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EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
LATTICE SEMICONDUCTOR CORPORATION
Lattice Semiconductor Corporation, a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
does hereby certify:
1. The Corporation initially filed its Certificate of
Incorporation in the Office of the Secretary of State of the State of Delaware
on the first day of March 1985;
2. On July 2, 1987, the Corporation filed a voluntary Petition
in Bankruptcy under Title 11, Chapter 11 of the United States Code;
3. The Corporation's Plan of Reorganization, confirmed by the
United States Bankruptcy Court for the District of Oregon on September 16,
1987 (the "Plan of Reorganization"), provided that all of the Corporation's
issued and outstanding common and preferred stock at September 28, 1987 (the
effective date under the Plan of Reorganization), namely 12,026,109 shares of
common stock, 1,980,000 shares of Series A preferred stock, 1,738,531 shares
of Series B preferred stock, 1,280,214 shares of Series C preferred stock,
and 1,952,107 shares of Series D preferred stock, be cancelled;
4. The Plan of Reorganization required amendment to the
Certificate of Incorporation, which Certificate of Amendment of Certificate
of Incorporation of Lattice Semiconductor Corporation was filed on November
13, 1987 pursuant to Section 303 of the General Corporation Law of the State
of Delaware.
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THEREFORE, pursuant to Section 245 of the General Corporation Law of
the State of Delaware, the undersigned Corporation adopts the following Restated
Certificate of Incorporation which shall supersede the original Certificate of
Incorporation and all amendments thereto (including but not limited to all
certificates or statements of designation of series of preferred stock) filed
prior to the effective date of this Restated Certificate of Incorporation. The
filing of the Restated Certificate of Incorporation was duly approved at a
meeting of the shareholders of the Corporation held on May 16, 1988, in
accordance with the requirements of Section 242 of the General Corporation Law
of the State of Delaware. The Restated Certificate of Incorporation shall read
as follows:
ARTICLE I
The name of the Corporation is: Lattice Semiconductor Corporation.
ARTICLE II
The registered office and place of business of the Corporation in the
State of Delaware is 1209 Orange Street, City of Wilmington, County of New
Castle, and the name of the registered agent of the Corporation in the State of
Delaware at such address is The Corporation Trust Company.
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ARTICLE III
The purpose of the Corporation is to conduct any lawful business, to
promote any lawful purpose, and to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of the
State of Delaware.
ARTICLE IV
The total number of shares of all classes of stock that the Corporation
shall have authority to issue is Forty Million (40,000,000) shares, par value
One Cent ($.01) each, consisting of Thirty Million (30,000,000) shares of Common
Stock, par value One Cent ($.01) each ("Common Stock") and Ten Million
(10,000,000) shares of Preferred Stock, par value One Cent ($.01) each
("Preferred Stock").
(A) PREFERRED STOCK. The Preferred Stock may be issued from time to
time in one or more series. The Board of Directors of the Corporation ("Board of
Directors") is hereby expressly authorized by resolution or resolutions adopted
from time to time: to divide the Preferred Stock into series; to designate any
such series appropriately so as to distinguish the shares of a series from
shares of all other series; to fix, determine or alter the voting and other
powers, designations, preferences, and rights, and the qualifications,
limitations and restrictions granted to or imposed upon any series of Preferred
Stock to the fullest extent permitted by law; to fix the number of shares
initially constituting any such series; and to increase or decrease the number
of shares constituting any such series from time to time subsequent to the issue
of shares of that series, but not below the number of shares of such series then
outstanding. In case the
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number of shares of any series shall be so decreased, the shares constituting
such decrease shall resume the status which they had prior to the adoption of
the resolution originally fixing the number of shares of such series. Failure
of the Board of Directors to specify the powers, rights and preferences in
the resolution establishing any series of Preferred Stock shall be deemed a
denial of any such powers, rights and preferences so omitted.
Without limitation of the foregoing authority conferred upon the Board
of Directors, there follows a statement of the powers, rights and preferences of
the Series A Preferred Stock, the Series B Preferred Stock and the Series D
Preferred Stock.
I. SERIES A PREFERRED STOCK AND SERIES B PREFERRED STOCK. There is
hereby created two series of Preferred Stock of the Corporation, which shall be
designated Series A Preferred Stock ("Series A Preferred") and Series B
Preferred Stock ("Series B Preferred"), respectively. The Series A Preferred
shall initially consist of 2,581,745 shares, and the Series B Preferred shall
initially consist of 647,638 shares. The powers, preferences and rights of the
shares of such series and the qualifications, limitations and restrictions
thereof are as follows:
SECTION 1. DIVIDEND RIGHTS. The holders of the Series A Preferred and
Series B Preferred shall be entitled to receive when, as and if declared by the
Board of Directors, out of any assets of the Corporation legally available
therefor, such dividends as may be declared from time to time by the Board of
Directors in respect of such shares. No dividends or other distributions (other
than pro rata dividends or distributions payable solely in Common Stock) shall
be paid with respect to Common Stock or with respect to any other class or
series of Preferred Stock unless an equal dividend or distribution (on a Common
Stock equivalent basis) shall have been paid or declared and set apart for
payment to holders of Series A Preferred and Series B Preferred.
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SECTION 2. LIQUIDATION PREFERENCE. In the event of any liquidation,
dissolution or winding up of the Corporation, either voluntary or involuntary,
the holders of Series A Preferred and Series B Preferred shall be entitled to be
paid out of the assets of the Corporation available for distribution to its
stockholders, before any payment or declaration and setting apart for payment of
any amount shall be made in respect of the Common Stock or stock of any other
class or series ranking junior as to the assets in liquidation to the Series A
Preferred or Series B Preferred, an amount equal to One Dollar ($1.00) per share
of Series A Preferred and Twelve Dollars ($12.00) per share of Series B
Preferred, respectively (as adjusted to reflect stock splits, combinations,
etc.), plus in each case an amount equal to any declared but unpaid dividends on
such share of Preferred Stock, and no more. If upon liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation available for
distribution to its stockholders shall be insufficient to pay the holders of the
Corporation's Series A Preferred and Series B Preferred the full amounts to
which they respectively shall be entitled, the holders of the Series B Preferred
shall have priority over the holders of the Series A Preferred with respect to
any distribution of assets until the holders of the Series B Preferred shall
have received the full amounts to which they shall be entitled. If upon
liquidation, dissolution or winding up of the Corporation, the assets of the
Corporation available for distribution to its stockholders shall be insufficient
to pay the holders of the Series B Preferred the full amount to which they shall
be entitled, the holders of the Series B Preferred shall share ratably in any
distribution of assets available for the holders of Series B Preferred according
to the respective amounts which would be payable in respect of the shares held
by them upon such distribution if all amounts payable on or with respect to said
shares were paid in full. If upon liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation available for distribution to its
stockholders shall be insufficient to pay the holders
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of the Corporation's Series A Preferred the full amounts to which they shall
be entitled, the holders of Series A Preferred shall share ratably in any
distribution of assets available for holders of Series A Preferred according
to the respective amounts which would be payable in respect of the shares
held by them upon such distribution if all amounts payable on or with respect
to said shares ware paid in full.
SECTION 3. CONVERSION. The holders of Series A Preferred Stock and
Series B Preferred shall have conversion rights as follows (the "Conversion
Rights").
(a) RIGHT TO CONVERT.
(i) OPTIONAL CONVERSION. Each share of the Series A Preferred
and Series B Preferred shall be convertible, at the option of the holder
thereof, at any time after the date of issuance of such share, at the office of
the Corporation or any transfer agent for the Preferred Stock, into such number
of fully paid and nonassessable shares of Common Stock as is determined by the
Conversion Rate, determined as hereinafter provided, in effect at the time of
conversion for such series of Preferred Stock. The conversion rate at which
shares of Common Stock shall be delivered upon conversion without the payment of
any additional consideration by the holder thereof (the "Conversion Rate") shall
initially be: (x) for the Series A Preferred, one (1) share of Common Stock with
respect to each share of Series A Preferred and (y) for the series B Preferred,
one (1) share of Common Stock with respect to each share of Series B Preferred.
Such initial Conversion Rate with respect to each such series of Preferred Stock
shall be subject to adjustment as set forth in Section 3(c) of this Article
IV(A)(I).
(ii) AUTOMATIC CONVERSION. Each share of the Series A
Preferred and Series B Preferred shall automatically be converted into shares of
Common Stock at the Conversion Rate at the time in effect for such series of
Preferred Stock immediately upon the consummation of the
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Corporation's sale of its Common Stock in a bona fide, firm commitment
underwritten public offering pursuant to an effective registration statement
under the Securities Act of 1933, as amended, which results in aggregate cash
proceeds (before underwriters' commissions and offering expenses) to the
Corporation of $5,000,000 or more.
(iii) PROCEDURES FOR AUTOMATIC CONVERSION. Upon the occurrence
of an event specified in Section 3(a)(ii) of this Article IV(A)(I), the
outstanding shares of the Series A Preferred and Series B Preferred to be
converted shall be converted automatically without any further action by the
holders of such shares and whether or not the certificates representing such
shares are surrendered to the Corporation or its transfer agent; provided,
however, that the Corporation shall not be obligated to issue certificates
evidencing the shares of Common Stock issuable upon such conversion unless
certificates evidencing such shares of the Preferred Stock being converted are
either delivered to the Corporation or any transfer agent, as hereinafter
provided, or the holder notifies the Corporation or any transfer agent, as
hereinafter provided, that such certificates have been lost, stolen, or
destroyed and executes an agreement satisfactory to the Corporation to indemnify
the Corporation from any loss incurred by it in connection therewith. Upon the
automatic conversion of the Series A Preferred and Series B Preferred, the
holders of such Preferred Stock shall surrender the certificates representing
such shares at the office of the Corporation or of any transfer agent for the
Preferred Stock. Thereupon, there shall be issued and delivered to such holder,
promptly at such office and in his name as shown on such surrendered certificate
or certificates, a certificate or certificates for the number of shares of
Common Stock into which the shares of the Preferred Stock surrendered were
convertible on the date on which such automatic conversion occurred.
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(b) MECHANICS OF OPTIONAL CONVERSION. Before any holder of Series A
Preferred or Series B Preferred shall be entitled to convert the same into
shares of Common Stock pursuant to Section 3(a)(i) of this Article IV(A)(I), he
or she shall surrender the certificate or certificates therefor, duly endorsed,
at the office of the Corporation or of any transfer agent for the Preferred
Stock, and shall give written notice by mail, postage prepaid, to the
Corporation at its principal corporate office of the election to convert the
same and shall state therein the name or names in which the certificate or
certificates for shares of Common Stock are to be issued. The Corporation shall,
as soon as practicable thereafter, issue and deliver at such office to such
holder of Series A Preferred or Series B Preferred, or to the nominee or
nominees of such holder, a certificate or certificates for the number of shares
of Common Stock to which such holder shall be entitled as aforesaid. Such
conversion shall be deemed to have been made immediately prior to the close of
business on the date of such surrender of the shares of Series A Preferred or
Series B Preferred to be converted, and the person or person entitled to receive
the shares of Common Stock issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such shares of Common Stock as
of such date. If the conversion is in connection with an underwritten offer of
securities registered pursuant to the Securities Act of 1933, the conversion
may, at the option of any holder tendering Preferred Stock for conversion, be
conditioned upon the closing with the underwriter of the sale of securities
pursuant to such offering, in which event the person(s) entitled to receive the
Common Stock issuable upon such conversion of the Preferred Stock shall not be
deemed to have converted such Preferred Stock until immediately prior to the
closing of such sale of securities.
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(c) CONVERSION RATE ADJUSTMENTS OF PREFERRED STOCK. The Conversion Rate
of the Series A Preferred and Series B Preferred shall be subject to adjustment
from time to time as follows:
(i) ADJUSTMENTS TO SERIES B PREFERRED FOR SALE OF ADDITIONAL
STOCK. (A) If at any time subsequent to the initial issuance of Series B
Preferred, the Corporation issues or sells shares of Additional Stock (as
defined below) that is convertible into Common Stock for an Effective Price (as
defined below) less than $4.00 per share (as adjusted to reflect stock splits,
combinations, etc.), then the Conversion Rate for such Series B Preferred in
effect immediately prior to each such issuance shall forthwith (except as
otherwise provided in this clause (i)) be increased so as to entitle each holder
of Series B Preferred Stock to receive on conversion of such shares that number
of shares of Common Stock required to preserve the percentage interest of the
Corporation's Common Stock (on an as-converted basis) that such share would have
held had shares been issued for the same aggregate consideration but at an
Effective Price of $4.00 per share, such adjustment to be made in accordance
with the following formula:
(AB) (D+C - AB)
--- --------
X = (D+F) (1 - AB
---
D+F
--------------
A
where
X = Series B Conversion Rate, as adjusted.
A = Number of Shares of Series B Preferred outstanding.
B = Series B Conversion Rate in effect immediately prior to adjustment.
C = Number of shares of Additional Stock issued, on an as-converted basis.
D = Total shares of Common Stock outstanding immediately prior to issuance of
Additional Stock (assuming conversion of all outstanding securities
convertible into Common Stock).
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E = The aggregate consideration paid for the Additional Stock for which the
adjustment is being made.
F = E divided by 4 (the result being the number of as-converted shares of
Common Stock that would have been issued had the Additional Stock been sold
at an Effective Price of $4 per share.)
(B) No adjustment of the Conversion Rate for the Series A
Preferred or Series B Preferred shall be made in an amount less than 1 percent
(.01), provided that any adjustments which are not required to be made by reason
of this sentence shall be carried forward and shall be taken into account in any
subsequent adjustment.
(C) In the case of the issuance of Additional Stock for cash,
the consideration shall be deemed to be the amount of cash paid therefor before
deducting any reasonable discounts, commissions or other expenses allowed, paid
or incurred by the Corporation for any underwriting or otherwise in connection
with the issuance and sale thereof.
(D) In the case of the issuance of the Additional Stock for a
consideration in whole or in part other than cash, the consideration other than
cash shall be deemed to be the fair value thereof as determined by the Board of
Directors irrespective of any accounting treatment.
