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EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
PEMSTAR INC.
To form a Minnesota business corporation under and pursuant to Minnesota
Statutes, Chapter 302A, as now enacted or hereafter amended, the following
Articles of Incorporation are adopted:
ARTICLE 1. NAME
---------------
The name of the corporation is "PEMSTAR INC.".
ARTICLE 2. REGISTERED OFFICE
----------------------------
The address of the registered office of the corporation in Minnesota is
Suite 340, 201 First Avenue, S.W., Rochester, Minnesota 55902.
ARTICLE 3. AUTHORIZED SHARES
----------------------------
The aggregate number of shares of stock that the corporation is authorized
to issue is 11,000,000, of which 10,000,000 shares are designated as common
shares with a par value or $.01 per share and 1,000,000 shares are designated as
preferred shares with a par value of $.01 per share.
Authority is hereby expressly vested in the Board of Directors of the
corporation, subject to the provisions of this Article 3 and to limitations
prescribed by law, to create and authorize the issuance from time to time of one
or more series of the preferred shares and, with respect to each such series, to
determine or fix, by resolution or resolutions adopted by the affirmative vote
of a majority of the Board of Directors present providing for the issue of such
series, the voting powers, full or limited, if any, of the shares of such series
and the designations, preferences and relative, participating, optional or other
special rights and the qualifications, limitations or restrictions thereof,
including, without limitation, the determination or fixing of the rates of and
terms and conditions upon which any dividends shall be payable on such series,
any terms under or conditions on which the shares of such series may be
redeemed, any provisions made for the conversion or exchange of the shares of
such series for shares of any other class or classes or of any other series of
the same or any other class or classes of the corporation's capital stock, and
any rights of the holders of the shares of such series upon the voluntary or
involuntary liquidation, dissolution or winding up of the corporation.
ARTICLE 4. PREEMPTIVE RIGHTS
----------------------------
The shareholders of the corporation shall not have preemptive rights to
subscribe for or acquire shares or rights to purchase shares of any class, kind,
or series of the corporation.
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ARTICLE 5. CUMULATIVE VOTING
----------------------------
There shall be no cumulative voting by the shareholders of the corporation.
ARTICLE 6. INCORPORATOR
The name and address of the incorporator, who is a natural person of full
age, are:
Name Address
---- -------
William A. Jonason 2100 Pillsbury Center South
220 South Sixth Street
Minneapolis, Minnesota 55402
ARTICLE 7. DIRECTOR LIABILITY
-----------------------------
To the fullest extent permitted by the Minnesota Business Corporation Act
as the same exists or may hereafter be amended, a director of this corporation
shall not be liable to this corporation or its shareholders for monetary damages
for breach of fiduciary duty as a director.
Dated: January 14, 1994.
/s/ William A. Jonason
-------------------------------------
William A. Jonason
Incorporator
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ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
PEMSTAR INC.
1. The name of the corporation is PEMSTAR INC., a Minnesota corporation.
2. The Amendment adopted is: In the third line of the first paragraph of
Article 3, "or" shall be deleted and in its place shall be inserted "of", and
the first paragraph shall read as follows:
The aggregate number of shares of stock that the corporation is authorized
to issue is 11,000,000, of which 10,000,000 shares are designated as common
shares with a par value of $.01 per share and 1,000,000 shares are
designated as preferred shares with a par value of $.01 per share.
3. The Amendment has been adopted pursuant to Chapter 302A of the Minnesota
Business Corporation Act.
IN WITNESS WHEREOF, the undersigned, the Incorporator of PEMSTAR INC., has
executed this document as of the 25th day of January, 1994.
/s/ William A. Jonason
-------------------------------------
William A. Jonason
Incorporator
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CERTIFICATE OF DESIGNATION OF PREFERENCES
OF SERIES A PREFERRED STOCK
OF PEMSTAR INC.,
a Minnesota corporation
The undersigned Allen J. Berning and Gary L. Lingbeck hereby certify that:
A. They are the duly elected and acting Chief Executive Officer and
Secretary, respectively, of said corporation.
