<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
[X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended January 2, 1998
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission file number 0-16172
COMPUTONE CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
Delaware 23-2472952
- --------------------------------------------------------------------------- -------------------------------------------
<S> <C>
(State or other jurisdiction of incorporation or organization) (IRS Employer Identification Number)
1060 Windward Ridge Parkway, Suite 100, Alpharetta, GA 30005
- ------------------------------------------------------- -----
(Address of principal executive offices) (Zip Code)
</TABLE>
Issuer's telephone number, including area code: (770) 625-0000
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
Yes X No
- ----
APPLICABLE ONLY TO CORPORATE ISSUERS
State the number of shares outstanding of each of the issuer's classes of common
equity, as of the latest practicable date: 7,255,952 shares of common stock as
of February 9, 1998.
Transitional Small Business Disclosure Format (check one): Yes No X
---- -
<PAGE>
INDEX
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements:
Consolidated Balance Sheets as of January 2, 1998
and April 4, 1997 3
Consolidated Statements of Operations for the three months
ended January 2, 1998 and January 3, 1997 4
Consolidated Statements of Operations for the nine months
ended January 2, 1998 and January 3, 1997 5
Consolidated Statements of Cash Flows for the nine months
ended January 2, 1998 and January 3, 1997 6
Notes to Consolidated Financial Statements 7
Item 2. Management's Discussion and Analysis or Plan of Operations for the
three and nine months ended January 2, 1998 8
PART II - OTHER INFORMATION
Item 1. Legal Proceedings 12
Item 2. Changes in Securities 12
Item 3. Defaults Upon Senior Securities 12
Item 4. Submission of Matters to a Vote of Security Holders 12
Item 5. Other Information 13
Item 6. Exhibits and Reports on Form 8-K 13
Signatures 14
Exhibits Index 15
2
<PAGE>
PART I FINANCIAL INFORMATION
Item 1. Financial Statements
Computone Corporation
Consolidated Balance Sheets
(in thousands except par value and number of shares)
<TABLE>
<CAPTION>
January 2, 1998 April 4, 1997
--------------- -------------
(unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 14 $ 88
Receivables, net 2,166 1,896
Inventories, net 4,278 4,600
Prepaid expenses and other 282 170
-------- --------
Total current assets 6,740 6,754
Property, equipment and improvements, net 466 276
Intangible assets, net 600 655
Other 28 90
-------- --------
Total assets $ 7,834 $ 7,775
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable, trade $ 1,794 $ 2,647
Accrued liabilities:
Payroll 88 112
Prepaid sales 0 9
Professional fees 63 171
Other 397 439
Line of credit 663 --
Notes payable to stockholders 350 250
Current maturities of long term debt 89 603
-------- --------
Total current liabilities 3,444 4,231
Notes payable to stockholders 120 120
Long term debt, less current maturities 129 --
-------- --------
Total liabilities 3,693 4,351
Stockholders' Equity
Convertible redeemable preferred stock, $.01 par value;
10,000,000 shares authorized; no shares issued -- --
Common stock, $.01 par value; 25,000,000 shares
authorized; 7,255,633 and 6,712,074 shares outstanding 75 67
Additional paid in capital 45,043 43,031
Accumulated deficit (40,977) (39,674)
-------- --------
Total stockholders' equity 4,141 3,424
-------- --------
Total liabilities and stockholders' equity $ 7,834 $ 7,775
======== ========
</TABLE>
See accompanying notes to the consolidated financial statements.
3
<PAGE>
ITEM 1. Financial Statements (continued)
Computone Corporation
Consolidated Statements of Operations
(in thousands except per share amounts)
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended
January 2, 1998 January 3, 1997
------------------- -------------------
<S> <C> <C>
Revenues:
Product sales $ 1,863 $ 3,477
Expenses:
Cost of products sold 1,824 1,945
Selling, general and administrative 1,338 1,090
Product development 304 312
-------- --------
3,466 3,347
-------- --------
Operating income (loss) (1,603) 130
Other income (expense):
Other, net (50) 23
Interest expense (41) (27)
-------- --------
Income (loss) before income taxes (1,694) 126
Provision for income taxes -- --
-------- --------
Net income (loss) $ (1,694) $ 126
======== ========
Net income (loss) per share - basic (0.22) 0.02
Net income (loss) per share - diluted (0.22) 0.02
Shares used in computing net income (loss) per share - basis 7,672 6,848
Shares used in computing net income (loss) per share - dilutive 7,672 6,848
</TABLE>
See accompanying notes to the consolidated financial statements.
4
<PAGE>
ITEM 1. Financial Statements (continued)
Computone Corporation
Consolidated Statements of Operations
(in thousands except per share amounts)
(unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
January 2, 1998 January 3, 1997
------------------ ------------------
<S> <C> <C>
Revenues:
Product sales $ 8,868 $ 10,006
Expenses:
Cost of products sold 6,054 5,856
Selling, general and administrative 3,377 2,824
Product development 872 851
------------------ ------------------
10,303 9,531
------------------ ------------------
Operating income (loss) (1,435) 475
Other income (expense):
Other, net 247 28
Interest expense (115) (94)
------------------ ------------------
Income (loss) before income taxes (1,303) 409
Provision for income taxes -- --
------------------ ------------------
Net income (loss) $(1,303) $ 409
================== ==================
Net income (loss) per share - basic (0.18) 0.06
Net income (loss) per share - diluted (0.18) 0.06
Shares used in computing net income (loss) per share - basis 7,362 6,848
Shares used in computing net income (loss) per share - dilutive 7,362 6,848
</TABLE>
See accompanying notes to the consolidated financial statements.
5
<PAGE>
Computone Corporation
Consolidated Statements of Cash Flows
(in thousands)
<TABLE>
<CAPTION>
For the nine months ended
-------------------------------------
January 2, 1998 January 3, 1997
--------------- ---------------
(unaudited)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Income (loss) from continuing operations $(1,303) $ 409
Adjustments to reconcile income (loss) from continuing operations
to net cash provided by (used in) continuing operations:
Depreciation and amortization 389 515
Provision for possible losses 154 70
Changes in current assets and current liabilities:
Accounts receivables (363) (1,064)
Inventories 261 (522)
Prepaid expenses and other (112) 4
Accounts payable and accrued liabilities (1,035) (229)
------- -------
Net cash (used in) operating activities (2,009) (817)
------- -------
CASH FLOWS FROM INVESTING ACTIVITIES:
(Increase) decrease in other assets 63 (3)
Capitalization of software costs (185) (105)
Capital expenditures (88) (86)
------- -------
Net cash (used in) investing activities (210) (194)
------- -------
CASH FLOWS FROM FINANCING ACTIVITIES:
Repayment of debt net (500) (429)
Net borrowings under lines of credit 663 --
Net borrowings under term loan 180 --
Net borrowings from affiliates 35 250
Issuance of common stock 1,742 1,418
Exercise of common stock options and warrants 25 4
------- -------
Net cash provided by financing activities 2,145 1,243
------- -------
Net decrease in cash and cash equivalents (74) 232
Cash and cash equivalents, beginning of period 88 143
------- -------
Cash and cash equivalents, end of period $ 14 $ 375
======= =======
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during the year for:
Interest $ 115 94
</TABLE>
See accompanying notes to the consolidated financial statements.
6
<PAGE>
COMPUTONE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION
The consolidated financial statements included in this Form 10-QSB have
been prepared by the Company, without audit, pursuant to the rules and
regulations of the Securities and Exchange Commission. Certain information and
footnote disclosures, normally included in financial statements prepared in
accordance with generally accepted accounting principles, have been condensed,
or omitted, pursuant to such rules and regulations. These consolidated financial
statements should be read in conjunction with the consolidated financial
statements and related notes included in the Company's Form 10-KSB for the year
ended April 4, 1997.
The consolidated financial statements presented herein, as of January
2, 1998 reflect in the opinion of management, all adjustments, consisting only
of normal recurring accruals, necessary for a fair presentation of financial
position and the results of operations for the periods presented. The results of
operations for any interim period are not necessarily indicative of the results
for the full year.
2. INVENTORIES
Inventories, net of a reserve for obsolete, excess and non-salable
items, consisted of the following at January 2, 1998 and April 4, 1997 (in
thousands):
January 2, 1998 April 4, 1997
--------------- -------------
Finished goods $ 1,375 $ 1,740
Work in progress 687 725
Raw materials 2,216 2,135
--------------- ----------------
$ 4,278 $ 4,600
=============== ================
3. INCOME PER SHARE
Earnings per share ("EPS") is computed based on the weighted average
number of common shares, and common stock options and warrants (unless
conversion would have an antidilutive effect on EPS) (using the treasury
method), in accordance with the requirements of FASB Statement of Standards No.
128 Earnings per Share. For purposes of computing EPS, for all periods presented
the numerator is represented by net income or net loss for each respective
period; the denominator for computing basic EPS is represented by the weighted
average number of shares outstanding for each respective period; the denominator
for computing diluted EPS for fiscal 1998 periods presented is the same number
as used in computing basic EPS as the effects of conversion would be
antidilutive.
4. INCOME TAXES
Income taxes are calculated using the liability method specified by
Statement of Financial Accounting Standards No.109 (SFAS 109), "Accounting for
Income Taxes". Management provides a valuation allowance against its deferred
tax assets to the extent that management concludes that it is more likely than
not that the Company will not benefit from the utilization of such deferred tax
assets.
