<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 25, 1999
WAVO Corporation
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(Exact name of Registrant as specified in its Charter)
<TABLE>
<CAPTION>
<S> <C> <C>
Indiana 0-24858 86-0491428
- --------------- ----------- -------------------
(State or other (Commission (I.R.S.Employer
Jurisdiction of File No.) Identification No.)
Incorporation)
</TABLE>
3131 E. Camelback Rd., Suite 320, Phoenix, Arizona 85016
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(Address and Zip Code of Principal Executive Offices)
Registrant's telephone number, including area code: (602) 952-5500
WavePhore, Inc.
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(Former Name or Former Address, if Changed Since Last Report.)
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ITEM 5. OTHER EVENTS.
On May 25, 1999, the Company held its Annual Meeting of Shareholders at
which the following matters were voted upon:
1. ELECTION OF DIRECTORS
All five management nominees for election as Directors were unopposed
and were elected by the following votes:
<TABLE>
<CAPTION>
DIRECTOR SHARES FOR SHARES WITHHELD
- -------- ---------- ---------------
<S> <C> <C>
David E. Deeds 24,185,185 2,235,922
R. Glenn Williamson 24,213,294 2,207,813
Kenneth D. Swenson 24,218,827 2,202,280
Glenn Scolnik 24,211,729 2,209,378
J. Robert Collins 24,219,249 2,201,858
</TABLE>
2. PROPOSAL TO APPROVE AN AMENDMENT TO THE AMENDED AND RESTATED
ARTICLES OF INCORPORATION TO CHANGE THE COMPANY'S NAME TO
"WAVO CORPORATION."
The Proposal was approved as follows:
<TABLE>
<CAPTION>
FOR AGAINST ABSTAIN BROKER NON-VOTES
<S> <C> <C> <C>
26,156,544 204,968 59,595 --
</TABLE>
3. PROPOSAL TO APPROVE AN AMENDMENT TO THE AMENDED AND RESTATED
ARTICLES OF INCORPORATION TO INCREASE THE NUMBER OF AUTHORIZED
SHARES OF COMMON STOCK, WITHOUT PAR VALUE, FROM 50 MILLION TO
100 MILLION SHARES.
The Proposal was approved as follows:
<TABLE>
<CAPTION>
FOR AGAINST ABSTAIN BROKER NON-VOTES
- --- ------- ------- ----------------
<S> <C> <C> <C>
25,394,819 873,069 153,219 --
</TABLE>
4. PROPOSAL TO APPROVE AN AMENDMENT TO THE AMENDED AND RESTATED
ARTICLES OF INCORPORATION TO INCREASE THE NUMBER OF AUTHORIZED
SHARES OF PREFERRED STOCK FROM 10 MILLION TO 25 MILLION
SHARES.
The Proposal was approved as follows:
2
<PAGE> 3
<TABLE>
<CAPTION>
FOR AGAINST ABSTAIN BROKER NON-VOTES
- --- ------- ------- ----------------
<S> <C> <C> <C>
7,273,374 3,314,126 193,321 15,640,286
</TABLE>
5. PROPOSAL TO APPROVE AN AMENDMENT TO THE AMENDED AND RESTATED
ARTICLES OF INCORPORATION TO DELETE THE DESIGNATION OF THE
RELATIVE RIGHTS, PREFERENCES AND LIMITATIONS OF ALL SERIES OF
PREFERRED SHARES OTHER THAN THE COMPANY'S SERIES 1994
CUMULATIVE CONVERTIBLE PREFERRED SHARES.
The Proposal was approved as follows:
<TABLE>
<CAPTION>
FOR AGAINST ABSTAIN BROKER NON-VOTES
- --- ------- ------- ----------------
<S> <C> <C> <C>
9,864,568 532,315 383,938 15,640,286
</TABLE>
6. PROPOSAL TO APPROVE AN AMENDMENT TO THE COMPANY'S 1997
INCENTIVE PLAN TO INCREASE THE NUMBER OF SHARES WHICH MAY BE
ISSUED IN THE AGGREGATE UNDER THE PLAN, AND TO INCREASE THE
NUMBER OF SHARES AND THE AMOUNT OF CASH WHICH MAY BE AWARDED
IN ANY YEAR TO ANY ONE PARTICIPANT.
