comply with applicable
securities laws.
(f) As used in this paragraph 3, the term "Common Stock" shall mean
and include the Corporation's authorized Common Stock, par value $.01 per share,
as constituted on the date of filing of this Certificate of Incorporation, and
shall also include any capital stock of any class of the Corporation thereafter
authorized which shall neither be limited to a fixed sum or percentage in
respect of the rights of the holders thereof to participate in dividends nor be
entitled to a preference in the distribution of assets upon the voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, provided
that the shares of Common Stock receivable upon conversion of shares of Series A
Preferred Stock shall include only shares designated as Common Stock of the
Corporation on the date of filing of this
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instrument, or in case of any reorganization or reclassification of the
outstanding shares thereof, the stock, securities or assets to be issued in
exchange for such Common Stock pursuant thereto.
(g) In the case of a Sale of the Corporation (as defined in
Section 3.10 below) or a proposed reorganization of the Corporation or a
proposed reclassification or recapitalization of the capital stock of the
Corporation (except a transaction for which provision for adjustment is
otherwise made in this Section 3.6), each share of Series A Preferred Stock
shall thereafter be convertible into the number of shares of stock or other
securities or property to which a holder of the number of shares of Common Stock
of the Corporation deliverable upon conversion of such Series A Preferred Stock
would have been entitled upon such Sale of the Corporation, reorganization,
reclassification or recapitalization; and, in any such case, appropriate
adjustment (as determined by the Board of Directors) shall be made in the
application of the provisions herein set forth with respect to the rights and
interest thereafter of the holders of the Series A Preferred Stock, to the end
that the provisions set forth herein (including provisions with respect to
changes in and other adjustments of the applicable conversion price) shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
shares of stock or other property thereafter deliverable upon the conversion of
the Series A Preferred Stock. The Corporation shall not effect any such Sale of
the Corporation unless prior to or simultaneously with the consummation thereof
the successor corporation or purchaser, as the case may be, shall assume by
written instrument the obligation to deliver to the holders of the Series A
Preferred Stock such shares of stock, securities or assets as, in accordance
with the foregoing provisions, each such holder is entitled to receive.
(h) The Corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, recapitalization,
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 3.6 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.
(i) With the agreement of the Corporation and GSCP, the
Series A Preferred Stock may be exchanged into convertible subordinated debt on
such terms as are agreed by the Corporation and GSCP.
3.7 Reports as to Adjustment. Upon any adjustment of the
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Conversion Price then in effect pursuant to the provisions of Section 3.6 of
this Article FOURTH, then, and in each such case, the Corporation shall promptly
deliver to the Transfer Agent of the Series A Preferred Stock and the Common
Stock and to each of the holders of the Series A Preferred Stock and the Common
Stock, a certificate signed by the President or a Vice President and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant
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Secretary of the Corporation setting forth in reasonable detail the event
requiring the adjustment, the method by which such adjustment was calculated and
the Conversion Price then in effect following such adjustment. Where
appropriate, such notice to holders of the Series A Preferred Stock may be given
in advance.
3.8 Certain Covenants. Any registered holder of Series A
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Preferred Stock may proceed to protect and enforce its rights and the rights of
any other holders of Series A Preferred Stock with any and all remedies
available at law or in equity.
3.9 Protective Provision. So long as shares of Series A
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Preferred Stock are outstanding, the Corporation shall not without first
obtaining the approval (by vote or written consent, as provided by law) of the
holders of at least a majority of the then outstanding shares of Series A
Preferred Stock:
(a) alter or change the rights, preference or
privileges of the shares of Series A Preferred Stock or otherwise amend this
Certificate of Incorporation so as to affect adversely the shares of Series A
Preferred Stock; or
(b) increase the authorized number of shares of Series
A Preferred Stock; or
(c) create or designate, or authorize the issuance of,
any new class or series of stock (i) ranking senior or having a preference over,
or being on a parity with, the Series A Preferred Stock with respect to
dividends or upon liquidation, (ii) having rights similar to any rights of the
Series A Preferred Stock under Section 3.3 hereof or (iii) convertible into any
such class or series of stock.
3.10 Definitions. In addition to any other terms defined
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herein, for purposes of this Section 3.10 of this Article FOURTH, the following
terms shall have the meanings indicated:
"Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in the State of New York or New
Jersey are authorized or obligated by law or executive order to close.
"Commission" shall mean the Securities and Exchange
Commission, and any successor agency.
"Common Stock Equivalent" shall mean securities convertible
into, or exchangeable or exercisable for, shares of Common Stock.