(ii) ADDITIONAL STOCK. "Additional Stock" shall mean any shares
of Preferred Stock (including but not limited to Preferred Stock issued upon
conversion of debt that is by its terms convertible into Preferred Stock)
issued by the Corporation at any time after the initial issuance of the
Series A Preferred or Series B Preferred, other than
(A) Up to 436,837 shares of Preferred Stock subject to
warrants to purchase Preferred Stock issued pursuant to the Plan of
Reorganization of the Corporation pursuant to
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Title 11, Chapter 11 of the United States Code, as confirmed by the United
States Bankruptcy Court for the District of Oregon on September 16, 1987 (the
"Plan"),
(B) Up to 131,979 shares of Preferred Stock issued to National
Semiconductor Corp. pursuant to the Plan,
(C) Up to 35,380 shares of Preferred Stock issued to VLSI
Technology, Inc. pursuant to the Plan,
(D) Shares of Preferred Stock issued in the first round of
equity financing subsequent to September 16, 1987, as approved by the
resolution of the Corporation's Board of Directors, which financing shall be
designated by the Board of Directors as other than "Additional Stock"
pursuant to this Section 3(c)(ii)(D) of this Article IV(A)(I), and
(E) Such additional Preferred Stock, including any Preferrred
Stock subject to warrants and options, the issuance of which at an Effective
Price below $4.00 per share is approved by the holders of a majority of the
Series B Preferred Stock then outstanding, in each case appropriately adjusted
for any stock dividend, stock split or other like change.
The "Effective Price" for any shares of Additional Stock shall mean the
quotient determined by dividing the total number of shares of such Additional
Stock then issued or sold, into the aggregate consideration received, or deemed
to have been received in exchange for such shares by the Corporation under
Section 3(c)(i) of this Article IV(A)(I).
(iii) ADJUSTMENTS FOR STOCK SPLITS AND DIVIDENDS. In the event the
Corporation should at any time or from time to time after the initial issuance
of Series A Preferred and Series B Preferred fix a record date for the
effectuation of a split or subdivision of the outstanding shares of Common Stock
or the determination of holders of Common Stock entitled to receive a dividend
or other distribution payable in additional shares of Common Stock or other
securities
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or rights convertible into, or entitling the holder thereof to receive
directly or indirectly, additional shares of Common Stock (hereinafter
referred to as "Common Stock Equivalents") without payment of any
consideration by such holder for the additional shares of Common Stock or the
Common Stock Equivalents (including the additional shares of Common Stock
issuable upon conversion or exercise thereof), then, as of such record date
(or the date of such dividend, distribution, split or subdivision if no
record date is fixed), the Conversion Rate of the Series A Preferred and
Series B Preferred shall be appropriately adjusted so that the number of
shares of Common Stock issuable on conversion of each share of such series
shall be increased in proportion to such increase in outstanding shares.
(iv) ADJUSTMENTS FOR CONTRIBUTIONS. If the number of shares of Common
Stock outstanding at any time after the initial issuance of Series A Preferred
and Series B Preferred is decreased by a combination of the outstanding shares
of Common Stock, then, following the record date of such combination, the
Conversion Rate for the Series A Preferred and Series B Preferred shall be
appropriately adjusted so that the number of shares of Common Stock issuable on
conversion of each share of such series shall be decreased in proportion to such
decrease in outstanding shares.
(v) ADJUSTMENT FOR MERGER OR REORGANIZATION, ETC. In case of any
consolidation or merger of the Corporation with or into another corporation or
the conveyance of all or substantially all of the assets of the Corporation to
another corporation, each share of Series A Preferred and Series B Preferred
shall thereafter be convertible into the number of shares of stock or other
securities or property to which a holder of the number of shares of Common Stock
deliverable upon conversion of such Preferred Stock would have been entitled
upon such consolidation, merger or conveyance; and, in any such case,
appropriate adjustment (as
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determined by the Board of Directors) shall be made in the application of the
provisions herein set forth with respect to the rights and interest
thereafter of the holder of such Preferred Stock, to the end that the
provisions set forth herein (including provisions with respect to changes in
and other adjustments of the Conversion Rate of the Series A Preferred and
Series B Preferred) shall thereafter be applicable, as nearly as reasonably
may be, in relation to any shares of stock or other property thereafter
deliverable upon the conversion of the Series A Preferred or Series B
Preferred.
(d) OTHER DISTRIBUTIONS. In the event the Corporation shall declare a
distribution payable in securities of other persons, evidences of indebtedness
issued by the Corporation or other persons, assets (excluding regular cash
dividends) or options or rights not referred to in Section 3(c)(iii) of this
Article IV(A)(I), then, in each such case for the purpose of this sentence, the
holders of the Series A Preferred and Series B Preferred shall be entitled to a
proportionate share of any such distribution as though they were the holders of
the number of shares of Common Stock of the Corporation into which their
respective shares of Series A Preferred or Series B Preferred are convertible as
of the record date fixed for the determination of the holders of Common Stock of
the Corporation entitled to receive such distribution.
(e) RECAPITALIZATIONS. If at any time or from time to time there shall
be a recapitalization of the Common Stock (other than a subdivision, combination
or merger or sale of assets transaction provided for elsewhere in this Section
3), provision shall be made so that the holders of the Series A Preferred and
Series B Preferred shall thereafter be entitled to receive upon conversion of
such series of the Preferred Stock the number of shares of stock or other
securities or property of the Corporation or otherwise, to which a holder of
Common Stock deliverable upon conversion would have been entitled on such
recapitalization. In any such case,
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appropriate adjustment shall be made in the application of the provisions of
this Section 3 with respect to the rights of the holders of the Series A
Preferred and Series B Preferred after the recapitalization to the end that
the provisions of this Section 3 (including adjustment of the respective
Conversion Rates then in effect and the number of shares of Common Stock to
which holders are entitled upon conversion of the Series A Preferred and
Series B Preferred) shall be applicable after that event on as nearly
equivalent terms as may be practicable.
(f) NO IMPAIRMENT. The Corporation will not, by amendment of this
Restated Certificate of Incorporation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Corporation, but will at all times in good faith assist in the
carrying out of all the provisions of this Section 3 and in the taking of all
such action as may be necessary or appropriate in order to protect the
Conversion Rights of the holders the Series A Preferred and Series B Preferred
against impairment.
(g) FRACTIONAL SHARES; CERTIFICATE AS TO ADJUSTMENTS.
(i) No fractional shares shall be issued upon conversion of
the Series A Preferred or Series B Preferred, and the number of shares of Common
Stock to be issued shall be rounded to the nearest whole share. Whether or not
fractional shares are issuable upon such conversion shall be determined on the
basis of the total number of shares of Series A Preferred and Series B Preferred
the holder is at the time converting into Common Stock and the number of shares
of Common Stock issuable upon such aggregate conversion.
(ii) Upon the occurrence of each adjustment or readjustment
of a Conversion Rate of Series A Preferred or Series B Preferred pursuant to
this Section 3, the Corporation shall
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promptly compute such adjustment or readjustment in accordance with the terms
hereof and prepare and furnish to each holder of such series of Preferred
Stock a certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is based. The
Corporation shall, upon the written request at any time of a holder of Series
A Preferred or Series B Preferred, furnish or cause to be furnished to such
holder a like certificate setting forth (A) such adjustments and
readjustments, (B) the Conversion Rate at the time in effect with respect to
such series, and (C) the number of shares of Common Stock and the amount, if
any, of other property which at the time would be received upon the
conversion of a share of such series of Preferred Stock.
(h) NOTICES OF RECORD DATE. In the event of any taking by the
Corporation of a record of the holders of any class or series who are entitled
to receive any dividend (other than a regular cash dividend) or other
distribution, any right to subscribe for, purchase or otherwise acquire any
shares of stock of any class or any other securities or property, or to receive
any other right, the Corporation shall mail to each holder of Series A Preferred
or Series B Preferred, at least 20 days prior to the date specified therein, a
notice specifying the date on which any such record is to be taken for the
purpose of such dividend, distribution or right, and the amount and character of
such dividend, distribution or right.
(i) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The Corporation
shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of the Series A Preferred and Series B Preferred, such number of its
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of the Series A Preferred and Series B
Preferred; and if at any time the number of authorized but unissued shares of
Common Stock
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shall not be sufficient to effect the conversion of all then outstanding
shares of the Series A Preferred and Series B Preferred, in addition to such
other remedies as shall be available to the holder of such Preferred Stock,
the Corporation will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of
Common Stock to such number of shares as shall be sufficient for such
purposes.
(j) NOTICES. Any notice required by the provisions of this Section 3 to
be given to the holder of shares of Series A Preferred or Series B Preferred
shall be deemed given when personally delivered to such holder or two business
days after the same has been deposited in the United States mail, return receipt
requested, postage prepaid, and addressed to each holder of record at his or her
address appearing on the books of the Corporation.
(k) TAXES. The Corporation will pay all taxes and other governmental
charges that may be imposed in respect of the issue or delivery of shares of
Common Stock upon conversion of shares of Series A Preferred or Series B
Preferred.
SECTION 4. VOTING RIGHTS. The Corporation shall not issue any share of
any class of nonvoting equity securities. The holders of Series A Preferred and
Series B Preferred shall be entitled to notice of any stockholders meeting and
to vote upon the election of directors or upon any matter submitted to a
stockholder for a vote. Each holder of Series A Preferred or Series B Preferred
issued and outstanding shall have that number of votes equal to the number of
shares of Common Stock into which such holder's shares of Series A Preferred and
Series B Preferred could be converted and shall vote as one class with holders
of the Common Stock upon any matter submitted to a vote of stockholders except
as otherwise required by law.
II. SERIES D PREFERRED STOCK. There is hereby created a third
series of Preferred Stock of the Corporation, which shall be designated
Series D Preferred Stock (hereinafter called the
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"Series D Preferred") and shall consist of 1,250,000 shares. The powers,
preferences and relative, participating, optional or other rights and
qualifications, limitations or restrictions of shares of such series shall be
as follows:
SECTION 1. DIVIDEND RIGHTS. The holders of the Series D Preferred shall
be entitled to receive, when, as and if declared by the Board of Directors, out
of any assets of the Corporation legally available therefor, such dividends as
may be declared from time to time by the Board of Directors in respect of such
shares. The Corporation shall not at any time declare or pay any dividend on
shares of Common Stock unless dividends shall simultaneously be declared and
paid on each outstanding share of the Series D Preferred in an amount equal to
the dividend per share then being declared or paid on Common Stock multiplied by
the Series D Conversion Rate (as hereafter defined) then in effect.
SECTION 2. LIQUIDATION PREFERENCE. In the event of any liquidation,
dissolution or winding up of the Corporation, either voluntary or involuntary,
the holders of Series D Preferred shall be entitled to be paid out of the assets
of the Corporation available for distribution to its stockholders, before any
payment or declaration and setting apart for payment of any amount shall be made
in respect of the Common Stock or stock of any other class or series ranking
junior as to the assets in liquidation to the Series D Preferred, an amount
equal to Two Dollars ($2.00) per share of Series D Preferred (as adjusted to
reflect stock splits, combinations, etc.) plus in each case an amount equal to
any declared but unpaid dividends on such share of Series D Preferred, and no
more. If upon liquidation, dissolution or winding up of the Corporation the
assets of the Corporation available for distribution to its stockholders shall
be insufficient to pay the holders of the Corporation's Preferred Stock the full
amounts to which they respectively shall be entitled, the holders of the Series
D Preferred shall have priority over the holders of the Series A Preferred
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and Series B Preferred with respect to any distribution of assets until the
holders of the Series D Preferred shall have received the full amounts to
which they shall be entitled, and the holders of the Series D Preferred shall
be entitled to equal priority with the holders of all other Preferred Stock
not expressly made junior to the Series D Preferred on liquidation. If upon
liquidation, dissolution or winding up of the Corporation the assets of the
Corporation available for distribution to its stockholders shall be
insufficient to pay the holders of the Corporation's Series D Preferred and
the holders of any other Preferred Stock that is of equal priority on
liquidation with the Series D Preferred the full amount to which they shall
be entitled, the holders of the Corporation's Series D Preferred shall share
ratably in any distribution of assets available for the holders of Series D
Preferred and the holders of any other Preferred Stock that is of equal
priority on liquidation with the Series D Preferred according to the
respective amounts that would be payable in respect of the shares held by
them upon such distribution if all amounts payable on or with respect to said
shares were paid in full.
SECTION 3. CONVERSION. The holders of Series D Preferred shall have
conversion rights as follows:
(a) RIGHT TO CONVERT.
(i) OPTIONAL CONVERSION. Each share of the Series D Preferred
shall be convertible, at the option of the holder thereof, at any time after the
date of issuance of such share, at the office of the Corporation or any transfer
agent for the Preferred Stock, into such number of fully paid and nonassessable
shares of Common Stock as is determined by the Series D Conversion Rate,
determined as hereinafter provided, in effect at the time of conversion for such
Series D Preferred. The conversion rate at which shares of Common Stock shall be
delivered upon conversion without the payment of any additional consideration by
the holder
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thereof (the "Series D Conversion Rate") shall initially be one (1) share of
Common Stock with respect to each share of Series D Preferred. Such initial
Series D Conversion Rate with respect to the Series D Preferred shall be
subject to adjustment as set forth in Section 3(c) of this Article IV(A)(II).
(ii) AUTOMATIC CONVERSION. Each share of the Series D
Preferred shall automatically be converted into shares of Common Stock at the
Series D Conversion Rate at the time in effect for such Series D Preferred
immediately upon the consummation of the Corporation's sale of its Common Stock
in a bona fide, firm commitment underwritten public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
that results in aggregate cash proceeds (before underwriters' commissions and
offering expenses) to the Corporation of $5,000,000 or more.
(iii) PROCEDURES FOR AUTOMATIC CONVERSION. Upon the occurrence
of an event specified in Section 3(a)(ii) of this Article IV(A)II, the
outstanding shares of the Series D Preferred to be converted shall be converted
automatically without any further action by the holders of such shares and
whether or not the certificates representing such shares are surrendered to the
Corporation or its transfer agent; provided, however, that the Corporation shall
not be obligated to issue certificates evidencing the shares of Common Stock
issuable upon such conversion unless certificates evidencing such shares of the
Series D Preferred being converted are delivered to either the Corporation or
any transfer agent, as hereinafter provided, or the holder notifies the
Corporation or any transfer agent, as hereinafter provided, that such
certificates have been lost, stolen, or destroyed and executes an agreement
satisfactory to the Corporation to indemnify the Corporation from any loss
incurred by it in connection therewith. Upon the automatic conversion of the
Series D Preferred, the holders of such Series D Preferred
<PAGE>
shall surrender the certificates representing such shares at the office of
the Corporation or of any transfer agent for the Common Stock. Thereupon,
there shall be issued and delivered to such holder, promptly at such office
and in his name as shown on such surrendered certificate or certificates, a
certificate or certificates for the number of shares of Common Stock into
which the shares of the Series D Preferred surrendered were convertible on
the date on which such automatic conversion occurred.