B. Pursuant to authority given by said corporation's Articles of
Incorporation, as amended to date, the Board of Directors of said corporation
has duly adopted the following resolutions:
RESOLVED, that the Board of Directors does hereby provide for the issue of
a series of Preferred Stock of the corporation consisting of Six Hundred Sixty
Six Thousand Six Hundred Seventy Seven (666,667) shares designated as "Series A
Preferred Stock," and does hereby fix the rights, preferences, privileges, and
restrictions and other matters relating to said Series A Preferred Stock as
follows:
1. Designation. The series of Preferred Stock shall be designated
"Series A Preferred Stock."
2. Number. The number of authorized shares constituting the Series A
Preferred Stock shall be Six Hundred Sixty Six Thousand Six Hundred Sixty
Seven (666,667) shares.
3. Dividend Provisions.
(a) Subject to the rights of series of Preferred Stock which may
from time to time come into existence, the holders of shares of Series
A Preferred Stock shall be entitled to receive dividends, out of any
assets legally available therefor, prior and in preference to any
declaration or payment of any dividend (payable other than in Common
Stock or other securities and rights convertible into or entitling the
holder thereof to receive, directly or indirectly, additional shares
of Common Stock of this corporation) on the Common Stock of this
corporation, at the rate of $1.20 per share of Series A Preferred
Stock (subject to appropriate adjustments for stock splits, stock
dividends, combinations or other recapitalizations with respect to
such shares) per annum (the "Preferred Dividend Preference"). Such
dividends shall not be cumulative and shall be payable when, as and if
declared by the Board of Directors.
(b) After paying the full Preferred Dividend Preference in any
calendar year, whenever this corporation declares a further dividend
in such calendar year, the holders of Common Stock and the holders of
Series A Preferred Stock shall be entitled to receive dividends
ratably based on the number of shares of Common Stock held by each on
an as-if-converted to Common Stock basis.
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4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of
this corporation, either voluntary or involuntary, subject to the
rights of series of Preferred Stock that may from time to time come
into existence, the holders of Series A Preferred Stock shall be
entitled to receive, prior and in preference to any distribution of
any of the assets of this corporation to the holders of Common Stock
by reason of their ownership thereof, an amount per share equal to the
sum of (i) $15.00 for each outstanding share of Series A Preferred
Stock (subject to appropriate adjustments for stock splits, stock
dividends, combinations or other recapitalizations with respect to
such shares and hereafter referred to as the "Original Series A Issue
Price"), and (ii) an amount equal to declared but unpaid dividends on
such share. If upon the occurrence of such event, the assets and funds
thus distributed among the holders of the Series A Preferred Stock
shall be insufficient to permit the payments to such holders of the
full aforesaid preferential amounts, then, subject to the rights of
series of Preferred Stock that may from time to time come into
existence, the entire assets and funds of the corporation legally
available for distribution shall be distributed ratably among the
holders of the Series A Preferred Stock on proportion to the
preferential amount each such holder would otherwise be entitled to
receive.
(b) Upon the completion of the distribution required by
subsection (a) of this Section 4, the remaining assets of the
corporation available for distribution to shareholders shall be
distributed among the holders of Series A Preferred Stock and Common
Stock pro rata based on the number of shares of Common Stock held by
each (assuming conversion of all such Series A Preferred Stock) until
the holders of Series A Preferred Stock shall have received an
aggregate of $7.50 per share (not including amounts paid pursuant to
subsection (a) of this Section 4); thereafter, if assets remain in
this corporation, the holders of the Common Stock of this corporation
shall receive all of the remaining assets of this corporation pro rata
based on the number of shares of Common Stock held by each.
(c) (i) A consolidation or merger of this corporation with or
into any other corporation or corporations (other than any merger
effected solely for the purpose of changing the domicile of the
corporation), or a sale, conveyance or disposition of all or
substantially all of the assets of this corporation or the
effectuation by the corporation of a transaction or series of related
transactions in which more than 50% of the voting power of the
corporation is disposed of, shall be deemed to be a liquidation,
dissolution or winding up within the meaning of this Section 4.