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"Conversion Price," determined as of any date, shall
initially equal $1,153.85 and shall be subject to adjustment as provided in
paragraph (c) of Section 3.6 of this Article FOURTH.
The term "distribution" shall include the transfer of cash
or property to the holders of a class of capital stock of the Corporation,
without consideration, whether by way of dividend or otherwise (except a
dividend in shares of such class of stock), or the purchase or redemption of
shares of the Corporation, for cash or property, including such transfer,
purchase or redemption by a subsidiary of the Corporation. The time of any
distribution by way of dividends shall be the date of declaration thereof, and
the time of any distribution by purchase or redemption of shares shall be the
date on which cash or property is transferred by the Corporation, whether or not
pursuant to a contract of an earlier date; provided, however, that, where a debt
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security is issued in exchange for shares, the time of the distribution is the
date when the Corporation acquires the shares for such exchange.
"Filing Date" shall mean the date of filing of this
Certificate of Incorporation.
"Junior Stock" shall mean any capital stock of the
Corporation ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Preferred Stock.
"Person" shall mean any individual, firm, corporation,
partnership or other entity, and shall include any successor (by merger or
otherwise) of such entity.
"Qualified IPO" shall mean a bona fide, firm commitment,
underwritten public offering pursuant to an effective registration statement
under the Securities Act resulting in at least $15,000,000 of gross proceeds to
the sellers (including the Corporation) before deducting underwriting discounts
and commissions and offering expenses
"Sale of the Corporation" shall mean consolidation or merger
of the Corporation with or into any other corporation or corporations. or a
sale, conveyance or disposition of all or substantially all of the assets of the
Corporation.
"Securities Act" shall mean the Securities Act of 1993, as
amended.
FIFTH: The name and mailing address of the Incorporator is as
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follows:
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Name Mailing Address
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Jeffrey C. Goldberg c/o Milbank, Tweed, Hadley
& McCloy
One Chase Manhattan Plaza
New York, New York 10005
SIXTH: The Board of Directors is expressly authorized to adopt,
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amend, or repeal the by-laws of the Corporation unless the by-laws of the
Corporation shall otherwise provide.
SEVENTH: Elections of directors need not be by written ballot
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unless the by-laws of the Corporation shall otherwise provide.
EIGHTH: A director of the Corporation shall not be personally
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liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that the foregoing shall not
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eliminate or limit the liability of a director (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 Delaware, or (iv) for any transaction from which the director derived an
improper personal benefit. If the General Corporation Law of Delaware is
hereafter amended to permit further elimination or limitation of 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 Delaware as so amended. Any repeal or modification of this
Article EIGHTH by the stockholders of the Corporation or otherwise shall not
adversely affect any right or protection of a director of the Corporation
exiting at the time of such repeal or modification.
NINTH: The Corporation reserves the right to amend, alter.
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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.
3. This Restated Certificate of Incorporation was duly adopted
in accordance with Section 245 of the General Corporation Law of the State of
Delaware.
P.N.Y. ELECTRONICS, INC.
By: /s/ GADI COHEN
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Name: Gadi Cohen
Title: President and Chief Executive Officer
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IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by its President and Chief Executive Officer and attested by its
Secretary, this 4th day of August, 1995.
P.N.Y. ELECTRONICS, INC.
By: /s/ GADI COHEN
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Name: Gadi Cohen
Title: President and Chief Executive Officer
ATTEST:
/s/ STEVEN HALPERN
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Name: Steven Halpem
Title: Secretary
CERTIFICATE OF AMENDMENT
TO THE RESTATED CERTIFICATE
OF INCORPORATION
OF P.N.Y. ELECTRONICS, INC.
P.N.Y. ELECTRONICS, INC., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY:
FIRST: The name of the Corporation is P.N.Y. Electronics, Inc.
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SECOND: The Board of Directors of the Corporation, acting by
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unanimous written consent pursuant to Section 141(f) of the General Corporation
Law of the State of Delaware, did duly consent to, approve and adopt the
following resolution:
RESOLVED, that the Board of Directors hereby finds it to be
advisable and in the best interests of the Corporation that the
Restated Certificate of Incorporation of the Corporation be amended
in the following manner:
The second sentence of Section 3.1 of Article Fourth of the
Restated Certificate of Incorporation is hereby amended and restated
in its entirety to read as follows:
"The number of shares constituting the Series A Preferred
Stock shall be 15,000."