(b) MECHANICS OF OPTIONAL CONVERSION. Before any holder of Series D
Preferred shall be entitled to convert the same into shares of Common Stock
pursuant to Section 3(a)(i) of this Article IV(A)(II), he or she shall surrender
the certificate or certificates therefor, duly endorsed, at the office of the
Corporation or of any transfer agent for the Series D Preferred and shall give
written notice by mail, postage prepaid, to the Corporation at its principal
corporate office of the election to convert the same and shall state therein the
name or names in which the certificate or certificates for shares of Common
Stock are to be issued. The Corporation shall, as soon as practicable
thereafter, issue and deliver at such office to such holder of Series D
Preferred, or to the nominee or nominees of such holder, a certificate or
certificates for the number of shares of Common Stock to which such holder shall
be entitled as aforesaid. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of such surrender of the
shares of Series D Preferred to be converted, and the person or person entitled
to receive the shares of Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such shares of
Common Stock as of such date. If the conversion is in connection with an
underwritten offer of securities registered pursuant to the Securities Act of
1933, the conversion may, at the option of any holder tendering the Series D
Preferred for conversion, be conditioned upon the closing with the underwriter
of the sale of
<PAGE>
securities pursuant to such offering, in which event the person(s) entitled
to receive the Common Stock issuable upon such conversion of the Series D
Preferred shall not be deemed to have converted such Series D Preferred until
immediately prior to the closing of such sale of securities.
(c) CONVERSION RATE ADJUSTMENTS OF SERIES D PREFERRED. The
Series D Conversion Rate shall be subject to adjustment from time to time as
follows:
(i) STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS.
In case the Corporation shall
(A) take a record of the holders of its Common
Stock for the purpose of entitling them to receive a dividend payable in, or
other distribution of, Common Stock, or
(B) subdivide its outstanding shares of Common
Stock into a larger number of shares of Common Stock, or
(C) combine its outstanding shares of Common Stock
into a smaller number of shares of Common Stock,
then the per share Series D Conversion Rate shall be adjusted to that rate
determined by multiplying the per share Series D Conversion Rate in effect
immediately prior to such event by a fraction (i) the numerator of which
shall be the total number of outstanding shares of Common Stock of the
Corporation immediately after such event, and (ii) the denominator of which
shall be the total number of outstanding shares of Common Stock of the
Corporation immediately prior to such event. In the event that the dividend
or distribution referenced in subsection 3(c)(i)(A) of this Article IV(A)(II)
is lawfully abandoned, the Series D Conversion Rate shall be appropriately
readjusted.
<PAGE>
(ii) ISSUANCE OF ADDITIONAL SHARES OF COMMON STOCK. In case
the Corporation shall (except as hereinafter provided) issue any Additional
Shares of Common Stock for a consideration that is either (a) less than the
Current Market Price, or (b) less than the Conversion Price, then the Series D
Conversion Rate in effect immediately prior to such event shall be adjusted upon
each such issuance in accordance with the following formula:
(A) If issued for a consideration per share less than
the Current Market Price per share of Common Stock:
C' = C X O + N
----------
O + N(P)
----
M
where:
C' = the adjusted Series D Conversion Rate.
C = the current Series D Conversion Rate.
O = the number of shares of Common Stock outstanding immediately
prior to the issuance of such Additional Shares of Common Stock.
N = the number of Additional Shares of Common Stock to be issued.
P = the price per share of the Additional Shares of Common Stock.
M = the Current Market Price per share of Common Stock.
For the purposes of this Section 3(c)(ii), the date as of which the Current
Market Price per share of Common Stock shall be computed shall be the earlier
of (a) the date on which the consideration per share to be received pursuant
to the terms of a firm contract entered into by the Corporation for the
issuance of Additional Shares of Common Stock becomes determinable, or (b)
the date of actual issuance of such Additional Shares of Common Stock.
<PAGE>
(B) If issued for a consideration per share less
than the Conversion Price:
C' = C X O + N
---------
O + N(P)
----
P'
where:
C' = the adjusted Series D Conversion Rate.
C = the current Series D Conversion Rate.
O = the number of shares of Common Stock outstanding immediately
prior to the issuance of such Additional Shares of Common Stock.
N = the number of Additional Shares of Common Stock to be issued.
P = the price per share of the Additional Shares of Common Stock.
P'= the Conversion Price in effect immediately prior to the issuance
of such Additional Shares of Common Stock.
If such Additional Shares of Common Stock shall be issued at a price per
share less than both the Conversion Price and the Current Market Price per
share of Common Stock, the Series D Conversion Rate shall be adjusted in that
manner which will result in the greatest increase of the Series D Conversion
Rate.
For purposes of this Section 3(c)(ii), the number of shares of Common
Stock outstanding shall be deemed to include the maximum number of Additional
Shares of Common Stock issuable pursuant to all outstanding warrants or other
rights or necessary to effect the conversion or exchange of all such outstanding
Convertible Securities of the Corporation. All such warrants, other rights or
Convertible Securities shall be deemed to have been issued as of the earlier of
(x) the date on which the Corporation shall enter a firm contract or commitment
for the issuance of
<PAGE>
such warrants, other rights or Convertible Securities or (y) the date of
actual issuance of such warrants, other rights or Convertible Securities.
The provisions of this Section 3(c)(ii) shall not apply to any
Additional Shares of Common Stock that are (a) issued pursuant to a written
consent of a majority of the holders of the Series D Preferred to the effect
that such shares shall not be subject to the antidilution provisions of Section
3(c)(ii), or (b) distributed to holders of Common Stock as a stock dividend or
subdivision, for which an adjustment is provided under Section 3(c)(i) above. No
adjustment of the per share Series D Conversion Rate shall be made under this
Section 3(c)(ii) upon the issuance of any Additional Shares of Common Stock that
are issued pursuant to the exercise of any warrants or other subscription or
purchase rights or pursuant to the exercise of any conversion or exchange rights
in any Convertible Securities, if any such adjustment shall previously have been
made upon the issuance of such warrants or other rights or upon the issuance of
such Convertible Securities (or upon the issuance of any warrants or other
rights therefor) pursuant to Section 3(c)(iii) below.
(iii) ISSUANCE OF WARRANTS, OTHER RIGHTS OR CONVERTIBLE SECURITIES. In
case the Corporation shall issue any warrants or other rights to subscribe for
or purchase any Additional Shares of Common Stock or issue Convertible
Securities and the consideration per share for which Additional Shares of Common
Stock may at any time thereafter be issuable pursuant to such warrants or other
rights or pursuant to the terms of such Convertible Securities shall be less
than the Current Market Price or less than the Conversion Price, then the per
share Series D Conversion Rate shall be adjusted in accordance with the
following formula:
(A) If issuable for a consideration per share less
than the Current Market Price per share of Common Stock:
<PAGE>
C' = C X O + N
---------
O + N(P)
----
M
where:
C' = the adjusted Series D Conversion Rate.
C = the current Series D Conversion Rate.
O = the number of shares of Common Stock outstanding immediately
prior to the issuance of such warrants, other rights or
Convertible Securities.
N = the maximum number of Additional Shares of Common Stock issuable
pursuant to such warrants or other rights or pursuant to the terms
of the Convertible Securities then being issued.
P = the offering price per share of the Additional Shares of Common
Stock (which shall be deemed to be the minimum consideration per
share received or receivable by the Corporation for the issuance
of such Additional Shares of Common Stock pursuant to such
warrants or other rights or pursuant to the terms of such
Convertible Securities).
M = the Current Market Price per share of Common Stock.
(B) If issuable for a consideration per share
less than the Conversion Price then in
effect:
C' = C X O + N
--------
O + N(P)
----
P'
where:
C' = the adjusted Series D Conversion Rate.
C = the current Series D Conversion Rate.
O = the number of shares of Common stock outstanding immediately
prior to the issuance of such warrants, other rights or
Convertible Securities.
<PAGE>
N = the number of Additional Shares of Common Stock issuable
pursuant to such warrants or other rights or pursuant to the terms
of the Convertible Securities then being issued.
P = the offering price per share of the Additional Shares of Common
Stock (which shall be deemed to be the minimum consideration per
share received or receivable by the Corporation for the issuance
of such Additional Shares of Common Stock pursuant to such
warrants or other rights or pursuant to the terms of such
Convertible Securities).
P' = the Conversion Price in effect immediately prior to the issuance
of such warrants, other rights or Convertible Securities.
For purposes of this Section 3(c)(iii), the number of shares of Common
Stock outstanding shall be deemed to include the maximum number of Additional
Shares of Common Stock issuable pursuant to all outstanding warrants or other
rights or necessary to effect the conversion or exchange of all such outstanding
Convertible Securities of the Corporation. All such warrants, other rights or
Convertible Securities shall be deemed to have been issued as of, and the date
as of which the Current Market Price per share of Common Stock shall be computed
shall be, the earlier of (x) the date on which the Corporation shall enter a
firm contract or commitment for the issuance of such warrants, other rights or
Convertible Securities or (y) the date of actual issuance of such warrants,
other rights or Convertible Securities.
No adjustment of the per share Series D Conversion Rate shall be made
under this Section 3(c)(iii) upon the issuance of any Convertible Securities
that are issued (a) pursuant to a written consent of a majority of the holders
of the Series D Preferred to the effect that such shares shall not be subject to
the antidilution provisions of this Section 3(c)(iii), or (b) pursuant to the
exercise of any warrants or other subscription or purchase rights therefor if
any such
<PAGE>
adjustment shall previously have been made upon the issuance of such warrants
or other rights pursuant to said paragraph.
(iv) OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER THIS SECTION. The
following provisions shall be applicable to the making of adjustments to the
Series D Conversion Rate hereinbefore provided in this Section 3(c):
(A) COMPUTATION OF CONSIDERATION. To the extent that any
Additional Shares of Common Stock or any Convertible Securities or any warrants
or other rights to subscribe for or purchase any Additional Shares of Common
Stock or any Convertible Securities shall be issued for a cash consideration,
the consideration received by the Corporation therefor shall be deemed to be the
amount of the cash received by the Corporation therefor, or, if such Additional
Shares of Common Stock or Convertible Securities or warrants or other rights are
offered by the Corporation for subscription, the subscription price, or, if such
Additional Shares of Common Stock or Convertible Securities or warrants or other
rights are sold to underwriters or dealers for public offering without a
subscription offering, the initial public offering price, in any such case
excluding any amounts paid or receivable for accrued interest or accrued
dividends and without deduction of any compensation, discounts or expenses paid
or incurred by the Corporation for and in the underwriting thereof or otherwise
in connection with the issue thereof. To the extent that such issuance shall be
for a consideration other than cash, then, except as herein otherwise expressly
provided, the amount of such consideration shall be deemed to be the fair value
of such consideration at the time of such issuance as determined in good faith
by the Board of Directors of the Corporation. The consideration for any
Additional Shares of Common Stock issuable pursuant to any warrants or other
rights to subscribe for or purchase the same shall be the consideration received
by the Corporation for issuing such warrants or other rights, plus the
<PAGE>
additional consideration payable to the Corporation upon the exercise of such
warrants or other rights. The consideration for any Additional Shares of Common
Stock issuable pursuant to the terms of any Convertible Securities shall be the
consideration received by the Corporation for issuing any warrants or other
rights to subscribe for or purchase such Convertible Securities plus the
consideration paid or payable to the Corporation in respect of the subscription
for or purchase of such Convertible Securities, plus the additional
consideration, if any, payable to the Corporation upon the exercise of the right
of conversion or exchange in such Convertible Securities. In case of the
issuance at any time of any Additional Shares of Common Stock or Convertible
Securities in payment or satisfaction of any dividend upon any class of equity
securities other than Common Stock, the Corporation shall be deemed to have
received for such Additional Shares of Common Stock or Convertible Securities a
consideration equal to the amount of such dividend so paid or satisfied.
(B) READJUSTMENT OF SERIES D CONVERSION RATE. Upon expiration
of the right of conversion or exchange of any Convertible Securities, or upon
the expiration of any rights, options or warrants, or upon any increase in the
minimum consideration receivable by the Corporation for the issuance of
Additional Shares of Common Stock pursuant to such Convertible Securities,
rights, options or warrants, if any such Convertible Securities shall not have
been converted or exchanged, or if any such rights, options or warrants shall
not have been exercised, the number of shares of Common Stock deemed to be
issued and outstanding by reason of the fact that they were issuable upon
conversion or exchange of any such Convertible Securities or upon exercise of
any such rights, options or warrants shall no longer be computed as set forth
above, and the Series D Conversion Rate shall forthwith be readjusted and
thereafter be the rate that it would have been (but reflecting any other
adjustments in the Conversion Rate
<PAGE>
made pursuant to the provisions of this Section 3(c) after the issuance of
such Convertible Securities, rights, options or warrants) had the adjustment
of the Series D Conversion Rate made upon the issuance or sale of such
Convertible Securities or the issuance of such rights, options or warrants
been made on the basis of the issuance only of the number of Additional
Shares of Common Stock actually issued upon conversion or exchange of such
Convertible Securities or upon the exercise of such rights, options or
warrants, or upon the basis of such increased minimum consideration, as the
case may be, and thereupon only the number of Additional Shares of Common
Stock actually so issued or the number thereof issuable upon the basis of
such increased minimum consideration shall be deemed to have been issued and
only the consideration actually received or such increased minimum
consideration receivable by the Corporation (computed as in Section
3(c)(iv)(A) of this Article IV(A)(II)) shall be deemed to have been received
by the Corporation.
(v) EXTRAORDINARY DIVIDENDS. In case the Corporation shall declare, to
the extent permitted by Section 4 hereof, a dividend upon its Common Stock
(except a dividend payable in shares of Common Stock referred to in Section
3(c)(i) or a dividend payable in warrants, rights or Convertible Securities
referred to in Section 3(c)(iii) of this Article IV(A)(II)) payable otherwise
than out of earnings or surplus (other than revaluation surplus or paid-in
surplus), the Corporation shall simultaneously declare a dividend, in cash, upon
the Series D Preferred equal to, in the case of a cash dividend, the amount of
the per share dividend declared upon the Common Stock times the Series D
Conversion Rate then in effect and, in the case of a dividend payable other than
in cash, the fair value of such dividend declared upon the Common Stock as
determined by the Board of Directors of the Corporation. For the purposes of the
foregoing, a dividend payable other than in cash shall be considered payable out
of earnings or surplus (other
<PAGE>
than revaluation surplus or paid-in surplus) only to the extent that such
surplus or earnings are charged an amount equal to the fair value of such
dividend as determined by the Board of Directors of the Corporation.
(vi) MINIMUM ADJUSTMENT. Except as hereinafter provided, no adjustment
of the Series D Conversion Rate hereunder shall be made if such adjustment
results in a change of the Series D Conversion Rate then in effect of less than
1 percent thereof. Any adjustment of less than 1 percent of any Series D
Conversion Rate shall be carried forward and shall be made at the time of and
together with any subsequent adjustment that, together with adjustment or
adjustments so carried forward, amounts to 1 percent of the Series D Conversion
Rate then in effect or more. However, upon the conversion of any share of the
Series D Preferred, the Corporation shall make all necessary adjustments not
theretofore made to the Series D Conversion Rate up to and including the date
upon which the conversion is exercised.
