As filed with the Securities and Exchange Commission on May 1, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Form S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
IOMEGA CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 86-0385884
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1821 West 4000 South, Roy, Utah 84067
(Address of Principal Executive Offices) (Zip Code)
1997 STOCK INCENTIVE PLAN
(Full title of the Plan)
Paul P. Brountas, Esq.
Hale and Dorr LLP
60 State Street, Boston, Massachusetts 02109
(Name and address of agent for service)
(617) 526-6000
(Telephone number, including area code, of agent for service)
<TABLE>
Proposed maximum Proposed maximum Amount of
Title of securities Amount to Offering price aggregate offering registration
to be registered be registered per share price fee
- ------------------- ------------- ---------------- ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock 832,636 $15.875 (1) $13,218,097 $4,006
$.03 1/3 par value shares
Common Stock 5,167,364 N/A N/A N/A
$0.3 1/3 par value shares (2)
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee,
and based upon the average of the high and low prices of the Common Stock on
the New York Stock Exchange on April 25, 1997 in accordance with Rules 457(c)
and 457(h) of the Securities Act of 1933, as amended.
(2) These 5,167,364 shares were originally registered on March 2, 1988 in
connection with the Company's 1987 Stock Option Plan pursuant to a
Registration Statement on Form S-8, (File No. 33-20432). The registration
fee paid at that time for such shares was $2,100. The Company is
transferring such 5,167,364 shares from the prior registration statement.
The Company has filed a Post-Effective Amendment to the prior registration
statement reflecting such transfer.
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given to
participants under the 1997 Stock Incentive Plan (the "Plan") pursuant to
Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities
Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The Registrant is subject to the informational and reporting requirements of
Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports,
proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are on file
with the Commission, are incorporated in this Registration Statement by
reference:
(l) The Registrant's latest annual report filed pursuant to Sections l3(a) or
15(d) of the Exchange Act, or the latest prospectus filed pursuant to Rule
424(b) under the Securities Act that contains audited financial statements for
the Registrant's latest fiscal year for which such statements have been filed.
(2) All other reports filed pursuant to Sections l3(a) or l5(d) of the
Exchange Act since the end of the fiscal year covered by the document referred
to in (1) above.
(3) The description of the common stock of the Registrant, $.03 1/3 par value
per share, contained in a Registration Statement filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all shares of common stock offered hereby have
been sold or which deregisters all shares of common stock then remaining
unsold, shall be deemed to be incorporated by reference herein and to be part
hereof from the date of the filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The legality of the Common Stock being offered hereby will be passed upon for
the Registrant by Hale and Dorr LLP, Boston, Massachusetts. As of the date
hereof, partners of Hale and Dorr LLP own approximately 187,500 shares of
Common Stock of the Registrant.
Item 6. Indemnification
Under Article Sixth of the Registrant's Restated Certificate of Incorporation
and Article Fifth of the Registrant's By-Laws, each person who is a director
or officer of the Registrant shall be indemnified by the Registrant to the
full extent permitted by Section 145 of the General Corporation Law of
Delaware ("Section 145").
Section l45 provides a detailed statutory framework covering indemnification
of directors and officers of liabilities and expenses arising out of legal
proceedings brought against them by reason of their status or service as
directors or officers. This section provides that a director or officer of a
corporation (i) shall be indemnified by the corporation for all expenses of
such legal proceedings when he is successful on the merits, (ii) may be
indemnified by the corporation for the expenses, judgments, fines and amounts
paid in settlement of such proceedings (other than a derivative suit), even
if he is not successful on the merits, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of the corporation (and, in the case of a criminal proceeding, had no
reasonable cause to believe his conduct was unlawful), and (iii) may be
indemnified by the corporation for expenses of a derivative suit (a suit by a
shareholder alleging a breach by a director or officer of a duty owed to the
corporation), even if he is not successful on the merits, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation. No indemnification may be made
under clause (iii) above, however, if the director or officer is adjudged
liable for negligence or misconduct in the performance of his duties to the
corporation, unless a court determines that, despite such adjudication and
in view of all of the circumstances, he is entitled to indemnification. The
indemnification described in clauses (ii) and (iii) above may be made only
upon a determination that indemnification is proper because the applicable
standard of conduct has been met. Such a determination may be made by a
majority of a quorum of disinterested directors, independent legal counsel
or the stockholders. The board of directors may authorize advancing
litigation expenses to a director or officer upon receipt of an undertaking
by such director or officer to repay such expenses if it is ultimately
determined that he is not entitled to be indemnified for them.
The Registrant has entered into indemnification agreements with each of its
directors which supplement or clarify the statutory indemnity provisions of
Section l45 in the following respects: (i) the presumption that the director
or officer met the applicable standard of conduct is established, (ii) the
advancement of litigation expenses is provided upon request if the director
or officer agrees to repay them if it is ultimately determined that he is
not entitled to indemnification for them, (iii) indemnity is explicitly
provided for settlements of derivative actions, (iv) the director or officer
is permitted to petition a court to determine whether his actions met the
standard required, and (v) partial indemnification is permitted in the
event that the director or officer is not entitled to full indemnification.
As permitted by Section l45, the Registrant has purchased a general liability
insurance policy which covers certain liabilities of directors and officers
of the Registrant arising out of claims based on acts or omissions in their
capacity as directors or officers and for which they are not indemnified by
the Registrant.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibit Index immediately preceding the exhibits to this Registration
Statement is incorporated herein by reference.
Item 9. Undertakings
1. The undersigned Registrant hereby undertakes
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities
Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement; provided,
however that paragraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
2. The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that
is incorporated by reference in the Registration Statement shall be deemed
to be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies
that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Roy, Utah, on the 22nd day of April, 1997.
IOMEGA CORPORATION
By: /s/Leonard C. Purkis
Leonard C. Purkis
Senior Vice President, Finance
and Chief Financial Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Iomega Corporation, hereby
severally constitute Leonard C. Purkis, Laurie B. Keating and Patrick J.
Rondeau, and each of them singly, our true and lawful attorneys with full
power to them, and each of them singly, to sign for us and in our names
in the capacities indicated below, the Registration Statement on Form S-8
filed herewith and any and all subsequent amendments to said Registration
Statement, and generally to do all such things in our names and behalf in
our capacities as officers and directors to enable Iomega Corporation to
comply with all requirements of the Securities and Exchange Commission,
hereby ratifying and confirming our signatures as they may be signed by said
attorneys, or any of them, to said Registration Statement and any and all
amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
and on the dates indicated.
Signature Title Date
/s/Kim B. Edwards President, Chief Executive Officer April 22, 1997
Kim B. Edwards and Director (Principal
Executive Officer)
/s/Leonard C. Purkis Senior Vice President, Finance April 22, 1997
Leonard C. Purkis and Chief Financial Officer (Principal
Financial and Accounting Officer)
/s/David J. Dunn Chairman of the Board April 22, 1997
David J. Dunn of Directors
/s/Willem H.J. Andersen Director April 22, 1997
Willem H.J. Andersen
/s/Robert P. Berkowitz Director April 22, 1997
Robert P. Berkowitz
/s/Michael J. Kucha Director April 22, 1997
Michael J. Kucha
/s/John R. Myers Director April 22, 1997
John R. Myers
/s/John E. Nolan Director April 22, 1997
John E. Nolan
/s/John E. Sheehan Director April 22, 1997
The Honorable
John E. Sheehan
<PAGE>
Exhibit Index
Exhibit
Number
Description
4.1 Restated Certificate of Incorporation of the Registrant.
4.2 (1) Amended and Restated By-Laws of the Registrant.
4.3 (2) Rights Agreement, dated as of July 28, 1989, between the
Registrant and BankBoston, as Rights Agent.
4.4 (3) Amendment No. 1, dated September 24, 1990, to Rights Agreement
dated as of July 28, 1989 between the Registrant and
BankBoston, as Rights Agent.
5 Opinion of Hale and Dorr LLP.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney (included on the signature page of this
Registration Statement).
(1) Incorporated herein by reference from the Exhibits to the Registrant's
Quarterly Report on Form 10-Q for the period ended July 4, 1993.
(2) Incorporated herein by reference from the Exhibits to the Registrant's
Current Report on Form 8-K filed with the Commission on August 12, 1989.
(3) Incorporated herein by reference to the Exhibits to the Registrant's
Amendment No. l to Current Report on Form 8-K filed with the Commission on
September 25, 1990.
RESTATED
CERTIFICATE OF INCORPORATION
OF
IOMEGA CORPORATION
PURSUANT TO SECTIONS 242 AND 245 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE
IOMEGA CORPORATION (hereinafter called the "Corporation"), a corporation
originally organized and incorporated under the name "Databyte Corporation"
by the filing of a Certificate of Incorporation in the office of the
Secretary of State of the State of Delaware on April 2, 1980, and existing
under and by virtue of the General Corporation Law of the State of Delaware,
does hereby certify that (a) at a meeting of the Board of Directors of the
Corporation, the Board of Directors duly adopted a resolution pursuant to
Sections 242 and 245 of the General Corporation Law of the State of Delaware
proposing an amendment to and restatement of the Certificate of Incorporation
of the Corporation and declaring said amendment and restatement to be
advisable; (b) the stockholders of the Corporation duly approved said
proposed amendment and restatement by written consent in accordance with
Sections 228 and 242 of the General Corporation Law of the State of Delaware,
and written notice of such consent has been given to all stockholders who
have not consented in writing to said amendment and restatement; and (c) the
capital of the Corporation will not be reduced under or by reason of this
amendment and restatement.
The resolution setting forth the amendment and restatement is as follows:
RESOLVED: That the Restated Certificate of Incorporation of the Corporation
shall read as follows:
FIRST: The name of the Corporation is IOMEGA CORPORATION.
SECOND: The registered office of the Corporation is to be located at No. 100
West Tenth Street, in the City of Wilmington, in the County of New Castle,
in the State of Delaware. 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 act or
activity for which a corporation may be organized under the General Corporation
Law of Delaware.
Without limiting in any manner the scope and generality of the foregoing, it
is hereby provided that the Corporation shall have the following purposes,
objects and powers:
To purchase, manufacture, produce, assemble, receive, lease or in
any manner acquire, hold, own, use, operate, install, maintain, service,
repair, process, alter, improve, import, export, sell, lease, assign, transfer
and generally to trade and deal in and with computers and computer systems,
equipment, devices, apparatus, components, parts and supplies of every type
and description, natural or manufactured articles or products, machinery,
equipment, devices, systems, parts, supplies, apparatus, goods, wares,
merchandise and personal property of every kind, nature or description,
tangible or intangible, used or capable of being used for any purpose
whatsoever; and to engage and participate in any mercantile, manufacturing
or trading business of any kind or character.
To improve, manage, develop, sell, assign, transfer, lease, mortgage, pledge
or otherwise dispose of or turn to account or deal with all or any part of
the property of the corporation and from time to time to vary any investment
or employment of capital of the corporation.