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THIRD: The stockholders of the Corporation acting by written consent
-----
pursuant to Section 228(a) of the General Corporation Law of the State of
Delaware, did duly consent to, approve and adopt the aforesaid amendment to the
Restated Certificate of Incorporation of the Corporation.
FOURTH: The aforesaid amendment has been duly adopted in accordance
------
with the provisions of Section 242, 141(f) and 228 (a) of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed on its behalf by Gadi Cohen, its President, and attested by Steven
Halpern, its Secretary, on this 17th day of January, 1996.
P.N.Y. ELECTRONICS, INC.
By: /s/ GADI COHEN
------------------------------
Name: Gadi Cohen
Title: President
ATTEST:
/s/ STEVEN HALPERN
----------------------
Name: Steven Halpern
Title: Secretary
CERTIFICATE OF DESIGNATIONS
OF
SERIES B CUMULATIVE REDEEMABLE PREFERRED STOCK
OF
P.N.Y. ELECTRONICS, INC
(Pursuant to Section 151 of the Delaware General Corporation Law)
P.N.Y. Electronics, 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 at a meeting duly called and held on May 21, 1996:
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 Restated
Certificate of Incorporation, the Board of Directors hereby creates a series of
Preferred Stock, par value $.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:
13
<PAGE>
Series B Cumulative Redeemable Preferred Stock:
Section 1. Designation and Amount: Effective Date of Issuance.
--------------------------------------------------
(A) The shares of such series shall be designated as "Series B
Preferred Stock" (the "Series B Preferred Stock") and the number of shares
constituting the Series B Preferred Stock shall be fifteen (15).
(B) The Series B Preferred Stock shall only be issued pursuant to and
in accordance with the Exchange Agreement, dated as of June 13. 1996, between
the Corporation and Ruth Cohen. It is specifically intended that, for all
corporate purposes, the Series B Preferred Stock shall be deemed to have been
issued as of December 31,1995, and shall be so reflected in the financial
statements of the Corporation.
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 B Preferred Stock with respect to dividends, the holders of shares of
Series B Preferred Stock, in preference to the holders of Common Stock, par
value $.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, semi-annual
dividends payable in cash on the last business day of June and December in each
year (each such date being referred to herein as a "Dividend Payment Date"),
commencing on June 28, 1996, in an amount per share (rounded to the nearest
cent) equal to 7.5% of the Series B Preferred Amount Per Share (as hereinafter
defined); provided, however, that from and after the date upon which the
Corporation receives proceeds from the initial underwritten public offering of
shares of Common Stock or other equity securities issued by the Corporation
pursuant to an effective registration under the Securities Act, the rate of
dividends payable on the outstanding shares of Series B Preferred Stock shall
equal 8% of the Series B Preferred Amount Per Share.
(B) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series B Preferred Stock commencing as of December 31,1995. Accrued
but unpaid dividends shall not bear interest. Dividends paid on the shares of
Series B 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 B 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.
(C) "Series B Preferred Amount Per Share" shall mean, with respect to
each share of Series B Preferred Stock, $1,000,000.
Section 3. Voting Rights. Except as set forth herein, or as
-------------
otherwise provided by law, holders of Series B Preferred Stock shall have no
voting rights and their consent shall not be required for taking any corporate
action.
14
<PAGE>
Section 4. Certain Restrictions.
--------------------
(A) Whenever dividends or other dividends or distributions payable on
the Series B Preferred Stock as provided in Section 2 are in arrears, thereafter
and until all accrued and unpaid dividends and distributions, whether or not
declared, of shares of Series B Preferred Stock outstanding shall have been paid
in full, the Corporation shall not;
(i) declare or pay dividends, or make any other distributions,
or any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series B Preferred Stock, except
for any such dividend or distribution in the form of shares of stock ranking
junior (as to dividends and upon dissolution, liquidation or winding up) to the
Series B Preferred Stock;
(ii) declare or pay dividends, or make any other distributions on
any shares of Series A Preferred Stock or any other stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
Series B Preferred Stock, except dividends paid ratably on the Series B
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.
Section 5. Reacquired Shares. Any shares of Series B Preferred
-----------------
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled 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
Preferred Stock subject to the conditions and restrictions on issuance set forth
herein, in the Restated 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 to stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series B
Preferred Stock unless, prior thereto, the holders of shares of Series B
Preferred Stock shall have received in respect of each share the Series B
Preferred Amount Per Share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such payment,
or (2) to the holders of shares of Series A Preferred Stock or any other stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with a Series B Preferred Stock, except distributions made ratably
on the Series B 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.