(vii) NOTICE OF ADJUSTMENTS. Whenever the Series D Conversion Rate
shall be adjusted pursuant to this Section 3(c), the Corporation shall promptly
make a certificate signed by the President or a Vice President and by the
Treasurer or an Assistant Treasurer setting forth, in reasonable detail, the
event requiring the adjustment, the amount of the adjustment, the adjusted
Series D Conversion Rate, and the method by which such adjustment was calculated
(including a description of the basis on which the Board of Directors of the
Corporation made any determination hereunder) and shall promptly cause copies of
such certificate to be mailed (by first-class mail postage prepaid) to each of
the holders of the Series D Preferred.
(d) MERGERS, CONSOLIDATIONS, SALES. In the case of any consolidation or
merger of the Corporation with another entity, or any reorganization or
reclassification of the Common Stock or other equity securities of the
Corporation (except a split-up or combination, provision for
<PAGE>
which is made in Section 3(c)(i) of this Article IV(A)(II)), then, as a
condition of such consolidation, merger, reorganization or reclassification,
lawful and adequate provision shall be made whereby the holders of the Series
D Preferred shall thereafter have the right to receive, upon the basis and
upon the terms and conditions specified herein and in lieu of the shares of
Common Stock immediately theretofore receivable hereunder, such shares of
stock, securities or assets as may (by virtue of such consolidation, merger,
sale, reorganization or reclassification) be issued or payable with respect
to or in exchange for a number of outstanding shares of Common Stock equal to
the number of shares of Common Stock immediately theretofore so receivable
hereunder had such consolidation, merger, sale, reorganization or
reclassification not taken place, and in any such case appropriate provisions
shall be made with respect to the rights and interests of the holders of the
Series D Preferred to the end that the provisions hereof (including, without
limitation, provisions for adjustment of the Series D Conversion Rate) shall
thereafter be applicable as nearly as may be, in relation to any shares of
stock, securities or assets thereafter deliverable upon conversion of such
Series D Preferred.
(e) DISSOLUTION OR LIQUIDATION. In the event of any proposed
distribution of the assets of the Corporation in dissolution or liquidation
(except under circumstances when the foregoing Section 3(d) shall be
applicable), the Corporation shall mail notice thereof to the holders of the
Series D Preferred and shall make no distribution to shareholders until the
expiration of 30 days from the date of mailing of the aforesaid notice, and in
any such case, the holders of the Series D Preferred may exercise the conversion
rights with respect to the Series D Preferred within 30 days from the date of
mailing such notice and all rights herein granted not so exercised within such
30-day period shall thereafter become null and void.
<PAGE>
(f) NO IMPAIRMENT. The Corporation will not, by amendment of its
Restated Certificate of Incorporation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Corporation, but will at all times in good faith assist in the
carrying out of all of the provisions of this Section 3 and in the taking of all
such action as may be necessary or appropriate in order to protect the
conversion rights of the holders of the Series D Preferred against impairment.
(g) FULLY PAID STOCK; TAXES. The shares of stock represented by each
and every certificate for its Common Stock to be delivered on the exercise of
the conversion rights herein provided for shall, at the time of such delivery,
be validly issued and outstanding and be fully paid and nonassessable. The
Corporation shall pay when due and payable any and all federal and state taxes
(other than income taxes) that may be payable in respect of the Series D
Preferred or any Common Stock or certificates therefor upon the exercise of the
conversion rights herein provided for pursuant to the provisions hereof. The
Corporation shall not, however, be required to pay any tax that may be payable
in respect of any transfer involved in the transfer and delivery of stock
certificates in the name other than that of the holder of the Series D Preferred
converted, and any such tax shall be paid by such holder at the time of
presentation.
(h) CLOSING OF TRANSFER BOOKS. The right to convert any of the Series D
Preferred shall not be suspended during any period while the stock transfer
books of the Corporation for its Common Stock may be closed. The Corporation
shall not be required, however, to deliver certificates of its Common Stock upon
such exercise while such books are duly closed for any purpose, but the
Corporation may postpone the delivery of the certificates for such Common
<PAGE>
Stock until the opening of such books, and they shall, in such case, be
delivered forthwith upon the opening thereof or as soon as practicable
thereafter.
(i) RESERVATION OF COMMON STOCK. The Corporation will at all times
reserve and keep available such number of authorized shares of its Common Stock,
solely for the purpose of issue upon the conversion of the Series D Preferred as
herein provided for, as shall then be issuable upon the conversion of all
outstanding shares of Series D Preferred, and such shares of Common Stock shall
at no time have a par value that is in excess of the Conversion Price then in
effect.
(j) DEFINITIONS. In addition to the terms defined elsewhere in this
Section 3 of Article IV(A)(II), the following terms have the following
respective meanings:
The term "Additional Shares of Common Stock" shall mean all shares of
Common Stock issued by the Corporation on and after January 1, 1988, except:
(i) Common Stock issued upon conversion of the Series A
Preferred, Series B Preferred or Series D Preferred, or on conversion of stock
that is excluded from the definition of "Additional Shares of Common Stock";
(ii) Warrants to purchase 18,000 shares of Series A Preferred
issued to partners of Lease for Lattice Partners and the shares to be issued on
exercise of such warrants;
(iii) 368,937 shares of Series A Preferred to be issued to
Louisiana Pacific Corporation on exercise of a warrant;
(iv) Up to 35,380 shares of Preferred Stock to be issued to
VLSI Technology, Inc.
(v) Shares of Preferred Stock to be issued to National
Semiconductor Corp. pursuant to its 1987 agreement with the Corporation;
<PAGE>
(vi) 557,740 shares of Common Stock issued to employees of the
Corporation pursuant to the Plan of Reorganization of the Corporation Pursuant
to Title 11, Chapter 11 of the United States Code, as confirmed by the United
States Bankruptcy Court for the District of Oregon on September 26, 1987 (the
"Plan");
(vii) 155,000 shares of Common Stock issued to directors of
the Corporation;
(viii) Options to purchase 500,000 shares of Common Stock and
the shares of common stock issued on exercise thereof pursuant to an employee
stock option plan approved by the Board of Directors of the Corporation;
(ix) All shares of Common Stock, Series A Preferred and Series
B Preferred issued to creditors who have claims against the Corporation under
the Plan in satisfaction or settlement of such claims;
(x) 40,000 shares of Common Stock issued to Alioto & Alioto.
The term "Conversion Price" shall mean the price equal to $2 divided by
the Conversion Rate in effect at the date of determination thereof.
The term "Convertible Securities" shall mean evidences of indebtedness,
shares of stock or other securities that are convertible into or exchangeable
for Additional Shares of Common Stock, either immediately or upon the arrival of
a specified date or the happening of a specified event.
The term "Current Market Price" per share of Common Stock for the
purposes of any provision of this Section 3 of Article IV(A)(2) at the date of
determination thereof, shall be deemed to be an amount equal to 95 percent of
the average of the daily market prices for the period of 10 consecutive business
days ending 5 business days prior to the date of issuance of warrants or other
rights or Convertible Securities referred to in said Section 3(c)(iii) of this
<PAGE>
Article IV(A)(II). The market price for each such business day shall be the
last sale price on such day on the New York Stock Exchange, or, if the Common
Stock is not then listed or admitted to trading on the New York Stock
Exchange, on such other principal stock exchange on which such stock is then
listed or admitted to trading, or, if no sale takes place on such day on any
such exchange, the average of the closing bid and asked prices on such day as
officially quoted on any such exchange, or, if the Common Stock is not then
listed or admitted to trading on any stock exchange, the market price for
each such business day shall be the average of the reported closing bid and
asked prices on such day in the over-the-counter market, as furnished by the
National Association of Securities Dealers Automatic Quotation system, or, if
such price at the time is not available from such system, as furnished by any
similar system then engaged in the business of reporting such prices and
selected by the Corporation or, if there is no such system, as determined by
resolution of the Board of Directors of the Corporation in good faith,
provided that if such valuation by the Board of Directors is contested by a
majority of the holders of the Series D Preferred within 20 days after
receipt of written notice of the adoption of such resolution, then as
determined by any member of the National Association of Securities Dealers,
Inc. selected by the Corporation.
SECTION 4. RESTRICTIONS ON CORPORATE ACTION. So long as any shares of
the Series D Preferred shall be outstanding and, in addition to any other
approvals or consents required by law, without the consent of the holders of at
least two-thirds of the shares of Series D Preferred at the time outstanding as
of a record date fixed by the Board of Directors, given either by their
affirmative vote at a special meeting called for that purpose or, if permitted
by law, in writing, without a meeting, the Corporation shall not:
<PAGE>
(a) Notwithstanding anything in Section 3 of Article IV(A)(II)
to the contrary, declare or pay a dividend upon its Common Stock (except a
dividend payable in shares of Common Stock referred to in Section 3(c)(i)
thereof or dividend payable in warrants, rights or Convertible Securities
referred to in Section 3(c)(iii) thereof) payable otherwise than out of earnings
or surplus (other than revaluation surplus or paid-in surplus); or
(b) Alter or change the specific rights, preferences, or
privileges of its Preferred Stock so as to have an adverse effect on the Series
D Preferred; or
(c) Increase the authorized number of shares of its
Preferred Stock; or
(d) Create any new class or series of shares having
preferences over the Series D Preferred as to dividend, liquidation,
redemption, sinking fund, or assets, including, without limitation, any class
or series of stock that:
(i) Could be redeemed in whole or in part at a
price per share greater than the sum of twice the consideration per share
received by the Corporation therefor plus any accrued and unpaid dividends
thereon or would be entitled to payment of any redemption price prior to the
holders of the Series D Preferred;
(ii) Would be entitled upon liquidation to receive
any amount per share in excess of the sum of the consideration per share
received by the corporation therefor plus any accrued and unpaid dividends
thereon or would be entitled to receive any liquidating distribution prior to
the holders of the Series D Preferred;
(iii) Would be entitled to payment of any dividend
or distribution prior to the holders of the Series D Preferred or would be
entitled to any dividend or distribution other than the right to receive a
dividend or distribution at the same time as any dividend or distribution is
paid with respect to the Series D Preferred or Common Stock and in an amount
<PAGE>
that is not greater than the equivalent dividend or distribution paid with
respect to the Series D Preferred, such equivalence to be determined (A) if
said class or series of stock is convertible into Common Stock, based upon a
rate per share calculated using the respective number of shares of Common
Stock into which a share of said series or class of stock and a share of
Series D Preferred may be converted or (B) if said class or series of stock
is not so convertible, based upon the rate of such dividend or distribution
as a percentage of the consideration received by the Corporation for said
series or class of stock and the Series D Preferred, respectively; or
(iv) Would be convertible into or exchangeable for
or carry any option or right to acquire a class or series of stock described
in clause (i), (ii) or (iii) above; or
(e) Merge or consolidate with or into any other corporation,
except into or with a wholly owned subsidiary corporation with the requisite
shareholder approval and except any merger or consolidation in which the
corporation is a surviving corporation and the rights, preferences, privileges
and restrictions of the Series D Preferred remain unchanged; or
(f) Sell, convey, or otherwise dispose of all or
substantially all of the property or business of the Corporation; or
(g) Declare, pay or obligate itself to pay any dividend or
make any other distributions (including payments upon redemption or repurchase)
relative to any shares of its Common Stock or any other class or series of its
capital stock other than the Series D Preferred except as permitted under
Section 1 of this Article IV(A)(II) above.
SECTION 5. VOTING RIGHTS. The Corporation shall not issue any share of
any class of nonvoting equity securities. The holders of Series D Preferred
shall be entitled to notice of any stockholders meeting and to vote upon the
election of directors or upon any matter submitted to a stockholder for a vote.
Each holder of Series D Preferred issued and outstanding shall have that
<PAGE>
number of votes equal to the number of shares of Common Stock into which such
holder's shares of Series D Preferred could be converted and shall vote as
one class with holders of the Common Stock upon any matter submitted to a
vote of stockholders except as otherwise required by law.
II. COMMON STOCK.
Subject to all of the rights and preferences of the Preferred Stock,
the Common Stock shall have the following rights and limitations:
SECTION 1. DIVIDEND RIGHTS. The holders of Common Stock shall be
entitled to receive, when, as and if declared by the Board of Directors, out of
any assets of the Corporation legally available therefor, such dividends as may
be declared from time to time by the Board of Directors. No dividend or other
distribution (other than pro rata dividends or distributions payable solely in
Common Stock) shall be paid at any time at which the total assets of the
Corporation would be less than the sum of its total liabilities, plus that
amount that would be needed if the Corporation were to be dissolved at the time
of the dividend or distribution to satisfy the preferential rights upon
dissolution of shareholders whose preferential rights are superior to those
receiving the distribution.
SECTION 2. LIQUIDATION RIGHTS. After the payment or distribution to the
holders of the Preferred Stock of their full preferential amounts has been made,
all of the remaining assets of the Corporation available for distribution to its
stockholders shall be distributed ratably to the holders of the outstanding
Common Stock.
SECTION 3. VOTING RIGHTS. Holders of Common Stock shall be entitled
to one vote per share on any matter submitted to the stockholders of the
Corporation.
ARTICLE V
<PAGE>
After the original or other Bylaws of the Corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of Section 109 of the General Corporation Law of the State of
Delaware, and, after the Corporation has received any payment for any of its
stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be
exercised by the Board of Directors of the Corporation.
ARTICLE VI
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for conduct as a director;
provided that this Article VI shall not eliminate the liability of a director
for any act or omission for which such elimination of liability is not permitted
under the Delaware General Corporation Law. No amendment to the Delaware General
Corporation Law that further limits the acts or omissions for which elimination
of liability is permitted shall affect the liability of a director for any act
or omission which occurs prior to the effective date of such amendment.
In Witness Whereof, said Lattice Semiconductor Corporation has caused
this Restated Certificate of Incorporation to be signed by C. Norman
Winningstad, its Chairman and Chief Executive Officer, and attested by Raymond
P. Capece, its Secretary, this 20th day of May, 1988.
Lattice Semiconductor Corporation
By /s/ C. NORMAN WINNINGSTAD
-------------------------
C. Norman Winningstad
Chairman and Chief Executive Officer
<PAGE>
Attest:
By /s/ RAYMOND P. CAPECE
---------------------
Raymond P. Capece
Secretary
<PAGE>
CERTIFICATE OF THE DESIGNATIONS, POWERS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER RIGHTS OF THE SERIES E PREFERRED
STOCK OF LATTICE SEMICONDUCTOR CORPORATION
------------------------------------------
PURSUANT TO SECTION 151(g) OF THE GENERAL CORPORATION LAW OF THE
STATE OF DELAWARE
We, C. Norman Winningstad, Chairman and Chief Executive Officer, and
Raymond P. Capece, Secretary of Lattice Semiconductor Corporation, a corporation
organized and existing under the laws of the State of Delaware, do hereby
certify, under the seal of said corporation, as follows:
First: That pursuant to the provisions of the Certificate of
Incorporation of said corporation, as amended, the Board of Directors of said
corporation did adopt a resolution creating a series of Preferred Stock to be
designated "Series E Preferred Stock," and that the number of shares of stock
of such series authorized to be issued under said resolution is 1,250,000
shares.