To borrow money, and to make and issue notes, bonds, debentures, obligations
and evidences of indebtedness of all kinds, whether secured by mortgage,
pledge or otherwise, without limit as to amount, and to secure the same by
mortgage, pledge or otherwise; and generally to make and perform agreements
and contracts of every kind and description, including contracts of guaranty
and suretyship.
To lend money for its corporate purposes, invest and reinvest its funds, and
take, hold and deal with real and personal property as security for the
payment of funds so loaned or invested.
To the same extent as natural persons might or could do, to purchase or
otherwise acquire, and to hold, own, maintain, work, develop, sell, lease,
exchange, hire, convey, mortgage or otherwise dispose of and deal in lands
and leaseholds, and any interest, estate and rights in real property, and
any personal or mixed property, and any franchises, rights, licenses or
privileges necessary, convenient or appropriate for any of the purposes
herein expressed.
To apply for, obtain, register, purchase, lease or otherwise to acquire and
to hold, own, use, develop, operate and introduce and to sell, assign, grant
licenses or territorial rights in respect to, or otherwise to turn to account
or dispose of, any copyrights, trade marks, trade names, brands, labels,
patent rights, letters patent of the United States or of any other country
or government, inventions, improvements and processes, whether used in
connection with or secured under letters patent or otherwise.
To participate with others in any corporation, partnership, limited
partnership, joint venture, or other association of any kind, or in any
transaction, undertaking or arrangement which the participating corporation
would have power to conduct by itself, whether or not such participation
involves sharing or delegation of control with or to others; and to be an
incorporator, promoter or manager of other corporations of any type or kind.
To pay pensions and establish and carry out pension, profit sharing, stock
option, stock purchase, restricted stock, stock bonus, retirement, benefit,
incentive and commission plans, trusts and provisions for any or all of its
directors, officers and employees, and for any or all of the directors,
officers and employees of its subsidiaries; and to provide insurance for its
benefit on the life of any of its directors, officers or employees, or on
the life of any stockholder for the purpose of acquiring at his death shares
of its stock owned by such stockholders.
To acquire by purchase, subscription or otherwise, and to hold for investment
or otherwise and to use, sell, assign, transfer, mortgage, pledge or
otherwise deal with or dispose of stocks, bonds or any other obligations or
securities of any corporation or corporations; to merge or consolidate with
any corporation in such manner as may be permitted by law; to aid in any
manner any corporation whose stocks, bonds or other obligations are held or
in any manner guaranteed by this corporation, or in which this corporation is
in any way interested; and to do any other acts or things for the
preservation, protection, improvement or enhancement of the value of any such
stock, bonds of other obligations; and while owner of any such stock, bonds
or other obligations to exercise all the rights, powers and privileges of
ownership thereof, and to exercise any and all voting powers thereon; and to
guarantee the payment of dividends upon any stock, the principal or interest
or both, of any bonds or other obligations, and the performance of any
contracts.
To do all and everything necessary, suitable and proper for the accomplishment
of any of the purposes or the attainment of any of the objects or the
furtherance of any of the powers hereinbefore set forth, either alone or in
association with other corporations, firms or individuals, and to do every
other act or acts, thing or things incidental or appurtenant to or growing out
of or connected with the aforesaid business or powers or any part or parts
thereof, provided the same be not inconsistent with the laws under which this
corporation is organized.
The business or purpose of the Corporation is from time to time to do any one
or more of the acts and things hereinabove set forth, and it shall have power
to conduct and carry on its said business, or any part thereof, and to have
one or more offices, and to exercise any or all of its corporate powers and
rights, in the State of Delaware, and in the various other states,
territories, colonies and dependencies of the United States, in the District
of Columbia, and in all or any foreign countries.
The enumeration herein of the objects and purposes of the Corporation shall
be construed as powers as well as objects and purposes and shall not be deemed
to exclude by inference any powers, objects or purposes which the corporation
is empowered to exercise, whether expressly by force of the laws of the State
of Delaware now or hereafter in effect, or impliedly by the reasonable
construction of the said laws.
FOURTH: The total number of shares of stock which the Corporation shall have
authority to issue is 30,000,000 shares of Common Stock, $.03 1/3 par value
per share.
FIFTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the Corporation
and of its directors and stockholders:
(1) The number of directors of the Corporation shall be such as from time to
time shall be fixed by, or in the manner provided in the by-laws. Election of
directors need not be by ballot unless the by-laws so provide.
(2) The Board of Directors shall have power without the assent or vote of the
stockholders to make, alter, amend, change, add to or repeal the by-laws of
the Corporation; to fix and vary the amount to be reserved for any proper
purpose; to authorize and cause to be executed mortgages and liens upon all or
any part of the property of the Corporation; to determine the use and
disposition of any surplus or net profits; and to fix the times for the
declaration and payment of dividends.
(3) In addition to the powers and authorities hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation; subject, nevertheless, to the provisions of the statutes of
Delaware, of this certificate, and to any by-laws from time to time made by
the stockholders; provided, however, that no by-laws so made shall invalidate
any prior act of the directors which would have been valid if such by-law had
not been made.
SIXTH: The Corporation shall, to the full extent permitted by Section 145 of
the Delaware General Corporation Law, as amended from time to time, indemnify
all directors and officers of the Corporation whom it may indemnify pursuant
thereto.
SEVENTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a
summary way of this corporation or of any creditor or stockholder thereof or
on the application of any receiver or receivers appointed for this
corporation under the provisions of Section 291 of Title 8 of the Delaware
Code or on the application of trustees in dissolution or of any receiver or
receivers appointed for this corporation under the provisions of Section 279
of Title 8 of the Delaware Code, order a meeting of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing three-fourths in value
of the creditors or class of creditors, and/or of the stockholders or class
of stockholders of this corporation, as the case may be, agree to any
compromise or arrangement and to any reorganization of this corporation as
consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to
which the said application has been made, be binding on all the creditors or
class of creditors, and/or on all the stockholders or class of stockholders,
of this corporation, as the case may be, and also on this corporation.
EIGHTH: The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation in the manner now
or hereafter prescribed by law, and all rights and powers conferred herein on
stockholders, directors, and officers are subject to this reserved power.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
hereto affixed and this Certificate of Amendment and Restatement to be signed
by its President and attested by its Secretary this 14th day of July, 1983.
IOMEGA CORPORATION
By: /s/ Gabriel P. Fusco
- ------------------------------------
President
ATTEST: /s/ Paul P. Brountas
- ------------------------------
Secretary
(CORPORATE SEAL)
<PAGE>
CERTIFICATE OF AMENDMENT OF
RESTATED CERTIFICATE OF INCORPORATION OF
IOMEGA CORPORATION
IOMEGA CORPORATION (the "Corporation"), a corporation originally organized
and incorporated under the name "Databyte Corporation" by the filing of a
Certificate of Incorporation in the office of the Secretary of State of the
State of Delaware on April 2, 1980, and existing under and by virtue of the
General Corporation Law of the State of Delaware, does hereby certify as
follows:
1. The Restated Certificate of Incorporation of the Corporation is hereby
amended by deleting, in its entirety, Article FOURTH, and inserting in lieu
thereof a new Article FOURTH, which shall read in its entirety as follows:
"FOURTH. The total number of shares of capital stock of all classes which
the Corporation shall have authority to issue is 35,000,000, consisting of
30,000,000 shares of Common Stock, $.03 1/3 par value per share, and 5,000,000
shares of Preferred Stock, $.01 par value per share.
The following is a statement of the designations, powers, preferences and
rights, and the relative, participating, optional or other special rights,
and the qualifications, limitations and restrictions granted to or imposed
upon the respective classes of shares of capital stock of the Corporation or
the holders thereof:
A. COMMON STOCK
The voting and dividend rights, and the rights in the event of the liquidation
of the Corporation, of the holders of Common Stock are subject to and
qualified by such rights of the holders of any series of Preferred Stock as
set forth herein or as the Board of Directors may designate upon the issuance
of shares of any series of Preferred Stock.
The holders of Common Stock are entitled to one vote for each share held at
all meetings of stockholders. There shall be no cumulative voting.
Dividends may be declared and paid on Common Stock from funds lawfully
available therefor as and when determined by the Board of Directors and
subject to any preferential dividend rights of any then outstanding shares of
Preferred Stock.
Upon the dissolution or liquidation of the Corporation, whether voluntary or
involuntary, holders of Common Stock will be entitled to receive pro rata all
net assets of the Corporation available for distribution after payment of
creditors and payment of any preferential liquidation rights of any then
outstanding shares of Preferred Stock.
B. PREFERRED STOCK
Preferred Stock may be issued from time to time in one or more series, each
of such series to have such terms as stated or expressed herein and in the
resolution or resolutions providing for the issuance of shares of such series
adopted by the Board of Directors of the Corporation as hereinafter provided.
Any shares of Preferred Stock which may be redeemed, purchased or acquired by
the Corporation may be reissued except as otherwise provided by law.
Different series of Preferred Stock shall not be construed to constitute
different classes of shares for the purposes of voting by classes unless
expressly provided.
Authority is hereby expressly granted to the Board of Directors to issue from
time to time shares of Preferred Stock in one or more series, and in
connection with the creation of any such series, by resolution or
resolutions providing for the issuance of the shares thereof, to determine
and fix such voting powers, full or limited, or no voting powers, and such
designation, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions thereof,
including without limitation dividend rights, conversion rights, redemption
privileges and liquidation preferences, as shall be stated and expressed in
such resolutions, all to the full extent now or hereafter permitted by the
General Corporation Law of Delaware. Without limiting the generality of the
foregoing, the resolutions providing for the issuance of shares of any series
of Preferred
Stock may provide that such series shall be superior or rank equally or be
junior to shares of any other series of Preferred Stock to the extent
permitted by law. Unless otherwise expressly provided, no vote of the
holders of shares of Preferred Stock or Common Stock shall be a prerequisite
to the issuance of any shares of any series of Preferred Stock authorized
by and complying with the conditions of the Restated Certificate of
Incorporation."
2. The Restated Certificate of Incorporation of the Corporation is
hereby amended by adding a new Article NINTH, which shall read in its
entirety as follows:
"NINTH: Except to the extent that the General Corporation Law of the State
of Delaware prohibits the elimination of liability of directors for breaches
of fiduciary duty, no director of the Corporation shall be liable for any
breach of fiduciary duty. No amendment to or repeal of this provision shall
apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment."
3. Pursuant to the requirements of Section 242 of the General Corporation
Law of the State of Delaware, (i) the Board of Directors of the Corporation
adopted resolutions setting forth the foregoing amendments to the Restated
Certificate of Incorporation of the Corporation, declaring their advisability,
and directing that they be presented to the stockholders of the Corporation
for consideration, and (ii) the stockholders of the Corporation duly approved
the foregoing amendments.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment
to be signed by its Senior Vice President - Finance and Planning and attested
by its Assistant Secretary, and its corporate seal to be affixed, this 20th
day of May, 1987.