(ii) In any of such events, if the consideration received by
the corporation is other than cash, its value will be deemed its
fair market value. Any securities shall be valued as follows:
(A) Securities not be subject to investment letter or
other similar restrictions on free marketability covered by
(B) below shall be valued as follows:
(1) If traded on a securities exchange or through
the Nasdaq National Market System, the value shall be
deemed to be the average of the closing
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prices of the securities on such exchange over the
thirty (30) day period ending three (3) trading days
prior to the closing;
(2) If actively traded over-the-counter, the value
shall be deemed to be the average of the closing bid or
sale prices (whichever is applicable) over the thirty
(30) day period ending three (3) trading days prior to
the closing; and
(3) If there is no active public market, the value
shall be the fair market value thereof, as mutually
determined by the Board of Directors of the corporation
and the holders of at least a majority of the voting
power of all then outstanding shares of Series A
Preferred Stock.
(B) The method of valuation of securities subject to
investment letter or other restrictions on free
marketability (other than restrictions arising solely by
virtue of a shareholder's status as an affiliate or former
affiliate) shall be to make an appropriate discount from the
market value determined as above in (A) (1), (2) or (3) to
reflect the approximate fair market value thereof, as
mutually determined by the Board of Directors and the
holders of at least a majority of the voting power of all
then outstanding shares of such Series A Preferred Stock.
(iii) In the event the requirements of this subsection 4(c)
are not complied with, this corporation shall forthwith either:
(A) cause such closing to be postponed until such time
as the requirements of this subsection 4(c) have been
complied with; or
(B) cancel such transaction, in which event the rights,
preferences and privileges of the holders of the Series A
Preferred Stock shall revert to and be the same as such
rights, preferences and privileges existing immediately
prior to the date of the first notice referred to in
subsection 4(c)(iv) hereof.
(iv) The corporation shall give each holder of record of
Series A Preferred Stock written notice of such impending
transaction not later than thirty (30) days prior to the
shareholders' meeting called to approve such transaction, or
thirty (30) days prior to the closing of such transaction,
whichever is earlier, and shall also notify such holders in
writing of the final approval of such transaction. The first of
such notices shall describe the material terms and conditions of
the impending transaction and the provisions of this Section 4,
and the corporation shall thereafter give such holders prompt
notice of any material changes. The transaction shall in no event
take place sooner than thirty (30) days after the corporation has
given the first notice provided for herein or sooner than ten
(10) days after the corporation has given notice of any material
changes provided for herein; provided, however, that such periods
may be shortened upon the written consent of the holders of
Series A Preferred Stock that are entitled to such notice rights
or similar notice rights and that represent at least a majority
of the voting power of all then outstanding shares of such Series
A Preferred Stock.
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(v) Any notice required by the provisions of this Section 4
to be given to the holders of shares of Series A Preferred Stock
shall be deemed given when deposited in the United States mail,
postage prepaid, and addressed to each holder of record at his
address appearing on the books of this corporation.
(vi) The provisions of this Section 4 are in addition to the
protective provisions of Section 8 hereof.
5. Redemption.
(a) At any time after February 12, 2002, but within forty-five
(45) days (the "Redemption Date") after the receipt by this
corporation of a written request from the holders of not less than a
majority of the then outstanding shares of Series A Preferred Stock
that all of such holders' shares be redeemed, and immediately prior to
the surrender by such holders of the certificates representing such
shares, this corporation shall, to the extent it may lawfully do so,
redeem all of the then outstanding shares of Series A Preferred Stock
by paying in cash therefor a sum per share equal to the Original
Series A Issue Price (as adjusted for any stock dividends,
combinations or splits with respect to such share) plus an amount
equal to all declared but unpaid dividends on such share as of the
Redemption Date (the "Redemption Price") to the holders of the Series
A Preferred Stock in three equal annual installments beginning on the
Redemption Date. Any redemption effected pursuant to this subsection
5(a) shall be made on a pro rata basis among the holders of the Series
A Preferred Stock in proportion to the number of shares of Series A
Preferred Stock then held by such holders.