Section 7. Redemption.
----------
(A) The shares of Series B Preferred Stock shall be redeemable at any
time, at the option of the Corporation, for a redemption price per share,
payable in cash, equal to Series B
15
<PAGE>
Preferred Amount Per Share, plus an amount equal to accrued and unpaid dividends
and distributions, whether or not declared, thereon to the date of redemption
(the "Per Share Redemption Price").
(B) The Corporation shall, to the extent it is legally permitted to
do so and has sufficient funds legally available therefor, redeem all of the
outstanding shares of Series B Preferred Stock on August 3, 2005 (or, if it is
not leg ally permitted to do so and/or does not have sufficient funds legally
available therefor at such time, as promptly thereafter as it is legally
permitted to do so and has sufficient funds legally available therefor) at a
redemption price, payable in cash, equal to the Per Share Redemption Price.
(C) Upon its receipt of proceeds from any underwritten public
offering of shares of Common Stock or other equity securities issued by the
Corporation pursuant to an effective registration statement under the Securities
Act (a "Public Offering"), if any, the Corporation shall apply to the
---------------
redemption of shares of Series B Preferred Stock an amount (up to but not
exceeding the Redemption Price Per Share multiplied by the number of shares of
Series B Preferred Stock then outstanding), equal to fifty percent (50%) of the
net proceeds received by the Corporation in such Public Offering; provided,
-------
however, that if, at the time of the initial Public Offering, the Subordinated
-------
Note having an initial principal amount of $5,140,000 and issued to Gadi Cohen
on August 3, 1995 remains outstanding, then in the case of such initial Public
Offering, the Corporation shall apply to the redemption of shares of Series B
Preferred Stock an amount (up to but not exceeding the Redemption Price Per
Share multiplied by the number of shares of Series B Preferred Stock then
outstanding) equal to thirty-four percent (34%) of the net proceeds received by
the Corporation in such initial Public Offering.
(D) QIn the event of a Sale of the Corporation in which the shares of
Common Stock are exchanged for or changed into cash or other property (other
than consideration consisting solely of common stock of the acquiring or
surviving entity), then prior to or upon consummation of such transaction the
Corporation shall redeem all of the then outstanding shares of Series B
Preferred Stock at a redemption price, payable in cash, equal to the Per Share
Redemption Price.
(E) Notwithstanding any provision hereof to the contrary, the holders
of shares of the Series B Preferred Stock, by delivery of written notice to the
Corporation executed by the holders of at least a majority of such shares, may
require that the Corporation not redeem the shares of Series B Preferred stock
(regardless of whether the Corporation is required to offer such redemption
pursuant to the terms hereof) unless at such time the Corporation redeems all of
the shares of Series B Preferred Stock then outstanding.
Section 8. Rank. The Series B Preferred Stock shall rank, with
----
respect to the payment of dividends and the distribution of assets, on a parity
to the Series A Preferred Stock and junior to all series of any other class of
the Corporation's Preferred Shares which rank junior to the Series A Preferred
Stock.
16
<PAGE>
Section 9. Amendment. The Restated 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 B Preferred
Stock so as to affect them adversely without the affirmative vote of the holders
of at least a majority of the outstanding shares of Series B Preferred Stock,
voting together as a single class.
Section 10. Certain Defined Terms. All capitalized terms used herein
---------------------
without definition shall have the meanings given to such terms in the Restated
Certificate of Incorporation.
IN WITNESS WHEREOF, this Certificate of Designations is executed on
behalf of the Corporation by its President and attested by its Secretary this
13th day of June, 1996.
Attest: P.N.Y. Electronics, Inc.
/s/ STEVEN HALPERN By: /s/ GADI COHEN
----------------------------- ---------------------------
Secretary: Steven Halpern President: Gadi Cohen
CERTIFICATE OF AMENDMENT
TO THE RESTATED CERTIFICATE
OF INCORPORATION
OF
P.N.Y. ELECTRONICS, INC.
P.N.Y. ELECTRONICS, INC., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify:
FIRST: The name of the Corporation is P.N.Y. Electronics, Inc.
-----
SECOND: The Board of Directors of the Corporation, acting by
------
unanimous written consent pursuant to Section 141(f) of the General Corporation
Law of the State of Delaware, did duly consent to, approve and adopt the
following resolution:
RESOLVED, that the Board of Directors hereby finds it to be advisable
and in the best interests of the Corporation that the Restated Certificate of
Incorporation of the Corporation be amended in the following manner:
The second sentence of Section 3.1 of Article FOURTH of the Restated
Certificate of Incorporation is hereby amended and restated in its entirety to
read as follows:
The number of shares constituting the Series A Preferred Stock shall
be 16,000.