IOMEGA CORPORATION
By: /s/ E. Kevin Dahill
- -----------------------------------
E. Kevin Dahill
Senior Vice President -
Finance and Planning
Attest: /s/ Gwenn Newbold
- -------------------------------
Gwenn Newbold
Assistant Secretary
(Corporate Seal)
IOMEGA CORPORATION
CERTIFICATE OF DESIGNATION OF SERIES A AND
SERIES B CONVERTIBLE PREFERRED STOCK
- ------------------------------------------
Iomega Corporation, a Delaware corporation (the "Corporation"), pursuant to
authority conferred on the Board of Directors of the Corporation by the
Restated Certificate of Incorporation, as amended, of the Corporation and
in accordance with the provisions of Section 151 of the General Corporation
Law of the State of Delaware, certifies that the Board of Directors of the
Corporation, at a meeting thereof duly called and held on October 13, 1987,
duly adopted the following resolutions providing for the establishment of
two series of Preferred Stock of the Corporation, one to be designated "Series
A Convertible Preferred Stock" and consisting of 1,200,000 shares and one to
be designated "Series B Convertible Preferred Stock" and consisting of 250,000
shares, as follows:
"RESOLVED: That, pursuant to the authority expressly granted and vested in
the Board of Directors of the Company in accordance with the provisions of its
Restated Certificate of Incorporation, there are hereby established (i) a
series of Preferred Stock of the Company, consisting of 1,200,000 shares
designated "Series A Convertible Preferred Stock" ("Series A Preferred Stock")
and (ii) a series of Preferred Stock of the Company, consisting of 250,000
shares designated "Series B Convertible Preferred Stock" ("Series B Preferred
Stock"); and subject to the limitations provided by law and by the Restated
Certificate of Incorporation, the powers, designations, preferences and
relative, participating, optional or other special rights of, and the
qualifications, limitations or restrictions upon, the Series A Preferred Stock
and Series B Preferred Stock shall be as follows:
A. SERIES A CONVERTIBLE PREFERRED STOCK.
One million two hundred thousand (1,200,000) shares of the authorized and
unissued Preferred Stock of the Corporation are hereby designated "Series A
Convertible Preferred Stock" (the "Series A Preferred Stock") with the
following rights, preferences, powers, privileges and restrictions,
qualifications and limitations.
1. DIVIDENDS.
(a) The holders of record of shares of the Series A Preferred Stock shall
be entitled to receive, when and as declared by the Board of Directors of the
Corporation, out of any funds legally available therefor, dividends at the
rate of five percent (5%) per annum of the Series A Preference (as defined
in Subsection 2(a) below) of such shares for the 1989 calendar year and at
the rate of six percent (6%) per annum of the Series A Preference thereafter.
Accrued dividends for each calendar year shall be paid annually on the March
31 (a "dividend payment date") following the end of such calendar year
(commencing March 31, 1990) to holders of record of shares of Series A
Preferred Stock on such record date (not more than 60 days prior to March 31)
as is established by the Board of Directors for such dividend.
Dividends at the applicable rates set forth above shall accrue daily and be
cumulative from January 1, 1989. For purposes of the payment of dividends in
cash, the amount of any dividends accrued on any shares of Series A Preferred
Stock at any dividend payment date shall be deemed to be the amount of any
unpaid dividends accumulated thereon to and including the last day of the
preceding calendar year, whether or not earned or declared.
Notwithstanding anything to the contrary herein, accrued dividends for any
calendar year shall not be required to be paid unless the Corporation's after-
tax net income (before any extraordinary benefits) for such year, as shown on
the Company's audited consolidated financial statements, is equal to or
greater than the sum of the aggregate amount of such accrued dividends. Any
accrued dividends that are not paid shall be paid on the dividend payment
date following the end of the first succeeding calendar year in which the
Corporation's after-tax net income, before any extraordinary benefits
(determined as set forth above), is sufficient to pay all of such accrued
but unpaid dividends and the regular dividend on the Series A Preferred Stock
for such year.
(b) So long as shares of Series A Preferred Stock are outstanding, no cash
dividends shall be paid or declared on the Common Stock of the Corporation or
any security ranking junior to the Series A Preferred Stock as to the payment
of dividends, unless all dividends on the Series A Preferred Stock for all
past dividend payment dates shall have been paid and the full dividend
payment for the dividend payment date next succeeding the payment date of
such cash dividend shall have been paid or declared and set apart for
payment.
2. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of shares of Series A Preferred
Stock then outstanding shall be entitled to be paid out of the assets of the
Corporation available for distribution to its stockholders, after and subject
to the payment in full of all amounts required to be distributed to the
holders of any other class or series of stock of the Corporation ranking on
liquidation prior and in preference to the Series A Preferred Stock
(collectively referred to as "Senior Preferred Stock"), but before any
payment shall be made to the holders of Common Stock or any other class or
series of stock ranking on liquidation junior to the Series A Preferred
Stock (such Common Stock and other stock being collectively referred to as
"Junior Stock") by reason of their ownership thereof, an amount equal to
$5.00 per share (the "Series A Preference"). The Series A Preferred Stock
shall rank on a parity with the Series B Preferred Stock upon any
liquidation, dissolution or winding up of the Corporation. If upon any
such liquidation, dissolution or winding up of the Corporation the remaining
assets of the Corporation available for distribution to its stockholders
shall be insufficient to pay the holders of shares of Series A Preferred
Stock the full amount to which they shall be entitled, the holders of shares
of Series A Preferred Stock, Series B Preferred Stock and any other class or
series of stock ranking on liquidation on a parity with the Series A
Preferred Stock shall share ratably in any distribution of the remaining
assets and funds of the Corporation in proportion to the respective amounts
which would otherwise be payable in respect of the shares held by them upon
such distribution if all amounts payable on or with respect to such shares
were paid in full.
(b) After the payment of all preferential amounts required to be paid to the
holders of Senior Preferred Stock, Series A Preferred Stock and any other
class or series of stock of the Corporation ranking on liquidation on a parity
with the Series A Preferred Stock, upon the liquidation, dissolution or
winding up of the Corporation, the holders of shares of Junior Stock then
outstanding shall be entitled to receive the remaining assets and funds of
the Corporation available for distribution to its stockholders.
(c) A consolidation or merger of the Corporation with or into another
corporation or entity, or a sale of all or substantially all of the assets
of the Corporation, shall not be regarded as a liquidation, dissolution or
winding up of the Corporation within the meaning of this Section 2.
3. VOTING. Except as otherwise required by law, holders of Series A
Preferred Stock shall have no voting rights.
4. OPTIONAL CONVERSION. The holders of the Series A Preferred Stock shall
have conversion rights as follows (the "Series A Conversion Rights"):
(a) As used herein, the following items shall have the following
respective meanings:
(i) "CONVERSION DATE" shall have the meaning set forth in Subsection 4(d)(i).
(ii) "MARKET VALUE" shall mean (A) if the Common Stock of the Corporation
is listed on any national securities exchange or the NASDAQ National Market
System, the reported last sale price of the Common Stock on such exchange or
system, or, if the Common Stock shall not be so listed, (B) the average of
the closing bid and asked prices for the Common Stock, as reported by NASDAQ,
or (C) if there are no such closing bid and asked prices, the fair market
value of the Common Stock as determined by the Board of Directors of the
Corporation.
(iii) "SERIES A MINIMUM CONVERSION PRICE" shall mean $15.00 per share,
subject to adjustment pursuant to the provisions of this Section 4.
(iv) "SERIES A CONVERSION PRICE" shall mean, as of the applicable
Conversion Date, the greater of (A) the average of the Market Values of the
Common Stock for the five consecutive Trading Days preceding (but not
including) such Conversion Date, or (B) the then effective Series A Minimum
Conversion Price.
(v) "TRADING DAY" shall mean any day on which the New York Stock Exchange is
generally open for trading.
(b) RIGHT TO CONVERT. If (but only if) the Market Value of Common Stock of
the Corporation shall have been equal to or greater than the Series A Minimum
Conversion Price for at least 20 of the 30 Trading Days preceding the
Conversion Date, holders of shares of Series A Preferred Stock may convert all
or any of such shares, on such Conversion Date, into such number of fully
paid and nonassessable shares of Common Stock as is determined by (i)
multiplying the aggregate Series A Preferences of the shares so converted by
1.5, (ii) adding to such sum the aggregate amount of any accrued but unpaid
dividends on such shares, excluding any such dividends declared for payment
by the Board of Directors to holders of Series A Preferred Stock on a record
date occurring prior to or on the Conversion Date, and (iii) dividing the sum
so obtained by the Series A Conversion Price in effect on such Conversion
Date.
In the event of a notice of redemption of any shares of Series A Preferred
Stock pursuant to Section 6 hereof, the Series A Conversion Rights of the
shares designated for redemption shall terminate at the close of business on
the fifth Trading Day preceding the date fixed for redemption. In the event
of a liquidation, dissolution or winding up of the Corporation, the Series A
Conversion Rights shall terminate at the close of business on the first
Trading Day preceding the date fixed for the payment of any amounts
distributable on liquidation to the holders of Series A Preferred Stock.
(c) FRACTIONAL SHARES. No fractional shares of 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 shall
pay cash equal to such fraction multiplied by the then effective Series A
Conversion Price.
(d) MECHANICS OF CONVERSION.
(i) In order for a holder of Series A Preferred Stock to convert shares of
Series A Preferred Stock into shares of Common Stock, such holder shall
surrender the certificate or certificates for such shares of Series A
Preferred Stock, at the office of the transfer agent for the Series A
Preferred Stock (or at the principal office of the Corporation if the
Corporation serves as its own transfer agent), together with written notice
that such holder elects to convert all or any number of the shares of the
Series A Preferred Stock represented by such certificate or certificates.
Such notice shall state such holder's name or the names of the nominees in
which such holder wishes the certificate or certificates for shares of Common
Stock to be issued. If required by the Corporation, certificates surrendered
for conversion shall be endorsed or accompanied by a written instrument or
instruments of transfer, in form satisfactory to the Corporation, duly
executed by the registered holder or his or its attorney duly authorized in
writing. The date of receipt of such certificates and notice by the transfer
agent (or by the Corporation if the Corporation serves as its own transfer
agent) shall be the Conversion Date, provided, however, that in the event
that the shares tendered for conversion are not eligible for conversion on
the date of receipt of such certificates and notice by the transfer agent (or
by the Corporation if the Corporation serves as its own transfer agent), the
transfer agent or Corporation shall promptly return such certificates to the
registered holder. The Corporation shall, as soon as practicable after the
Conversion Date, issue and deliver at such office to such holder of Series A
Preferred Stock, or to his or its nominees, a certificate or certificates
for the number of shares of Common Stock to which such holder shall be
entitled, together with cash in lieu of any fraction of a share.