The Proposal was approved as follows:
<TABLE>
<CAPTION>
FOR AGAINST ABSTAIN BROKER NON-VOTES
- --- ------- ------- ----------------
<S> <C> <C> <C>
7,048,515 3,482,306 250,000 15,640,286
</TABLE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
<TABLE>
<CAPTION>
Exhibit Number Description Page
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<S> <C> <C>
3.1 Amended and Restated Articles of Incorporation 5
</TABLE>
3
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
WAVO CORPORATION
Dated: June 4, 1999 /s/David E. Deeds
-------------------------------------
David E. Deeds, Chairman,
Chief Executive Officer and President
4
<PAGE> 5
Exhibit Index
<TABLE>
<CAPTION>
Exhibit Number Description Page
- -------------- ----------- ----
<S> <C> <C>
3.1 Amended and Restated Articles of Incorporation 6
</TABLE>
<PAGE> 1
EXHIBIT 3.1
ARTICLES OF AMENDMENT
AND RESTATEMENT OF THE
ARTICLES OF INCORPORATION
OF
WAVEPHORE, INC.
The undersigned officer of WAVEPHORE, INC. (the "Corporation"), a
corporation existing pursuant to the provisions of the Indiana Business
Corporation Law, as amended (hereinafter referred to as the "Act"), desiring to
give notice of corporate action effectuating amendment and restatement of the
Corporation's existing Amended and Restated Articles of Incorporation by the
adoption of these Amended and Restated Articles of Incorporation ("Amended and
Restated Articles") to supersede and take the place of its existing Amended and
Restated Articles of Incorporation, certifies the following facts:
TEXT OF AMENDED AND RESTATED ARTICLES
ARTICLE I
IDENTIFICATION
Section A. The Corporation was originally incorporated on November 13,
1990.
Section B. The name of the Corporation following the effectiveness of
these Amended and Restated Articles is WAVO CORPORATION.
ARTICLE II
REGISTERED OFFICE AND AGENT
The street address of the Corporation's registered office in Indiana
and the name of its registered agent at that office is Glenn Scolnik, c/o
Hammond Kennedy Whitney, 8888 Keystone Crossing, #690, Indianapolis, Indiana
46240.
ARTICLE III
SHARES
Section A. Number of Authorized Shares. The Corporation is authorized
to issue 100,000,000 shares of common stock, without par value ("Common
Shares"), and 25,000,000 shares of preferred stock.
Section B. Rights of Common Shares.
(1) Voting Rights. Each holder of Common Shares of the Corporation
shall be entitled to one vote for each such share standing in such shareholder's
name on the books of the Corporation.
(2) Dividends and Other Distributions. Subject to the rights of holders
of any class or series of shares having a preference over the Common Shares as
to dividends or upon liquidation,
<PAGE> 2
holders of Common Shares are entitled to such dividends as may be declared by
the board of directors of the Corporation out of funds lawfully available
therefor. All dividends shall be paid in equal amounts per share to holders of
Common Shares.
Section C. Rights of Preferred Shares.
(1) Generally. Shares of preferred stock may be issued from time to
time in one or more series, which series may have such voting powers, full or
limited, or no voting powers, and such designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, as shall be stated and expressed in the resolution or
resolutions providing for the issue of such shares adopted by the board of
directors. The authority for the adoption of such resolution or resolutions is
hereby expressly granted to and vested in the board of directors and shall
include authority to specify the number of preferred shares of any series and to
provide, as to any series of preferred shares, such voting powers, full or
limited, or no voting powers, and such designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, as are from time to time permitted under the Indiana
Business Corporation Law.
(2) Designation of Rights of Series 1994 Cumulative Convertible
Preferred Shares.