5. DEBT
On June 20, 1997, the Company entered into a financing arrangement with
Heller Financial to provide a term loan in the amount of $254,000, which is
collateralized by the Company's inventory, and a line of credit of up to
$2,500,000, based on the available borrowing base, collateralized by the
Company's accounts receivable. The term loan bears interest at a rate of prime
plus 1.50% and is payable in monthly installments of $4,233 plus accrued
interest for the first thirty-five months with a final monthly payment in the
amount of the entire then outstanding principal plus accrued interest. The line
of credit bears interest at a rate of prime plus 1.25%. At January 2, 1998, the
balance outstanding on the term loan was approximately $179,562 and the balance
under the line of credit was approximately $662,894. The available borrowings
under the line of credit at January 2, 1998 were $102,356. The Company also paid
in full, on June 20, 1997, its outstanding balance to NationsBank, N.A. in the
amount of $447,000.
7
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATIONS
RESULTS OF OPERATIONS
For the Three Months Ended January 2, 1998 Compared to the Three Months Ended
January 3, 1997
The Company reported an operating loss of $1,603,000 and net loss of
$1,694,000 for the three months ended January 2, 1998 compared to operating
income of $130,000 and net income of $126,000 for the comparable three months of
the prior fiscal year. The decrease in income is due primarily to working
capital shortages and subsequent payment delays to the Company's major
outsourcing vendors during the first quarter of the fiscal year which resulted
in the Company's accounts being placed on credit hold with these vendors. After
the Company's accounts were again in good standing, one of these vendors was
unable to procure certain long lead time components in a timely enough manner to
provide the Company with sufficient products to meet its open orders during the
second quarter. The current period's decrease in income is due primarily to the
continued effects of the product mix shortages, the lingering effects of the
lost sales opportunities during the second quarter resulting from the product
shortages and numerous one-time or non-recurring expenses amounting to
approximately $600,000.
Product sales revenue for the quarter ended January 2, 1998 total
approximately $1,863,000 compared to $3,477,000 for the comparable quarter of
the prior fiscal year, a decrease of 46%. This change in product sales revenue
is attributable to the continued effects of the product mix shortages and the
lingering effects of lost sales opportunities during the second quarter
resulting from the product shortages. A significant increase in sales to major
accounts was offset by decreases in sales to North American distributors, OEM's,
VAR's and international customers.
Cost of products sold for the quarter ended January 2, 1998 amounted to
$1,824,000 or 98% of product sales revenues compared to $1,945,000 or 56% for
the comparable quarter of the prior year. The decrease in cost of products sold
is attributable to the decrease in product sales revenue. However, the increase
in cost of goods sold as a percentage of revenues is attributable to the
Company's sales of remote access products with a higher cost and the reduction
of capitalized overhead costs resulting from the Company's move toward greater
outsourcing of its product assembly.
Selling, general and administrative expenses amounted to $1,338,000 or
72% of product sales revenue for the three months ended January 2, 1998 compared
to $1,090,000 or 31% of product sales revenue for the comparable three months of
the prior fiscal year. The increase in expenses during the quarter ended January
2, 1998 compared to the same period of the prior fiscal year is attributable to
the Company's relocation to its new facility, an increase in professional fees
and the Company's annual shareholders' meeting and related open house. The
Company experienced an increase in selling related costs associated with the
Company's efforts to sell the remote access products that were shipped to a
major customer during last fiscal year (and accounted for as a consignment) and
returned to the Company during the second quarter of this fiscal year. The
Company implemented additional sales promotions in an effort to sell the
remaining products associated with this transaction along with other products
that were not affected by delivery delays.
Product development expenses amounted to $304,000 or 16% of product
sales revenue for the three months ended January 2, 1998 compared to $312,000 or
9% of product sales revenue for the comparable three month period of the prior
fiscal year.
For the Nine Months Ended January 2, 1998 Compared to the Nine Months Ended
January 3, 1997
The Company reported an operating loss of $1,435,000 and net loss of
$1,303,000 for the nine months ended January 2, 1998 compared to operating
income of $475,000 and net income of $409,000 for the comparable nine months of
the prior fiscal year. The decrease in income is due primarily to working
capital shortages and subsequent payment delays to the Company's major
outsourcing vendors during the first quarter of this fiscal year which resulted
in the Company's accounts being placed on credit hold with these vendors. After
the Company's accounts were again in good standing, one of these vendors was
unable to procure certain long lead time components in a timely enough manner to
provide the Company with sufficient products to meet its open orders during the
second quarter. The current period's decrease in income is due primarily to the
continued effects of the product mix shortages, the lingering effects of lost
sales opportunities during the second quarter resulting from the product
shortages an numerous one-time or non-recurring expenses amounting to
approximately $600,000.
8
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATIONS
RESULTS OF OPERATIONS (CONTINUED)
For the Nine Months Ended January 2, 1998 Compared to the Nine Months Ended
January 3, 1997
Product sales revenue for the nine months ended January 2, 1998 totaled
approximately $8,868,000 compared to $10,006,000 for the comparable nine months
of the prior fiscal year, a decrease of 11%. This decrease in product sales
revenue is attributable to the continued effects of the product mix shortages
and the lingering effects of lost sales opportunities during the second quarter
resulting from the product shortages. Significant increases in sales to major
accounts and OEM's were offset by decreases in sales to North American
distributors, VAR's and international customers.
Cost of products sold for the nine months January 2, 1998 amounted to
$6,054,000 or 68% of product sales revenues compared to $5,856,000 or 59% for
the comparable nine months of the prior year. The increase in cost of products
sold is attributable to the reduction of capitalized overhead costs, resulting
from the Company's move toward greater outsourcing of its product assembly,
along with an increase in fixed manufacturing overhead expenses.
Selling, general and administrative expenses amounted to $3,377,00 or
38% of product sales revenue for the nine months ended January 2, 1998 compared
to $2,824,000 or 28% of product sales revenue for the comparable nine months of
the prior fiscal year. The increase in expenses during the nine months ended
January 2, 1998 compared to the same period of the prior fiscal year is
attributable to the Company's relocation to its new facility, an increase in
professional fees and the Company's annual shareholders' meeting and related
open house. The Company experienced an increase in selling related costs
associated with the Company's effort to sell the remote access products that
were shipped to a major customer during last fiscal year (and accounted for as a
consignment) and returned to the Company during the second quarter of this
fiscal year. The Company implemented additional sales promotions in an effort to
sell the remaining products associated with this transaction along with other
products that were not affected by delivery delays.
Product development expenses amounted to $872,000 or 10% of product
sales revenue for the nine months ended January 2, 1998 compared to $851,000 or
9% of product sales revenue for the comparable nine month period of the prior
fiscal year.
The Company recorded $132,000 in net non-operating income for the nine
months ended January 2, 1998. This non-operating income was the net of $313,000
in investment income resulting from the Company's sales of shares in another
company's initial public offering, $115,000 in interest expense, the write-off
of $46,000 in prepaid license fees and $15,000 in one-time late charges. This
total compares to $66,000 in net non-operating expenses, predominately interest
expense, during the same nine month period fiscal year.
LIQUIDITY
In response to the Company's working capital needs, on June 20, 1997,
the Company entered into a funding arrangement with Heller Financial to provide
a term loan in the amount of $254,000, which is collateralized by the Company's
inventory, and a line of credit of up to $2,500,000, based on the available
borrowing base, collateralized by the Company's accounts receivable. As of
January 2, 1998, $102,356 was available for borrowing under the line of credit.
The Company believes that the working capital provided by Heller Financial,
together with anticipated funds expected to be generated by operating
activities, should be reasonably sufficient to cover operating expenses to be
incurred during the remainder of fiscal 1998. Cash commitments for
non-cancelable long-term operating real and personal property leases during
fiscal 1998 are approximately $262,000. The Company has no plans for any major
capital improvements. Relationships with major vendors are satisfactory,
although the Company is on a "Cash On Delivery" status with a significant number
of raw materials vendors.
9
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATIONS
RESULTS OF OPERATIONS (CONTINUED)
LIQUIDITY (CONTINUED)
Cash used in continuing operations amounted to $2,009,00 for the nine
months ended January 2, 1998 compared to cash used in continuing operations of
$817,000 for the comparable nine months ended January 3, 1997. The increase in
cash used in continuing operations compared to the prior year fiscal period
reflects primarily the loss from continuing operations. Accounts payable and
accrued liabilities decreased by $1,035,000 as a result of the working capital
that was made available by the line of credit and private placement proceeds.
Accounts receivable increased by approximately $363,000, prepaid expenses
increased by $112,000 and inventories decreased by $261,000.
On October 11, 1997, the Company completed the relocation to its new
headquarters in Alpharetta, Georgia. The new facility is located in a new office
park in the suburbs of Atlanta. The Company has a ten-year lease on 22,000
square feet of a new 40,000 square foot one-story brick building and expects to
save approximately $170,000 per year in total occupancy costs compared to the
Company's prior lease arrangement.
Cash used in investing activities amounted to $210,000 for the nine
month ended January 2, 1998 compared with $194,000 used in financing activities
for the comparable nine months of the prior fiscal year. This increase from the
same period of the prior fiscal year can be attributable to the decrease in
other assets along with an increase in capitalized software development costs.