(ii) The Corporation shall at all times when the Series A Preferred Stock
shall be outstanding, reserve and keep available out of its authorized but
unissued stock, for the purpose of effecting the conversion of the Series A
Preferred Stock, such number of its duly authorized shares of Common Stock as
shall from time to time be sufficient to effect the conversion of all
outstanding Series A Preferred Stock.
(iii) All shares of Series A Preferred Stock which shall have been
surrendered for conversion as herein provided shall no longer be deemed to be
outstanding and all rights with respect to such shares, including the rights,
if any, to receive notices and to vote, shall immediately cease and terminate
on the Conversion Date, except only the right of the holders thereof to
receive (A) shares of Common Stock in exchange therefor pursuant to Subsection
4(b), (B) payments of accrued but unpaid dividends in accordance with
Subsection 4(d)(iv) and (C) payments in lieu of any fractional shares pursuant
to Subsection 4(c). Any shares of Series A Preferred Stock so converted
shall be retired and cancelled and shall not be reissued, and the Corporation
may from time to time take such appropriate action as may be necessary to
reduce the authorized Series A Preferred Stock accordingly.
(iv) In the case of any share of Series A Preferred Stock which is
converted after any dividend record date and on or prior to the corresponding
dividend payment date (except shares of Series A Preferred Stock called for
redemption during such period as to which any accrued and unpaid dividends
shall have been paid), the dividend payable on such dividend payment date
shall be paid on such date notwithstanding such conversion and such dividend
shall be paid to the person who is the holder of such shares of Series A
Preferred Stock at the close of business on such dividend record date.
(e) ADJUSTMENT FOR STOCK SPLITS AND COMBINATIONS. If the Corporation shall
at any time or from time to time after the date on which a share of Series A
Preferred Stock was first issued (the "Series A Original Issue Date") effect
a subdivision of the outstanding Common Stock, the Series A Minimum Conversion
Price then in effect immediately before that subdivision shall be
proportionately decreased. If the Corporation shall at any time or from
time to time after the Series A Original Issue Date combine the outstanding
shares of Common Stock, the Series A Minimum Conversion Price then in effect
immediately before the combination shall be proportionately increased. Any
adjustment under this paragraph shall become effective at the close of
business on the date the subdivision or combination becomes effective.
(f) ADJUSTMENT FOR DIVIDENDS AND DISTRIBUTIONS. In the event the Corporation
at any time, or from time to time after the Series A Original Issue Date shall
make or issue, or fix a record date for the determination of holders of Common
Stock entitled to receive, a dividend or other distribution payable in
additional shares of Common Stock, then and in each such event the Series A
Minimum Conversion Price then in effect shall be decreased as of the time of
such issuance or, in the event such a record date shall have been fixed, as
of the close of business on such record date, by multiplying the Series A
Minimum Conversion Price then in effect by a fraction:
(1) the numerator of which shall be the total number of shares of Common Stock
issued and outstanding immediately prior to the time of such issuance or the
close of business on such record date, and
(2) the denominator of which shall be the total number of shares of Common
Stock issued and outstanding immediately prior to the time of such issuance
or the close of business on such record date plus the number of shares of
Common Stock issuable in payment of such dividend or distribution; provided,
however, if such record date shall have been fixed and such dividend is not
fully paid or if such distribution is not fully made on the date fixed
therefor, the Series A Minimum Conversion Price shall be recomputed
accordingly as of the close of business on such record date and thereafter
the Series A Minimum Conversion Price shall be adjusted pursuant to this
paragraph as of the time of actual payment of such dividends or distributions.
(g) ADJUSTMENT FOR MERGER OR REORGANIZATION, ETC. In case of any
consolidation or merger of the Corporation with or into another corporation
(other than a merger or consolidation in which the Corporation is the
surviving corporation and which does not result in any reclassification of the
outstanding shares of Common Stock) or the sale of all or substantially all
of the assets of the Corporation to another corporation, entity or person,
each share of Series A Preferred Stock shall thereafter be convertible into
the kind and amount of shares of stock or other securities or assets 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 consolidation, merger or sale (assuming for this purpose
the conversion of the Series A Preferred Stock into Common Stock pursuant to
Subsection 4(b) at the then effective Series A Conversion Price).
(h) CERTIFICATE AS TO ADJUSTMENTS. 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 certificate setting forth (i) such
adjustments and readjustments, (ii) the Series A Minimum Conversion Price
then in effect, and (iii) the number of shares of Common Stock and the amount,
if any, of other property which then would be received upon the conversion of
Series A Preferred Stock.
5. MANDATORY CONVERSION.
(a) The Corporation may, at its option, require all, but not less than all,
holders of shares of Series A Preferred Stock then outstanding to convert
their shares of Series A Preferred Stock into shares of Common Stock, at the
then effective Series A Conversion price and otherwise in accordance with the
terms of Section 4, if the Market Value of the Common Stock has been equal to
or greater than the Series A Minimum Conversion Price for at least 20 of the
30 Trading Days prior to notice of such required conversion by the Corporation.
(b) All holders of record of shares of Series A Preferred Stock will be given
at least 10 days' prior written notice of the date fixed and the place
designated for mandatory conversion of shares of Series A Preferred Stock
pursuant to this Section 5. Such notice will be sent by first class or
registered mail, postage prepaid, to each record holder of Series A Preferred
Stock at such holder's address last shown on the records of the transfer
agent for the Series A Preferred Stock (or the records of the Corporation, if
it serves as its own transfer agent). On or before the date fixed for
conversion, each holder of shares of Series A Preferred Stock shall surrender
his or its certificate or certificates for all such shares to the Corporation
at the place designated in such notice, and shall thereafter receive
certificates for the number of shares of Common Stock to which such holder
is entitled pursuant to this Section 5. On the date fixed for conversion,
all rights with respect to the Series A Preferred Stock so converted,
including the rights, if any, to receive notices and vote, will terminate,
except only the rights of the holders thereof, upon surrender of their
certificate or certificates therefor, to receive (i) certificates for the
number of shares of Common Stock into which such Series A Preferred Stock
has been converted, (ii) payments of any accrued but unpaid dividends in
accordance with Subsection 4(d)(iv) and (iii) payments in lieu of any
fractional shares pursuant to Subsection 4(c). If so required by the
Corporation, certificates surrendered for conversion shall be endorsed or
accompanied by written instrument or instruments of transfer, in form
satisfactory to the Corporation, duly executed by the registered holder or
by his or its attorney duly authorized in writing. As soon as practicable
after the date of such mandatory conversion and the surrender of the
certificate or certificates for Series A Preferred Stock, the Corporation
shall cause to be issued and delivered to such holder, or on his or its
written order, a certificate or certificates for the number of full shares
of Common Stock issuable on such conversion in accordance with the provisions
hereof and cash as provided in Subsection 4(c) in respect of any fraction of
a share of Common Stock otherwise issuable upon such conversion.
(c) All certificates evidencing shares of Series A Preferred Stock which are
required to be surrendered for conversion in accordance with the provisions
hereof shall, from and after the date such certificates are so required to be
surrendered, be deemed to have been retired and cancelled and the shares of
Series A Preferred Stock represented thereby converted into Common Stock for
all purposes, notwithstanding the failure of the holder or holders thereof
to surrender such certificates on or prior to such date. The Corporation may
thereafter take such appropriate action as may be necessary to reduce the
authorized Series A Preferred Stock accordingly.
6. MANDATORY REDEMPTION.
(a) The Corporation will, subject to the conditions set forth in Subsection
6(b) below, on the date ten years after the Series A Original Issue Date
(the "Series A Redemption Date"), redeem from each holder of shares of Series
A Preferred Stock, at a price per share equal to the Series A Preference, plus
an amount equal to all accrued but unpaid dividends thereon (the "Series A
Redemption Price"), all of the shares of Series A Preferred Stock held by such
holder on the Series A Redemption Date.
(b) If the funds of the Corporation legally available for redemption of
Series A Preferred Stock on the Series A Redemption Date are insufficient to
redeem all of the shares of Series A Preferred Stock then outstanding, those
funds which are legally available will be used to redeem the maximum possible
number of such shares of Series A Preferred Stock ratably on the basis of the
number of shares of Series A Preferred Stock which would be redeemed on such
date if the funds of the Corporation legally available therefor had been
sufficient to redeem all shares of Series A Preferred Stock. At any time
thereafter when additional funds of the Corporation become legally available
for the redemption of Series A Preferred Stock, such funds will be used,
after the end of the next succeeding fiscal quarter (also referred to as a
"Series A Redemption Date"), to redeem the balance of the shares, ratably
on the basis set forth in the preceding sentence.
(c) The Corporation shall provide notice of any redemption of Series A
Preferred Stock pursuant to this Section 6 specifying the time and place of
redemption and the Series A Redemption Price, by first class or registered
mail, postage prepaid, to each holder of record of Series A Preferred Stock
at the address for such holder last shown on the records of the transfer
agent therefor (or the records of the Corporation, if it serves as its own
transfer agent), not more than 60 nor less than 30 days prior to the date on
which such redemption is to be made. If less than all Series A Preferred
Stock owned by such holder is then to be redeemed, the notice will also
specify the number of shares which are to be redeemed. Upon mailing any such
notice of redemption, the Corporation will become obligated to redeem at the
time of redemption specified therein all Series A Preferred Stock specified
therein (other than such shares of Series A Preferred Stock as are duly
converted pursuant to Section 4 or Section 5 prior to the close of business
on the fifth Trading Day preceding the Series A Redemption Date). In case
less than all Series A Preferred Stock represented by any certificate is
redeemed in any redemption pursuant to this Section 6, a new certificate
will be issued representing the unredeemed Series A Preferred Stock to the
holder thereof.
(d) No share of Series A Preferred Stock is entitled to any dividends
declared after its Series A Redemption Date, and on such Series A Redemption
Date all rights of the holder of such share as a stockholder of the
Corporation by reason of the ownership of such share will cease, except the
right to receive the Series A Redemption Price of such share, without
interest, upon presentation and surrender of the certificate representing such
share, and such share will not from and after such Series A Redemption Date
be deemed to be outstanding.
(e) Any Series A Preferred Stock redeemed pursuant to this Section 6 will be
cancelled and will not under any circumstances be reissued, sold or
transferred and the Corporation may from time to time take such appropriate
action as may be necessary to reduce the authorized Series A Preferred Stock
accordingly.
B. SERIES B CONVERTIBLE PREFERRED STOCK.
Two hundred fifty thousand (250,000) shares of the authorized and unissued
Preferred Stock of the Corporation are hereby designated "Series B
Convertible Preferred Stock" (the "Series B Preferred Stock") with the
following rights, preferences, powers, privileges and restrictions,
qualifications and limitations.