(a) Authorization and Designation. The Corporation is
authorized to issue a series of its preferred shares consisting of 501,963
shares having a stated value of $11.00 per share, to be designated as the Series
1994 Cumulative Convertible Shares (hereinafter referred to as the "Series 1994
Shares"). Holders of Series 1994 Shares will not have any preemptive rights. So
long as any Series 1994 Shares shall be outstanding, the Series 1994 Shares
shall be senior, in respect of the right to receive dividends or assets upon
liquidation, dissolution or winding up of the Corporation, to the Common Shares
and all other series of preferred shares hereafter established by the Board of
Directors unless (i) two-thirds of the holders of Series 1994 Shares vote for or
consent to the creation of a series having rights senior to the Series 1994
Shares or (ii) it is expressly provided in the terms of any such series that it
shall rank pari passu with the Series 1994 Shares in respect of such matters.
(b) Dividends. Holders of Series 1994 Shares will be entitled
to receive, when and as declared by the Board of Directors of the Corporation
out of assets of the Corporation legally available for the payment thereof, cash
dividends at a rate of 10% per annum per share payable when, as and if declared
by the Board of Directors. Dividends will be payable to holders of record of
Series 1994 Shares as they appear on the books of the Corporation on such record
dates, not less than 10 days and not more than 60 days preceding the payment
dates thereof, as may be fixed by the Board of Directors of the Corporation.
Dividends shall be fully cumulative and shall accrue from the date of original
issuance of the Series 1994 Shares. Dividends may be paid at any time and to the
extent that the Corporation's total assets exceed its total liabilities, without
regard to the liquidation preference of any class or series of shares senior to
the Series 1994 Shares, provided that the Corporation, after giving effect to
the payment of such dividends, will be able to pay its debts as they become due
in the usual course of business.
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Except as described below, no dividends shall be paid or declared and
set apart for payment on any class or series of shares of the Corporation junior
to the Series 1994 Shares for any period unless full cumulative dividends have
been paid or contemporaneously are declared and paid or set apart for payment on
the Series 1994 Shares. A dividend payable in Common Shares or another class of
shares junior to the Series 1994 Shares may, however, be made. When full
cumulative dividends are not paid upon the Series 1994 Shares and any other
class of shares ranking on parity with the Series 1994 Shares, all dividends
declared upon the Series 1994 Shares and any such other class of shares shall be
declared pro rata in accordance with the respective dividends which would be
payable on such shares if all accrued and unpaid dividends thereon were paid in
full. The holders of Series 1994 Shares shall not be entitled to the payment of
interest with respect to dividend payments that may be in arrears.
(c) Conversion.
(i) Right to Convert. The holders of Series 1994
Shares will be entitled at any time (except as to shares called for
redemption as to which all conversion rights shall cease on the
redemption date unless the Corporation shall default in the payment of
the redemption price) to convert their Series 1994 Shares into such
number of Common Shares equal to the aggregate value of the Series 1994
Shares to be converted by such holder, at $11.00 per share, divided by
the conversion price. The conversion price shall initially be at $11.00
and is subject to adjustment as set forth below.
Upon conversion no adjustments will be made for
accrued dividends and such accrued dividends shall not be paid and,
therefore, Series 1994 Shares surrendered for conversion during the
period between the close of business on any dividend payment record
date and the opening of business on the corresponding dividend payment
date (except Series 1994 Shares called for redemption on a date during
such period) must be accompanied by payment of an amount equal to the
dividend payable on such Series 1994 Shares on such dividend payment
date.
(ii) No Fractional Shares. No fractional Common
Shares or securities representing Common Shares will be issued upon
conversion. Any fractional interest in a Common Share resulting from
conversion will be paid in cash based on the Market Price of Common
Shares. "Market Price" as used herein shall mean (i) the closing price
on the day before the date of conversion of the Common Shares on any
registered national securities exchange or the national market system
of a registered national securities association, if the Common Shares
are traded on such an exchange or system, (ii) the average of the bid
and ask price on the over-the-counter market at the close of business
on the day before the date of conversion, or (iii) if there is no
market for the Common Shares, the fair value of the Common Shares
determined by the Board of Directors in its sole discretion.