Cash provided by financing activities during the nine months ended
January 2, 1998 was $2,145,000 compared to $1,243,000 of cash provided by
financing activities for the nine months ended January 3, 1997. This change is
attributable to the Company's aforementioned new financing arrangement with
Heller Financial along with the proceeds from the private placement that was
completed in mid-October.
Working capital amounted to $3,296,000 at January 2, 1998 an increase
of $773,000, since April 4, 1997. The ratio of current assets to current
liabilities at January 2, 1998 was 1.96 to 1.00 compared to 1.60 to 1.00 at
April 4, 1997.
OUTLOOK FOR REMAINDER OF FISCAL YEAR 1998
SALES BY PRODUCT LINE
The Company continues to experience growth in its sales of remote
access products following its decision to strategically aligned its sales focus
towards this marketplace versus sales of input\output devices. The sales
information for the second quarter of fiscal 1998 ended January 2, 1998 is
listed below. Management is fairly optimistic that the level of sales of remote
access products as a percentage of net revenue will continue to increase over
the remainder of the current fiscal year and should approach the level of 50% of
net revenues by the end of the fiscal year.
<TABLE>
<CAPTION>
Remote Access Servers Input\Output Devices Total
Sales $ (000's) % of Total Sales $ (000's) % of Total Sales $ (000's) % of Total
--------------- ----------- --------------- ---------- --------------- ----------
<S> <C> <C> <C> <C> <C> <C>
Third Quarter:
98 $ 782 42% $1,081 58% $ 1,863 100%
97 1,344 39 2,133 61 3,477 100
First Nine Months:
98 $4,142 47% $4,726 53% $ 8,868 100%
97 3,426 34 6,580 66 10,006 100
</TABLE>
10
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATIONS
OUTLOOK FOR REMAINDER OF FISCAL YEAR 1998
LIQUIDITY AND CAPITAL RESOURCES
During the three months ended January 2, 1998, the Company initiated a
private placement of 500,000 shares of Common Stock. As of January 2, 1998, the
Company raised $934,400 and an additional $724,800 through October 16, 1997. The
proceeds from this private placement are to be used to fund new product
development and provide additional working capital. The proceeds from the
private placement along with the working capital provided by Heller Financial,
and the funds expected to be generated by operating activities, should be
reasonably sufficient to cover operating expenses to be incurred during fiscal
1998. Cash commitments for non-cancelable long-term operating real and personal
property leases during fiscal 1998 are approximately $262,000. The Company has
no plans for any major capital improvements.
The Company expects continued growth in the sales of its remote access
products. At January 2, 1998, the Company had open orders of approximately
$89,000. Management believes that the additional funding raised through the
private placement along with the funding available from the Heller Financial
relationship should provide the Company with the working capital required to
grow the Company through new product development and marketing activities.
The Company's management believes that the financial results for the
third quarter that ended on January 2, 1998 was not indicative of the
anticipated financial results for the fourth quarter of this fiscal year. The
Company has resolved the problems that it had with its major outsourcing vendor
and has subsequently entered into a relationship directly with a manufacturer of
the products that the outsourcing vendor had manufactured. As of February 12,
1998, the Company is in receipt of purchase orders from a major customer
totaling in excess of $2,000,000 for products that the Company believes it will
be able to ship during the fourth quarter of this fiscal year. Management
believes that sales to VAR's and international customers are on-track to exceed
sales to these customers during the third quarter. The Company has sufficient
inventory available to meet these anticipated increases in sales.
11
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Not Applicable
ITEM 2. CHANGES IN SECURITIES
Not Applicable
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
Not Applicable.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company held, on November 25, 1997, its Annual Meeting of
Stockholders at which the following actions were taken:
1. Four directors were elected to serve until the 1998 Annual
Meeting of Stockholders and until their successors are
elected:
Name For Withheld
---- --- --------
Thomas J. Anderson 3,765,267 1,000
Richard A. Hansen 3,765,267 1,000
John D. Freitag 3,765,267 1,000
William C. Lovely 3,765,267 1,000
2. A proposal to adopt the Company's Equity Incentive Plan for
officers, directors, employees and consultants was approved:
For Against Abstain
--- ------- -------
3,757,487 7,280 1,500
3. A proposal to amend the Company's Certificate of
Incorporation to reduce the number of shares of Common Stock
the Company is authorized to issue from 50,000,000 shares to
25,000,000 was approved:
For Against Abstain
--- ------- -------
3,764,054 1,214 1,000
4. BDO Seidman, LLP was elected as independent public
accountants for the Company for its 1998 fiscal year:
For Against Abstain
--- ------- -------
3,752,085 1,172 13,010
12
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PART II - OTHER INFORMATION
ITEM 5. OTHER INFORMATION
Not Applicable.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibit Number Description of Exhibit
-------------- ----------------------
3.1(i) Restated Certificate of
Incorporation of Registrant as amended
27 Financial Data Schedule
b. On November 12, 1997, the filed Form 8-K reporting that on
October 16, 1997, the Company sold an aggregate of 187,500
shares of common stock, par value $.01, for an aggregate
purchase price of $600,000. The shares were placed through
Pennsylvania Merchant Group Ltd., which received a commission
in the aggregate amount of $37,500.
The Company sold the shares to one investor, The Tailwind Fund
Ltd. Pursuant to the exemption from registration afforded by
Regulation S under the Securities Act of 1933, as emended.
13
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SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
COMPUTONE CORPORATION
Date: February 13, 1998 By: \s\ Thomas J. Anderson
----------------------
President and Chief Executive Officer
(Principal Operating Officer)
By: \s\ Gregory A. Alba
-------------------
Gregory A. Alba
Vice President of Finance &
Administration and
Chief Financial Officer
(Principal Accounting Officer)
14
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EXHIBIT INDEX
Exhibit Number Description of Exhibit
3.1 (i) Restated Certificate of Incorporate of Registrant as amended
27 Financial Data Schedule
15
<PAGE>
Secretary of State
Division of Corporation
Filed 03:30 P.M. 07/11/1991
911925192 - 2122686
RESTATED CERTIFICATE OF INCORPORATION
OF
COMPUTONE CORPORATION
PURSUANT TO SECTION 245 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE
Computone Corporation (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, in order to restate its Certificate of Incorporation, as amended or
supplemented heretofore and as presently in effect, pursuant to Section 245 of
said General Corporation Law, certifies as follows:
1. The name of the Corporation is Computone Corporation and the name
under which the corporation was originally incorporated is CPX, Inc. The date of
filing its original Certificate of Incorporation with the Secretary of State of
the State of Delaware is April 6, 1987.
2. This restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the Certificate of
Incorporation of the Corporation, as amended or supplemented heretofore, and
there is no discrepancy between the provisions of the Certificate of
Incorporation of the Corporation, as amended or supplemented heretofore and as
presently in effect, and the provisions of this Restated Certificate of
Incorporation.
3. The Executive Committee of the Board of Directors of the
Corporation, acting by unanimous written consent pursuant to Section 141(f) of
the General Corporation Law of the State of Delaware, duly adopted a resolution
proposing and declaring advisable the adoption of a restatement of the
Certificate of Incorporation of the Corporation in the form hereinafter set
forth in Item 6.
<PAGE>
4. The aforesaid Restated Certificate of Incorporation was duly adopted
in accordance with the applicable provisions of Section 245 of the General
Corporation Law of the State of Delaware.
5. The authorized capital of the Corporation shall not be increased nor
reduced under or by reason of the restatement of the Certificate of
Incorporation of the Corporation.
6. The text of the Certificate of Incorporation, as amended or
supplemented heretofore and as presently in effect, is hereby restated so as to
read in its entirety as follows:
FIRST. The name of this Corporation is Computone Corporation.
SECOND. Its registered office in the State of Delaware is to
be located at 1013 Centre Road in the City of Wilmington, County of New Castle,
zip code 19805. The Registered Agent in charge thereof is Corporation Service
Company.
THIRD. The nature of the business and, the objects and
purposes proposed to be transacted, promoted and carried on, are to do any or
all the things therein mentioned, as fully and to the same extent as natural
persons might or could do, and in any part of the world, viz:
"The purpose of the corporation is to engage in any
lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware."
FOURTH. (A) Capital Stock. The total number of shares of all
classes of stock which the Corporation shall have authority to issue is Sixty
Million (60,000,000) shares consisting of Fifty Million (50,000,000) shares of
Common Stock, One Cent ($.01) par value per share, and Ten Million (10,000,000)
shares of Preferred Stock, One Cent ($.01) par value per share.
(B) Common Stock. The shares of authorized Common
Stock of the Corporation shall be identical in all respects and shall have
equal rights and privileges.
(C) Preferred Stock. The Board of Directors shall
have authority to issue the shares of Preferred Stock from time to time on
such terms as it may determine, and to divide the Preferred Stock into one or
more classes or series and, in connection with the creation of any such class or
series, the board of Directors shall have authority to fix by the resolution or
resolutions providing for the issue of shares thereof the designations, voting
powers, preferences
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and relative participating, optional or other special rights of such class or
series, and the qualifications, limitations, or restrictions thereof, to the
fullest extent now or hereafter permitted by law.