1. DIVIDENDS.
(a) The holders of record of shares of the Series B Preferred Stock shall be
entitled to receive, when and as declared by the Board of Directors of the
Corporation, out of any funds legally available therefor, dividends at the
rate of five percent (5%) per annum of the Series B Preference (as defined
in Subsection 2(a) below) of such shares for the 1989 calendar year and at
the rate of six percent (6%) per annum of the Series B Preference
thereafter. Accrued dividends for each calendar year shall be paid annually
on the March 31 (a "dividend payment date") following the end of such
calendar year (commencing March 31, 1990) to holders of record of shares of
Series B Preferred Stock on such record date (not more than 60 days prior
to March 31) as is established by the Board of Directors for such dividend.
Dividends at the applicable rates set forth above shall accrue daily and be
cumulative from January 1, 1989. The amount of any dividends accrued on any
shares of Series B Preferred Stock at any dividend payment date shall be
deemed to be the amount of any unpaid dividends accumulated thereon to and
including the last day of the preceding calendar year, whether or not earned
or declared.
Notwithstanding anything to the contrary herein, accrued dividends for any
calendar year shall not be required to be paid unless the Corporation's after-
tax net income (before any extraordinary benefits) for such year, as shown on
the Company's audited consolidated financial statements, is equal to or
greater than the sum of the aggregate amount of such accrued dividends and
the aggregate amount of all dividends required to be paid on the Series A
Preferred Stock for such year. Any accrued dividends that are not paid shall
be paid on the dividend payment date following the end of the first succeeding
calendar year in which the Corporation's after-tax net income, before any
extraordinary benefits (determined as set forth above), is sufficient to pay
all of such accrued but unpaid dividends, the regular dividend on the Series
B Preferred Stock for such year and all accrued but unpaid dividends required
to be paid on such dividend payment date with respect to the Series A
Preferred Stock.
(b) So long as shares of Series B Preferred Stock are outstanding, no cash
dividends shall be paid or declared on the Common Stock of the Corporation or
any security ranking junior to the Series B Preferred Stock as to the payment
of dividends, unless all dividends on the Series B Preferred Stock for all
past dividend payment dates shall have been paid and the full dividend payment
for the dividend payment date next succeeding the payment date of such cash
dividend shall have been paid or declared and set apart for payment.
2. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of shares of Series B Preferred
Stock then outstanding shall be entitled to be paid out of the assets of the
Corporation available for distribution to its stockholders, after and subject
to the payment in full of all amounts required to be distributed to the
holders of any other class or series of stock of the Corporation ranking on
liquidation prior and in preference to the Series B Preferred Stock
(collectively referred to as "Senior Preferred Common Stock"), but before
any payment shall be made to the holders of Common Stock or any other class
or series of stock ranking on liquidation junior to the Series B Preferred
Stock (such Common Stock and other stock being collectively referred to as
"Junior Stock") by reason of their ownership thereof, an amount equal to
$5.00 per share (the "Series B Preference "). The Series B Preferred Stock
shall rank on a parity with the Series A Preferred Stock upon any liquidation,
dissolution or winding up of the Corporation. If upon any such liquidation,
dissolution or winding up of the Corporation the remaining assets of the
Corporation available for distribution to its stockholders shall be
insufficient to pay the holders of shares of Series B Preferred Stock the
full amount to which they shall be entitled, the holders of shares of Series
B Preferred Stock, Series A Preferred Stock and any other class or series of
stock ranking on liquidation on a parity with the Series B Preferred Stock
shall share ratably in any distribution of the remaining assets and funds of
the Corporation in proportion to the respective amounts which would otherwise
be payable in respect of the shares held by them upon such distribution if all
amounts payable on or with respect to such shares were paid in full.
(b) After the payment of all preferential amounts required to be paid to the
holders of Senior Preferred Stock, Series B Preferred Stock and any other
class or series of stock of the Corporation ranking on liquidation on a parity
with the Series B Preferred Stock, upon the liquidation, dissolution or
winding up of the Corporation, the holders of shares of Junior Stock then
outstanding shall be entitled to receive the remaining assets and funds of the
Corporation available for distribution to its stockholders.
(c) A consolidation or merger of the Corporation with or into another
corporation or entity, or a sale of all or substantially all of the assets of
the Corporation, shall not be regarded as a liquidation, dissolution or
winding up of the Corporation within the meaning of this Section 2.
3. VOTING. The Corporation shall not amend, alter or repeal the preferences,
special rights or other powers of the Series B Preferred Stock so as to affect
adversely the Series B Preferred Stock, or authorize any class or series of
capital stock having a preference over the Series B Preferred Stock with
respect to liquidation or redemption rights or dividends, without the written
consent or affirmative vote of the holders of a majority of the then
outstanding shares of Series B Preferred Stock, given in writing or by vote
at a meeting, consenting or voting (as the case may be) separately as a
class. Except as expressly set forth above or as otherwise required by law,
holders of Series B Preferred Stock shall have no voting rights.
4. OPTIONAL CONVERSION. The holders of the Series B Preferred Stock shall
have conversion rights as follows (the "Series B Conversion Rights"):
(a) As used herein, the following items shall have the following
respective meanings:
(i) "CONVERSION DATE" shall have the meaning set forth in Subsection 4(d)(i).
(ii) "MARKET VALUE" shall mean (A) if the Common Stock of the Corporation
is listed on any national securities exchange or the NASDAQ National Market
System, the reported last sale price of the Common Stock on such exchange or
system, or (B) if the Common Stock shall not be so listed, the average of the
closing bid and asked prices for the Common Stock, as reported by NASDAQ, or
(C) if there are no such closing bid and asked prices, the fair market value
of the Common Stock as determined by the Board of Directors of the Corporation.
(iii) "SERIES B MINIMUM CONVERSION PRICE" shall mean $7.50 per share,
subject to adjustment pursuant to the provisions of this Section 4.
(iv) "SERIES B CONVERSION PRICE" shall mean, as of the applicable
Conversion Date, the greater of (A) the average of the Market Values of the
Common Stock for the five consecutive Trading Days preceeding (but not
including) such Conversion Date, or (B) the then effective Series B Minimum
Conversion Price.
(v) "TRADING DAY" shall mean any day on which the New York Stock Exchange is
generally open for trading.
(b) RIGHT TO CONVERT. If (but only if) the Market Value of Common Stock of
the Corporation shall have been equal to or greater than the Series B Minimum
Conversion Price for at least 20 of the 30 Trading Days preceding the
Conversion Date, holders of shares of Series B Preferred Stock may convert all
or any of such shares, on such Conversion Date, into such number of fully paid
and nonassessable shares of Common Stock as is determined by (i) multiplying
the aggregate Series B Preferences of the shares so converted by 1.5, (ii)
adding to such sum the aggregate amount of any accrued but unpaid dividends on
such shares, excluding any such dividends declared for payment by the Board of
Directors to holders of Series B Preferred Stock on a record date occurring
prior to or on the Conversion Date, and (iii) dividing the sum so obtained by
the Series B Conversion Price in effect on such Conversion Date.
In the event of a notice of redemption of any shares of Series B Preferred
Stock pursuant to Section 6 hereof, the Series B Conversion Rights of the
shares designated for redemption shall terminate at the close of business on
the fifth Trading Day preceding the date fixed for redemption. In the event
of a liquidation, dissolution or winding up of the Corporation, the Series B
Conversion Rights shall terminate at the close of business on the first
Trading Day preceding the date fixed for the payment of any amounts
distributable on liquidation to the holders of Series B Preferred Stock.
(c) FRACTIONAL SHARES. No fractional shares of Common Stock shall be
issued upon conversion of the Series B Preferred Stock. In lieu of any
fractional shares to which the holder would otherwise be entitled, the
Corporation shall pay cash equal to such fraction multiplied by the then
effective Series B Conversion Price.
(d) MECHANICS OF CONVERSION.
(i) In order for a holder of Series B Preferred Stock to convert shares of
Series B Preferred Stock into shares of Common Stock, such holder shall
surrender the certificate or certificates for such shares of Series B
Preferred Stock, at the office of the transfer agent for the Series B
Preferred Stock (or at the principal office of the Corporation if the
Corporation serves as its own transfer agent), together with written notice
that such holder elects to convert all or any number of the shares of the
Series B Preferred Stock represented by such certificate or certificates.
Such notice shall state such holder's name or the names of the nominees in
which such holder wishes the certificate or certificates for shares of Common
Stock to be issued. If required by the Corporation, certificates surrendered
for conversion shall be endorsed or accompanied by a written instrument or
instruments of transfer, in form satisfactory to the Corporation, duly
executed by the registered holder or his or its attorney duly authorized in
writing. The date of receipt of such certificates and notice by the
transfer agent (or by the Corporation if the Corporation serves as its own
transfer agent) shall be the Conversion Date, provided, however, that in
the event that the shares tendered for conversion are not eligible for
conversion on the date of receipt of such certificates and notice by the
transfer agent (or by the Corporation if the Corporation serves as its own
transfer agent), the transfer agent or Corporation shall promptly return such
certificates to the registered holder. The Corporation shall, as soon as
practicable after the Conversion Date, issue and deliver at such office to
such holder of Series B Preferred Stock, or to his or its nominees, a
certificate or certificates for the number of shares of Common Stock to which
such holder shall be entitled, together with cash in lieu of any fraction of
a share.
(ii) The Corporation shall at all times when the Series B Preferred Stock
shall be outstanding, reserve and keep available out of its authorized but
unissued stock, for the purpose of effecting the conversion of the Series B
Preferred Stock, such number of its duly authorized shares of Common Stock
as shall from time to time be sufficient to effect the conversion of all
outstanding Series B Preferred Stock.
(iii) All shares of Series B Preferred Stock which shall have been
surrendered for conversion as herein provided shall no longer be deemed to
be outstanding and all rights with respect to such shares, including the
rights, if any, to receive notices and to vote, shall immediately cease and
terminate on the Conversion Date, except only the right of the holders thereof
to receive (A) shares of Common Stock in exchange therefor pursuant to
Subsection 4(b), (B) payments of accrued but unpaid dividends in accordance
with Subsection 4(d)(iv) and (C) payments in lieu of any fractional shares
pursuant to Subsection 4(c). Any shares of Series B Preferred Stock so
converted shall be retired and cancelled and shall not be reissued, and the
Corporation may from time to time take such appropriate action as may be
necessary to reduce the authorized Series B Preferred Stock accordingly.
(iv) In the case of any share of Series B Preferred Stock which is
converted after any dividend record date and on or prior to the corresponding
dividend payment date (except shares of Series B Preferred Stock called for
redemption during such period as to which any accrued and unpaid dividends
shall have been paid), the dividend payable on such dividend payment date
shall be paid on such date notwithstanding such conversion an such dividend
shall be paid to the person who is the holder of such shares of Series B
Preferred Stock at the close of business on such dividend record date.
(e) ADJUSTMENT FOR STOCK SPLITS AND COMBINATIONS. If the Corporation shall
at any time or from time to time after the date on which a share of Series B
Preferred Stock was first issued (the "Series B Original Issue Date") effect
a subdivision of the outstanding Common Stock, the Series B Minimum
Conversion Price then in effect immediately before that subdivision shall
be proportionately decreased. If the Corporation shall at any time or from
time to time after the Series B Original Issue Date combine the outstanding
shares of Common Stock, the Series B Minimum Conversion Price then in effect
immediately before the combination shall be proportionately increased. Any
adjustment under this paragraph shall become effective at the close of
business on the date the subdivision or combination becomes effective.