Second: That said resolution was duly adopted by said Board of
Directors at a meeting properly held and at which a quorum was present on the
16th day of May, 1988.
Third: That the resolution creating said series of Preferred Stock
duly adopted by the Board of Directors as stated above reads as follows, to
wit:
"WHEREAS, the Certificate of Incorporation of this corporation, as
amended, authorized the issuance of Preferred Stock ($.01 par value) of this
corporation in series from time to time with such voting and other powers,
designations, preferences, and rights and with the qualifications, limitations
and restrictions granted to or imposed upon any series of Preferred Stock as
shall be stated and expressed in a resolution or resolutions providing for the
creation and issuance of such series adopted by the Board of Directors of this
corporation; and
"WHEREAS, it is desired to create an additional series of Preferred
Stock in accordance with the provisions of the Certificate of Incorporation of
this corporation, as amended, and pursuant to the authority therein contained to
designate such series and to fix the terms thereof;
"NOW, THEREFORE, Be it and it is hereby resolved by the Board of
Directors of Lattice Semiconductor Corporation, a Delaware corporation
(hereinafter in these resolutions referred to as the 'Corporation'), as follows,
to wit:
"There is hereby created a new series of Preferred Stock of the
Corporation, which shall be designated Series E Preferred Stock (hereinafter
called the 'Series E Preferred') and shall consist of 1,250,000 shares. The
powers, preferences and relative, participating, optional or other rights and
qualifications, limitations or restrictions of shares of such series shall be as
follows:
<PAGE>
"SECTION 1. DIVIDEND RIGHTS. The holders of the Series E Preferred shall be
entitled to receive, when, as and if declared by the Board of Directors, out of
any assets of the Corporation legally available therefor, such dividends as may
be declared from time to time by the Board of Directors in respect of such
shares. The Corporation shall not at any time declare or pay any dividend on
shares of Common Stock unless dividends shall simultaneously be declared and
paid on each outstanding share of the Series E Preferred in an amount equal to
the dividend per share then being declared or paid on Common Stock multiplied by
the Series E Conversion Rate then in effect.
"SECTION 2. LIQUIDATION PREFERENCE. In the event of any liquidation,
dissolution or winding up of the Corporation, either voluntary or
involuntary, the holders of Series E Preferred shall be entitled to be paid
out of the assets of the Corporation available for distribution to its
stockholders, before any payment or declaration and setting apart for payment
of any amount shall be made in respect of the Common Stock or stock of any
other class or series ranking junior as to the assets in liquidation to the
Series E Preferred, an amount equal to Four Dollars ($4.00) per share of
Series E Preferred (as adjusted to reflect stock splits, combinations, etc.)
plus in each case an amount equal to any declared but unpaid dividends on
such share of Series E Preferred, and no more. If upon liquidation,
dissolution or winding up of the Corporation the assets of the Corporation
available for distribution to its stockholders shall be insufficient to pay
the holders of the Corporation's Preferred Stock the full amounts to which
they respectively shall be entitled, the holders of the Series D Preferred
Stock ("Series D Preferred") and of the Series E Preferred shall have
priority over the holders of the Series A Preferred Stock ("Series A
Preferred") and Series B Preferred Stock ("Series B Preferred") with respect
to any distribution of assets until the holders of the Series D Preferred and
of the Series E Preferred shall have received the full amounts to which they
shall be entitled, and the holders of the Series E Preferred shall be
entitled to equal priority with the holders of all other Preferred Stock not
expressly made junior to the Series D Preferred and of the Series E Preferred
on liquidation. If upon liquidation, dissolution or winding up of the
Corporation the assets of the Corporation available for distribution to its
stockholders shall be insufficient to pay the holders of the Corporation's
Series D Preferred and of the Series E Preferred and the holders of any other
Preferred Stock that is of equal priority on liquidation with the Series D
Preferred and the Series E Preferred the full amount to which they shall be
entitled, the holders of the Corporation's Series E Preferred shall share
ratably in any distribution of assets available for the holders of Series D
Preferred and of the Series E Preferred and the holders of any other
Preferred Stock that is of equal priority on liquidation with the Series D
Preferred and the Series E Preferred according to the respective amounts that
would be payable in respect of the shares held by them upon such distribution
if all amounts payable on or with respect to said shares were paid in full.
"SECTION 3. CONVERSION. The holders of Series E Preferred shall have
conversion rights as follows:
"(a) RIGHT TO CONVERT.
"(i) OPTIONAL CONVERSION. Each share of the Series E
Preferred shall be convertible, at the option of the holder thereof, at any
time after the date of issuance of such
<PAGE>
share, at the office of the Corporation or any transfer agent for the
Preferred Stock, into such number of fully paid and nonassessable shares of
Common Stock as is determined by the Series E Conversion Rate, determined as
hereinafter provided, in effect at the time of conversion for such Series E
Preferred. The conversion rate at which shares of Common Stock shall be
delivered upon conversion without the payment of any additional consideration
by the holder thereof (the 'Series E Conversion Rate') shall initially be one
(1) share of Common Stock with respect to each share of Series E Preferred.
Such initial Series E Conversion Rate with respect to the Series E Preferred
shall be subject to adjustment as set forth in Section 3(c) hereof.
"(ii) AUTOMATIC CONVERSION. Each share of the Series E
Preferred shall automatically be converted into shares of Common Stock at the
Series E Conversion Rate at the time in effect for such Series E Preferred
immediately upon the consummation of the Corporation's sale of its Common Stock
in a bona fide, firm commitment underwritten public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
that results in aggregate cash proceeds (before underwriters' commissions and
offering expenses) to the Corporation of $5,000,000 or more.
"(iii) PROCEDURES FOR AUTOMATIC CONVERSION. Upon the
occurrence of an event specified in Section 3(a)(ii) hereof, the outstanding
shares of the Series E Preferred to be converted shall be converted
automatically without any further action by the holders of such shares and
whether or not the certificates representing such shares are surrendered to the
Corporation or its transfer agent; provided, however, that the Corporation shall
not be obligated to issue certificates evidencing the shares of Common Stock
issuable upon such conversion unless certificates evidencing such shares of the
Series E Preferred being converted are delivered to either the Corporation or
any transfer agent, as hereinafter provided, or the holder notifies the
Corporation or any transfer agent, as hereinafter provided, that such
certificates have been lost, stolen, or destroyed and executes an agreement
satisfactory to the Corporation to indemnify the Corporation from any loss
incurred by it in connection therewith. Upon the automatic conversion of the
Series E Preferred, the holders of such Series E Preferred shall surrender the
certificates representing such shares at the office of the Corporation or of any
transfer agent for the Common Stock. Thereupon, there shall be issued and
delivered to such holder, promptly at such office and in his name as shown on
such surrendered certificate or certificates, a certificate or certificates for
the number of shares of Common Stock into which the shares of the Series E
Preferred surrendered were convertible on the date on which such automatic
conversion occurred.
"(b) MECHANICS OF OPTIONAL CONVERSION. Before any holder of Series E
Preferred shall be entitled to convert the same into shares of Common Stock
pursuant to Section 3(a)(i), he or she shall surrender the certificate or
certificates therefor, duly endorsed, at the office of the Corporation or of any
transfer agent for the Series E Preferred and shall give written notice by mail,
postage prepaid, to the Corporation at its principal corporate office of the
election to convert the same and shall state therein the name or names in which
the certificate or certificates for shares of Common Stock are to be issued. The
Corporation shall, as soon as practicable thereafter, issue and deliver at such
office to such holder of Series E Preferred, or to the nominee or nominees of
such holder, a certificate or certificates for the number of shares of Common
Stock to which such holder shall be entitled as aforesaid. Such conversion shall
be deemed to
<PAGE>
have been made immediately prior to the close of business on the date of such
surrender of the shares of Series E Preferred to be converted, and the person
or person entitled to receive the shares of Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder or holders
of such shares of Common Stock as of such date. If the conversion is in
connection with an underwritten offer of securities registered pursuant to
the Securities Act of 1933, the conversion may, at the option of any holder
tendering the Series E Preferred for conversion, be conditioned upon the
closing with the underwriter of the sale of securities pursuant to such
offering, in which event the person(s) entitled to receive the Common Stock
issuable upon such conversion of the Series E Preferred shall not be deemed
to have converted such Series E Preferred until immediately prior to the
closing of such sale of securities.
"(c) CONVERSION RATE ADJUSTMENTS OF SERIES E PREFERRED. The
Series E Conversion Rate shall be subject to adjustment from time to time as
follows:
"(i) STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS.
In case after the date hereof the Corporation shall
"(A) take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend payable
in, or other distribution of, Common Stock, or
"(B) subdivide its outstanding shares of
Common Stock into a larger number of shares of Common Stock, or
"(C) combine its outstanding shares of Common
Stock into a smaller number of shares of Common Stock,
then the per share Series E Conversion Rate shall be adjusted to that rate
determined by multiplying the per share Series E Conversion Rate in effect
immediately prior to such event by a fraction (i) the numerator of which shall
be the total number of outstanding shares of Common Stock of the Corporation
immediately after such event, and (ii) the denominator of which shall be the
total number of outstanding shares of Common Stock of the Corporation
immediately prior to such event. In the event that the dividend or distribution
referenced in subsection 3(c)(i)(A) is lawfully abandoned the Series E
Conversion Rate shall be appropriately readjusted.
"(ii) ISSUANCE OF ADDITIONAL SHARES OF COMMON STOCK. In case
after the date hereof the Corporation shall (except as hereinafter provided)
issue any Additional Shares of Common Stock for a consideration that is either
(a) less than the Current Market Price, or (b) less than the Conversion Price,
then the Series E Conversion Rate in effect immediately prior to such event
shall be adjusted upon each such issuance in accordance with the following
formula:
"(A) If issued for a consideration per share
less than the Current Market Price per share of Common Stock:
C'= C X O + N
-----------
O + N(P)
----
M
<PAGE>
where:
C' = the adjusted Series E Conversion Rate.
C = the current Series E Conversion Rate.
O = the number of shares of Common Stock outstanding immediately
prior to the issuance of such Additional Shares of Common Stock.
N = the number of Additional Shares of Common Stock to be issued.
P = the price per share of the Additional Shares of Common Stock.
M = the Current Market Price per share of Common Stock.
For the purposes of this Section 3(c)(ii), the date as of which the Current
Market Price per share of Common Stock shall be computed shall be the earlier of
(a) the date on which the consideration per share to be received pursuant to the
terms of a firm contract entered into by the Corporation for the issuance of
Additional Shares of Common Stock becomes determinable, or (b) the date of
actual issuance of such Additional Shares of Common Stock.
"(B) If issued for a consideration per share
less than the Conversion Price:
C'=C X O + N
------------
O + N(P)
------
P'
where:
C' = the adjusted Series E Conversion Rate.
C = the current Series E Conversion Rate.
O = the number of shares of Common Stock outstanding immediately
prior to the issuance of such Additional Shares of Common Stock.
N = the number of Additional Shares of Common Stock to be issued.
P = the price per share of the Additional Shares of Common Stock.
P' = the Conversion Price in effect immediately prior to the issuance
of such Additional Shares of Common Stock.
If such Additional Shares of Common Stock shall be issued at a price per share
less than both the Conversion Price and the Current Market Price per share of
Common Stock, the Series E Conversion Rate shall be adjusted in that manner
which will result in the greatest increase of the Series E Conversion Rate.
"For purposes of this Section 3(c)(ii), the number of shares of Common
Stock outstanding shall be deemed to include the maximum number of Additional
Shares of Common
<PAGE>
Stock issuable pursuant to all outstanding warrants or other rights or
necessary to effect the conversion or exchange of all such outstanding
Convertible Securities of the Corporation. All such warrants, other rights or
Convertible Securities shall be deemed to have been issued as of the earlier
of (x) the date on which the Corporation shall enter a firm contract or
commitment for the issuance of such warrants, other rights or Convertible
Securities or (y) the date of actual issuance of such warrants, other rights
or Convertible Securities.
"The provisions of this Section 3(c)(ii) shall not apply to any
Additional Shares of Common Stock that are (a) issued pursuant to a written
consent of a majority of the holders of the Series E Preferred to the effect
that such shares shall not be subject to the antidilution provisions of Section
3(c)(ii), or (b) distributed to holders of Common Stock as a stock dividend or
subdivision, for which an adjustment is provided under Section 3(c)(i) above. No
adjustment of the per share Series E Conversion Rate shall be made under this
Section 3(c)(ii) upon the issuance of any Additional Shares of Common Stock that
are issued pursuant to the exercise of any warrants or other subscription or
purchase rights or pursuant to the exercise of any conversion or exchange rights
in any Convertible Securities, if any such adjustment shall previously have been
made upon the issuance of such warrants or other rights or upon the issuance of
such Convertible Securities (or upon the issuance of any warrants or other
rights therefor) pursuant to Section 3(c)(iii).
"(iii) ISSUANCE OF WARRANTS, OTHER RIGHTS OR CONVERTIBLE
SECURITIES. In case the Corporation shall issue any warrants or other rights to
subscribe for or purchase any Additional Shares of Common Stock or issue
Convertible Securities and the consideration per share for which Additional
Shares of Common Stock may at any time thereafter be issuable pursuant to such
warrants or other rights or pursuant to the terms of such Convertible Securities
shall be less than the Current Market Price or less than the Conversion Price,
then the per share Series E Conversion Rate shall be adjusted in accordance with
the following formula:
"(A) If issuable for a consideration per share
less than the Current Market Price per share of Common Stock:
C'= C X O + N
------------
O + N(P)
----
M
where:
C' = the adjusted Series E Conversion Rate.
C = the current Series E Conversion Rate.
O = the number of shares of Common Stock outstanding immediately
prior to the issuance of such warrants, other rights or
Convertible Securities.
<PAGE>
N = the maximum number of Additional Shares of Common Stock issuable
pursuant to such warrants or other rights or pursuant to the terms
of the Convertible Securities then being issued.
P = the offering price per share of the Additional Shares of Common
Stock (which shall be deemed to be the minimum consideration per
share received or receivable by the Corporation for the issuance
of such Additional Shares of Common Stock pursuant to such
warrants or other rights or pursuant to the terms of such
Convertible Securities).
M = the Current Market Price per share of Common Stock.
"(B) If Issuable for a consideration per share
less than the Ccnversion Price then in effect:
C'= C X O + N
---------
O + N(P)
----
P
where:
C' = the adjusted Series E Conversion Rate.
C = the current Series E Conversion Rate.
