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EXHIBIT 3.1.1
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND OTHER RIGHTS
OF THE
SERIES A PREFERRED STOCK
OF
PICTURETEL CORPORATION
Pursuant to Section 151(g) of the
Delaware General Corporations Law
Picturetel Corporation, a corporation organized and existing under the
laws of the State of Delaware (the "CORPORATION"), hereby certifies that,
pursuant to the authority conferred upon the Board of Directors of the
Corporation (the "BOARD OF DIRECTORS") by the Certificate of Incorporation of
the Corporation, as amended (the "CERTIFICATE OF INCORPORATION"), and in
accordance with Section 151(g) of the Delaware General Corporations Law, the
Board of Directors on January 18, 1999 duly adopted the following resolution,
which resolution remains in full force and effect as of the date hereof:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors and in accordance with the provisions of the Certificate of
Incorporation, there is hereby created and authorized a series of Preferred
Stock, par value $0.01 per share, of the Corporation, and the designation and
amount thereof and the powers, preferences and rights of the shares of such
series, and the qualifications, limitations or restrictions thereof are as
follows:
SERIES A PREFERRED STOCK
SECTION 1. DESIGNATION. The series of Preferred Stock hereby created
shall be designated and known as the "SERIES A PREFERRED STOCK." The number of
shares constituting such series shall be Six Million (6,000,000).
SECTION 2. LIQUIDATION RIGHTS.
2.1 In the event of any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Corporation, each holder of shares of Series
A Preferred Stock shall be entitled to receive on the date of payment of any
liquidation amount to the holders of the Corporation's common stock, par value
$0.01 per share ("COMMON STOCK"), a payment equal to the purchase price
originally paid for the Series A Preferred Stock upon issuance (the "PURCHASE
PRICE") together with any declared but unpaid dividends therein, before any
payment is made to the holders of common stock (the "PREFERENCE AMOUNT"). After
the full Preference Amount on all outstanding shares of the Series A Preferred
Stock has been paid,
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any remaining funds and assets of the Corporation legally available for
distribution to stockholders shall be distributed pro rata among the holders of
the Common Stock. If the Corporation has insufficient assets to permit payment
of the Preference Amount in full to all Series A Preferred Stock stockholders,
then the assets of the Corporation shall be distributed ratably to the holders
of the Series A Preferred Stock in proportion to the Preference Amount each such
holder would otherwise be entitled to receive.
2.2 A merger or consolidation of the Corporation, or sale of the
Corporation's Common Stock (including, without limitation, pursuant to a tender
offer) in any single transaction or series of related transactions, in any such
case in which its stockholders do not retain a majority of the voting power in
the surviving corporation, or a sale of all or substantially all the
Corporation's assets, shall each be deemed to be a liquidation, dissolution or
winding up of the Corporation.
SECTION 3. CONVERSION.
3.1. VOLUNTARY CONVERSION. Each share of Series A Preferred Stock will
be convertible, at the option of the holder thereof, at the office of the
Corporation or any transfer agent for such shares, into Common Stock. The number
of shares of Common Stock into which each share of Series A Preferred Stock will
be converted will be equal to the Purchase Price of such share divided by the
Conversion Price (as hereinafter defined) of such share. The initial Conversion
Price for each share of Series A Preferred Stock shall be an amount equal to the
Purchase Price of such share. The Conversion Price shall be subject to
adjustment as provided in Section 3.3.