(f) ADJUSTMENT FOR DIVIDENDS AND DISTRIBUTIONS. In the event the Corporation
at any time, or from time to time after the Series B Original Issue Date shall
make or issue, or fix a record date for the determination of holders of
Common Stock entitled to receive, a dividend or other distribution payable
in additional shares of Common Stock, then and in each such event the Series
B Minimum Conversion Price then in effect shall be decreased as of the time
of such issuance or, in the event such a record date shall have been fixed,
as of the close of business on such record date, by multiplying the Series B
Minimum Conversion Price then in effect by a fraction:
(1) the numerator of which shall be the total number of shares of Common Stock
issued and outstanding immediately prior to the time of such issuance or the
close of business on such record date, and
(2) the denominator of which shall be the total number of shares of Common
Stock issued and outstanding immediately prior to the time of such issuance or
the close of business on such record date plus the number of shares of Common
Stock issuable in payment of such dividend or distribution; provided, however,
if such record date shall have been fixed and such dividend is not fully paid
or if such distribution is not fully made on the date fixed therefor, the
Series B Minimum Conversion Price shall be recomputed accordingly as of the
close of business on such record date and thereafter the Series B Minimum
Conversion Price shall be adjusted pursuant to this paragraph as of the time
of actual payment of such dividends or distributions.
(g) ADJUSTMENT FOR MERGER OR REORGANIZATION, ETC. In case of any
consolidation or merger of the Corporation with or into another corporation
(other than a merger or consolidation in which the Corporation is the
surviving corporation and which does not result in any reclassification of
the outstanding shares of Common Stock) or the sale of all or substantially
all of the assets of the Corporation to another corporation, entity or person,
each share of Series B Preferred Stock shall thereafter be convertible into
the kind and amount of shares of stock or other securities or assets to which
a holder of the number of shares of Common Stock of the Corporation
deliverable upon conversion of such Series B Preferred Stock would have been
entitled upon such consolidation, merger or sale (assuming for this purpose
the conversion of the Series B Preferred Stock into Common Stock pursuant to
Subsection 4(b) at the then effective Series B Conversion Price).
(h) CERTIFICATE AS TO ADJUSTMENTS. The Corporation shall, upon the written
request at any time of any holder of Series B Preferred Stock, furnish or
cause to be furnished to such holder a certificate setting forth (i) such
adjustments and readjustments, (ii) the Series B Minimum Conversion Price
then in effect, and (iii) the number of shares of Common Stock and the amount,
if any, of other property which then would be received upon the conversion of
Series B Preferred Stock.
5. MANDATORY CONVERSION.
(a) The Corporation may, at its option, require all, but not less than all,
holders of shares of Series B Preferred Stock then outstanding to convert
their shares of Series B Preferred Stock into shares of Common Stock, at the
then effective Series B Conversion Price and otherwise in accordance with the
terms of Section 4, if the Market Value of the Common Stock has been equal to
or greater than the Series B Minimum Conversion Price for at least 20 of the
30 Trading Days prior to notice of such required conversion by the
Corporation.
(b) All holders of record of shares of Series B Preferred Stock will be given
at least 10 days' prior written notice of the date fixed and the place
designated for mandatory conversion of shares of Series B Preferred Stock
pursuant to this Section 5. Such notice will be sent by first class or
registered mail, postage prepaid, to each record holder of Series B Preferred
Stock at such holder's address last shown on the records of the transfer agent
for the Series B Preferred Stock (or the records of the Corporation, if it
serves as its own transfer agent). On or before the date fixed for
conversion, each holder of shares of Series B Preferred Stock shall surrender
his or its certificate or certificates for all such shares to the Corporation
at the place designated in such notice, and shall thereafter receive
certificates for the number of shares of Common Stock to which such holder is
entitled pursuant to this Section 5. On the date fixed for conversion, all
rights with respect to the Series B Preferred Stock so converted, including
the rights, if any, to receive notices and vote, will terminate, except only
the rights of the holders thereof, upon surrender of their certificate or
certificates therefor, to receive (i) certificates for the number of shares
of Common Stock into which such Series B Preferred Stock has been converted,
(ii) payments of any accrued but unpaid dividends in accordance with
Subsection 4(d)(iv) and (iii) payments in lieu of any fractional shares
pursuant to Subsection 4(c). If so required by the Corporation, certificates
surrendered for conversion shall be endorsed or accompanied by written
instrument or instruments of transfer, in form satisfactory to the
Corporation, duly executed by the registered holder or by his or its attorney
duly authorized in writing. As soon as practicable after the date of such
mandatory conversion and the surrender of the certificate or certificates
for Series B Preferred Stock, the Corporation shall cause to be issued and
delivered to such holder, or on his or its written order, a certificate or
certificates for the number of full shares of Common Stock issuable on such
conversion in accordance with the provisions hereof and cash as provided in
Subsection 4(c) in respect of any fraction of a share of Common Stock
otherwise issuable upon such conversion.
(c) All certificates evidencing shares of Series B Preferred Stock which are
required to be surrendered for conversion in accordance with the provisions
hereof shall, from and after the date such certificates are so required to be
surrendered, be deemed to have been retired and cancelled and the shares of
Series B Preferred Stock represented thereby converted into Common Stock for
all purposes, notwithstanding the failure of the holder or holders thereof
to surrender such certificates on or prior to such date. The Corporation may
thereafter take such appropriate action as may be necessary to reduce the
authorized Series B Preferred Stock accordingly.
6. MANDATORY REDEMPTION.
(a) The Corporation will, subject to the conditions set forth in Subsection
6(b) below, on the date ten years after the Series B Original Issue Date (the
"Series B Redemption Date"), redeem from each holder of shares of Series B
Preferred Stock, at a price per share equal to the Series B Preference, plus
an amount equal to all accrued but unpaid dividends thereon (the "Series B
Redemption Price"), all of the shares of Series B Preferred Stock held by
such holder on the Series B Redemption Date.
(b) If the funds of the Corporation legally available for redemption of
Series B Preferred Stock on the Series B Redemption Date are insufficient to
redeem all of the shares of Series B Preferred Stock then outstanding, those
funds which are legally available will be used to redeem the maximum
possible number of such shares of Series B Preferred Stock ratably on the
basis of the number of shares of Series B Preferred Stock which would be
redeemed on such date if the funds of the Corporation legally available
therefor had been sufficient to redeem all shares of Series B Preferred
Stock. At any time thereafter when additional funds of the Corporation
become legally available for the redemption of Series B Preferred Stock,
such funds will be used, after the end of the next succeeding fiscal quarter
(also referred to as a "Series B Redemption Date"), to redeem the balance of
the shares, ratably on the basis set forth in the preceding sentence.
(c) The Corporation shall provide notice of any redemption of Series B
Preferred Stock pursuant to this Section 6 specifying the time and place of
redemption and the Series B Redemption Price, by first class or registered
mail, postage prepaid, to each holder of record of Series B Preferred Stock
at the address for such holder last shown on the records of the transfer
agent therefor (or the records of the Corporation, if it serves as its own
transfer agent), not more than 60 nor less than 30 days prior to the date on
which such redemption is to be made. If less than all Series B Preferred
Stock owned by such holder is then to be redeemed, the notice will also
specify the number of shares which are to be redeemed. Upon mailing any
such notice of redemption, the Corporation will become obligated to redeem
at the time of redemption specified therein all Series B Preferred Stock
specified therein (other than such shares of Series B Preferred Stock as are
duly converted pursuant to Section 4 or Section 5 prior to the close of
business on the fifth Trading Day preceding the Series B Redemption Date).
In case less than all Series B Preferred Stock represented by any certificate
is redeemed in any redemption pursuant to this Section 6, a new certificate
will be issued representing the unredeemed Series B Preferred Stock to the
holder thereof.
(d) No share of Series B Preferred Stock is entitled to any dividends declared
after its Series B Redemption Date, and on such Series B Redemption Date all
rights of the holder of such share as a stockholder of the Corporation by
reason of the ownership of such share will cease, except the right to receive
the Series B Redemption Price of such share, without interest, upon
presentation and surrender of the certificate representing such share, and
such share will not from and after such Series B Redemption Date be deemed
to be outstanding.
(e) Any Series B Preferred Stock redeemed pursuant to this Section 6 will be
cancelled and will not under any circumstances be reissued, sold or
transferred and the Corporation may from time to time take such appropriate
action as may be necessary to reduce the authorized Series B Preferred Stock
accordingly.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designation
to be duly executed by its Chief Executive Officer and attested by its
Assistant Secretary, and its corporate seal to be affixed this 27th day of
October, 1987.
IOMEGA CORPORATION
By: /s/ Michael J. Kucha
- -----------------------------
Michael J. Kucha
Chief Executive Officer
Attest:
/s/ Gwenn Newbold
- -----------------------------
Gwenn Newbold
Assistant Secretary
[Corporate Seal]
CERTIFICATE OF DESIGNATIONS
of
SERIES C JUNIOR PARTICIPATING PREFERRED STOCK
of
IOMEGA CORPORATION
- ------------------------------
Iomega Corporation, a corporation organized and existing under the General
Corporation Law of the State of Delaware (hereinafter called the
"Corporation"), pursuant to the authority conferred on the Board of
Directors of the Corporation by the Restated Certificate of Incorporation,
as amended, and in accordance with the provisions of Section 151 of the
General Corporation Law of the State of Delaware, hereby certifies that the
following resolution was adopted by the Board of Directors of the Corporation
at a meeting duly called and held on July 28, 1989:
RESOLVED, that pursuant to the authority expressly granted to and vested in
the Board of Directors of this Corporation in accordance with the provisions
of its Restated Certificate of Incorporation, as amended, there is hereby
created a series of preferred stock, $.01 par value (the "Preferred Stock"),
of the Corporation to be designated as "Series C Junior Participating
Preferred Stock"; and, subject to the limitations provided by law and by the
Restated Certificate of Incorporation, the powers, preferences and relative,
participating, optional or other rights of, and the qualifications,
limitations or restrictions upon, the Series C Junior Participating Preferred
Stock shall be as follows:
SERIES C JUNIOR PARTICIPATING PREFERRED STOCK:
1. DESIGNATION AND AMOUNT. The shares of such series shall be designated as
"Series C Junior Participating Preferred Stock" (the "Series C Preferred
Stock") and the number of shares constituting the Series C Preferred Stock
shall be 250,000. Such number of shares shall be increased or decreased by
resolution of the Board of Directors of the Corporation (hereinafter, the
"Board of Directors" or the "Board"); PROVIDED, that no decrease shall reduce
the number of shares of Series C Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series C Preferred Stock.