Section 3.2(a) of Article FOURTH of the Restated Certificate of
Incorporation is hereby amended and restated in its entirety to read as follows:
17
<PAGE>
3.2 Dividends. (a) (i) The holders of shares of Series A Preferred
---------
Stock shall be entitled to receive when, as and if declared by the Board of
Directors out of funds legally available therefor, cumulative dividends payable
in cash for all periods during which Series A Preferred Stock is outstanding,
commencing as of January 1,1996 and ending at such time as all the Corporation's
Series B Cumulative Redeemable Preferred Stock, par value $.01 per share (the
"Series B Preferred Stock"), is redeemed or otherwise ceases to be outstanding.
Such dividends shall be payable semi-annually, on the same date on which
dividends on the Series B Preferred Stock are paid (including upon redemption of
the Series B Preferred Stock), at a rate per annum per share equal to 6% of the
Preferred Amount Per Share.
(ii) In the event that shares of Series A Preferred Stock are
converted into shares of Common Stock or otherwise cease to be outstanding, then
dividends on such shares payable pursuant to the foregoing Section 3.2(a)(i)
shall cease to accrue. If at such time there are accrued and unpaid dividends on
shares of Series A Preferred stock, such accrued and unpaid dividends shall
thereafter be paid to the former holders of such shares at such time as accrued
and unpaid dividends are paid on the Series B Preferred Stock (including upon
redemption of the Series B Preferred Stock).
(iii) Whenever dividends or distributions payable on the Series B
Preferred Stock as provided in Section 3(a)(i) or (ii) 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 declare or pay dividends, or make
any other distributions on any shares of Series B Preferred Stock except
dividends paid ratably on the Series A Preferred Stock and the Series B
Preferred Stock in proportion to the total amounts to which the holders (or
former holders, in the case of dividends payable pursuant to Section 3(a)(ii))
of all such shares are then entitled.
THIRD: The stockholders of the Corporation, acting by written consent
-----
pursuant to Section 228(a) of the General Corporation Law of the State of
Delaware, did duly consent to, approve and adopt the aforesaid amendment to the
Restated Certificate of Incorporation of the Corporation.
FOURTH: The aforesaid amendment has been duly adopted in accordance
------
with the provisions of Section 242, 141(f) and 228(a) of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed on its behalf by Gadi Cohen, its President, and attested by Steven
Halpern, its Secretary, this 13th day of June, 1996.
ATTEST: P.N.Y. ELECTRONICS, INC.
/s/ STEVEN HALPERN By: /s/ GADI COHEN
-------------------------- ---------------------------
Steven Halpem, Secretary Gadi Cohen, President
18
<PAGE>
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
P.N.Y. ELECTRONICS, INC.
P.N.Y. Electronics, Inc., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That the Board of Directors of P.N.Y. Electronics, Inc., by the
unanimous written consent of its members, filed with the minutes of the Board
adopted a resolution proposing and declaring advisable the following amendment
to the Certificate of Incorporation of said corporation:
RESOLVED, That the Certificate of Incorporation of this corporation be
amended by changing the First Article thereof so that, as amended said
Article shall be and read as follows:
"FIRST: The name of the Corporation is PNY Technologies, Inc."
-----
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given written consent to said amendment in accordance--with
the provisions of Section 228 of the General Corporation Law of the State of
Delaware and written notice of the adoption of the amendment has been given as
provided in Section 228 of the General Corporation Law of the State of Delaware
to every stockholder entitled to such notice.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Sections 242 and 228 of the General Corporation Law of the State
of Delaware.
19
<PAGE>
IN WITNESS WHEREOF, said corporation has caused this certificate to be
signed by Gadi Cohen, its President, this 27 day of January l997.
P.N.Y. Electronics, Inc.
By: /s/ GADI COHEN
--------------------
Name: Gadi Cohen
Title: President
CERTIFICATE OF AMENDMENT
TO THE RESTATED CERTIFICATE
OF INCORPORATION
OF
PNY TECHNOLOGIES, INC.
PNY TECHNOLOGIES, INC., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify:
FIRST: The name of the Corporation is PNY TECHNOLOGIES, Inc.