Pursuant to the authority conferred upon the Board of
Directors of the Corporation under this Article Fourth, the Board of Directors
established and designated for issuance 1,250,000 shares of Series A Convertible
Preferred Stock and 200,000 shares of Series B Convertible Preferred Stock with
the relative rights, powers and preferences set forth in the following
resolution:
RESOLVED, that pursuant to the authority conferred upon the
Board of Directors of the Corporation by Article Fourth of the Certificate of
Incorporation, the Board of Directors does hereby establish and designate and
provide for the issuance of a series of preferred stock, $.01 par value,
designated "Series A Convertible Preferred Stock" (the "Preferred Stock"),
consisting of 1,250,000 shares, and does hereby fix and determine the relative
rights, powers and preferences thereof to be as follows:
I. Rights on Liquidation, Dissolution or Winding Up.
(a) In the event of any liquidation, dissolution or
winding up of the Corporation, the holders of shares of the Preferred Stock then
outstanding shall be entitled to be paid out of the assets of the Corporation
available for distribution to its stockholders, either from capital, surplus or
earnings, before any payment shall be made to the holders of shares of the
Corporation's Common Stock, the amount of $8.00 per share plus all accrued but
unpaid dividends thereon and all interest due thereon. If, upon any liquidation,
dissolution or winding up of the Corporation, the assets of the Corporation
available for distribution to the holders of the Preferred Stock shall be
insufficient to pay the holders of the Preferred Stock the full amounts to which
they respectively shall be entitled pursuant to this Section I(a), the holders
of shares of the Preferred Stock shall share ratably in any distribution of
assets according to the respective amounts that would be payable in respect of
the shares of Preferred stock held by them upon such distribution if all amounts
payable on or with respect to said shares were paid in full.
(b) In the event of any liquidation, dissolution or
winding up of the Corporation, after payment shall have been made to the
holders of shares of the Preferred Stock of the full amounts to which they shall
have been entitled pursuant to the first sentence of Section I(a) hereof, the
holders of shares of the Corporation's Common Stock shall have the exclusive
right to share in all remaining assets of the Corporation available for
distribution to its stockholders, such remaining assets to be shared by the
holders of shares of the Corporation's Common Stock on a pro rata basis.
II. Voting.
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(a) On all matters presented to the holders of the
Corporation's Common Stock, each holder of shares of the Preferred Stock shall
be entitled to exercise such number of votes per share of Preferred Stock held
by such holder as shall equal the number (including any fraction to one decimal
place) of shares of Common Stock into which each share of Preferred Stock is
convertible pursuant to Section III hereof on the date as of which a record of
those entitled to vote is taken or, if no such record date is established, on
the date such vote is taken. In the event such number of votes is not
ascertained or not readily ascertained, each share of the Preferred Stock shall
be entitled to one vote. Except as otherwise required by law or hereunder, the
holders of the Preferred Stock and the holders of the Common Stock shall vote as
a single class on all such matters.
(b) The Corporation shall not, without the
affirmative vote or consent of the holders of shares representing at least 60%
of the shares of the Preferred Stock then outstanding, acting as a separate
class:
(i) in any manner authorize or create any
class of capital stock ranking, either as to payment of dividends or
distribution of assets, prior to the Preferred Stock or except with respect to
the shares of preferred stock to be issued in connection with the transaction
disclosed in the Corporation's Acquisition Summary Book II (the "Corporation's
Acquisition Summary Book II") previously furnished to the holders of the
Preferred Stock, pari passu with the Preferred Stock;
(ii) in any manner alter or change the
designations, powers, preferences or rights or the qualifications, limitations
or restrictions of the Preferred Stock;
(iii) declare or make any such dividend or
distribution as described in Section IV hereof;
(iv) liquidate or repurchase any Common
Stock;
(v) redeem or repurchase any Common Stock;
or
(vi) sell all or substantially all of the
assets of the Corporation.
III. Conversion.
(a) Each holder of shares of the Preferred Stock
shall have the right, at such holder's option, at any time or from time to
time, to convert all or any of such shares of Preferred Stock into such number
of fully paid and nonassessable shares of the Corporation's Common Stock as
$8.00 multiplied by the number of shares of the Preferred Stock being converted
is a multiple of the Conversion Price (as hereinafter defined and as last
adjusted pursuant to this Section III and then in effect) for the shares of the
Preferred Stock being
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converted, by surrender of the certificate or certificates representing the
shares of the Preferred Stock so to be converted in the manner provided in this
Section III(a). The "Conversion Price" per share at which shares of Common Stock
shall be issuable upon conversion of shares of the Preferred Stock shall
initially be $8.00; provided, however, that such Conversion Price shall be
subject to adjustment as set forth in Section III(c) hereof.
The holder of any shares of the Preferred Stock may
exercise the conversion right provided in this Section III(a) by delivering to
the Corporation during regular business hours, at the Corporation's principal
office (or at such other place as may be designated by the Corporation), the
certificate or certificates representing the shares to be converted, duly
endorsed or assigned in blank or to the Corporation (if required by it),
accompanied by written notice stating that the holder elects to convert such
shares and stating the name or names (with address) in which the certificate or
certificates for the shares of Common Stock are to be issued.
Conversion shall be deemed to have been effected on
the date when such delivery is made, and such date is referred to herein as
the "Conversion Date." As promptly as practicable after the Conversion Date the
Corporation shall issue and deliver to or upon the written order of such holder,
at such office or to the place designated by the Corporation, a certificate or
certificates for the number of full shares of Common Stock to which such holder
is entitled and a check or cash in respect of any fractional interest in a share
of Common Stock as provided in Section III(c) hereof. The person in whose name
the certificate or certificates for Common Stock are to be issued shall be
deemed to have become a holder of record of such common Stock on the applicable
Conversion Date unless the transfer books of the Corporation are closed on that
date, in which event the person shall be deemed to have become a holder of
record on the next succeeding date on which the transfer books are open, but the
Conversion Price shall be that in effect on the Conversion Date. Upon conversion
of only a portion of the number of shares covered by a certificate representing
shares of Preferred Stock surrendered for conversion, the Corporation shall
issue and deliver to or upon the written order of the holder of the certificate
so surrendered for conversion, at the expense of the Corporation, a new
certificate covering the number of shares of Preferred Stock representing the
unconverted portion of the certificate so surrendered, which new certificate
shall entitle the holder thereof to dividends on the shares of Preferred Stock
represented thereby to the same extent as if the certificate theretofore
covering such unconverted shares had not been surrendered for conversion.
(b) No fractional shares of Common Stock or scrip
shall be issued upon conversion of shares of the Preferred Stock. If more
than one share of Preferred Stock shall be surrendered or conversion at any one
time by the same holder, the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate number of
shares of Preferred Stock so surrendered. Instead of any fractional shares of
Common Stock which would otherwise be issuable upon conversion of any shares of
Preferred Stock, the Corporation shall pay a cash adjustment in respect of such
fractional interest in an amount equal to the then Current Market Price (as
defined in Section III(d)(vi) hereof) of a share of Common
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Stock multiplied by such fractional interest. Fractional interests shall not be
entitled to dividends, and the holders thereof shall not be entitled to any
rights as stockholders of the Corporation in respect of such fractional
interests.
(c) The Conversion Price shall be subject to
adjustment from time to time as follows:
(i) If the number of shares of Common Stock
outstanding at any time after September 30, 1988 is increased by a stock
dividend payable in shares of Common Stock or by a subdivision or split-up of
shares of Common Stock, then, immediately following the record date fixed for
the determination of holders of Common Stock entitled to receive such stock
dividend, subdivision or split-up, the Conversion Price shall be appropriately
decreased so that the number of shares of Common Stock issuable on conversion of
each share of Preferred Stock shall be increased in proportion to such increase
in outstanding shares.
(ii) If the number of shares of Common Stock
outstanding at any time after September 30, 1988 is decreased by a combination
of the outstanding shares of Common Stock, then, immediately following the
record date for such combination, the Conversion Price shall be appropriately
increased so that the number of shares of Common Stock issuable on conversion of
each share of Preferred Stock shall be decreased in proportion to such decrease
in outstanding shares.
(iii) If the Corporation shall declare a
cash dividend upon its Common Stock payable otherwise than out of earnings or
earned surplus or shall distribute to holders of its Common Stock shares of its
capital stock (other than Common Stock), stock or other securities of other
persons, evidences of indebtedness issued by the Corporation or other persons,
assets (excluding cash dividends and distributions) or options or rights
(excluding options to purchase and rights to subscribe for Common Stock or other
securities of the Corporation convertible into or exchangeable for Common
Stock), then, in each such case, immediately following the record date fixed for
the determination of the holders of Common Stock entitled to receive such
dividend or distribution, the Conversion Price in effect thereafter shall be
determined by multiplying the Conversion Price in effect immediately prior to
such record date by a fraction of which the numerator shall be an amount equal
to the remainder of (x) the Current Market Price of one share of Common Stock
less (y) the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive) of the stock, securities, evidences or
indebtedness, assets, options or rights so distributed in respect of one share
of Common Stock, and of which the denominator shall be such current Market
Price. Such adjustment shall be made on the date such dividend or distribution
is made and shall become effective at the opening of business on the business
day next following the record date for the determination of shareholders
entitled to such dividend or distribution.
