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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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
anner 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. 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.
<PAGE>
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
<PAGE>
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.
<PAGE>
ed 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. 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)
<PAGE>
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%)
<PAGE>
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
<PAGE>
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:
<PAGE>
(i) "CONVERSION DATE" shall have the meaning setforth 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
<PAGE>
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
beoutstanding, 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
<PAGE>
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 read-
<PAGE>
justments, (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
<PAGE>
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
<PAGE>
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%)
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
(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.
<PAGE>
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
<PAGE>
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 redemp-
<PAGE>
tion 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.
<PAGE>
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]
<PAGE>
7
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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 CEO
Attest: /s/ Paul D. Slack
--------------------------------
Paul D. Slack
Senior Vice President
Administration and Secretary
[Corporate Seal]
<PAGE>
2
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
<PAGE>
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
<PAGE>
2
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."
<PAGE>
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 CEO
<PAGE>
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
<PAGE>
1
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, 1983, as amended to date, is
hereby further amended by inserting the following new Article ELEVENTH:
"ELEVENTH: 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 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 or as provided in the By-laws of the
Corporation.
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 authorized number of
directors by three, then, if such fraction is one-third, the extra director
shall be a member of Class I, and if such fraction is two-thirds, one of the
extra directors shall be a member of Class I 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.
<PAGE>
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 expiring at the Corporation's annual meeting held in 1998; each
initial director in Class II shall serve for a term expiring at the
Corporation's annual meeting held in 1999; and each initial director in Class
III shall serve for a term expiring at the Corporation's annual meeting held in
2000; PROVIDED, FURTHER, that the term of each director shall continue until the
election and qualification of his successor and shall be subject to his 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 is a
member until the expiration of his current term, subject to his earlier death,
resignation or removal, 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 in accordance with the provisions
of Section 2 above. To the extent possible, consistent with the provisions of
Section 2 above, 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 offices 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
<PAGE>
Section 1 above constitute a quorum. In the absence of a quorum at any such
meeting, a majority of the directors present may adjourn the meeting from time
to time without further notice other than announcement at the meeting, until a
quorum shall be present. 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. Directors of the Corporation may be removed only for
cause by the affirmative vote of the holders of at least two-thirds of the
shares of the capital stock of the Corporation issued and outstanding and
entitled to vote.
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 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 fill a vacancy shall be elected to
hold office until the next election of the class for which such director shall
have been chosen, subject to the election and qualification of his successor and
to his earlier death, resignation or removal.
SECTION 9. AMENDMENTS TO ARTICLE. 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 shares
of capital stock of the Corporation issued and outstanding and entitled to vote
shall be required to amend or repeal, or to adopt any provision inconsistent
with, this Article ELEVENTH."
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.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by the undersigned this 6th day of June, 1997.
IOMEGA CORPORATION
BY: /S/ ROBERT J. SIMMONS
Name: Robert J. Simmons
Title: Treasurer
<PAGE>
CERTIFICATE OF DESIGNATIONS
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
IOMEGA CORPORATION
------------------------------
Iomega Corporation, a corporation organized and existing under the laws
of the State of Delaware (hereinafter called the "Corporation"), hereby
certifies that the following resolution was adopted by the Board of Directors of
the corporation at a meeting duly called and held on July 29, 1999:
RESOLVED: That pursuant to the authority granted to and vested in the
Board of Directors of the Corporation (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the Certificate
of Incorporation, as amended, the Board of Directors hereby creates a series of
Preferred Stock, $.01 par value per share (the "Preferred Stock"), of the
Corporation and hereby states the designation and number of shares, and fixes
the relative rights, preferences and limitations thereof as follows:
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK:
SECTION 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A Preferred
Stock shall be four hundred thousand (400,000). Such number of shares may be
increased or DECREASED BY RESOLUTION OF THE BOARD OF DIRECTORS PRIOR TO
ISSUANCE; PROVIDED, that no decrease shall reduce the number of shares of Series
A Preferred Stock to a number less than the number of shares then outstanding
plus the number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding securities
issued by the Corporation convertible into Series A Preferred Stock.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the Series
A Preferred Stock with respect to dividends, the holders of shares of Series A
Preferred Stock, in preference to the holders of Common Stock, par value $.03
1/3 per share (the "Common Stock"), of the Corporation, and of any other junior
stock, shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds of the Corporation legally available for the payment of
dividends, quarterly dividends payable in cash on the last day of each fiscal
quarter of the Corporation in each year (each such date being referred to herein
as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a share
of Series A Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $10 or (b) subject to the provision for
adjustment hereinafter set forth, 1,000 times the aggregate per share amount of
all cash dividends, and 1,000 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions, other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date or, with respect
to the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event. In the event the Corporation shall
at any time declare or pay any dividend on the Series A Preferred Stock payable
in shares of Series A Preferred Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Series A Preferred Stock (by
reclassification or otherwise than by payment of a dividend in shares of Series
A Preferred Stock) into a greater or lesser number of shares of Series A
Preferred Stock, then in each such case the amount to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event under
clause (b) of the first sentence of this Section 2(A) shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Series A Preferred Stock that were outstanding immediately prior to
such event and the denominator of which is the number of shares of Series A
Preferred Stock outstanding immediately after such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock) and the Corporation
shall pay such dividend or distribution on the Series A 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 $10
per share on the Series A Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
SECTION 3. VOTING RIGHTS. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to 1,000
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 A
Preferred Stock were entitled immediately prior to such event shall be adjusted
by multiplying such number by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event. In the event the Corporation shall
at any time declare or pay any dividend on the Series A Preferred Stock payable
in shares of Series A Preferred Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Series A Preferred Stock (by
reclassification or otherwise than by payment of a dividend in shares of Series
A Preferred Stock) into a greater or lesser number of shares of Series A
Preferred Stock, then in each such case the number of votes per share to which
holders of shares of Series A Preferred Stock were entitled immediately prior to
such event shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Series A Preferred Stock that were
outstanding immediately prior to such event and the denominator of which is the
number of shares of Series A Preferred Stock outstanding immediately after such
event.