-----
SECOND: The Board of Directors of the Corporation, acting by
------
unanimous written consent pursuant to Section 141(f) of the General Corporation
Law of the State of Delaware, did duly consent to, approve and adopt the
following resolution:
RESOLVED, that the Board of Directors hereby finds it to be advisable
and in the best interests of the Corporation that the Restated Certificate of
Incorporation of the Corporation be amended in the following manner:
Section 3.2(a) of Article FOURTH of the Restated Certificate of
Incorporation is hereby amended and restated in its entirety to read as follows:
3.2 Dividends. (a) (i) The holders of shares of Series A Preferred
---------
Stock shall be entitled to receive when, as and if declared by the Board of
Directors out of funds legally available therefor, cumulative dividends payable
in cash for all periods during which Series A Preferred Stock is outstanding,
commencing as of January 1, 1997 and ending at such time as all the
Corporation's Series B Cumulative Redeemable Preferred Stock, par value $.01 per
share (the "Series B Preferred Stock"), is redeemed or otherwise ceases to be
outstanding. Such dividends shall be payable semi-annually, on the same date on
which dividends on the Series B Preferred Stock are paid (including upon
redemption of the Series B Preferred Stock), at a rate per annum per share equal
to 7.5% of the Preferred Amount Per Share. No such dividends shall accrue in
respect of periods ending on or prior to December 31, 1996.
20
<PAGE>
Section 7 of the Certificate of Designations of the Series B
Cumulative Redeemable Preferred Stock is hereby amended to add to the end
thereof the following:
(F) Notwithstanding any provisions hereof to the contrary, the
Corporation shall not redeem shares of Series B Preferred Stock unless,
substantially contemporaneously therewith, the Corporation also offers to
purchase from the holders of Series A Preferred Stock a proportionate amount of
the then outstanding shares of Series A Preferred Stock at a purchase price per
share, payable in cash, equal to the Preferred Amount Per Share (as such term is
defined in Section 3.5(e) of Article FOURTH of the Restated Certificate of
Incorporation) plus an amount equal to accrued and unpaid dividends and
distributions, whether or not declared, thereon to the date of purchase. Written
notice of such an offer to purchase shall be given to each holder of Series A
Preferred Stock not less than twenty (20) business days prior to the date upon
which the purchase of shares of Series A Preferred Stock is to be consummated.
THIRD: The stockholders of the Corporation, acting by written consent
-----
pursuant to Section 228(a) of the General Corporation Law of the State of
Delaware, did duly consent to, approve and adopt the aforesaid amendment to the
Restated Certificate of Incorporation of the Corporation.
FOURTH: The aforesaid amendment has been duly adopted in accordance with
------
the provisions of Section 242, 141(f) and 228 (a) of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed on its behalf by Gadi Cohen, its President, and attested by Steven
Halpem, its Secretary, this 28th day of February, 1997.
ATTEST: PNY TECHNOLOGIES, INC.
/s/ STEVEN HALPERN By: /s/ GADI COHEN
--------------------------- ----------------------
Steven Halpern, Secretary Gadi Cohen: President
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
PNY TECHNOLOGIES, INC.
PNY Technologies, Inc. (the "Corporation"), a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware ("DGCL"), DOES HEREBY CERTIFY:
1. The name of the corporation is "PNY Technologies, Inc."
2. The original Certificate of Incorporation of the corporation was
filed with the Secretary of State of the State of Delaware on July 26, 1995. A
Restated
21
<PAGE>
Certificate of Incorporation of the Corporation was filed with the Secretary of
State of the State of Delaware on August 4, 1995.
3. This Certificate of Amendment has been duly proposed by
resolutions adopted and declared advisable unanimously by the Board of Directors
of the Corporation, duly adopted by written consent of the stockholders of the
Corporation, and duly executed and acknowledged by the officers of the
Corporation in accordance with the provisions of Sections 103, 141, 228 and 242
of the DGCL.
4. Upon the filing (the "Effective Time") of this Certificate of
Amendment pursuant to the DGCL, each share of the Corporation's Common Stock,
par value $.0l per share ("Common Stock"), issued and outstanding immediately
prior to the Effective Time shall be split into 100 validly issued, fully paid,
and non-assessable shares of Common Stock, without any action on the part of the
holder thereof. Each certificate that theretofore represented a share or shares
of Common Stock shall thereafter represent that number of shares of Common Stock
into which the share or shares of Common Stock represented by such certificate
shall have been split.