O = the number of shares of Common Stock outstanding immediately
prior to the issuance of such warrants, other rights or
Convertible Securities.
N = the number of Additional Shares of Common Stock issuable
pursuant to such warrants or other rights or pursuant to the terms
of the Convertible Securities then being issued.
P = the offering price per share of the Additional Shares of Common
Stock (which shall be deemed to be the minimum consideration per
share received or receivable by the Corporation for the issuance
of such Additional Shares of Common Stock pursuant to such
warrants or other rights or pursuant to the terms of such
Convertible Securities).
P' = the Conversion Price in effect immediately prior to the issuance
of such warrants, other rights or Convertible Securities.
"For purposes of this Section 3(c)(iii), the number of shares of Common
Stock outstanding shall be deemed to include the maximum number of Additional
Shares of Common Stock issuable pursuant to all outstanding warrants or other
rights or necessary to effect the conversion or exchange of all such outstanding
Convertible Securities of the Corporation. All such warrants, other rights or
Convertible Securities shall be deemed to have been issued as of, and the date
as of which the Current Market Price per share of Common Stock shall be computed
shall be, the earlier of (x) the date on which the Corporation shall enter a
firm contract or commitment for the issuance of such warrants, other rights or
Convertible Securities or (y) the date of actual issuance of such warrants,
other rights or Convertible Securities.
"No adjustment of the per share Series E Conversion Rate shall be made
under this Section 3(c)(iii) upon the issuance of any Convertible Securities
that are issued (a) pursuant to a
<PAGE>
written consent of a majority of the holders of the Series E Preferred to the
effect that such shares shall not be subject to the antidilution provisions
of Section 3(c)(iii), or (b) pursuant to the exercise of any warrants or
other subscription or purchase rights therefor if any such adjustment shall
previously have been made upon the issuance of such warrants or other rights
pursuant to said paragraph.
"(iv) OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER THIS
SECTION. The following provisions shall be applicable to the making of
adjustments to the Series E Conversion Rate hereinbefore provided in this
Section 3(c):
"(A) COMPUTATION OF CONSIDERATION. To the
extent that any Additional Shares of Common Stock or any Convertible
Securities or any warrants or other rights to subscribe for or purchase any
Additional Shares of Common Stock or any Convertible Securities shall be
issued for a cash consideration, the consideration received by the
Corporation therefor shall be deemed to be the amount of the cash received by
the Corporation therefor, or, if such Additional Shares of Common Stock or
Convertible Securities or warrants or other rights are offered by the
Corporation for subscription, the subscription price, or, if such Additional
Shares of Common Stock or Convertible Securities or warrants or other rights
are sold to underwriters or dealers for public offering without a
subscription offering, the initial public offering price, in any such case
excluding any amounts paid or receivable for accrued interest or accrued
dividends and without deduction of any compensation, discounts or expenses
paid or incurred by the Corporation for and in the underwriting thereof or
otherwise in connection with the issue thereof. To the extent that such
issuance shall be for a consideration other than cash, then, except as herein
otherwise expressly provided, the amount of such consideration shall be
deemed to be the fair value of such consideration at the time of such
issuance as determined in good faith by the Board of Directors of the
Corporation. The consideration for any Additional Shares of Common Stock
issuable pursuant to any warrants or other rights to subscribe for or
purchase the same shall be the consideration received by the Corporation for
issuing such warrants or other rights, plus the additional consideration
payable to the Corporation upon the exercise of such warrants or other
rights. The consideration for any Additional Shares of Common Stock issuable
pursuant to the terms of any Convertible Securities shall be the
consideration received by the Corporation for issuing any warrants or other
rights to subscribe for or purchase such Convertible Securities plus the
consideration paid or payable to the Corporation in respect of the
subscription for or purchase of such Convertible Securities, plus the
additional consideration, if any, payable to the Corporation upon the
exercise of the right of conversion or exchange in such Convertible
Securities. In case of the issuance at any time of any Additional Shares of
Common Stock or Convertible Securities in payment or satisfaction of any
dividend upon any class of equity securities other than Common Stock, the
Corporation shall be deemed to have received for such Additional Shares of
Common Stock or Convertible Securities a consideration equal to the amount of
such dividend so paid or satisfied.
"(B) READJUSTMENT OF SERIES E CONVERSION RATE.
Upon expiration of the right of conversion or exchange of any Convertible
Securities, or upon the expiration of any rights, options or warrants, or
upon any increase in the minimum consideration receivable by the Corporation
for the issuance of Additional Shares of Common Stock pursuant to such
<PAGE>
Convertible Securities, rights, options or warrants, if any such Convertible
Securities shall not have been converted or exchanged, or if any such rights,
options or warrants shall not have been exercised, the number of shares of
Common Stock deemed to be issued and outstanding by reason of the fact that
they were issuable upon conversion or exchange of any such Convertible
Securities or upon exercise of any such rights, options or warrants shall no
longer be computed as set forth above, and the Series E Conversion Rate shall
forthwith be readjusted and thereafter be the rate that it would have been
(but reflecting any other adjustments in the Series E Conversion Rate made
pursuant to the provisions of this Section 3(c) after the issuance of such
Convertible Securities, rights, options or warrants) had the adjustment of
the Series E Conversion Rate made upon the issuance or sale of such
Convertible Securities or the issuance of such rights, options or warrants
been made on the basis of the issuance only of the number of Additional
Shares of Common Stock actually issued upon conversion or exchange of such
Convertible Securities or upon the exercise of such rights, options or
warrants, or upon the basis of such increased minimum consideration, as the
case may be, and thereupon only the number of Additional Shares of Common
Stock actually so issued or the number thereof issuable upon the basis of
such increased minimum consideration shall be deemed to have been issued and
only the consideration actually received or such increased minimum
consideration receivable by the Corporation (computed as in Section
3(c)(iv)(A)) shall be deemed to have been received by the Corporation.
"(v) EXTRAORDINARY DIVIDENDS. In case the Corporation shall
declare, to the extent permitted by Section 4 hereof, a dividend upon its Common
Stock (except a dividend payable in shares of Common Stock referred to in
Section 3(c)(i) or a dividend payable in warrants, rights or Convertible
Securities referred to in Section 3(c)(iii)) payable otherwise than out of
earnings or surplus (other than revaluation surplus or paid-in surplus), the
Corporation shall simultaneously declare a dividend, in cash, upon the Series E
Preferred equal to, in the case of a cash dividend, the amount of the per share
dividend declared upon the Common Stock times the Series E Conversion Rate then
in effect and, in the case of a dividend payable other than in cash, the fair
value of such dividend declared upon the Common Stock as determined by the Board
of Directors of the Corporation. For the purposes of the foregoing, a dividend
payable other than in cash shall be considered payable out of earnings or
surplus (other than revaluation surplus or paid-in surplus) only to the extent
that such surplus or earnings are charged an amount equal to the fair value of
such dividend as determined by the Board of Directors of the Corporation.
"(vi) MINIMUM ADJUSTMENT. Except as hereinafter provided, no
adjustment of the Series E Conversion Rate hereunder shall be made if such
adjustment results in a change of the Series E Conversion Rate then in effect of
less than 1 percent thereof. Any adjustment of less than 1 percent of any Series
E Conversion Rate shall be carried forward and shall be made at the time of and
together with any subsequent adjustment that, together with adjustment or
adjustments so carried forward, amounts to 1 percent of the Series E Conversion
Rate then in effect or more. However, upon the conversion of any share of the
Series E Preferred, the Corporation shall make all necessary adjustments not
theretofore made to the Series E Conversion Rate up to and including the date
upon which the conversion is exercised.
<PAGE>
"(vii) NOTICE OF ADJUSTMENTS. Whenever the Series E Conversion
Rate shall be adjusted pursuant to this Section 3(c), the Corporation shall
promptly make a certificate signed by the President or a Vice President and by
the Treasurer or an Assistant Treasurer setting forth, in reasonable detail, the
event requiring the adjustment, the amount of the adjustment, the adjusted
Series E Conversion Rate, and the method by which such adjustment was calculated
(including a description of the basis on which the Board of Directors of the
Corporation made any determination hereunder) and shall promptly cause copies of
such certificate to be mailed (by first-class mail postage prepaid) to each of
the holders of the Series E Preferred.
"(d) MERGERS, CONSOLIDATIONS, SALES. In the case of any consolidation
or merger of the Corporation with another entity, or any reorganization or
reclassification of the Common Stock or other equity securities of the
Corporation (except a split-up or combination, provision for which is made in
Section 3(c)(i) hereof), then, as a condition of such consolidation, merger,
reorganization or reclassification, lawful and adequate provision shall be made
whereby the holders of the Series E Preferred shall thereafter have the right to
receive, upon the basis and upon the terms and conditions specified herein and
in lieu of the shares of Common Stock immediately theretofore receivable
hereunder, such shares of stock, securities or assets as may (by virtue of such
consolidation, merger, sale, reorganization or reclassification) be issued or
payable with respect to or in exchange for a number of outstanding shares of
Common Stock equal to the number of shares of Common Stock immediately
theretofore so receivable hereunder had such consolidation, merger, sale,
reorganization or reclassification not taken place, and in any such case
appropriate provisions shall be made with respect to the rights and interests of
the holders of the Series E Preferred to the end that the provisions hereof
(including, without limitation, provisions for adjustment of the Series E
Conversion Rate) shall thereafter be applicable as nearly as may be, in relation
to any shares of stock, securities or assets thereafter deliverable upon
conversion of such Series E Preferred.
"(e) DISSOLUTION OR LIQUIDATION. In the event of any proposed
distribution of the assets of the Corporation in dissolution or liquidation
(except under circumstances when the foregoing Section 3(d) shall be
applicable), the Corporation shall mail notice thereof to the holders of the
Series E Preferred and shall make no distribution to shareholders until the
expiration of 30 days from the date of mailing of the aforesaid notice, and in
any such case, the holders of the Series E Preferred may exercise the conversion
rights with respect to the Series E Preferred within 30 days from the date of
mailing such notice and all rights herein granted not so exercised within such
30-day period shall thereafter become null and void.
"(f) NO IMPAIRMENT. The Corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by the
Corporation, but will at all times in good faith assist in the carrying out of
all of the provisions of this Section 3 and in the taking of all such action as
may be necessary or
<PAGE>
appropriate in order to protect the conversion rights of the holders of the
Series E Preferred against impairment.
"(g) FULLY PAID STOCK; TAXES. The shares of stock represented by each
and every certificate for its Common Stock to be delivered on the exercise of
the conversion rights herein provided for shall, at the time of such delivery,
be validly issued and outstanding and be fully paid and nonassessable. The
Corporation shall pay when due and payable any and all federal and state taxes
(other than income taxes) that may be payable in respect of the Series E
Preferred or any Common Stock or certificates therefor upon the exercise of the
conversion rights herein provided for pursuant to the provisions hereof. The
Corporation shall not, however, be required to pay any tax that may be payable
in respect of any transfer involved in the transfer and delivery of stock
certificates in the name other than that of the holder of the Series E Preferred
converted, and any such tax shall be paid by such holder at the time of
presentation.
"(h) CLOSING OF TRANSFER BOOKS. The right to convert any of the Series
E Preferred shall not be suspended during any period while the stock transfer
books of the Corporation for its Common Stock may be closed. The Corporation
shall not be required, however, to deliver certificates of its Common Stock upon
such exercise while such books are duly closed for any purpose, but the
Corporation may postpone the delivery of the certificates for such Common Stock
until the opening of such books, and they shall, in such case, be delivered
forthwith upon the opening thereafter as soon as practicable thereafter.
"(i) RESERVATION OF COMMON STOCK. The Corporation will at all times
reserve and keep available such number of authorized shares of its Common Stock,
solely for the purpose of issue upon the conversion of the Series E Preferred as
herein provided for, as shall then be issuable upon the conversion of all
outstanding shares of Series E Preferred, and such shares of Common Stock shall
at no time have a par value that is in excess of the Conversion Price then in
effect.
"(j) DEFINITIONS. In addition to the terms defined elsewhere in
this Section 3, the following terms have the following respective meanings:
"The term 'Additional Shares of Common Stock' shall mean all
shares of Common Stock issued by the Corporation on and after May 1, 1988,
except:
"(i) Common Stock issued upon conversion of the Series A
Preferred, Series B Preferred, Series D Preferred or Series E Preferred or on
conversion of stock that is excluded from the definition of 'Additional Shares
of Common Stock';"
"(ii) Shares to be issued on exercise of warrants to purchase
18,000 shares of Series A Preferred issued to partners of Lease for Lattice
Partners;"
"(iii) Up to 35,380 shares of Preferred Stock to be
issued to VLSI Technology, Inc."
<PAGE>
"(iv) Shares of Preferred Stock to be issued to National
Semiconductor Corp. pursuant to its 1987 agreement with the Corporation;"
"(v) Options to purchase 500,000 shares of Common Stock and
the shares of common stock issued on exercise thereof pursuant to an employee
stock option plan approved by the Board of Directors of the Corporation;"
"(vi) All shares of Common Stock, Series A Preferred and
Series B Preferred issued to creditors who have claims against the Corporation
under the Plan in satisfaction or settlement of such claims;"
"The term 'Conversion Price' shall mean the price equal to $4
divided by the Series E Conversion Rate in effect at the date of determination
thereof.
"The term 'Convertible Securities' shall mean evidences of
indebtedness, shares of stock or other securities that are convertible into or
exchangeable for Additional Shares of Common Stock, either immediately or upon
the arrival of a specified date or the happening of a specified event.
"The term 'Current Market Price' per share of Common Stock
for the purposes of any provision of this Section 3 at the date of
determination thereof, shall be deemed to be an amount equal to 95 percent of
the average of the daily market prices for the period of 10 consecutive
business days ending 5 business days prior to the date of issuance of
warrants or other rights or Convertible Securities referred to in said
Section 3(c)(iii). The market price for each such business day shall be the
last sale price on such day on the New York Stock Exchange, or, if the Common
Stock is not then listed or admitted to trading on the New York Stock
Exchange, on such other principal stock exchange on which such stock is then
listed or admitted to trading, or, if no sale takes place on such day on any
such exchange, the average of the closing bid and asked prices on such day as
officially quoted on any such exchange, or, if the Common Stock is not then
listed or admitted to trading on any stock exchange, the market price for
each such business day shall be the average of the reported closing bid and
asked prices on such day in the over-the-counter market, as furnished by the
National Association of Securities Dealers Automatic Quotation system, or, if
such price at the time is not available from such system, as furnished by any
similar system then engaged in the business of reporting such prices and
selected by the Corporation or, if there is no such system, as determined by
resolution of the Board of Directors of the Corporation in good faith,
provided that if such valuation by the Board of Directors is contested by a
majority of the holders of the Series E Preferred within 20 days after
receipt of written notice of the adoption of such resolution, then as
determined by any member of the National Association of Securities Dealers,
Inc. selected by the Corporation.