(b) Not less than twenty (20) days prior to the Redemption Date,
written notice shall be mailed, first class postage prepaid, to each
holder of record (at the close of business on the business day next
preceding the day on which notice is given) of the Series A Preferred
Stock at the address last shown on the records of this corporation for
such holder, notifying such holder of the redemption to be effected,
specifying the number of shares to be redeemed from such holder (which
shall be all of the shares of Series A Preferred Stock held by such
holder), the Redemption Date, the Redemption Price, the place at which
payment may be obtained and calling upon such holder to surrender to
this corporation, in the manner and at the place designated, his, her
or its certificate or certificates representing all of the shares of
the Series A Preferred Stock held by such holder (the "Redemption
Notice"). Except as provided in subsection 5(c) hereof, on or after
the Redemption Date, each holder of Series A Preferred Stock shall
surrender to this corporation the certificate or certificates
representing such shares, in the manner and at the place designated in
the Redemption Notice, and thereupon the Redemption Price of such
shares shall be payable to the order of the person whose name appears
on such certificate or certificates as the owner thereof and each
surrendered certificate shall be cancelled.
(c) From and after the Redemption Date, unless there shall have
been a default in payment of the Redemption Price, all rights of the
holders of shares of Series A Preferred Stock designated in the
Redemption Notice as holders of Series A Preferred Stock (except the
right to receive the respective Redemption Price without interest upon
surrender of their certificate or certificates) shall cease with
respect to such shares, and such shares shall not thereafter be
transferred on the books of this corporation or be deemed to be
outstanding for any
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purpose whatsoever. If the funds of the corporation legally available
for redemption of shares of Series A Preferred Stock on the Redemption
Date, or any subsequent date on which payment is due the holders of
Series A Preferred Stock pursuant to this Section 5, are insufficient
to redeem the total number of shares of Series A Preferred Stock on
such date, those funds which are legally available will be used to
redeem the maximum possible number of such shares ratably among the
holders of the Series A Preferred Stock in proportion to the amount of
such stock owned by each such holder. At any time thereafter when
additional funds of the corporation are legally available for the
redemption of shares of Series A Preferred Stock, such funds will
immediately be used to redeem the balance of the shares which the
corporation has become obliged to redeem on the Redemption Date but
which it has not redeemed. Notwithstanding anything herein to the
contrary, the number of shares of Series A Preferred Stock for which
the corporation has not yet paid the full Redemption Price as of any
date after the Redemption Date shall remain outstanding and entitled
to all the rights and preferences provided herein.
6. Conversion. The holders of the Series A Preferred Stock shall have
conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series A Preferred Stock
shall be convertible, at the option of the holder thereof, at any time
and from time to time after the date of issuance of such share at the
office of this corporation or any transfer agent for such stock, into
such number of fully paid and nonassessable shares of Common Stock as
is determined by dividing the Original Series A Issue Price by the
Conversion Price at the time in effect for such share. The initial
Conversion Price per share for shares of Series A Preferred Stock
shall be the Original Series A Issue Price; provided, however, that
the Conversion Price for the Series A Preferred Stock shall be subject
to adjustment as set forth in subsection 6(d).
(b) Automatic Conversion. Each share of Series A Preferred Stock
shall automatically be converted into shares of Common Stock at the
Conversion Price at the time in effect for such Series A Preferred
Stock immediately and without further action by the corporation or the
holder of such shares of Series A Preferred Stock upon the earlier of
(i) the corporation's sale of its Common Stock in a firm commitment
underwritten public offering pursuant to a registration statement
under the Securities Act of 1933, as amended, the public offering
price of which is not less than $20.00 per share (subject to
appropriate adjustments for stock splits, stock dividends,
combinations or other recapitalizations with respect to such shares)
and $15,000,000 in the aggregate or (ii) the date specified by written
consent or agreement of the holders of two-thirds (2/3) of the then
outstanding shares of Series A Preferred Stock.