(iii) Procedure. A holder of Series 1994 Shares may
convert such Series 1994 Shares by delivering to the Corporation or its
transfer agent the certificate or certificates representing such Series
1994 Shares, duly endorsed for transfer, accompanied by the holder's
written notice of election to convert such shares. As promptly as
practicable thereafter the Corporation shall issue and deliver to or
upon the order of such holder, a
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certificate or certificates for the whole number of Common Shares to
which such holder is entitled, and payment for any fractional Common
Shares.
(iv) No Dilution or Impairment. The Corporation will
not, by amendment of its articles of incorporation or through
reorganization, consolidation, merger, dissolution, issue or sale of
securities, sale of assets or any other voluntary action, avoid or seek
to avoid the observance or performance of any of the terms of the
Series 1994 Shares, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as
may be necessary or appropriate in order to protect the rights of the
holders of Series 1994 Shares against dilution or other impairment.
(v) Reservation of Common Shares. The Corporation
shall at all times reserve and keep available, solely for purpose of
effecting the conversion of the Series 1994 Shares, the full number of
authorized but unissued Common Shares issuable upon conversion of the
outstanding Series 1994 Shares.
(d) Adjustments to Conversion Price.
(i) Adjustment for Stock Splits and Combinations. If
the Corporation effects a subdivision of the outstanding Common Shares,
in each such case the conversion price in effect immediately before
that subdivision shall be proportionately decreased. Conversely, if
after the date hereof, the Corporation combines outstanding shares of
Common Shares, in each such case the conversion price in effect
immediately before the combination shall be proportionately increased.
Any adjustment under this paragraph shall become effective at the close
of business on the date the subdivision or combination becomes
effective.
(ii) Adjustment for Certain Dividends and
Distributions. If the Corporation pays to holders of Common Shares a
dividend or other distribution of additional Common Shares, in each
such case the conversion price then in effect shall be decreased as of
the time of such issuance by multiplying such conversion price by a
fraction (1) the numerator of which is the total number of Common
Shares issued and outstanding immediately prior to the time of such
issuance, and (2) the denominator of which is the total number of
Common Shares issued and outstanding immediately prior to the time of
such issuance plus the number of Common Shares issuable in payment of
such dividend or distribution.
(iii) Adjustments for other Dividends and
Distributions. If the Corporation makes or fixes a record date for the
determination of holders of Common Shares entitled to receive a
dividend or other distribution payable in securities of the Corporation
other than Common Shares, in each such case provision shall be made so
that the holders of Series 1994 Shares shall receive upon conversion
thereof, in addition to the number of Common Shares receivable
thereupon, the amount of securities of the Corporation that the holder
would have received had the Series 1994 Shares been converted into
Common Shares on such record date and had the holder thereafter, during
the period from the date of such
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<PAGE> 5
event to and including the date of conversion, retained such securities
subject to all other adjustments called for during such period
hereunder with respect to the rights of the holders of Series 1994
Shares.
(iv) Adjustment for Reclassification, Exchange and
Substitution. If the number of Common Shares issuable upon the
conversion of the Series 1994 Shares is changed into the same or a
different number of shares of any class or classes of stock, whether by
recapitalization, reclassification or otherwise (other than a
subdivision or combination of shares or stock dividend or a
reorganization, merger, consolidation or sale of assets, provided for
elsewhere herein), in each such case each holder of Series 1994 Shares
shall have the right thereafter to convert the Series 1994 Shares into
the kind and amount of stock and other securities and property which
the holder would have received upon such reorganization,
reclassification or change if the holder had converted the Series 1994
Shares into Common Shares immediately prior thereto, all subject to
further adjustment as provided herein.
(v) Reorganizations, Mergers or Consolidations. If
there is a capital reorganization of the Corporation or a merger or
consolidation of the Corporation with or into another corporation
(other than a reorganization that is a recapitalization, subdivision,
combination, reclassification or exchange of shares provided for
elsewhere herein) , as a part of such reorganization, merger or
consolidation, provision shall be made so that the holders of Series
1994 Shares shall thereafter be entitled to receive, upon conversion of
the Series 1994 Shares, the number of shares of stock or other
securities or property that the holder would have been entitled to
receive upon any such event had the holder converted the Series 1994
Shares into Common Shares immediately prior to such event. In each such
case, appropriate adjustment shall be made in the application of the
provisions hereof with respect to the rights of the holders of Series
1994 Shares after the reorganization, merger or consolidation to the
end that the provisions hereof (including adjustment of the conversion
price then in effect and number of shares receivable upon conversion of
Series 1994 Shares) shall be applicable after that event and be as
nearly equivalent to the provisions hereof as practicable.