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(iv) If, at any time after September 30,
1988, any capital reorganization, or any reclassification of the stock of the
Corporation (other than a change in par value or from par value to no par value
or from no par value to par value or as a result of a stock dividend or
subdivision, split-up or combination of shares), or the consolidation or merger
of the Corporation with or into another person (other than a consolidation or
merger in which the Corporation is the continuing corporation and which does not
result in any change in the Common Stock) or of the sale or other disposition of
all or substantially all the properties and assets of the Corporation as an
entirety to any other person, each share of the Preferred Stock shall, after
such reorganization, reclassification, consolidation, merger, sale or other
disposition, be convertible into the kind and number of shares of stock or other
securities or property of the Corporation or of the Corporation resulting from
such consolidation or surviving such merger or to which such properties and
assets shall have been sold or otherwise disposed to which the holder of the
number of shares of Common Stock deliverable (immediately prior to the time of
such reorganization, reclassification, consolidation, merger, sale or other
disposition) upon conversion of such shares would have been entitled upon such
reorganization, reclassification, consolidation, merger, sale or other
disposition. The provisions of this clause (iv) shall similarly apply to
successive reorganizations, reclassifications, consolidations, mergers, sales
and other dispositions.
(v) All calculations under this Section
III(c) shall be made to the nearest cent or to the nearest one-tenth of a
share, as the case may be.
(vi) For the purpose of any computation
pursuant to this Section III(c) or Section III(b), the "Current Market Price"
at any date of one share of Common Stock shall be deemed to be the average of
the daily closing prices for the 30 consecutive business days ending no more
than 15 business days before the day in question (as adjusted for any stock
dividend, split, combination or reclassification that took effect during such 30
business day period), or, in case no sales took place on any day in question,
the last bid price on such day, in either case on the principal national
securities exchange on which the Common Stock then be listed or admitted to
trading or on the National Association of Securities Dealers Automated
Quotations System ("NASDAQ") National Market System (or, if the Common Stock is
not listed or admitted for trading on any such exchange or on the NASDAQ
National Market System on any day in question, then such price as shall be
deemed to be the last bid price quoted on the NASDAQ interdealer quotations
system on such day, or, if, on any day in question, the security shall not be
quoted on the NASDAQ interdealer quotations system, then such price shall be
deemed to be the last reported bid price on such day as reported by the National
Quotation Bureau, Inc. (or any similar reputable quotation and reporting service
if such quotation is not reported by the National Quotation Bureau, Inc.);
provided, however, that if the Common Stock is not traded in such manner that
the quotations referred to in this clause (viii) are available for the period
required hereunder, the Current Market Price shall be determined in good faith
by at least a majority of the members of the Board of Directors of the
Corporation, or, if such determination cannot be made, by a nationally
recognized independent investment banking firm
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selected by the Board of Directors of the Corporation (or if such selection
cannot be made, by a nationally recognized independent investment banking firm
selected by the American Arbitration Association in accordance with its rules);
provided further, that if the Common Stock is listed on any national securities
exchange, the term "business days," as used in this clause (viii), shall mean
business days on which such exchange is open for trading.
(vii) In any case in which the provisions
of this Section III(c) shall require that an adjustment shall become effective
immediately after a record date for an event, the Corporation may defer until
the occurrence of such event (i) issuing to the holder of any share of Preferred
Stock converted after such record date and before the occurrence of such event
the additional shares of capital stock issuable upon the conversion by reason of
the adjustment required by such event over and above the shares of capital stock
issuable upon such conversion before giving effect to such adjustment and (ii)
paying to such holder any amount in cash in lieu of a fractional share of
capital stock pursuant to Section III(b) hereof; provided, however, that the
Corporation shall deliver to such holder a due bill or other appropriate
instrument evidencing such holder's right to receive such additional shares and
such cash, upon the occurrence of the event requiring such adjustment.
(d) Whenever the Conversion Price shall be adjusted
as provided in Section III(c) hereof, the Corporation shall prepare a
statement, signed by its chief financial officer, setting forth the facts
requiring such adjustment and showing the calculation of the Conversion Price
that shall be in effect after such adjustment. The Corporation shall cause a
copy of such statement to be sent by mail, first class, postage prepaid, or by a
national overnight delivery service, to each holder of shares of the Preferred
Stock at his address appearing on the Corporation's records. Where appropriate,
such copy may be given in advance and may be included as part of a notice
required to be mailed under the provisions of Section III(e) hereof.
(e) In the event the Corporation shall propose to
take any action of the types described in clauses (i), (ii), (iii), or (iv)
of Section III(c) hereof, the Corporation shall give notice to each holder of
shares of the Preferred Stock, in the manner set forth in Section III(d) hereof,
which notice shall specify the record date, if any, with respect to any such
action and the date on which such action is to take place. Such notice shall
also set forth such facts with respect thereto as shall be reasonably necessary
to indicate the effect of such action (to the extent such effect may be known at
the date of such notice) on the Conversion Price and the number, kind or class
of shares or other securities or property which shall be deliverable or
purchasable upon the occurrence of such action or deliverable upon conversion of
shares of Preferred Stock. In the case of any action that would require the
fixing of a record date, such notice shall be given at least 20 days prior to
the date so fixed, and in the case of all other action, such notice shall be
given at least 30 days prior to the taking of such proposed action. Failure to
give such notice, or any defect therein, shall not affect the legality or
validity of any such action.
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(f) For the purposes of this Section III, the sale
or other disposition of any capital stock of the Corporation theretofore held in
its treasury shall be deemed to be an issuance thereof.
(g) The Corporation shall pay all documentary,
stamp or other transactional taxes attributable to the issuance or delivery of
shares of capital stock of the Corporation upon conversion of any shares of the
preferred stock; provided, however, that the Corporation shall not be required
to pay any taxes that may be payable in respect of any transfer involved in the
issuance or delivery of any certificate for such shares in a name other than
that of the holder of the shares of Preferred Stock in respect of which such
shares are being issued.
(h) The Corporation shall reserve, free from
preemptive rights, out of its treasury stock or its authorized but unissued
shares of the Corporation's Common Stock, or both, solely for the purpose of
effecting the conversion of the shares of the Preferred Stock pursuant to this
Section III a sufficient number of shares to provide for the conversion of all
outstanding shares of the Preferred Stock.
IV. Dividends. The holder of each share of the Preferred Stock
shall be entitled to receive, before any dividend shall be declared or paid upon
or set aside for the Corporation's Common Stock, when and as declared by the
Board of Directors of the Corporation, out of funds legally available for that
purpose, quarterly dividends in cash at the rate of $.80 per share per annum,
and no more. Dividends on shares of the Preferred Stock shall be payable in
quarter-annual installments on January 1, April 1, July 1 and October 1 in each
year commencing January 1, 1989. Dividends on shares of the Preferred Stock
shall be cumulative (whether or not there shall be net profits or net assets of
the Corporation legally available for the payment of such dividends) so that if
Full Cumulative Dividends (as hereinafter defined) upon the Preferred Stock to
the end of the last completed Dividend Period (as hereinafter defined) have not
been paid or declared and a sum sufficient for payment thereof set apart, then
the amount of the deficiency in such dividends must be fully paid with an
incremental dividend equal to 10% per annum of the aforesaid dividend from the
date such dividend was due to the date such dividend is paid, or dividends in
such amount must be declared on the shares of the Preferred Stock and a sum
sufficient for the payment thereof must be set apart for such payment, before
any dividend may be declared or paid or any other distribution ordered or made
upon the Corporation's Common Stock (other than a dividend payable in Common
Stock) and before any sum or sums may be set aside for or applied to the
purchase or redemption of any shares of any Common Stock or the Preferred Stock.
All dividends declared upon the Preferred Stock shall be declared pro rata per
share. Dividends accruing during each Dividend Period shall be payable on the
next succeeding Dividend Payment Date (as hereinafter defined). Holders of
shares of the Preferred Stock shall not be entitled to any dividends, whether
payable in cash, property or stock, in excess of the Full Cumulative Dividends
at the rate set forth herein. As long as any Preferred Stock is outstanding and
the dividends set forth herein as well as the dividends to holders of preferred
stock issued in connection with the transaction disclosed in the Corporation's
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Acquisition Summary Book II have not been paid in full, no dividend or
distribution shall be declared or made with respect to any other type or class
of securities issued by the Corporation.
For purposes of this Section IV:
"Dividend Payment Date" means, as to each respective Dividend
Period, the first day after the expiration of such Dividend Period.
"Full Cumulative Dividends" means (whether or not in any
Dividend Period, or any part thereof, in respect of which such term is used
there shall have been net profits or net assets of the Corporation legally
available for the payment of such dividends) that amount which shall be equal to
dividends at the full rate fixed for the Preferred Stock as provided herein for
the period of time elapsed from October 3, 1988 to the date as of which Full
Cumulative Dividends are to be computed.
"Dividend period" means each fiscal quarter or portion thereof
during which the relevant share of the Preferred Stock is outstanding.
V. Redemption.
(a) After September 30, 1990, the Corporation shall
have the right, at its option, to redeem all or any portion of the shares of
Preferred Stock then outstanding at a price per share of $10.00 plus an amount
equal to all accrued but unpaid dividends thereon and any interest due thereon
(the "Redemption Price"). Prior to September 30, 1990, the Corporation shall
have the right, at its option, to redeem all or any portion of the shares of
Preferred Stock then outstanding at the Redemption Price if the Current Market
price of one share of Common Stock shall be $12.00 or more for 30 consecutive
days. If less than all outstanding shares of Preferred Stock then outstanding
are redeemed, the Corporation shall redeem a like percentage of the shares of
Preferred Stock held by each holder thereof.