3.2. MECHANICS OF CONVERSION. No fractional shares of Common Stock shall
be issued upon conversion of 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 fair market value of one
share of Common Stock, as reasonably determined in good faith by the Board of
Directors. Before any holder of Series A Preferred Stock shall be entitled to
receive certificates for the shares of Common Stock issued upon conversion, such
holder shall surrender the certificate or certificates for the shares of Series
A Preferred Stock being converted, duly endorsed, at the principal office of the
Corporation and shall state therein its name or the name, or names, of its
nominees in which it wishes the certificate or certificates for shares of Common
Stock to be issued. The Corporation shall, as soon as practicable thereafter,
issue and deliver at such office to such holder of Series A Preferred Stock or
to such holder's nominee or nominees, a certificate or certificates for the
number of shares of Common Stock to which such holder or such holder's nominee
shall be entitled as aforesaid, together with cash in lieu of any fraction of a
share of Common Stock. Subject to the foregoing, such conversion shall be deemed
to have been made immediately and upon surrender of the certificate representing
the shares of Series A Preferred Stock to be converted in the case of a
voluntary conversion pursuant to Section 3.1. The Person or Persons entitled to
receive the shares of Common Stock issuable upon conversion shall be treated for
all purposes as the record holder or holders of such shares of Common Stock on
such date.
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3.3 ADJUSTMENTS TO CONVERSION PRICE. If the Corporation shall issue
shares of Common Stock to the holders of Common Stock as a dividend or stock
split, or in the event that the Corporation reduces the number of outstanding
shares of Common Stock in a reverse stock split or stock combination, then the
Conversion Price shall be adjusted such that the holders of shares of Series A
Preferred Stock shall receive, upon conversion of the Series A Preferred Stock,
that number of shares of Common Stock that such holder would have owned
following such dividend, stock split, reverse stock split or stock combination
if such conversion had occurred immediately prior to the record date for such
stock split, stock dividend, reverse stock split or stock combination of the
Common Stock, as the case may be. If the Corporation shall issue shares of
Series A Preferred Stock to the holders of Series A Preferred Stock as a stock
dividend or stock split, or in the event that the Corporation reduces the number
of outstanding shares of Series A Preferred Stock in a reverse stock split or
stock combination, then the Conversion Price shall be adjusted such that the
holder of shares of Series A Preferred Stock shall receive, upon conversion of
the Series A Preferred Stock, the number of shares of Common Stock that such
holder would have owned if such conversion had occurred immediately prior to the
record date for such stock split, stock dividend, reverse stock split or stock
combination of the Series A Preferred Stock, as the case may be. In the event of
a reclassification or other similar transaction as a result of which shares of
Common Stock are converted into another security, then the Conversion Price
shall be determined such that the holders of shares of Series A Preferred Stock
shall receive, upon conversion of such Series A Preferred Stock, the number of
such securities that such holder would have owned following such conversion of
the Common Stock into another security if such conversion had occurred
immediately prior to the record date of such reclassification or other similar
transaction. No adjustments with respect to dividends (other than stock
dividends) shall be made upon conversion of any share of Series A Preferred
Stock; PROVIDED, HOWEVER, that if a share of Series A Preferred Stock shall be
converted subsequent to the record date for the payment of a dividend (other
than a stock dividend) or other distribution on shares of Series A Preferred
Stock but prior to such payment, then the registered holder of such share at the
close of business on such record date shall be entitled to receive the dividend
(other than a stock dividend) or other distribution payable on such share on
such date notwithstanding the conversion thereof or the Corporation's default in
payment of the dividend (other than a stock dividend) due on such date.
3.4. COMMON STOCK RESERVED. The Corporation shall reserve and keep
available out of its authorized but unissued Common Stock such number of shares
of Common Stock as shall, at all times, be sufficient for conversion of all
outstanding Series A Preferred Stock.
SECTION 4. DIVIDEND RIGHTS.