5. The text of Section 1 of Article FOURTH of the Certificate of
Incorporation of the Corporation is hereby amended to read in its entirety as
follows:
" FOURTH: 1. Authorized Capital. The total number of shares
------ ------------------
of allclasses of capital stock which the Corporation has authority to issue is
25,025,000 shares, consisting of (i) 25,000,000 shares of Common Stock, par
value $.01 per share (the "Common Stock") and (ii) 25,000 shares of Preferred
Stock, par value $.01 per share (the "Preferred Stock"). Upon the amendment of
this article, each outstanding share of Common Stock is split up and converted
into one hundred (100) shares of Common Stock".
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by its authorized officer as of December 18, 1997.
PNY TECHNOLOGIES, INC.
By: /s/ LUKE M. BESHAR
------------------------
Name: Luke M. Beshar
Title: Sr. Vice President
CERTIFICATE OF AMENDMENT
TO THE RESTATED CERTIFICATE
OF INCORPORATION
OF
PNY TECHNOLOGIES, INC.
PNY TECHNOLOGIES, INC., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware (the
"Corporation") does hereby certify:
FIRST: The name of the Corporation is PNY TECHNOLOGIES, Inc.
-----
22
<PAGE>
SECOND: The Board of Directors of the Corporation, acting by unanimous
------
written consent pursuant to Section 141(f) of the General Corporation Law of the
State of Delaware, did duly consent to, approve and adopt the following
resolution:
RESOLVED; that the Board of Directors hereby finds it to be advisable and
in the best interests of the Corporation that the Restated Certificate of
Incorporation be amended in the following manner; in its entirety to read as
follows:
Section 3.2(a) of Article FOURTH of the Restated Certificate of
Incorporation is hereby amended in its entirety to read as follows:
3.2 Dividends. (a)(i) The holders of shares of Series A Preferred Stock
---------
shall be entitled to receive when, as and if declared by the Board of Directors
out of funds legally available therefor, cumulative dividends payable in cash
for all periods during which Series A Preferred Stock is outstanding, commencing
as of January 1, 1998 and ending at such time as all the Corporation's Series B
Cumulative Redeemable Preferred Stock, par value $.01 per share (the "Series B
Preferred Stock"), is redeemed or otherwise ceases to be outstanding. Such
dividends shall be payable semi-annually, on the same date on which dividends on
the Series B Preferred Stock are paid (including upon redemption of the Series B
Preferred Stock), at a rate per annum per share equal to 7.5% of the Preferred
Amount Per Share. No such dividends shall accrue in respect of periods ending on
or prior to December 31, 1997.
Section 2 of the Certificate of Designations of the Series B Cumulative
Redeemable Preferred Stock is hereby amended in its entirety to read as follows:
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
B Preferred Stock with respect to dividends, the holders of shares of Series B
Preferred Stock, in preference to the holders of Common Stock, par value $.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, semi-annual dividends
payable in cash on the last business day of June and December in each year (each
such date being referred to herein as a "Dividend Payment Date"), in an amount
per share (rounded to the nearest cent) equal to 7.5% of the Series B Preferred
Amount Per Share (as hereinafter defined); provided, however, that from and
after the date upon which the Corporation receives proceeds from the initial
underwritten public offering of shares of Common Stock or other equity
securities issued by the Corporation pursuant to an effective registration under
the Securities Act, the rate of dividends payable on the outstanding shares of
Series B Preferred Stock shall equal 8% of the Series B Preferred Amount Per
Share.
(B) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series B Preferred Stock commencing as of January 1, 1998, and shall
not accrue in respect of any period prior to such date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series C
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
23
<PAGE>
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 B 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.
(C) "Series B Preferred Amount Per Share" shall mean, with respect to each
share of Series B Preferred Stock, $1,000,000.
THIRD: The stockholders of the Corporation, acting by written consent
-----
pursuant to Section 228(a) of the General Corporation Law of the State of
Delaware, did duly consent to, approve and adopt the aforesaid amendment to the
Restated Certificate of Incorporation of the Corporation.
FOURTH: The aforesaid amendment has been duly adopted in accordance
------
with the provisions of Section 242, 141(f) and 228(a) of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed on its behalf by Gadi Cohen, its President, and attested by Heidi Stuto,
its Secretary, this 8th day of August, 1997.
ATTEST: PNY TECHNOLOGIES, INC.
/s/ HEIDI STUTO /s/ GADI COHEN
---------------------- ----------------------
Heidi Stuto, Secretary Gadi Cohen, President
CERTIFICATE OF AMENDMENT
TO THE RESTATED CERTIFICATE
OF INCORPORATION
OF
PNY TECHNOLOGIES, INC.