(c) Mechanics of Conversion. Before any holder of Series A
Preferred Stock shall be entitled to convert the same into shares of
Common Stock, he shall surrender the certificate or certification
therefor, duly endorsed, at the office of this corporation or of any
transfer agent for Series A preferred Stock, and shall give written
notice to this corporation at its principal corporate office, of the
election to convert the same and shall state therein the name names in
which the 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 Stock to be converted, and the person or persons
entitled to receive the shares
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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 offering of securities registered pursuant to the
Securities Act of 1933, as amended, the conversion may, at the option
of any holder tendering Series A preferred Stock for conversion, be
conditioned upon the closing with the underwriters of the sale of
securities pursuant to such offering, in which event the person(s)
entitled to receive the Common Stock upon conversion of the Series A
Preferred Stock shall not be deemed to have converted such Series A
Preferred Stock until immediately prior to the closing of such sale of
securities.
(d) Conversion Price Adjustments of Series A Preferred Stock. The
Conversion price of the Series A Preferred Stock shall be subject to
adjustment from time to time as follows:
(i)(A) Upon the issuance by the corporation of any
Additional Stock (as defined below) after the date upon which any
shares of the Series A preferred Stock were first issued (the
"Purchase Price"), without consideration or for a consideration
per share less than the Conversion Price for the Series A
Preferred Stock in effect immediately prior to the issuance of
such Additional Stock, the Conversion Price for the Series A
Preferred Stock in effect immediately prior to each such issuance
shall forthwith (except as otherwise provided in this clause (i))
be adjusted to a price determined by multiplying such Conversion
Price by a fraction, the numerator of which shall be the number
of shares of Common Stock outstanding immediately prior to such
issuance (excluding the number of shares of Common Stock issuable
upon the conversion of the Series A Preferred Stock) plus the
number of shares of Common Stock that the aggregate consideration
received by the corporation for such issuance would purchase at
the conversion price existing immediately prior to such issuance
of Additional Stock, and the denominator of which shall be the
number of shares of Common Stock outstanding immediately prior to
such issuance (excluding the number of shares of Common Stock
issuable upon the conversion of the Series A Preferred Stock)
plus the number of shares of such Additional Stock. However, the
foregoing calculation shall not take into account shares deemed
issued pursuant to Section 6(d)(I)(E) on account of options,
rights or convertible or exchangeable securities (or the actual
or deemed consideration therefor), except to the extent (I) such
options, rights or convertible or exchangeable securities have
been exercised, converted or exchanged or (2) the consideration
to be paid upon such exercise or exchange per share underlying
Common Stock, or the conversion price then in effect for
convertible securities, is less than or equal to the per share
consideration for the Additional Stock which has given rise to
the Conversion Price adjustment being calculated.
(B) No adjustment of the Conversion Price for the
Series A Preferred Stock shall be made in an amount less
than one cent per share, provided that any adjustments which
are not required to be made by reason of this sentence shall
be carried forward and shall be either taken into account in
any subsequent adjustment made prior to 3 years from the
date of the event giving rise to the adjustment being
carried forward, or shall be made at the end of 3 years from
the date of the event giving rise to the adjustment being
carried forward. Except to the limited extent provided for
in subsections 6(d)(i)(E)(3) and (E)(4), no adjustment of
the Conversion Price pursuant to this subsection 6(d)(I)
shall have the effect of
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increasing the Conversion Price above the Conversion Price
in effect immediately prior to such 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 therefore before deducting any reasonable
discounts, commissions or other expenses allowed, paid or
incurred by this corporation for any underwriting or
otherwise in connection with the issuance and sale thereof.
(E) In the case of the issuance (whether before, on or
after the applicable Purchase Date) of options to purchase
or rights to subscribe for Common Stock, securities by their
terms convertible into or exchangeable for Common Stock or
options to purchase or rights to subscribe for such
convertible or exchangeable securities, the following
provisions shall apply for all purposes of this subsection
6(d)(i) and subsection 6(d)(ii):
(1) The aggregate maximum number of shares of
Common Stock deliverable upon exercise (assuming the
satisfaction of any conditions to exercisability,
including without limitation, the passage of time, but
without taking into account potential antidilution
adjustments) of such option sot purchase or rights to
subscribe for Common Stock shall be deemed to have been
issued at the time such options or rights were issued
and for a consideration equal to the consideration
(determined in the manner provided in subsections
6(d)(i)(C) and (d)(i)(D)), if any, received by the
corporation upon the issuance of such options or rights
plus the minimum exercise price provided in such option
or rights (without taking into account potential
antidilution adjustments) for the Common Stock covered
thereby.