4.1 GENERALLY. Until February 18, 2004, the holders of shares of Series
A Preferred Stock will be entitled to receive, if (but only if), when and as
declared by the Board of Directors, out of any funds legally available therefor,
noncumulative dividends at the rate of 6% of the Purchase Price per share per
annum (appropriately adjusted for stock splits and combinations) for each share
of Series A Preferred Stock then held by them. Such dividends may be payable
quarterly or otherwise as the Board of Directors
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may from time to time determine. Dividends may be declared and paid upon shares
of Common Stock or any other senior series of preferred stock in any fiscal year
of the Corporation, but only if dividends are also concurrently declared and
paid on the Series A Preferred Stock in an amount per share equal to: (a) in the
case of a dividend declared on the Common Stock, the amount per share declared
on each such share of Common Stock, (b) in the case of a dividend declared on
senior preferred stock convertible into Common Stock, the amount determined by
dividing the aggregate amount of the dividend declared and paid on all
outstanding shares of such senior preferred stock, divided by the number of
shares of Common Stock such outstanding shares of senior preferred stock are
convertible into as of the record date for such dividend, and (c) in the case of
senior preferred stock that is not convertible into Common Stock, in an amount
determined by the Board of Directors in good faith such that the holders of
Series A Preferred Stock receive an equivalent dividend in such circumstances.
The record date for any such dividend shall be the same record date as set for
holders of Common Stock or senior preferred stock, as the case may be. No right
shall accrue to holders of Series A Preferred Stock by reason of the fact that
dividends on said shares are not declared in any prior year, nor shall any
undeclared or unpaid dividends bear or accrue interest.
4.2 PARTICIPATION WITH COMMON. If any dividend or other distribution
payable in property other the cash is declared on the Common Stock (excluding
any dividend or other distribution for which adjustment to the Conversion Price
is provided by Section 3.3), each holder of Series A Preferred Stock on the
record date for such dividend or distribution shall be entitled to receive on
the date of payment or distribution of such dividend or other distribution the
same property that such holder would have received if on such record date such
holder was the holder of record of the number (including for purposes of this
Section 4 any fraction) of shares of Common Stock into which the shares of
Series A Preferred Stock then held by such holder are convertible.
SECTION 5. VOTING RIGHTS.
5.1. GENERALLY. The holders of shares of Series A Preferred Stock shall
have no voting rights except as otherwise provided in the Corporation's
Certificate of Incorporation or by law.
5.2. OTHER RIGHTS. In addition to any other rights provided by law or in
the Certificate of Incorporation, so long as any shares of Series A Preferred
Stock shall be outstanding, the Corporation shall not, without first obtaining
the affirmative vote or written consent of the holders of not less than a
majority of the outstanding shares of the Series A Preferred Stock, take any
action (including, without limitation, any repeal, amendment or modification to
the Certificate of Incorporation or the Bylaws of the Corporation) that alters
or changes any of the rights, privileges and preferences of the Series A
Preferred Stock.
SECTION 6. RESERVATION OF RIGHTS. Pursuant to the authority vested in it
by the Certificate of Incorporation, the Board of Directors reserves the right
to create and designate from time to time one or more additional series of
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Preferred Stock with powers, designations, preferences and rights that, subject
to the provisions of Section 4.1, are senior, pari passu or junior to the Series
A Preferred Stock.
SECTION 7. SERIES A PREFERRED STOCK. The Series A Preferred Stock shall
not be redeemable.
SECTION 8. NOTICES. In addition to any other notices to which the holders
of Series A Preferred Stock may be entitled pursuant to the Certificate of
Incorporation, the Bylaws of the Corporation, law, contract or otherwise, the
Corporation shall cause to be sent to each holder all written communications
sent generally to the holders of Common Stock. In addition, within two business
days following the public announcement of the establishment of a record date
with respect to any vote, right or other matter relating to holders of the
Corporation's Common Stock, the Corporation shall send, by first class mail, to
each holder of record of Series A Preferred Stock, written notice setting forth
such record date, the vote, right or other matter to which that matter relates,
and all other material facts relating thereto. The Corporation shall cause such
communications to be sent to holders of Series A Preferred Stock concurrently
with, and in the same manner as, the sending of such communications to the
holders of Common Stock.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designations, Preferences and Other Rights to be executed by a duly authorized
officer on January 18, 1999.
PICTURETEL CORPORATION
By: /s/ A.L. Fatum
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Name: A.L. Fatum
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Title: Vice President and CFO
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