(b) At least 30 days prior to the date of any such
redemption (the "Redemption Date"), written notice thereof (the "Redemption
Notice") shall be given by the Corporation by mail, postage paid, or by telex to
non-United States residents, to each holder of record (at the close of business
on the business day next preceding the day on which the Redemption Notice is
given) of shares of Preferred Stock notifying such holder of the redemption. The
Redemption Notice shall be addressed to each holder at his address as shown by
the records of the Corporation. From and after the close of business on the
Redemption Date, unless there shall have been a default in the payment of the
Redemption Price, all rights of holders of shares of Preferred Stock, except the
right to receive the Redemption Price, shall cease with respect to such shares,
and such shares shall not thereafter be transferred on the books of the
Corporation or be deemed to be outstanding for any purpose whatsoever.
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(c) For each share of the Preferred Stock to be
redeemed pursuant to Section V(a) hereof, the Corporation shall be obligated on
the applicable Redemption Date to pay the holder thereof, upon surrender by such
holder at the Corporation's principal office (or at such other place as may be
designated by the Corporation) of the certificate or certificates representing
such shares an amount in immediately available funds equal to the Redemption
Price. If the funds of the Corporation legally available for the redemption of
shares of the Preferred Stock on any Redemption Date are insufficient to redeem
the number of shares to be redeemed on such date, those funds that are legally
available shall be used to redeem the maximum number of shares of the Preferred
Stock ratably among the holders of the shares to be redeemed based upon the
respective aggregate Redemption Prices of the shares held by each holder, and an
amount equal to the balance that would have been payable to each such holder
shall become an obligation of the Corporation to the respective holder, the
amount of which shall bear simple interest at a floating rate equal to the prime
rate of interest announced by Citibank, N.A. as in effect from time to time. At
any time after such Redemption Date when additional funds of the Corporation are
legally available for the redemption of such shares, such funds shall promptly
be used to redeem the maximum number of shares of the Preferred Stock that the
Corporation had become obligated to redeem but has not redeemed.
(d) The Corporation shall redeem the Shares of the
Preferred Stock then outstanding to the extent set forth in a notice given by
the holders of Preferred Stock pursuant to Section 8.3(k) of the Purchase
Agreement dated September 30, 1988 between the Corporation and the holders of
the Preferred Stock. The Corporation shall have 180 days after its receipt of
such notice to make payment in full of the Redemption Price; and
FURTHER RESOLVED, that pursuant to the authority conferred
upon the Board of Directors of the Corporation by Article Fourth of the
Certificate of Incorporation, the Board of Directors does hereby establish and
designate and provide for the issuance of a series of preferred stock, $.01 par
value, designated "Series B Preferred Stock" ("Series B Preferred Stock"),
consisting of 200,000 shares, and does hereby fix and determine the relative
rights, powers and preferences thereof to be as follows:
I. Rights on Liquidation, Dissolution or Winding Up.
(a) In the event of any liquidation, dissolution or
winding up of the Corporation, the holders of shares of the Series B Preferred
Stock then outstanding shall be entitled to be paid out of the assets of the
Corporation available for distribution to its stockholders, either from capital,
surplus or earnings, before any payment shall be made to the holders of shares
of the Corporation's Common Stock, the amount of $8.00 per share plus all
accrued but unpaid dividends thereon and all interest due thereon. If, upon any
liquidation, dissolution or winding up of the Corporation, the assets of the
Corporation available for distribution to the holders of the Series B Preferred
Stock the full amounts to which they respectively shall be entitled pursuant to
this Section I(a), the holders of shares of the shares of
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the Series B Preferred Stock shall share ratably in any distribution of assets
according to the respective amounts that would be payable in respect of the
shares of Series B Preferred Stock held by them upon such distribution if all
amounts payable on or with respect to said shares were paid in full.
Notwithstanding the foregoing, the rights of the holders of Series B Preferred
Stock to receive any payment as aforesaid upon the liquidation, dissolution or
winding up of the Corporation shall be subordinate to the prior rights of the
holders of the Series A Preferred Stock to receive payment upon the occurrence
of the aforesaid events pursuant to Section I(a) of the Amended Certificate of
Designation dated October 4, 1988 (the "Series A Certificate").
(b) In the event of any liquidation, dissolution or
winding up of the Corporation, after payment shall have been made to the
holders of shares of (i) the Series A Preferred Stock of the full amounts to
which they shall have been entitled pursuant to the Series A Certificate and
(ii) the Series B Preferred Stock of the full amounts to which they shall have
been entitled pursuant to the first sentence of Section I(a) hereof, the holders
of shares of the Corporation's Common Stock shall have the exclusive right to
share in all remaining assets of the Corporation available for distribution to
its stockholders, such remaining assets to be shared by the holders of shares of
the Corporation's Common Stock on a pro rata basis.
II. Voting.
(a) On all matters presented to the holders of the
Corporation's Common Stock, each holder of shares of the Series B Preferred
Stock shall be entitled to exercise such number of votes per share of Series B
Preferred Stock held by such holder as shall equal the number (including any
fraction to one decimal place) of shares of Common Stock into which each share
of Series B Preferred Stock is convertible pursuant to Section III hereof on the
date as of which a record of those entitled to vote is taken or, if no such
record date is established, on the date such vote is taken. In the event such
number of votes is not ascertained or not readily ascertainable, each share of
the Series B Preferred Stock shall be entitled to one vote. Except as otherwise
required by law or hereunder, the holders of the Series B Preferred Stock and
the holders of the Common Stock shall vote as a single class on all such
matters.
(b) The Corporation shall not, without the
affirmative vote or consent of the holders of shares representing at least 60%
of the shares of the Series B Preferred Stock then outstanding, acting as a
separate class:
(i) in any manner alter or change the
designations, powers, preferences or rights or the qualifications, limitations
or restrictions of the Series B Preferred Stock;
(ii) liquidate the Corporation; or
(iii) sell all or substantially all of the
assets of the Corporation.
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III. Conversion.
(a) Each holder of shares of the Series B Preferred
Stock shall have the right, at such holder's option, at any time or from
time to time, to convert all or any of such shares of Series B Preferred Stock
into such number of fully paid and nonassessable shares of the Corporation's
Common Stock as $8.00 multiplied by the number of shares of the Series B
Preferred Stock being converted is a multiple of the Conversion Price (as
hereinafter defined and as last adjusted pursuant to this Section III and then
in effect) for the shares of the Series B Preferred Stock so to be converted in
the manner provided in this Section III(a). The "Conversion Price" per share at
which shares of Common Stock shall be issuable upon conversion of shares of the
Series B Preferred Stock shall initially be $8.00; provided, however, that such
Conversion Price shall be subject to adjustment as set forth in Section III(c)
hereof.
The holder of any shares of the Series B Preferred
Stock may exercise the conversion right provided in this Section III(a) by
delivering to the Corporation during regular business hours, at the
Corporation's principal office (or at such other place as may be designated by
the Corporation), the certificate or certificates representing the shares to be
converted, duly endorsed or assigned in blank or to the Corporation (if required
by it), accompanied by written notice stating that the holder elects to convert
such shares and stating the name or names (with address) in which the
certificate or certificates of the shares of Common Stock are to be issued.
Conversion shall be deemed to have been effected on
the date when such delivery is made, and such date is referred to herein as
the "Conversion Date." As promptly as practicable after the Conversion Date, the
Corporation shall issue and deliver to or upon the written order of such holder,
at such office or to the place designated by the Corporation, a certificate or
certificates for the number of full shares of Common Stock to which such holder
is entitled and a check for cash in respect of any fractional interest in a
share of Common Stock as provided in III(c) hereof. The person in whose name the
certificate or certificates for Common Stock are to be issued shall be deemed to
have become a holder of record of such Common Stock on the applicable Conversion
Date unless the transfer books of the Corporation are closed on that date, in
which event the person shall be deemed to have become a holder of record on the
next succeeding date on which the transfer books are open, but the Conversion
Price shall be that in effect on the Conversion Date. Upon conversion of only a
portion of the number of shares covered by a certificate representing shares of
Series B Preferred Stock surrendered for conversion, the Corporation shall issue
and deliver to or upon the written order of the holder of the certificate so
surrendered for conversion, at the expense of the Corporation, a new certificate
covering the number of shares of Series B Preferred Stock representing the
unconverted portion of the certificate so surrendered, which new certificate
shall entitle the holder thereof to dividends on the shares of Series B
Preferred Stock represented thereby.
-13-
<PAGE>
(b) No fractional shares of Common Stock or scrip
shall be issued upon the conversion of shares of the Series B Preferred
Stock. If more than one share of Series B Preferred Stock shall be surrendered
for conversion at any one time by the same holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be computed on the basis of
the aggregate number of shares of Series B Preferred Stock so surrendered.
Instead of any fractional shares of Common Stock which would otherwise be
issuable upon conversion of any shares of Series B Preferred Stock, the
Corporation shall pay a cash adjustment in respect of such fractional interest
in an amount equal to the then Current Market Price (as defined in Section
III(c) (vi) hereof) of a share of Common Stock multiplied by such fractional
interest. Fractional interests shall not be entitled to dividends, and the
holders thereof shall not be entitled to any rights as stockholders of the
Corporation in respect of such fractional interests.