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 C Preferred Stock with respect to dividends, the holders of shares of
Series C Preferred Stock, in preference to the holders of Common Stock, par
value $.03 1/3 per share (the "Common Stock"), of the Corporation, and of
any other security ranking junior to the Series C Preferred Stock as to the
payment of dividends, shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds of the Corporation legally available
for the payment of dividends, quarterly dividends payable in cash on March
31, June 30, September 30 and December 31 in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on the
first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series C Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (i) $1 or (ii) subject
to the provision for adjustment hereinafter set forth, 100 times the aggregate
per share amount of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions,
other than a dividend payable in shares of Common Stock or a subdivision of
the outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock since the immediately preceding Quarterly
Dividend Payment Date or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of Series
C Preferred Stock. In the event the Corporation shall at any time declare
or pay any dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision, combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to which holders
of shares of Series C Preferred Stock were entitled immediately prior to such
event under clause (ii) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on the Series C
Preferred Stock as provided in paragraph (a) of this Section 2 immediately
after it declares a dividend or distribution on the Common Stock (other than
a dividend payable in shares of Common Stock) and the Corporation shall pay
such dividend or distribution on the Series C Preferred Stock before the
dividend or distribution declared on the Common Stock is paid or set apart;
provided that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $1 per share on the Series C Preferred Stock shall nevertheless
be payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding shares
of Series C Preferred Stock from the Quarterly Dividend Payment date next
preceding the date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the
date of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the determination
of holders of shares of Series C Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in either
of which events such dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment 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 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 C
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.
3. VOTING RIGHTS. The holders of shares of Series C Preferred Stock shall
have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each share
of Series C Preferred Stock shall entitle the holder thereof to 100 votes on
all matters submitted to a vote of the stockholders of the Corporation. In
the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the number of votes per share to which holders of shares of
Series C Preferred Stock were entitled immediately prior to such event shall
be adjusted by multiplying such number by a fraction, the numerator of which
is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(b) Except as otherwise provided herein, in the Certificate of Incorporation
or by law, the holders of shares of Series C 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.
(c) (i) If any time dividends on any Series C Preferred Stock shall be in
arrears in an amount equal to six quarterly dividends thereon, the holders
of the Series C Preferred Stock, voting as a separate series from all other
series of Preferred Stock and classes of capital stock, shall be entitled to
elect two members of the Board of Directors in addition to any Directors
elected by any other series, class or classes of securities and the authorized
number of Directors will automatically be increased by two. Promptly
thereafter, the Board of Directors of this Corporation shall, as soon as may
be practicable, call a special meeting of holders of Series C Preferred Stock
for the purpose of electing such members of the Board of Directors. Said
special meeting shall in any event be held within 45 days of the occurrence of
such arrearage.
(ii) During any period when the holders of Series C Preferred Stock, voting
as a separate series, shall be entitled and shall have exercised their right
to elect two Directors, then and during such time as such right continues (A)
the then authorized number of Directors shall be increased by two, and the
holders of Series C Preferred Stock, voting as a separate series, shall be
entitled to elect the additional Director so provided for, and (B) each such
additional Director shall not be a member of any existing class of the Board
of Directors, but shall serve until the next annual meeting of stockholders
for the election of Directors, or until his successor shall be elected and
shall qualify, or until his right to hold such office terminates pursuant to
the provisions of this paragraph (c).
(iii) A Director elected pursuant to the terms hereof may be removed with or
without cause by the holders of Series C Preferred Stock entitled to vote in
an election of such Director.
(iv) If, during any interval between annual meetings of stockholders for the
election of Directors and while the holders of Series C Preferred Stock shall
be entitled to elect two Directors, there is no such Director in office by
reason of resignation, death or removal, then, promptly thereafter, the Board
of Directors shall cause a special meeting of the holders of Series C
Preferred Stock for the purpose of filling such vacancy and such vacancy
shall be filled at such special meeting. Such special meeting shall in any
event be held within 45 days of the occurrence of such vacancy.
(v) At such time as the arrearage is fully cured, and all dividends
accumulated and unpaid on any shares of Series C Preferred Stock outstanding
are paid, and, in addition thereto, at least one regular dividend has been
paid subsequent to curing such arrearage, the term of office of any Director
elected pursuant to this paragraph (c), or his successor, shall automatically
terminate, and the authorized number of Directors shall automatically decrease
by two, the rights of the holders of the shares of the Series C Preferred
Stock to vote as provided in this paragraph (c) shall cease, subject to
renewal from time to time upon the same terms and conditions, and the holders
of shares of the Series C Preferred Stock shall have only the limited voting
rights elsewhere herein set forth.
(d) Except as set forth herein, or as otherwise provided by law, holders of
Series C Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for taking any corporate action.
4. CERTAIN RESTRICTIONS.
(a) Whenever quarterly dividends or other dividends or distributions payable
on the Series C Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions,
whether or not declared, on shares of Series C Preferred Stock outstanding
shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any shares
of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series C Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series C Preferred Stock,
except dividends paid ratably on the Series C Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any
stock ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series C Preferred Stock, provided that the Corporation
may at any time redeem, purchase or otherwise acquire shares of any such
junior stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or winding up)
to the Series C Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any shares of
Series C Preferred Stock, or any shares of stock ranking on a parity with the
Series C Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative
rights and preferences of the respective series and classes, shall determine
in good faith will result in fair and equitable treatment among the
respective series or classes.
(b) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (a) of this Section
4, purchase or otherwise acquire such shares at such time and in such manner.
5. REACQUIRED SHARES. Any shares of Series C Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in
the Certificate of Incorporation, or in any other Certificate of Designations
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) Upon any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (i) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding
up) to the Series C Preferred Stock unless, prior thereto, the holders of
shares of Series C Preferred Stock shall have received $100 per share, plus
an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, provided that the
holders of shares of Series C Preferred Stock shall be entitled to receive
an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of shares of Common Stock, or (ii) to the
holders of shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series C Preferred
Stock, except distributions made ratably on the Series C 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.
(b) Neither the consolidation, merger or other business combination of the
Corporation with or into any other corporation nor the sale, lease, exchange
or conveyance of all or any part of the property, assets or business of the
Corporation shall be deemed to be a liquidation, dissolution or winding up
of the Corporation for purposes of this Section 6.
(c) In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the aggregate amount to which holders of shares
of Series C Preferred Stock were entitled immediately prior to such event
under the proviso in clause (i) of paragraph (a) of this Section 6 shall be
adjusted by multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
7. CONSOLIDATION, MERGER, ETC. Notwithstanding anything to the contrary
contained herein, in case the Corporation shall enter into any consolidation,
merger, combination or other transaction in which the shares of Common Stock
are exchanged for or changed into other stock or securities, cash and/or any
other property, then in any such case each share of Series C Preferred Stock
shall at the same time be similarly exchanged or changed into an amount per
share, subject to the provision for adjustment hereinafter set forth, equal
to 100 times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which each
share of Common Stock is changed or exchanged. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision, combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the amount
set forth in the preceding sentence with respect to the exchange or change of
shares of Series C Preferred Stock shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior
to such event.
8. NO REDEMPTION. The shares of Series C Preferred Stock shall not be
redeemable.
9. RANK. The Series C Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets, junior to all series of
any other class of the Preferred Stock issued either before or after the
issuance of the Series C Preferred Stock, unless the terms of any such series
shall provide otherwise.
10. AMENDMENT. The Certificate of Incorporation of the Corporation shall
not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series C Preferred Stock so as
to affect them adversely without the affirmative vote of the holders of a
majority of the then outstanding shares of Series C Preferred Stock, voting
as a single class.
11. FRACTIONAL SHARES. Series C Preferred Stock may be issued in fractions
of a share which shall entitle the holder, in proportion to such holder's
fractional shares, to exercise voting rights, receive dividends, participate
in distributions and have the benefit of all other rights of holders of
Series C Preferred Stock.
IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf of
the Corporation by its President and Chief Executive Officer and attested by
its Secretary this 7th day of August, 1989.
IOMEGA CORPORATION
By: /s/ Fred Wenninger
- ---------------------------
Name: Fred Wenninger
Title: President and Chief
Executive Officer
Attest:
/s/ Paul D. Slack
- -------------------------
Paul D. Slack
Title: Secretary
CERTIFICATE OF AMENDMENT
TO
RESTATED CERTIFICATE OF INCORPORATION
0F
IOMEGA CORPORATION
IOMEGA CORPORATION (the "Corporation"), a corporation originally incorporated
under the General Corporation law of the State of Delaware, under the name
"Databyte Corporation," on April 2, 1980, does hereby certify as follows:
1. The Restated Certificate of Incorporation of the Corporation, as filed
with the Delaware Secretary of State on July 18, 1983, as amended to date,
is hereby further amended by the addition of a new Article TENTH and Article
ELEVENTH, which shall read in their entirety as follows:
TENTH: This Article is inserted for the management of the business and for
the conduct of the affairs of the Corporation.
SECTION 1. NUMBER OF DIRECTORS. The number of directors of the Corporation
shall not be less than three. The exact number of directors within the
limitations specified in the preceding sentence shall be fixed from time to
time pursuant to a resolution adopted by the Board of Directors.
SECTION 2. CLASSES OF DIRECTORS. The Board of Directors shall be and is
divided into three classes: Class I, Class II and Class III. No one class
shall have more than one director more than any other class. If a fraction is
contained in the quotient arrived at by dividing the designated number of
directors by three, then, if such fraction is one-third, the extra director
shall be a member of Class III, and if such fraction is two-thirds, one of the
extra directors shall be a member of Class III and one of the extra directors
shall be a member of Class II, unless otherwise provided from time to time by
resolution adopted by the Board of Directors.
SECTION 3. ELECTION OF DIRECTORS. Elections of directors need not be by
written ballot except as and to the extent provided in the By-laws of the
Corporation.
SECTION 4. TERMS OF OFFICE. Each director shall serve for a term ending on
the date of the third annual meeting following the annual meeting at which
such director was elected; PROVIDED that each initial director in Class I
shall serve for a term ending on the date of the annual meeting next following
the end of the Corporation's 1990 fiscal year; and each initial director in
Class II shall serve for a term ending on the date of the annual meeting next
following the end of the Corporation's 1991 fiscal year; and PROVIDED FURTHER,
that the term of each director shall be subject to the election and
qualification of his/her successor and to his/her earlier death, resignation
or removal.
SECTION 5. ALLOCATION OF DIRECTORS AMONG CLASSES IN THE EVENT OF INCREASES
OR DECREASES IN THE NUMBER OF DIRECTORS. In the event of any increase or
decrease in the authorized number of directors, (i) each director then
serving as such shall nevertheless continue as a director of the class of
which he/she is a member and (ii) the newly created or eliminated
directorships resulting from such increase or decrease shall be apportioned
by the Board of Directors among the three classes of directors so as to
ensure that no one class has more than one director more than any other
class. To the extent possible, consistent with the foregoing rule, any
newly created directorships shall be added to those classes whose terms of
office are to expire at the latest dates following such allocation, and any
newly eliminated directorships shall be subtracted from those classes whose
terms of office are to expire at the earliest dates following such
allocation, unless otherwise provided from time to time by resolution
adopted by the Board of Directors.