(vi) Other Adjustments. The Corporation, in addition
to the other adjustments provided for herein, shall adjust the
conversion price if, and to the extent that it determines that such an
adjustment is necessary to avoid treatment of any transaction as a
taxable constructive distribution of stock under section 305 of the
Internal Revenue Code of 1986, as amended, and the Treasury Regulations
issued thereunder, or under any successors to such provisions.
(vii) No de minimis Adjustments. No adjustment of the
conversion price will be required, the foregoing notwithstanding, until
cumulative adjustments amount to at least one percent of the current
conversion price.
(viii) Officer's Certificate as to Adjustments. In
each case of an adjustment in the conversion price the Corporation, at
its expense, will have its principal financial officer
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compute such adjustment in accordance with the terms of the Series 1994
Shares and prepare a certificate setting forth such adjustment and
showing in detail the facts upon which the adjustment is based,
including, without limitation, a statement of (a) the consideration
received or to be received by the Corporation for any additional Common
Shares issued or sold or deemed to have been issued or sold, (b) the
number of Common Shares outstanding or deemed to be outstanding, and
(c) the conversion price as adjusted. The Corporation will mail a copy
of each such certificate to the holders of Series 1994 Shares
outstanding at that time.
(e) Liquidation Rights. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation,
the holders of Series 1994 Shares are entitled to receive out of assets
of the Corporation available for distribution to shareholders, before
any distribution or payment is made to holders of Common Shares, or
holders of any other shares of the Corporation ranking junior upon
liquidation to the Series 1994 Shares, liquidation distributions in the
amount of $11.00 per share, plus accrued and unpaid dividends. If upon
any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, the assets of the Corporation shall be insufficient to
make the full payment of $11.00 per share, plus all accumulated
dividends accrued and unpaid thereon, on the Series 1994 Shares and
similar payments on any other class of shares ranking on a parity with
the Series 1994 Shares upon liquidation, then the holders of the Series
1994 Shares and of such other shares will share ratably in any such
distribution of assets of the Corporation in proportion to the full
respective distributable amounts to which they are entitled. A
consolidation or merger of the Corporation with or into one or more
corporations, or a sale of all or substantially all of the assets of
the Corporation which does not involve a distribution by the
Corporation of cash or other property to the holders of the Common
Shares, shall not be deemed to be a liquidation, dissolution or winding
up of the Corporation.
After payment of the full amount of the liquidating
distribution to which they are entitled, the holders of Series 1994
Shares will not be entitled to any further participation in any
distribution or payments by the Corporation.
(f) Redemption. The Series 1994 Shares may be redeemed at the
option of the Corporation provided that such redemption has been
approved by a majority of the directors of the Corporation who are not
holders of Series 1994 Shares, upon not less than 30 days written
notice of the date fixed for redemption to each holder of Series 1994
Shares to be redeemed. The redemption price will be $11.00 per Series
1994 Share plus accrued and unpaid dividends.
If less than all of the outstanding Series 1994 Shares are to
be redeemed, the Corporation will select those to be redeemed by lot or
on a pro rata basis or by any other method deemed by the Corporation to
be equitable (with adjustments to avoid fractional shares). Any Series
1994 Shares for which a notice of redemption has been given may be
converted into Common Shares at any time before the close of business
on the date fixed for redemption.
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After the date fixed for redemption, dividends on Series 1994
Shares called for redemption shall cease to accrue, such shares shall
no longer be deemed to be outstanding and all rights of the holders as
shareholders of the Corporation shall cease unless the Corporation
defaults on payment of the redemption price.
(g) Voting Rights. Except as may be otherwise provided by law
or by these Articles, holders of Series 1994 Shares are not entitled to
vote.