(c) The Conversion Price shall be subject to
adjustment from time to time as follows:
(i) If the number of shares of Common
Stock outstanding at any time after the issuance of the Series B Preferred Stock
is increased by a stock dividend payable in shares of Common Stock or by a
subdivision or split-up of shares of Common Stock, then, immediately following
the record date fixed for the determination of holders of Common Stock entitled
to receive such stock dividend, subdivision or split-up, the Conversion Price
shall be appropriately decreased so that the number of shares of Common Stock
issuable on conversion of each share of Series B Preferred Stock shall be
increased in proportion to such increase in outstanding shares.
(ii) If the number of shares of Common
Stock outstanding at any time after the issuance of the Series B Preferred Stock
is decreased by a combination of the outstanding shares of Common Stock, then,
immediately following the record date for such combination, the Conversion Price
shall be appropriately increased so that the number of shares of Common Stock
issuable on conversion of each share of Preferred Stock shall be decreased in
proportion to such decrease in outstanding shares.
(iii) If the Corporation shall declare a
cash dividend upon its Common Stock payable otherwise than out of earnings or
earned surplus or shall distribute to holders of its Common Stock shares of its
capital stock (other than Common Stock), stock or other securities of other
persons, evidences of indebtedness issued by the Corporation or other persons,
assets (excluding cash dividends and distributions) or options or rights
(excluding options to purchase and rights to subscribe for Common Stock or other
securities of the Corporation convertible into or exchangeable for Common
Stock), then, in each such case, immediately following the record date fixed for
the determination of the holders of Common Stock entitled to receive such
dividend or distribution, the Conversion Price in effect thereafter shall be
determined by multiplying the Conversion Price in effect immediately prior to
such record date by a fraction of which the numerator shall be an amount equal
to the remainder of (x)
-14-
<PAGE>
the Current Market Price of one share of Common Stock less (y) the fair market
value (as determined by the Board of Directors, whose determination shall be
conclusive) of the stock, securities, evidences or indebtedness, assets, options
or rights so distributed in respect of one share of Common Stock, and of which
the denominator shall be such Current Market Price. Such adjustment shall be
made on the date such dividend or distribution is made and shall become
effective at the opening of business on the business day next following the
record date for the determination of shareholders entitled to such dividend or
distribution.
(iv) If, at any time after the issuance of
the Series B Preferred Stock, any capital reorganization, or any
reclassification of the stock of the Corporation (other than a change in par
value or from par value to no par value or from no par value to par value or as
a result of a stock dividend or subdivision, split-up or combination of shares),
or the consolidation or merger of the Corporation with or into another person
(other than a consolidation or merger in which the Corporation is the continuing
corporation and which does not result in any change in the Common Stock) or of
the sale or other disposition of all or substantially all the properties and
assets of the Corporation as an entirety to any other person, each share of the
Series B Preferred Stock shall, after such reorganization, reclassification,
consolidation, merger, sale or other disposition, be convertible into the kind
and number of shares of stock or other securities or property of the Corporation
or of the Corporation resulting from such consolidation or surviving such merger
or to which such properties and assets shall have been sold or otherwise
disposed to which the holder of the number of shares of Common Stock deliverable
(immediately prior to the time of such reorganization, reclassification,
consolidation, merger, sale or other disposition) upon conversion of such shares
would have been entitled upon such reorganization, reclassification,
consolidation, merger, sale or other disposition. The provisions of this clause
(iv) shall similarly apply to successive reorganizations, reclassifications,
consolidations, mergers, sales and other dispositions.
(v) All calculations under this Section
III(c) shall be made to the nearest cent or to the nearest one-tenth of a
share, as the case may be.
(vi) For the purpose of any computation
pursuant to this Section III(c) or Section III(b), the "Current Market Price"
at any date of one share of Common Stock shall be deemed to be the average of
the daily closing prices for the 30 consecutive business days ending no more
than 15 business days before the day in question (as adjusted for any stock
dividend, split, combination or reclassification that took effect during such 30
business day period), or, in case no sales took place on any day in question,
the last bid price on such day, in either case on the principal national
securities exchange on which the Common Stock then be listed or admitted to
trading or on the National Association of Securities Dealers Automated
Quotations System ("NASDAQ") National Market System (or, if the Common Stock is
not listed or admitted for trading on any such exchange or on the NASDAQ
National Market System on any day in question, then such price as shall be
deemed to be the last bid price quoted on the NASDAQ interdealer quotations
system on such day, or, if, on any day in question, the security
-15-
<PAGE>
shall not be quoted on the NASDAQ interdealer quotations system, then such price
shall be deemed to be the last reported bid price on such day as reported by the
National Quotation Bureau, Inc. (or any similar reputable quotation and
reporting service if such quotation is not reported by the National Quotation
Bureau, Inc.); provided, however, that if the Common Stock is not traded in such
manner that the quotations referred to in this clause (vi) are available for the
period required hereunder, the Current Market Price shall be determined in good
faith by at least a majority of the members of the Board of Directors of the
Corporation, or, if such determination cannot be made, by a nationally
recognized independent investment banking firm selected by the Board of
Directors of the Corporation (or if such selection cannot be made, by a
nationally recognized independent investment banking firm selected by the
American Arbitration Association in accordance with its rules); provided,
further, that if the Common Stock is listed on any national securities exchange,
the term "business days," as used in this clause (vi), shall mean business days
on which such exchange is open for trading.
(vii) In any case in which the provisions
of this Section III(c) shall require that an adjustment shall become effective
immediately after a record date for an event, the Corporation may defer until
the occurrence of such event (i) issuing to the holder of any share of Series B
Preferred Stock converted after such record date and before the occurrence of
such event the additional shares of capital stock issuable upon the conversion
by reason of the adjustment required by such event over and above the shares of
capital stock issuable upon such conversion before giving effect to such
adjustment and (ii) paying to such holder any amount in cash in lieu of a
fractional share of capital stock pursuant to Section III(b) hereof; provided,
however, that the Corporation shall deliver to such holder a due bill or other
appropriate instrument evidencing such holder's right to receive such additional
shares and such cash, upon the occurrence of the event requiring such
adjustment.
(d) Whenever the Conversion Price shall be adjusted
as provided in Section III(c) hereof, the Corporation shall prepare a
statement, signed by its chief financial officer, setting forth the facts
requiring such adjustment and showing the calculation of the Conversion Price
that shall be in effect after such adjustment. The Corporation shall cause a
copy of such statement to be sent by mail, first class, postage prepaid, or by a
national overnight delivery service, to each holder of shares of the Series B
Preferred Stock at his address appearing on the Corporation's records. Where
appropriate, such copy may be given in advance and may be included as part of a
notice required to be mailed under the provisions of Section III(e) hereof.
(e) In the event the Corporation shall propose to
take any action of the types described in clauses (i), (ii), (iii), or (iv)
of Section III(c) hereof, the Corporation shall give notice to each holder of
shares of the Series B Preferred Stock, in the manner set forth in Section
III(d) hereof, which notice shall specify the record date, if any, with respect
to any such action and the date on which such action is to take place. Such
notice shall also set forth such facts with respect thereto as shall be
reasonably necessary to indicate the effect of such action (to the extent such
effect may be known at the date of such notice) on the Conversion Price and the
number,
-16-
<PAGE>
kind or class of shares or other securities or property which shall be
deliverable or purchasable upon the occurrence of such action or deliverable
upon conversion of shares of Series B Preferred Stock. In the case of any action
that would require the fixing of a record date, such notice shall be given at
least 20 days prior to the date so fixed, and in the case of all other action,
such notice shall be given at least 30 days prior to the taking of such proposed
action. Failure to give such notice, or any effect therein, shall not affect the
legality or validity of any such action.
(f) For the purposes of this Section III, the sale
or other disposition of any capital stock of the Corporation therefore held in
its treasury shall be deemed to be an issuance thereof.
(g) The Corporation shall pay all documentary,
stamp or other transactional taxes attributable to the issuance or delivery of
shares of capital stock of the Corporation upon conversion of any shares of
Series B Preferred Stock; provided, however, that the Corporation shall not be
required to pay any taxes that may be payable in respect of any transfer
involved in the issuance or delivery of any certificate for such shares in a
name other than that of the holder of the shares of Series B Preferred Stock in
respect of which such shares are being issued.
(h) The Corporation shall reserve, free from
preemptive rights, out its treasury stock or its authorized but unissued shares
of the Corporation's Common Stock, or both, solely for the purpose of effecting
the conversion of the shares of the Series B Preferred Stock pursuant to this
Section III a sufficient number of shares to provide for the conversion of all
outstanding shares of the Series B Preferred Stock.