"SECTION 4. RESTRICTIONS ON CORPORATE ACTION. So long as any shares of the
Series E Preferred shall be outstanding and, in addition to any other approvals
or consents required by law, without the consent of the holders of at least
two-thirds of the shares of Series E Preferred at the time outstanding as of a
record date fixed by the Board of Directors, given either by their affirmative
vote at a special meeting called for that purpose or, if permitted by law, in
writing, without a meeting, the Corporation shall not:
<PAGE>
"(a) Notwithstanding anything in Section 3 to the contrary declare
or pay a dividend upon its Common Stock (except a dividend payable in shares
of Common Stock referred to in Section 3(c)(i) or dividend payable in
warrants, rights or Convertible Securities referred to in Section 3(c)(iii))
payable otherwise than out of earnings or surplus (other than revaluation
surplus or paid-surplus); or
"(b) Alter or change the specific rights, preferences, or privileges
of its Preferred Stock so as to have an adverse effect on the Series E
Preferred; or
"(c) Increase the authorized number of shares of its Preferred Stock;
or
"(d) Create any new class or series of shares having preferences over
the Series E Preferred as to dividend, liquidation, redemption, sinking fund, or
assets, including, without limitation, any class or series of stock that:
"(i) Could be redeemed in whole or in part at a price per
share greater than the sum of twice the consideration per share received by the
Corporation therefor plus any accrued and unpaid dividends thereon or would be
entitled to payment of any redemption price prior to the holders of the Series E
Preferred;
"(ii) Would be entitled upon liquidation to receive any amount
per share in excess of the sum of the consideration per share received by the
corporation therefor plus any accrued and unpaid dividends thereon or would be
entitled to receive any liquidating distribution prior to the holders of the
Series E Preferred;
"(iii) Would be entitled to payment of any dividend or
distribution prior to the holders of the Series E Preferred or would be entitled
to any dividend or distribution other than the right to receive a dividend or
distribution at the same time as any dividend or distribution is paid with
respect to the Series E Preferred or Common Stock and in an amount that is not
greater than the equivalent dividend or distribution paid with respect to the
Series E Preferred, such equivalence to be determined (A) if said class or
series of stock is convertible into Common Stock, based upon a rate per share
calculated using the respective number of shares of Common Stock into which a
share of said series or class of stock and a share of Series E Preferred may be
converted or (B) if said class or series of stock is not so convertible, based
upon the rate of such dividend or distribution as a percentage of the
consideration received by the Corporation for said series or class of stock and
the Series E Preferred, respectively; or
"(iv) Would be convertible into or exchangeable for or carry
any option or right to acquire a class or series of stock described in clause
(i), (ii) or (iii) above; or
"(e) Merge or consolidate with or into any other corporation, except
into or with a wholly owned subsidiary corporation with the requisite
shareholder approval and except any merger or consolidation in which the
corporation is a surviving corporation and the rights, preferences, privileges
and restrictions of the Series E Preferred remain unchanged; or
<PAGE>
"(f) Sell, convey, or otherwise dispose of all or substantially all
of the property or business of the Corporation; or
"(g) Declare, pay or obligate itself to pay any dividend or make any
other distributions (including payments upon redemption or repurchase) relative
to any shares of its Common Stock or any other class or series of its capital
stock other than the Series D Preferred or the Series E Preferred except as
permitted under Section 1 above.
"SECTION 5. VOTING RIGHTS. The Corporation shall not issue any share of any
class of nonvoting equity securities. The holders of Series E Preferred shall be
entitled to notice of any stockholders meeting and to vote upon the election of
directors or upon any matter submitted to a stockholder for a vote. Each holder
of Series E Preferred issued and outstanding shall have that number of votes
equal to the number of shares of Common Stock into which such holder's shares of
Series E Preferred could be converted and shall vote as one class with holders
of the Common Stock upon any matter submitted to a vote of stockholders except
as otherwise required by law."
In Witness Whereof, we, C. Norman Winningstad, Chairman and Chief
Executive Officer, and Raymond P. Capece, Secretary of Lattice Semiconductor
Corporation, have signed this certificate and caused the corporate seal of said
corporation to be hereunto affixed this 3rd day of June, 1988.
/s/ C. Norman Winningstad
-------------------------
C. Norman Winningstad
Chairman and Chief Executive Officer
Attest: /s/ Raymond C. Capece
---------------------
Raymond C. Capece, Secretary
<PAGE>
CERTIFICATE OF AMENDMENT TO
CERTIFICATE OF INCORPORATION
OF
LATTICE SEMICONDUCTOR CORPORATION
Lattice Semiconductor Corporation, a Delaware corporation, certifies
that the following amendments to the Certificate of Incorporation of the
corporation have been duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware:
A. New Article VII is added to the Certificate of
Incorporation to read as follows:
ARTICLE VII
1. NUMBER AND TENURE OF DIRECTORS. The number of directors of
the corporation shall be as set forth in the bylaws. The directors
shall be divided into three classes, as nearly equal in number as
possible, with the term of office of the first class ("Class I") to
expire at the 1990 annual meeting of shareholders, the term of office
of the second class ("Class II") to expire at the 1991 annual meeting
of shareholders and the term of office of the third class ("Class III")
to expire at the 1992 annual meeting of shareholders. At each annual
meeting of shareholders following such initial classification and
election, directors elected to succeed those directors whose terms
expire shall be elected to serve three-year terms and until their
successors are elected and qualified, so that the term of one class of
directors will expire each year. When the number of directors is
changed, any newly created directorships, or any decrease in
directorships, shall be so apportioned among the classes so as to make
all classes as nearly equal as possible, provided that no decrease in
the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
2. This Article VII may not be amended, altered, changed or
repealed in any respect unless such action is approved by the
affirmative vote of the holders of not less than 66 2/3 percent of the
shares then entitled to vote at an election of directors.
B. New Article VIII is added to the Certificate of
Incorporation to read as follows:
<PAGE>
ARTICLE VIII
1. Whether or not a vote of shareholders is otherwise
required, the affirmative vote of the holders of not less than 66 2/3
percent of the outstanding shares of "Voting Stock" (as hereinafter
defined) of the corporation shall be required for the approval or
authorization of any "Business Combination" (as hereinafter defined)
with any Substantial Shareholder (as hereinafter defined) or any
Business Combination in which a Substantial Shareholder has an interest
(except proportionately as a shareholder of the corporation); provided,
however, that the 66 2/3 percent voting requirement shall not be
applicable if either:
(i) The "Continuing Directors" (as hereinafter
defined) of the corporation by at least a two-thirds vote (a)
have expressly approved in advance the acquisition of the
outstanding shares of Voting Stock that caused such
Substantial Shareholder to become a Substantial Shareholder,
or (b) have expressly approved such Business Combination; or
(ii) The cash or fair market value (as determined by
at least a majority of the Continuing Directors) of the
property, securities or other consideration to be received per
share by holders of Voting Stock of the corporation (other
than the Substantial Shareholder) in the Business Combination
is not less than the "Highest Per Share Price" or the "Highest
Equivalent Price" (as those terms are hereinafter defined)
paid by the Substantial Shareholder involved in the Business
Combination in acquiring any of its holdings of the
corporation's Voting Stock acquired in the last two years.
2. For purposes of this Article VIII:
(i) The Term "Business Combination" shall include,
without limitation, (a) any merger, exchange or consolidation
of the corporation, or any entity controlled by or under
common control with the corporation, with or into any
Substantial Shareholder, or any entity controlled by or under
common control with such Substantial Shareholder, (b) any
merger, exchange or consolidation of a Substantial
Shareholder, or any entity controlled by or under common
control with such Substantial Shareholder, with or into the
corporation or any entity controlled by or under common
control with the corporation, (c) any sale, lease, exchange,
transfer or other disposition (in one transaction or a series
of transactions), including without limitation a mortgage or
any other security device, of all or any Substantial Part (as
hereinafter defined) of the property and assets of the
corporation, or any entity controlled by or under common
control with the corporation, to a Substantial Shareholder, or
any entity controlled by or under common control with such
Substantial Shareholder, (d) any purchase, lease, exchange,
transfer or other acquisition (in one transaction or a series
of transactions), including without limitation a mortgage or
any other security device, of all or any Substantial Part of
the property and assets of a Substantial
<PAGE>
Shareholder or any entity controlled by or under common
control with such Substantial Shareholder, by the
corporation, or any entity controlled by or under common
control with the corporation, (e) any recapitalization of
the corporation that would have the effect of increasing
the voting power of a Substantial Shareholder, (f) the
issuance, sale, exchange or other disposition of any
securities of the corporation, or of any entity controlled
by or under common control with the corporation, by the
corporation or by any entity controlled by or under common
control with the corporation, (g) any liquidation, spinoff,
splitoff, split-up or dissolution of the corporation, and
(h) any agreement, contract or other arrangement providing
for any of the transactions described in this definition of
Business Combination.
(ii) The term "Substantial Shareholder" shall mean
and include (a) any "Person" (as that term is defined in
Section 2(2) of the Securities Act of 1933, as in effect on
October 20, 1989) which, together with its "Affiliates" (as
hereinafter defined) and "Associates" (as hereinafter
defined), "Beneficially Owns" (as defined in Rule 13d-3 of the
General Rules and Regulations, under the Securities Exchange
Act of 1934 as in effect at October 20, 1989) in the aggregate
15 percent or more of the outstanding Voting Stock of the
corporation, and (b) any Affiliate or Associate (other than
the corporation or a wholly owned subsidiary of the
corporation) of any such Person. Two or more Persons acting in
concert for the purpose of acquiring, holding or disposing of
Voting Stock of the Corporation shall be deemed a "Person."
(iii) Without limitation, any share of Voting Stock
of the corporation that any Substantial Shareholder has the
right to acquire at any time, notwithstanding that Rule 13d-3
deems such shares to be beneficially owned only if such right
may be exercised within 60 days) pursuant to any agreement,
contract, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise, shall be
deemed to be Beneficially Owned by such Substantial
Shareholder and to be outstanding for the purposes of clause
(ii) above.
(iv) For the purposes of subparagraph (ii) of
paragraph 1 of this Article VIII, the term "other
consideration to be received" shall include, without
limitation, Common Stock or other capital stock of the
corporation retained by its existing shareholders, other than
any Substantial Shareholder or other Person who is a party to
such Business Combination, in the event of a Business
Combination in which the corporation is the survivor.
(v) The term "Voting Stock" shall mean all of the
outstanding shares of capital stock of the corporation
entitled to vote generally in the election of directors,
considered as one class, and each reference to a proportion of
shares of Voting Stock shall refer to such proportion of the
votes entitled to be cast by such shares.
<PAGE>
(vi) The term "Continuing Director" shall mean a
director of the corporation who served as a director on
October 20, 1989 or who was a member of the board of directors
of the corporation immediately prior to the time that the
Substantial Shareholder involved in a Business Combination
became a Substantial Shareholder.
(vii) A Substantial Shareholder shall be deemed to
have acquired a share of the Voting Stock of the corporation
at the time when such Substantial Shareholder became the
Beneficial Owner thereof. With respect to the shares owned by
Affiliates, Associates or other Persons whose ownership is
attributed to a Substantial Shareholder under the foregoing
definition of Substantial Shareholder, if the price paid by
such substantial shareholder for such shares is not
determinable by a majority of the Continuing Directors, the
price so paid shall be deemed to be the higher of (a) the
price paid upon the acquisition thereof by the Affiliate,
Associate or other Person or (b) the market price of the
shares in question at the time when such Substantial
Shareholder became the Beneficial Owner thereof.
(viii) The terms "Highest Per Share Price" and
"Highest Equivalent Price" as used in this Article VIII shall
mean the following: If there is only one class of capital
stock of the corporation issued and outstanding, the Highest
Per Share Price shall mean the highest price that can be
determined to have been paid at any time by the Substantial
Shareholder involved in the Business Combination for any share
or shares of that class of capital stock. If there is more
than one class of capital stock of the corporation issued and
outstanding, the Highest Equivalent Price shall mean, with
respect to each class and series of capital stock of the
corporation, the amount determined by a majority of the
Continuing Directors, on whatever basis they believe is
appropriate, to be the highest per share price equivalent to
the highest price that can be determined to have been paid at
any time by the Substantial Shareholder for any share or
shares of any class or series of capital stock of the
Corporation. The Highest Per Share Price and the Highest
Equivalent Price shall include any brokerage commissions,
transfer taxes and soliciting dealers' fees paid by a
Substantial Shareholder with respect to the shares of capital
stock of the corporation acquired by such Substantial
Shareholder. In the case of any Business Combination with a
Substantial Shareholder, the Continuing Directors shall
determine the Highest Per Share Price or the Highest
Equivalent Price for each class and series of the capital
stock of the corporation. The Highest Per share Price and
Highest Equivalent Price shall be appropriately adjusted to
reflect the occurrence of any reclassification,
recapitalization, stock split, reverse stock split or other
readjustment in the number of outstanding shares of capital
stock of the corporation, or the declaration of a stock
dividend thereon, between the last date upon which the
Substantial Shareholder paid the Highest Per Share Price or
Highest Equivalent Price and the effective date of the merger
or
<PAGE>
consolidation or the date of distribution to shareholders
of the Corporation of the proceeds from the sale of all or
substantially all of the assets of the corporation.
(ix) The term "Substantial Part" shall mean 15
percent or more of the fair market value of the total assets
of the Person in question, as reflected on the most recent
balance sheet of such Person existing at the time the
shareholders of the Corporation would be required to approve
or authorize the Business Combination involving the assets
constituting any such Substantial Part.
(x) The term "Affiliate," used to indicate a
relationship with a specified Person, shall mean a Person that
directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control
with, the Person specified.
(xi) The term "Associate," used to indicate a
relationship with a specified Person, shall mean (a) any
entity of which such specified Person is an officer or partner
or is, directly or indirectly, the beneficial owner of 10
percent or more of any class of equity securities, (b) any
trust or other estate in which such specified Person has a
substantial beneficial interest or as to which such specified
Person serves as trustee or in a similar fiduciary capacity,
(c) any relative or spouse of such specified Person, or any
relative of such spouse, who has the same home as such
specified Person or who is a director or officer of the
corporation or any of its subsidiaries, and (d) any Person who
is a director or officer of such specified entity or any of
its parents or subsidiaries (other than the corporation or any
entity controlled by or under common control with the
corporation).
3. For the purposes of this Article VIII, a majority of the
Continuing Directors shall have the power to make a good faith
determination, on the basis of information known to them, of: (i) the
number of shares of Voting Stock that any Person Beneficially Owns,
(ii) whether a Person is an Affiliate or Associate of another, (ii)
whether a Person has an agreement, contract, arrangement or
understanding with another as to the matters referred to in
subparagraph (2)(1)(h) or (2)(iii) hereof, (iv) whether any Business
Combination is one in which a Substantial Shareholder has an interest
(except proportionately as a shareholder of the corporation), and (vi)
such other matters with respect to which a determination is required
under this Article VIII.