ARTICLE IV
INDEMNIFICATION
Section A. Indemnification in General. The Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including any action or suit by or in
the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, to
the maximum extent permitted under the Indiana Business Corporation Law.
Section B. Non-Exclusive. The indemnification provided herein shall not
be deemed exclusive of any other rights to which those indemnified may be
entitled under any statute, by-law, agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding the office or position
entitling him to indemnification, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Section C. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of the Indiana Business Corporation
Law or of these Articles.
The Corporation's indemnification of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall be reduced by any amounts such person may collect as indemnification (i)
under any policy of insurance purchased and maintained on his behalf by the
Corporation, or (ii) from such corporation, partnership, joint venture, trust or
other enterprise.
Section D. Amendment. Notwithstanding anything contained in these
Articles to the contrary, the affirmative vote of the holders of at least 85% of
the voting power of all shares of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one
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class) shall be required to alter, amend or repeal this Article IV or adopt any
provision inconsistent with this Article IV.
ARTICLE V
SHAREHOLDER PROPOSALS
Section A. Shareholder Proposals. At an annual meeting of shareholders,
only such business may be conducted or proposals considered (the "Business") as
shall have been properly brought before the meeting. To be properly brought
before an annual meeting, the Business must be: (a) specified in the notice of
annual meeting (or any supplement thereto) given by or at the direction of the
board of directors; (b) otherwise properly brought before the meeting by or at
the direction of the board of directors; or (c) otherwise properly brought
before an annual meeting.
The Business may be properly brought before the meeting by a
shareholder only if written notice by the Business has been given, either by
personal delivery or by United States mail, postage prepaid, to the Secretary of
the Corporation not later than the earlier of (i) 270 days after the adjournment
of the next preceding annual meeting, or (ii) the close of business on the
seventh day following the date on which notice of the meeting is formally given
to shareholders. Each such notice shall set forth: (a) the name and address of
the shareholder proposing the Business; (b) a brief description of the Business;
(c) a representation that the shareholder is a holder of record of shares of the
Corporation entitled to vote on the Business at such meeting; and (d) a
description of any material interest of the shareholder giving the notice in the
Business to be brought before the meeting. The chairman of the meeting may
refuse to allow the transaction of any Business not properly brought before the
meeting.
Section B. Amendment. Notwithstanding anything contained in these
Articles to the contrary, the affirmative vote of the holders of at least 85% of
the voting power of all shares of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) shall be
required to alter, amend, or repeal this Article V or adopt any provision
inconsistent with this Article V.
ARTICLE VI
ELECTION UNDER BUSINESS COMBINATION LAW
Indiana Code Section 23-1-43 shall apply to the Corporation regardless
of whether the Corporation has at any time a class of voting shares registered
under Section 12 of the Securities Exchange Act of 1934 (15 U.S.C. Section 78a
et seq.).
MANNER OF ADOPTION AND VOTE
Section 1. Amendments. The foregoing Amended and Restated Articles
effected the following amendments to the Corporation's existing Amended and
Restated Articles of Incorporation (collectively, the "Amendments"):
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(a) a change of the Corporation's name from WavePhore,
Inc. to WAVO Corporation (the "Change of Name");
(b) an increase in the number of shares of common stock
that the Corporation is authorized to issue to
100,000,000 shares (the "Increase in Authorized
Common Shares");
(c) an increase in the number of shares of preferred
stock that the Corporation is authorized to issue to
25,000,000 shares (the "Increase in Authorized
Preferred Shares"); and
(d) the deletion of the designation of the relative
rights, preferences and limitations of all series of
the shares of preferred stock other than the Series
1994 Preferred Shares, which is the only series of
preferred stock of the Corporation that is currently
issued and outstanding (the "Deletion of Certain
Preferred Stock Series").
Section 2. Approval by the Board of Directors. At a meeting duly called
and held on March 5, 1999, the Board of Directors of the Corporation adopted
resolutions approving the Amendments and the foregoing Amended and Restated
Articles and recommending that they be submitted to the Shareholders of the
Corporation for approval.