IV. Dividends. The holder of each share of the Series B
Preferred Stock shall be entitled to receive, before any dividend shall be
declared or paid upon or set aside for the Corporation's Common Stock, when and
as declared by the Board of Directors of the Corporation, out of funds legally
available for that purpose, quarterly dividends in cash at the rate of $.52 per
share per annum, and no more. Dividends on shares of the Series B Preferred
Stock shall be payable in quarter-annual installments on January 1, April 1,
July and October 1 in each year commencing April 1, 1989. Dividends on shares of
the Series B Preferred Stock shall be cumulative (whether or not there shall be
net profits or net assets of the Corporation legally available for the payment
of such dividends). All dividends declared upon the Series B Preferred Stock
shall be declared pro rata per share. Dividends accruing during each Dividend
Period (as hereinafter defined) shall be payable on the next succeeding Dividend
Payment Date (as hereinafter defined). As long as any Series B Preferred Stock
is outstanding and the dividends set forth herein have not been paid in full, no
dividend or distribution shall be declared or made with respect to any other
type or class of securities issued by the Corporation other than Series A
Preferred Stock. Notwithstanding the foregoing, the rights of the holders of
Series B Preferred Stock to receive any dividends as aforesaid shall be
subordinate to the prior rights of the holders of the Series A Preferred Stock
to receive dividends as provided in Section IV of the Series A Certificate .
-17-
<PAGE>
For purposes of this Section IV:
"Dividend Payment Date" means, as to each respective Dividend Period,
the first day after the expiration of such Dividend Period.
"Dividend Period" means each fiscal quarter or portion thereof during
which the relevant share of the Series B Preferred stock is outstanding.
V Redemption.
(a) The Corporation shall have the right, at its option and
subject to the written consent of the holder of at least 60% of the shares of
Series A Preferred Stock then outstanding, to redeem all or any portion of the
shares of Series B Preferred Stock then outstanding at a price per share of
$10.00 plus an amount equal to all accrued but unpaid dividends thereon (the
"Redemption Price"). If less then all outstanding shares of Series B Preferred
Stock then outstanding are redeemed, the Corporation shall redeem a like
percentage of the share of Series B Preferred Stock held by each holder thereof.
Notwithstanding the foregoing, the Corporation's right of redemption shall not
exist with respect to those shares of Series B Preferred Stock for which the
Corporation shall have received a notice of conversion pursuant to Section III
hereof.
(b) At least 30 days prior to the date of any such
redemption (the "Redemption Date"), written notice thereof (the "Redemption
Notice") shall be given by the Corporation by mail, postage prepaid, or by telex
to non-United States residents, to each holder of record (at the close of
business on the business day next preceding the day on which the Redemption
Notice is given) of shares of Series B Preferred Stock notifying such holder of
the redemption. The Redemption Notice shall be addressed to each holder at his
address as shown by the records of the Corporation. From and after the close of
business on the Redemption Date, unless there shall have been a default in the
payment of the Redemption Price, all rights of holders of shares of Series B
Preferred Stock, except the right to receive the Redemption Price, shall cease
with respect to such shares, and such shares shall not thereafter be transferred
on the books of the Corporation or be deemed to be outstanding for any purpose
whatsoever.
(c) For each share of the Series B Preferred Stock to be
redeemed pursuant to Section V(a) hereof, the Corporation shall be obligated on
the applicable Redemption Date to pay the holder thereof, upon surrender by such
holder at the Corporation's principal office (or at such other place as may be
designated by the Corporation) of the certificate or certificates representing
such shares, an amount in immediate available funds equal to the Redemption
Price. If the funds of the Corporation legally available for the redemption of
shares of the Series B Preferred Stock on any Redemption Date are insufficient
to redeem the number of shares to be redeemed on such date, those funds that are
legally available shall be used to redeem the maximum number of
-18-
<PAGE>
shares of the Series B Preferred Stock ratably among holders of the shares to be
redeemed based upon the respective aggregate Redemption Prices of the shares
held by each holder, and an amount equal to the balance that would have been
payable to each such holder shall become an obligation of the Corporation to the
respective holder, the amount of which shall bear simple interest at a floating
rate equal to the prime rate of interest announced by Citibank, N.A. as in
effect from time to time. At any time after such Redemption Date when additional
funds of the Corporation are legally available for the redemption of such
shares, such funds shall promptly be used to redeem the maximum number of shares
of the Series B Preferred Stock that the Corporation had become obligated to
redeem but has not redeemed.
FIFTH. The Directors shall have power to adopted, amend or repeal the
By-Laws; to fix the amount to be reserved as working capital, and to authorize
and cause to be executed, mortgages and liens without limit as to the amount,
upon the property and franchise of the Corporation.
The stockholders and Directors of the Corporation shall have the right
to inspect the books and records of the Corporation in accordance with the
Delaware General Corporation Law.
The stockholders and Directors shall have power to hold their meetings
and keep the books, documents and papers of the Corporation outside the State of
Delaware, at such place as may be from time to time designated by the By-Laws or
by resolution of the Directors, except as otherwise required by the laws of
Delaware.
SIXTH. A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability to the extent provided by applicable
law (i) for any breach of the director's duty of loyalty to the Corporation or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit. If the Delaware General
Corporation Law is hereafter amended to authorize the future limitation or
elimination of the liability of a Director, then the liability of a Director of
the Corporation shall be limited or eliminated to the fullest extent permitted
by the amended Delaware General Corporation Law.
Any repeal or modification of this Article Sixth shall be prospective
only, and shall not adversely affect any limitation or elimination of the
personal liability of a director of the Corporation existing at the time of such
repeal or modification.
IN WITNESS WHEREOF, Computone Corporation has caused this Restated
Certificate of Incorporation to be duly executed this 2nd day of July 1991.
COMPUTONE CORPORATION
-19-
<PAGE>
By: /s/ Thomas P. Tanis, Jr.
-----------------------------
Thomas P. Tanis, Jr.
President
ATTEST:
By:/s/ Ronald W. Johnston
-----------------------------
Ronald W. Johnston
Assistant Secretary
(Seal)
-20-
<PAGE>
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
COMPUTONE SYSTEMS INCORPORATED (the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Corporation's Board of Directors,
resolutions were duly adopted setting forth a proposed amendment to the
Certificate of Incorporation of the Corporation, declaring said amendment to be
advisable and directing that said amendment be submitted for approval by written
consents of the holders of a majority of the outstanding shares of stock of the
Corporation. The amendment to the Certificate of Incorporation amends Article
"First" to read as follows:
"FIRST. The name of this Corporation
is WORLD-WIDE TECHNOLOGY INC."
SECOND: That thereafter, pursuant to resolutions of its Board of
Directors, said amendment was approved by written consents of the holders of a
majority of the outstanding stock of the Corporation entitled to vote by written
consent, in accordance with the provisions of Section 228 of the General
Corporation Law of the State of Delaware, and written notice of the action so
taken has
<PAGE>
been given to all stockholders who have not consented in writing as provided in
Section 228(d) of the General Corporation Law of the State of Delaware.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Sections 242 and 228 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, COMPUTONE SYSTEMS INCORPORATED has caused its
corporate seal to be hereunto affixed and this certificate to be signed by
Thomas P. Tanis, Sr., Chairman of its Board of Directors, and attested by Thomas
P. Tanis, Jr., its Secretary, this 23rd day of May, 1988.
ATTEST: [Corporate Seal] COMPUTONE SYSTEMS INCORPORATED
/s/ Thomas P. Tanis, Jr. By: /s/ Thomas P. Tanis, Sr.
- -------------------------------- -------------------------------
Thomas P. Tanis, Jr. Thomas P. Tanis, Sr.
Secretary Chairman
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
COMPUTONE CORPORATION
Computone Corporation, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That by a meeting of the Board of Directors of Computone
Corporation (the "Corporation"), resolutions were adopted setting forth a
proposed amendment of the Certificate of Incorporation of said Corporation,
declaring said amendment to be advisable and calling for a meeting of the
stockholders of said Corporation for consideration thereof. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this Corporation be
amended by changing the Article thereof number "FOURTH" so that, as amended,
said Article shall be and read in its entirety as follows:
"FOURTH (A) Capital Stock. The total number of shares of all classes of
stock which the Corporation shall have authority to issue is
Thirty-Five Million (35,000,000) shares consisting of Twenty-Five
Million (25,000,000) shares of Common Stock, One Cent ($.01) par value
per share, and Ten Million (10,000,000) shares of Preferred Stock One
Cent ($.01) par value per share. The designations, rights (including
voting rights), preferences, qualifications, limitations and
restrictions of the Preferred Stock, and particularly the shares of
each series thereof, may, to the extent permitted by law, be similar to
or may differ from those of any other series. The Board of Directors is
hereby expressly granted authority to issue from time to time Preferred
Stock in one or more series and to fix from time to time before
issuance thereof, by filing a certificate pursuant to the General
Corporation Law of the State of Delaware, the number of shares in each
series and all designations, relative rights (including the right to
vote and to convert into any class or any series of any class),
preferences, qualifications, limitations and restrictions of the shares
in each such series.
<PAGE>
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, by a meeting of the stockholders of said Corporation held in
accordance with the General Corporation Law of the State of Delaware, the
necessary number of shares as required by statute were voted in favor of the
amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of said Corporation shall not be reduced
under or by reason of said amendment.
IN WITNESS WHEREOF, said Computone Corporation has caused this
certificate to be signed by its President attested by its Secretary this 18th
day of December, 1997.
COMPUTONE CORPORATION
(SEAL)
Attest: By: /s/ Thomas J. Anderson
----------------------------
Thomas J. Anderson, President
/s/ Frederick W. Dreher
- --------------------------------
Frederick W. Dreher, Secretary
-2-
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