4. The provisions set forth in this Article VIII may not be
amended, altered, changed or repealed in any respect unless such action
is approved by the affirmative vote of the holders of not less than a
majority of the outstanding shares of Voting Stock (as defined in this
Article VIII) of the corporation at a meeting of the shareholders duly
called for the consideration of such amendment, alteration, change or
repeal; provided, however, that if there is a Substantial Shareholder
who is not a Continuing Director, such action must also be approved by
the affirmative vote of the holders of not less than 66 2/3 percent of
the outstanding shares of Voting Stock.
<PAGE>
IN WITNESS WHEREOF, Lattice Semiconductor Corporation has
caused this certificate to be signed by its President and attested to by its
Secretary on October 25, 1989.
LATTICE SEMICONDUCTOR CORPORATION
By /s/ Cyrus Tsui
-----------------
Cyrus Tsui, President
ATTEST:
By /s/ Jan Johannessen
-------------------
Jan Johannessen, Secretary
<PAGE>
CERTIFICATE
OF LATTICE SEMICONDUCTOR CORPORATION
ELIMINATING MATTERS SET FORTH IN
CERTIFICATES OF DESIGNATION
WITH RESPECT TO
SERIES A, SERIES B, SERIES D AND SERIES E
----------------------
PURSUANT TO SECTION 151 (g) OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE
We, Cyrus Y. Tsui, President and Chief Executive Officer, and Jan
Johannessen, Secretary of Lattice Semiconductor Corporation, a corporation
organized and existing under the laws of the state of Delaware (the "Company"),
do hereby certify under the seal of said corporation, as follows:
On November 20, 1989 the Board of Directors of the Company approved the
following resolutions relating to shares of preferred stock of the corporation
authorized under previously filed Certificates of Designation for Series A,
Series B, Series D and Series E Preferred Stock:
WHEREAS, under the terms of the Company's Certificate of
Incorporation, all of the Company's issued and outstanding shares of
Series A, Series B, Series D and Series E Preferred Stock were
automatically converted to Common Stock upon the closing of the
Company's initial public offering on November 16, 1989, and no shares
of Preferred Stock of any class or series remain outstanding; and
WHEREAS, the Company will not issue any shares of its
Preferred Stock subject to the Certificates of Designation previously
filed with respect to the Series A, Series B, Series D or Series E
Preferred Stock (or the provisions of such previously filed
Certificates of Designation that have been incorporated into the
Company's Restated Certificate of Incorporation); it is hereby
RESOLVED, that the officers of the Company are hereby authorized and
directed to execute and file in the Company's name and on its behalf
with the Delaware Secretary of State a certificate setting forth the
statements in this and the two preceding paragraphs for the purpose of
eliminating from the Company's Certificate of Incorporation all matters
with respect to the Series A, Series B, Series D or Series E Preferred
Stock and restoring such stock to the status of authorized and unissued
shares without serial designation.
<PAGE>
IN WITNESS WHEREOF, we, Cyrus Y. Tsui, President and Chief
Executive Officer, and Jan Johannessen, Secretary of Lattice Semiconductor
Corporation, have signed this Certificate and caused the corporate of seal of
said corporation to be hereunto affixed this 15th day of February, 1990.
/s/ Cyrus Y. Tsui
-----------------
Cyrus Y. Tsui, President and
Chief Executive Officer
Attest: /s/ Jan Johannessen
-------------------
Jan Johannessen, Secretary
<PAGE>
EXHIBIT A
CERTIFICATE OF DESIGNATION OF RIGHTS, PREFERENCES
AND PRIVILEGES OF
SERIES A PARTICIPATING PREFERRED STOCK
OF
LATTICE SEMICONDUCTOR CORPORATION
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, Cyrus Y. Tsui and Jan Johannessen, the President and the Secretary,
respectively, of Lattice Semiconductor Corporation, a corporation organized and
existing under the General Corporation Law of the State of Delaware, in
accordance with the provisions of Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by
the Restated Certificate of Incorporation of the said Corporation, the said
Board of Directors on September 11, 1991 adopted the following resolution
creating a series of 100,000 shares of Preferred Stock designated as Series A
Participating Preferred Stock:
"RESOLVED, that pursuant to the authority vested in the Board of
Directors of the corporation by the Restated Certificate of Incorporation, the
Board of Directors does hereby provide for the issue of a series of Preferred
Stock, $0.01 par value, of the Corporation, to be designated "Series A
Participating Preferred Stock", initially consisting of 100,000 shares and to
the extent that the designations, powers, preferences and relative and other
special rights and the qualifications, limitations and restrictions of the
Series A Participating Preferred Stock are not stated and expressed in the
Restated Certificate of Incorporation, does hereby fix and herein state and
express such designations, powers, preferences and relative and other special
rights and the qualifications, limitations and restrictions thereof, as follows
(all terms used herein which are defined in the Restated Certificate of
Incorporation shall be deemed to have the meanings provided therein):
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall
be designated as "Series A Participating Preferred Stock", par value $0.01
per share, and the number of shares constituting such series shall be 100,000.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the prior and superior right of the holders of
any shares of any series of Preferred Stock ranking prior and superior to the
shares of Series A Participating Preferred Stock with respect to dividends, the
holders of shares of Series A Participating
<PAGE>
Preferred Stock shall be entitled to receive when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the last day of September, December, March and
June in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment
Date after the first issuance of a share or fraction of a share of Series A
Participating Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to, subject to the provision for adjustment hereinafter set
forth, 1,000 times the aggregate per share amount of all cash dividends, and
1,000 times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of common Stock (by
reclassification or otherwise), declared on the Common Stock of the
Corporation (the "Common Stock") since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
Series A Participating Preferred Stock. In the event the Corporation shall at
any time after September 11, 1991 (the "Rights Declaration Date") (i) declare
any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each such case the
amount to which holders of shares of Series A Participating Preferred Stock
were entitled immediately prior to such event under the preceding sentence
shall be adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution
on the Series A Participating Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock).
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of Series
A Participating Preferred Stock, unless the date of issue of such shares is
prior to the record date for the first Quarterly Dividend Payment Date, in which
case dividends on such shares shall begin to accrue from the date of issue of
such shares, or unless the date of issue is a Quarterly Dividend Payment Date or
is a date after the record date for the determination of holders of shares of
Series A Participating Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Participating Preferred Stock in an amount less
than the total amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Series A Participating Preferred Stock
entitled to receive payment of a dividend or distribution declared thereon,
which record date shall be no more than 30 days prior to the date fixed for the
payment thereof.
<PAGE>
Section 3. VOTING RIGHTS. The holders of shares of Series A
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Participating Preferred Stock shall entitle the
holder thereof to 1,000 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock,
or (iii) combine the outstanding Common Stock into a smaller number of shares,
then in each such case the number of votes per share to which holders of shares
of Series A Participating Preferred Stock were entitled immediately prior to
such event shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders
of shares of Series A Participating Preferred Stock and the holders of shares of
Common Stock shall vote together as one class on all matters submitted to a vote
of stockholders of the Corporation.
(C) Except as required by law, holders of Series A
Participating Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of common stock as set forth herein) for taking any corporate
action.
Section 4. CERTAIN RESTRICTIONS.
(A) The Corporation shall not declare any dividend on, make
any distribution on, or redeem or purchase or otherwise acquire for
consideration any shares of Common Stock after the first issuance of a share or
fraction of a share of Series A Participating Preferred Stock unless
concurrently therewith it shall declare a dividend on the Series A Participating
Preferred Stock as required by Section 2 hereof.
(B) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Participating Preferred Stock as provided
in Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series A
Participating Preferred Stock outstanding shall have been paid in full, the
Corporation shall not
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Participating
Preferred Stock;
(ii) declare or pay dividends on, make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with Series A
Participating Preferred Stock, except dividends paid ratably on the
<PAGE>
Series A Participating Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to
which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the Series A
Participating Preferred Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation ranking junior (either as
to dividends or upon dissolution, liquidation or winding up) to the Series A
Participating Preferred Stock;
(iv) purchase or otherwise acquire for
consideration any shares of Series A Participating Preferred Stock, or any
shares of stock ranking on a parity with the Series A Participating Preferred
Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good faith will result
in fair and equitable treatment among the respective series or classes.
(C) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. REACQUIRED SHARES. Any shares of Series A Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(A) Upon any liquidation (voluntary or otherwise), dissolution
or winding up of the Corporation, no distribution shall be made to the holders
of shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Participating Preferred Stock unless,
prior thereto, the holders of shares of Series A Participating Preferred Stock
shall have received an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment,
plus an amount equal to the greater of (1) $1,000 per share, provided that in
the event the Corporation does not have sufficient assets, after payment of its
liabilities and distribution to holders of Preferred Stock ranking prior to the
Series A Participating Preferred Stock, available to permit payment in full of
the $1,000 per share amount, the amount required to be paid under this Section
6(A)(1) shall, subject to Section 6(B) hereof, equal the value of the amount of
available assets divided by the number of outstanding shares of Series A
Participating Preferred Stock or (2) subject to the provisions for adjustment
hereinafter set forth, 1,000 times the aggregate per share amount to be
<PAGE>
distributed to the holders of Common Stock (the greater of (1) or (2), the
"Series A Liquidation Preference"). In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock,
or (iii) combine the outstanding Common Stock into a smaller number of shares,
then in each such case the amount to which holders of shares of Series A
Participating Preferred Stock were entitled immediately prior to such event
under clause (2) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common
Stock that were outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series A Liquidation
Preference and the liquidation preferences of all other series of Preferred
Stock, if any, which rank on a parity with the Series A Participating Preferred
Stock, then such remaining assets shall be distributed ratably to the holders of
such parity shares in proportion to their respective liquidation preferences.
Section 7. CONSOLIDATION, MERGER, ETC. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series A Participating Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 1,000 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Participating Preferred Stock shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. NO REDEMPTION. The shares of Series A Participating
Preferred Stock shall not be redeemable.
Section 9. RANKING. The Series A Participating Preferred Stock shall
rank junior to all other series of the Corporation's Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
Section 10. AMENDMENT. The Restated Certificate of Incorporation of the
Corporation shall not be further amended in any manner which would materially
alter or change the powers, preference or special rights of the Series A
Participating Preferred Stock so as to affect them
<PAGE>
adversely without the affirmative vote of the holders of a majority or more
of the outstanding shares of Series A Participating Preferred Stock, voting
separately as a class.
Section 11. FRACTIONAL SHARES. Series A Participating Preferred Stock
may be issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A Participating Preferred Stock."
IN WITNESS WHEREOF, we have executed and subscribed this Certificate
and do affirm the foregoing as true under the penalties of perjury this 11th day
of September, 1991.
/s/ Cyrus Y. Tsui
-----------------
Cyrus Y. Tsui, President
ATTEST:
/s/ Jan Johannessen
-------------------
Jan Johannessen, Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
LATTICE SEMICONDUCTOR CORPORATION
A Delaware Corporation
Lattice Semiconductor Corporation, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify:
FIRST: That at a regular meeting of the Board of Directors of this
Corporation, resolutions were duly adopted (in accordance with Section 242 of
the General Corporation Law of the State of Delaware) setting forth the proposed
amendment to the Certificate of Incorporation of this Corporation, declaring
said amendment to be advisable, and calling for the approval by the stockholders
of this Corporation upon consideration thereof. The resolutions setting forth
the proposed amendment are as follows:
RESOLVED: That the first paragraph of Article IV of the Certificate
of Incorporation of the Company be amended in its entirety to read as follows:
"ARTICLE IV
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is One Hundred Ten Million
(110,000,000) shares, par value One Cent ($0.01) each, consisting of One Hundred
Million (100,000,000) shares of Common Stock, par value One Cent ($0.01) each
("Common Stock") and Ten Million (10,000,000) shares of Preferred Stock, par
value One Cent ($0.01) each ("Preferred Stock")."
SECOND: That thereafter, pursuant to a resolution of its Board of
Directors, the Board directed that the amendment be considered at the next
annual meeting of the stockholders of this Corporation, and at such meeting, the
holders of the necessary number of shares as required by statute voted in favor
of said amendment.
<PAGE>
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.
IN WITNESS WHEREOF, Lattice Semiconductor Corporation has duly
caused this Certificate of Amendment of Certificate of Incorporation to be
signed by Cyrus Y. Tsui, its Chairman, Chief Executive Officer and President,
and attested to by Frances J. Dishman, its Assistant Secretary, this 8th day
of September, 1993.
LATTICE SEMICONDUCTOR CORPORATION
A Delaware Corporation
By: /s/ Cyrus Y. Tsui
-----------------
Cyrus Y. Tsui,
Chairman, Chief Executive
Officer and President
ATTEST:
By: /s/ Frances J. Dishman
----------------------
Frances J. Dishman,
Assistant Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
LATTICE SEMICONDUCTOR CORPORATION
A Delaware Corporation
Lattice Semiconductor Corporation, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify:
FIRST: That at a regular meeting of the Board of Directors of this
Corporation, resolutions were duly adopted (in accordance with Section 242 of
the General Corporation Law of the State of Delaware) setting forth the proposed
amendment to the Certificate of Incorporation of this Corporation, declaring
said amendment to be advisable, and calling for the approval by the stockholders
of this Corporation upon consideration thereof. The resolution setting forth the
proposed amendment is as follows:
RESOLVED: That the first paragraph of Article IV of the Certificate
of Incorporation of the Company be amended in its entirety to read as follows:
"ARTICLE IV
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is Three Hundred Ten Million
(310,000,000) shares, par value One Cent ($0.01) each, consisting of Three
Hundred Million (300,000,000) shares of Common Stock, par value One Cent ($0.01)
each ("Common Stock") and Ten Million (10,000,000) shares of Preferred Stock,
par value One Cent ($0.01) each ("Preferred Stock")."
SECOND: That thereafter, pursuant to a resolution of its Board of
Directors, the Board directed that the amendment be considered at the next
annual meeting of the stockholders
<PAGE>
of this Corporation, and at such meeting, the holders of the necessary number
of shares as required by statute voted in favor of said 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.
IN WITNESS WHEREOF, Lattice Semiconductor Corporation has duly caused
this Certificate of Amendment of Certificate of Incorporation to be signed by
Stephen A. Skaggs, its Secretary, Senior Vice President and Chief Financial
Officer, this 23rd day of June, 2000.
LATTICE SEMICONDUCTOR CORPORATION
A Delaware Corporation
By: /s/ Stephen A. Skaggs
---------------------
Stephen A. Skaggs
Secretary, Senior Vice President
and Chief Financial Officer
and President