(B) Except as otherwise provided herein, in the Certificate of
Incorporation or by law, the holders of shares of Series A Preferred Stock and
the holders of shares of Common Stock and any other capital stock of the
Corporation having general voting rights shall vote together as one class on all
matters submitted to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Preferred Stock shall
be in arrears in an amount equal to six quarterly dividends thereon, the holders
of the Series A 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 the Corporation shall, as soon as may be practicable, call a
special meeting of holders of Series A Preferred Stock for the purpose of
electing such members of the Board of Directors. Such 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 A 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 A Preferred Stock, voting as a separate series,
shall be entitled to elect the additional Directors 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 Section 3(C).
(iii) A Director elected pursuant to the terms hereof may be
removed with or without cause by the holders of Series A 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 A
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 call a special meeting of the holders
of Series A 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 A 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 Section 3(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 A Preferred Stock to vote as provided in this Section 3(C) shall cease,
subject to renewal from time to time upon the same terms and conditions, and the
holders of shares of the Series A 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 A Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for taking any corporate
action.
SECTION 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions,
on any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except dividends paid ratably on the Series A Preferred Stock
and all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock,
provided that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for shares of any stock of
the Corporation ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of stock ranking on a
parity with the Series A Preferred Stock, except in accordance with a purchase
offer made in writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
SECTION 5. REACQUIRED SHARES. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, or in any other Certificate of Designations
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(A) Upon any liquidation, dissolution or winding up of the Corporation,
no distribution shall be made (1) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up)
to the Series A Preferred Stock unless, prior thereto, the holders of shares of
Series A Preferred Stock shall have received $1000 per share, plus an amount
equal to accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, provided that the holders of shares of
Series A Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to
1,000 times the aggregate amount to be distributed per share to holders of
shares of Common Stock, or (2) to the holders of shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, except distributions made ratably on the
Series A Preferred Stock and all such parity stock in proportion to the total
amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up.
(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 A
Preferred Stock were entitled immediately prior to such event under the proviso
in clause (1) 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. In the event the Corporation shall
at any time declare or pay any dividend on the Series A Preferred Stock payable
in shares of Series A Preferred Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Series A Preferred Stock (by
reclassification or otherwise than by payment of a dividend in shares of Series
A Preferred Stock) into a greater or lesser number of shares of Series A
Preferred Stock, then in each such case the aggregate amount to which holders of
shares of Series A Preferred Stock were entitled immediately prior to such event
under the proviso in clause (1) of 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 Series A Preferred Stock that were outstanding immediately
prior to such event and the denominator of which is the number of shares of
Series A Preferred Stock outstanding immediately after such event.
SECTION 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 A
Preferred Stock shall at the same time be similarly exchanged or changed into an
amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 1,000 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 A
Preferred Stock shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event. In
the event the Corporation shall at any time declare or pay any dividend on the
Series A Preferred Stock payable in shares of Series A Preferred Stock, or
effect a subdivision, combination or consolidation of the outstanding shares of
Series A Preferred Stock (by reclassification or otherwise than by payment of a
dividend in shares of Series A Preferred Stock) into a greater or lesser number
of shares of Series A Preferred Stock, then in each such case the amount set
forth in the first sentence of this Section 7 with respect to the exchange or
change of shares of Series A Preferred Stock shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of shares of
Series A Preferred Stock that were outstanding immediately prior to such event
and the denominator of which is the number of shares of Series A Preferred Stock
outstanding immediately after such event.
SECTION 8. NO REDEMPTION. The shares of Series A Preferred Stock shall
not be redeemable.
SECTION 9. RANK. The Series A Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets, junior to all series
of any other class of the Preferred Stock issued either before or after the
issuance of the Series A Preferred Stock, unless the terms of any such series
shall provide otherwise.
SECTION 10. AMENDMENT. At such time as any shares of Series A Preferred
Stock are outstanding, the Certificate of Incorporation, as amended, of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of at
least two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single class.
SECTION 11. FRACTIONAL SHARES. Series A 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 A Preferred Stock.
IN WITNESS WHEREOF, this Certificate of Designations is executed on
behalf of the Corporation by its Chief Executive Officer this 29th day of July,
1999.
IOMEGA CORPORATION
BY: /S/ JODIE K. GLORE
NAME: JODIE K. GLORE
TITLE: PRESIDENT AND CEO
<PAGE>
IOMEGA CORPORATION
CERTIFICATE OF ELIMINATION
OF SHARES OF PREFERRED STOCK
DESIGNATED AS
SERIES C JUNIOR PARTICIPATING 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 duly
adopted the following resolution:
"RESOLVED: That no shares of the Corporation's Series C Junior
Participating Preferred Stock (the "Series --------- C Preferred Stock") are
outstanding and no shares of Series C Preferred Stock will be issued subject to
the Certificate of Designation previously filed with respect to such series (the
"Series C 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 C 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 C 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 this Certificate to be
signed by its President this 31st day of May, 2000.
IOMEGA CORPORATION
BY: /S/BRUCE R. ALBERTSON
NAME: BRUCE R. ALBERTSON
TITLE: PRESIDENT AND CHIEF EXECUTIVE OFFICER
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