SECTION 6. QUORUM; ACTION AT MEETING. A majority of the directors at any
time in office shall constitute a quorum for the transaction of business.
In the event one or more of the directors shall be disqualified to vote at
any meeting, then the required quorum shall be reduced by one for each such
director so disqualified, provided that in no case shall less than one-third
of the number of directors fixed pursuant to Section 1 above constitute a
quorum. If at any meeting of the Board of Directors there shall be less
than such a quorum, a majority of those present may adjourn the meeting from
time to time. Every act or decision done or made by a majority of the
directors present at a meeting duly held at which a quorum is present shall
be regarded as the act of the Board of Directors unless a greater number is
required by law, by the By-laws of the Corporation or by this Certificate of
Incorporation.
SECTION 7. REMOVAL. Any director or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of the shares
then entitled to vote at an election of directors; provided that, if and for
so long as the Board of Directors is classified pursuant to Section 141(d) of
the Delaware General Corporation Law, stockholders may effect such removal
only for cause, unless this Certificate of Incorporation otherwise provides.
SECTION 8. VACANCIES. Unless and until filled by the stockholders, any
vacancy in the Board of Directors, however occurring, including a vacancy
resulting from an enlargement of the Board, may be filled by a vote of a
majority of the directors then in office, although less than a quorum, or by
a sole remaining director. A director elected to filled a vacancy shall be
elected to hold office until the next election of the class for which such
director shall have chosen, subject to the election and qualification of
his/her successor and to his/her earlier death, resignation or removal.
SECTION 9. AMENDMENTS. Notwithstanding any other provisions of law, this
Certificate of Incorporation or the By-laws of the Corporation, and
notwithstanding the fact that a lesser percentage may be specified by law,
the affirmative vote of the holders of at least eighty percent (80%) of the
votes which all of the stockholders would be entitled to cast at an annual
election of directors or class of directors shall be required to amend or
repeal, or to adopt any provision inconsistent with, this Article Tenth.
ELEVENTH: Any action which is required to be taken or which may be taken at
any annual or specified meeting of stockholders of the Corporation may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders
of all of the outstanding shares of stock that would be entitled to vote
thereon at a meeting of stockholders. Notwithstanding any other provisions of
law, this Certificates of Incorporation or the By-laws of the Corporation,
and notwithstanding the fact that a lesser percentage may be specified by law,
the affirmative vote of the holders of at least eighty percent (80%) of the
votes which all of the stockholders would be entitled to cast at an annual
election of directors or class of directors shall be required to amend or
repeal, or to adopt any provision inconsistent with, this Article Eleventh.
2. The foregoing amendments to the Corporation's Restated Certificate of
Incorporation were duly adopted by the Board of Directors and the
stockholders of the Corporation in accordance with Section 242 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be executed and acknowledged as set forth below on this 24th day
of April, 1990.
IOMEGA CORPORATION
By: /s/ Fred Wenninger
- --------------------------------
Fred Wenninger
President and Chief Executive
Officer
Attest: /s/ Paul D. Slack
--------------------------------
Paul D. Slack
Senior Vice President
Administration and Secretary
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
IOMEGA CORPORATION
Pursuant to Section 242 of the
General Corporation Law of
the State of Delaware
- ------------------------------
IOMEGA CORPORATION (the "Corporation"), a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
does hereby certify as follows:
1. The Restated Certificate of Incorporation of the Corporation, as filed
with the Delaware Secretary of State on July 18, 1983, as amended to date,
is hereby further amended by (i) deleting Article TENTH in its entirety and
(ii) renumbering Article ELEVENTH as Article TENTH.
2. The foregoing amendment to the Corporation's Restated Certificate of
Incorporation was duly adopted by the Board of Directors and the Stockholders
of the Corporation in accordance with Section 242 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this Certificate of Amendment to be signed by its
President and attested by its Secretary on this 20th day of April, 1993.
IOMEGA CORPORATION
By: /s/ Fred Wenninger
- --------------------------------
Fred Wenninger
President and Chief Executive Officer
Attest: /s/ Paul D. Slack
--------------------------------
Paul D. Slack
Senior Vice President
Administration and Secretary
[Corporate Seal]
IOMEGA CORPORATION
CERTIFICATE OF DECREASE
OF NUMBER OF SHARES OF PREFERRED STOCK
DESIGNATED AS
SERIES A CONVERTIBLE PREFERRED STOCK
AND SERIES B CONVERTIBLE PREFERRED STOCK
Iomega Corporation, a Delaware corporation (the "Corporation"), pursuant to
authority conferred upon the Board of Directors of the Corporation by the
Corporation's Restated Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), and in accordance with the provisions of
Section 151(g) of the General Corporation Law of the State of Delaware (the
"Delaware Law"), certifies that the Board of Directors of the Corporation,
by unanimous written consent in accordance with Section 141(f) of the
Delaware Law, duly adopted the following resolutions:
"RESOLVED: That no shares of the Corporation's Series A Convertible
Preferred Stock (the "Series A Preferred Stock") are outstanding and no
shares of Series A Preferred Stock will be issued subject to the Certificate
of Designation previously filed with respect to such series (the "Series A
Certificate of Designation"); and that the proper officers of the Corporation
be and hereby are authorized and directed in the name and on behalf of the
Corporation to execute and file a certificate with the Secretary of State of
the State of Delaware pursuant to Section 151(g) of the Delaware Law setting
forth the text of this resolution, upon the filing and effectiveness of which
all matters set forth in the Series A Certificate of Designation shall be
deemed to have been eliminated from the Certificate of Incorporation and the
1,200,000 shares of Preferred Stock previously designated as Series A
Preferred Stock shall resume their status as undesignated shares of Preferred
Stock available for future issuance in accordance with the Certificate of
Incorporation.
RESOLVED: That no shares of the Corporation's Series B Convertible
Preferred Stock (the "Series B Preferred Stock") are outstanding and no shares
of Series B Preferred Stock will be issued subject to the Certificate of
Designation previously filed with respect to such series (the "Series B
Certificate of Designation"); and that the proper officers of the Corporation
be and hereby are authorized and directed in the name and on behalf of the
Corporation to execute and file a certificate with the Secretary of State of
the State of Delaware pursuant to Section 151(g) of the Delaware Law setting
forth the text of this resolution, upon the filing and effectiveness of which
all matters are set forth in the Series B Certificate of Designation shall be
deemed to have been eliminated from the Certificate of Incorporation and the
250,000 shares of Preferred Stock previously designated as Series B Preferred
Stock shall resume their status as undesignated shares of Preferred Stock
available for future issuance in accordance with the Certificate of
Incorporation."
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this Certificate to be signed by its President this 14th
day of December, 1995.
IOMEGA CORPORATION
By: /s/ Kim B. Edwards
- -------------------------------
President
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
IOMEGA CORPORATION
PURSUANT TO SECTION 242 OF THE
GENERAL CORPORATION OF LAW OF
THE STATE OF DELAWARE
IOMEGA CORPORATION (the "Corporation"), a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
does hereby certify as follows:
1. The Restated Certificate of Incorporation of the Corporation, as filed
with the Delaware Secretary of State on July 18, 1983, as amended to date,
is hereby further amended by deleting the first paragraph of Article FOURTH
in its entirety and replacing it with the following paragraph:
"FOURTH. The total number of shares of capital stock of all classes which
the Corporation shall have authority to issue is 155,000,000 consisting of
150,000,000 shares of Common Stock, $.03 1/3 par value per share, and
5,000,000 shares of Preferred Stock, $.01 par value per share."
2. The foregoing amendment to the Corporation's Restated Certificate of
Incorporation was duly adopted by the Board of Directors and the Stockholders
of the Corporation in accordance with Section 242 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this Certificate of Amendment to be signed by its President
on this 26th day of January, 1996.
IOMEGA CORPORATION
By: /s/ Kim B. Edwards
- -------------------------------
Kim B. Edwards
President and Chief Executive Officer
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
IOMEGA CORPORATION
Pursuant to Section 242
of the General Corporation Law of
the State of Delaware
Iomega Corporation (the "Corporation"), a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
does hereby certify as follows:
1. The Corporation's Restated Certificate of Incorporation, as filed with the
Delaware Secretary of State on July 18, 1993, as amended to date, is hereby
further amended as follows by deleting the first paragraph of Article FOURTH
in its entirety and replacing it with the following paragraph:
"FOURTH. The total number of shares of capital stock of all classes which the
Corporation shall have authority to issue is 405,000,000, consisting of
400,000,000 shares of Common Stock, $.03 1/3 par value per share, and
5,000,000 shares of Preferred Stock, $.01 par value per share."
2. The foregoing amendment to the Corporation's Restated Certificate of
Incorporation was duly adopted by the Board of Directors and the stockholders
of the Corporation in accordance with Section 242 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment
to be signed by its President this 22nd day of April, 1997.
IOMEGA CORPORATION
By: /s/ Kim B. Edwards
- -------------------------------
Kim B. Edwards
President and Chief Executive Officer
Exhibit 5
Hale and Dorr LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * FAX 617-526-5000
May 1, 1997
Iomega Corporation
1821 West 4000 South
Roy, Utah 84067
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
This opinion is furnished to you in connection with a Registration Statement
on Form S-8 (the "Registration Statement") filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), for the registration of 6,000,000 shares of
Common Stock, $.03 1/3 par value per share (the "Shares"), of Iomega
Corporation, a Delaware corporation (the "Company"), issuable under the
Company's 1997 Stock Incentive Plan (the "Plan").
We have examined the Restated Certificate of Incorporation and By-Laws of the
Company, and all amendments thereto, and originals, or copies certified to our
satisfaction, of all pertinent records of the meetings of the directors and
stockholders of the Company, the Registration Statement and such other
documents relating to the Company as we have deemed material for the purposes
of this opinion.
In examination of the foregoing documents, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to
us as copies, the authenticity of the originals of such latter documents and
the legal competence of all signatories to such documents.
We express no opinion herein as to the laws of any state or jurisdiction
other than the state laws of the Commonwealth of Massachusetts, the Delaware
General Corporation Law statute and the federal laws of the United States of
America.
Based upon and subject to the foregoing, we are of the opinion that the Shares
have been duly authorized for issuance and the Shares, when issued and paid
for in accordance with the terms of the Plan, will be validly issued, fully
paid and nonassessable.
It is understood that this opinion is to be used only in connection with the
offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such
consent, we do not hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Very truly yours,
/S/HALE AND DORR LLP
HALE AND DORR LLP
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our reports dated
January 24, 1997 included or incorporated by reference in Iomega Corporation's
Annual Report on Form 10-K for the fiscal year ended December 31, 1996 and to
all references to our Firm included in this registration statement.
/S/ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Salt Lake City, Utah
April 30, 1997