PNY TECHNOLOGIES, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the Corporation)
does hereby certify:
FIRST: The name of the Corporation is PNY TECHNOLOGIES. Inc.
-----
SECOND: The Board of Directors of the Corporation, acting by unanimous
------
written consent pursuant to Section 141(f) of the General Corporation Law of the
State of Delaware, did duly consent to, approve and adopt the following
resolution:
RESOLVED, that the Board of Directors hereby finds it to be advisable and
in the best interests of the Corporation that the Restated Certificate of
Incorporation of the Corporation be amended in the following manner; and
restated in its entirety to read as follows:
24
<PAGE>
Section 3.2(a) of Article FOURTH of the Restated Certificate of
Incorporation is hereby amended and restated in its entirety to read as follows:
3.2 Dividends. (a) (i) The holders of shares of Series A Preferred Stock
---------
shall be entitled to receive when, as and if declared by the Board of Directors
out of funds legally available therefor, cumulative dividends payable in cash
for all periods during which Series A Preferred Stock is outstanding, commencing
as of January 1, 1999 and ending at such time as all the Corporation's Series B
Cumulative Redeemable Preferred Stock, par value $.01 per share (the "Series B
Preferred Stock"), is redeemed or otherwise ceases to be outstanding. Such
dividends shall be payable semi-annually, on the same date on which dividends on
the Series B Preferred Stock are paid (including upon redemption of the Series B
Preferred Stock), at a rate per annum per share equal to 7.5% of the Preferred
Amount Per Share. No such dividends shall accrue in respect of periods ending on
or prior to December 31, 1998.
THIRD: The stockholders of the Corporation, acting by written consent
-----
pursuant to Section 228(a) of the General Corporation Law of the State of
Delaware, did duly consent to, approve and adopt the aforesaid amendment to the
Restated Certificate of Incorporation of the Corporation.
FOURTH: The aforesaid amendment has been duly adopted in accordance with
------
the provisions of Section 242, 141(f) and 228(a) of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed on its behalf by Gadi Cohen, its President, and attested by Luke M.
Beshar, its Assistant Secretary, this 20th day of August, 1998.
ATTEST: PNY TECHNOLOGIES, INC.
/s/ LUKE M. BESHAR By: /s/ GADI COHEN
------------------------------- ------------------------
Luke M. Beshar, Asst. Secretary Gadi Cohen, President
CERTIFICATE OF AMENDMENT
TO
RESTATED CERTIFICATE OF INCORPORATION
OF
PNY TECHNOLOGIES, INC.
PNY Technologies, Inc. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware ("DGCL"), DOES HEREBY CERTIFY:
1. The name of the Corporation is PNY Technologies, Inc. The date of
filing of its original Certificate of Incorporation by the Secretary of State
was July 26, 1995.
2. This Certificate of Amendment has been duly proposed by resolutions,
adopted and declared advisable unanimously by the Board of Directors of the
Corporation, duly adopted by written consent of the stockholders of the
Corporation, and duly executed and acknowledged by the officers of the
Corporation in accordance with the provisions of Sections 103, 141, 228 and 242
of the DGCL.
3. The text of Section 1 of Article FOURTH of the Restated Certificate of
Incorporation of the Corporation is hereby amended to read in its entirety as
follows:
"FOURTH: 1. Authorized Capital. The total number of shares of all
------------------
classes of capital stock which the Corporation has authority to issue is
one hundred thirty-five million (135,000,000) shares, consisting of (i) one
hundred twenty-five million (125,000,000) shares of Common Stock, par value
$.01 per share (the "Common Stock") and (ii) ten million (10,000,000)
shares of Preferred Stock, par value $.01 per share.
4. Upon the filing of this Certificate of Amendment to the Restated
Certificate of Incorporation pursuant to the DGCL, each share of the Common
Stock issued and outstanding immediately prior to the filing shall be split into
three (3) validly issued, fully paid, and non-assessable shares of Common Stock,
without any action on the part of the holder thereof. Each certificate that
theretofore represented a share or shares of Common Stock shall thereafter
represent that number of shares of Common Stock into which the share or shares
of Common Stock represented by such certificate shall have been split.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed
by its President and Chief Executive Officer and attested by its Secretary this
26th day of October, 2000.
PNY TECHNOLOGIES, INC.
By: /s/ GADI COHEN
-----------------------
Name: Gadi Cohen
Title: President
ATTEST
/s/ HEIDI STUTO
---------------------------
Name: Heidi Stuto
Title: Secretary
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