Section 3. Approval by the Shareholders: At a meeting duly called and
held on May 25, 1999, the Shareholders of the Corporation adopted and approved
the Amendments and the foregoing Amended and Restated Articles. The designation,
number of outstanding shares, number of votes entitled to be cast by each voting
group entitled to vote separately on each of the Amendments, and the number of
votes of each voting group represented at the meeting, are set forth below:
<TABLE>
<S> <C>
(a) Change of Name.
Designation of Voting Group Common Shares
Number of Outstanding Shares 28,605,458
Number of Votes Entitled to be Cast 28,605,458
Number of Shares Represented at Meeting 26,421,107
Shares Voted in Favor 26,156,544
Shares Voted Against 204,968
Shares Abstaining 59,595
Designation of Voting Group Series 1994 Preferred Shares
Number of Outstanding Shares 501,963
</TABLE>
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<TABLE>
<S> <C>
Number of Votes Entitled to be Cast 501,963
Number of Shares Represented at Meeting 501,963
Shares Voted in Favor 501,963
Shares Voted Against 0
Shares Abstaining 0
</TABLE>
The number of votes cast for the Change of Name by each voting group
was sufficient for its approval by that voting group.
<TABLE>
<S> <C>
(b) Increase in Authorized Common Shares
Designation of Voting Group Common Shares
Number of Outstanding Shares 28,605,458
Number of Votes Entitled to be Cast 28,605,458
Number of Shares Represented at Meeting 26,421,107
Shares Voted in Favor 25,394,819
Shares Voted Against 873,069
Shares Abstaining 153,219
Designation of Voting Group Series 1994 Preferred Shares
Number of Outstanding Shares 501,963
Number of Votes Entitled to be Cast 501,963
Number of Shares Represented at Meeting 501,963
Shares Voted in Favor 501,963
Shares Voted Against 0
Shares Abstaining 0
</TABLE>
The number of votes cast for the Increase in Authorized Common Shares
by each voting group was sufficient for its approval by that voting group.
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<TABLE>
<S> <C>
(c) Increase in Authorized Preferred Shares
Designation of Voting Group Common Shares
Number of Outstanding Shares 28,605,458
Number of Votes Entitled to be Cast 28,605,458
Number of Shares Represented at Meeting 26,421,107
Shares Voted in Favor 7,273,347
Shares Voted Against 3,314,126
Shares Abstaining 15,833,607
Designation of Voting Group Series 1994 Preferred Shares
Number of Outstanding Shares 501,963
Number of Votes Entitled to be Cast 501,963
Number of Shares Represented at Meeting 501,963
Shares Voted in Favor 501,963
Shares Voted Against 0
Shares Abstaining 0
</TABLE>
The number of votes cast for the Increase in Authorized Preferred
Shares by each voting group was sufficient for its approval by that voting
group.
<TABLE>
<S> <C>
(d) Deletion of Certain Preferred Stock Series.
Designation of Voting Group Common Shares
Number of Outstanding Shares 28,605,458
Number of Votes Entitled to be Cast 28,605,458
Number of Shares Represented at Meeting 26,421,107
Shares Voted in Favor 9,864,568
Shares Voted Against 532,315
Shares Abstaining 16,024,224
</TABLE>
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<TABLE>
<S> <C>
Designation of Voting Group Series 1994 Preferred Shares
Number of Outstanding Shares 501,963
Number of Votes Entitled to be Cast 501,963
Number of Shares Represented at Meeting 501,963
Shares Voted in Favor 501,963
Shares Voted Against 0
Shares Abstaining 0
</TABLE>
The number of votes cast for the Deletion of Certain Preferred Stock
Series by each voting group was sufficient for its approval by that voting
group.
Section 4. Compliance with Legal Requirements. The manner of adoption
of the Amended and Restated Articles and the vote by which they were adopted
constitute full legal compliance with the provisions of the Act, the existing
Amended and Restated Articles of Incorporation of the Corporation and the
By-Laws of the Corporation.
Section 5. Effective Date. The Amended and Restated shall become
effective when filed with the Indiana Secretary of State.
I hereby verify, subject to penalties of perjury, that the facts
contained herein are true.
/s/ David E. Deeds
-------------------------------------
David E. Deeds, Chairman,
Chief Executive Officer and President
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