(2) The aggregate maximum number of shares of
Common Stock deliverable upon conversion of or in
exchange (assuming the satisfaction of any conditions
to convertibility or exchangeability, including,
without limitation, the passage of time, but without
taking into account potential antidilution adjustments)
for any such convertible or exchangeable securities or
upon the exercise of options to purchase or rights to
subscribe for such convertible or exchangeable
securities or upon the exercise of options to purchase
or rights to subscribe for such convertible or
exchangeable securities and subsequent conversion or
exchange thereof shall be deemed to have been issued
at the time such securities were issued or such options
or rights were issued and for a consideration equal to
the consideration, if any received by the corporation
for any such securities and related options or rights
(excluding any cash received on account of accrued
interest or accrued dividends), plus the minimum
additional consideration, if any, to be received by the
corporation (without taking into account potential
antidilution adjustments) upon the conversion or
exchange of such securities or the exercise of any
related options or rights (the consideration in each
case to be determined in the manner provided in
subsections 6(d)(i)(C) and (d)(i)(D)).
(3) In the event of any change in the number of
shares of Common Stock deliverable or in the
consideration payable to this corporation upon exercise
of such options or rights or upon conversion of or in
exchange for such convertible or exchangeable
securities, including, but not limited to, a change
resulting from the antidilution provision thereof, the
Conversion Price of the Series A Preferred Stock, to
the extent in any way affected by or computed using
such options, rights or securities, shall be recomputed
to reflect
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such change, but no further adjustment shall be made
for the actual issuance of Common Stock or any payment
of such consideration upon the exercise of any options
or rights or the conversion or exchange of such
securities.
(4) Upon the expiration of any such options or
rights, the termination of any such rights to convert
or exchange or the expiration of any options or rights
related to such convertible or exchangeable securities,
the conversion Price of the Series A preferred Stock,
to the extent in any way affected by or computed using
such options, rights or securities or options or rights
related to such securities, shall be recomputed to
reflect the issuance of only the number of Shares of
Common Stock (and convertible or exchangeable
securities which remain in effect) actually issued upon
the exercise of such options or rights, upon the
conversion or exchange or such securities or upon the
exercise of the options or rights related to such
securities.
(ii) "Additional Stock" shall mean any shares of Common
Stock issued (or deemed to have been issued pursuant to
subsection 6(d)(i)(E)) by this corporation after the Purchase
Date for the Series A Preferred Stock other than:
(A) Common Stock issued pursuant to a transaction
described in subsection 6(d)(iii) hereof, or
(B) shares of Common Stock (or options, warrants or
other rights to purchase such Common Stock) issuable or
issued to employees, consultants, directors or vendors (if
in transactions with primarily non-financing purposes) of
this corporation directly or pursuant to a stock option plan
or restricted stock plan approved by the shareholders and
Board of Directors of this corporation at any time when the
total number of shares of Common Stock so issuable or issued
(and not repurchased at cost by the corporation in
connection with the termination of employment or commercial
relationship) does not exceed 1,000,000 or
(D) shares of Common Stock issued or issuable (I) in a
public offering before or in connection with which all
outstanding shares of Series A Preferred Stock will be
converted to Common Stock or (II) upon exercise of warrants
or rights granted to underwriters in connection with such a
public offering.
(E) up to 478,500 shares of Common Stock issued to
ITALADE TECHNOLOGY (THAILAND) LIMITED ("ITALADE") pursuant
to that joint venture agreement dated as of April 4, 1997
between the corporation and ITALADE.
(iii) In the event the corporation should at any time or
from time to time after the Purchase Date 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
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 Equivalent
(including the additional shares of Common
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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
Price of the Series A Preferred Stock shall be appropriately
decreased 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 of the aggregate number of shares of
Common Stock outstanding and those issuable with respect to such
Common Stock Equivalents.
(iv) If the number of shares of Common Stock outstanding at
any time after the Purchase Date is decreased by a combination of
the outstanding shares of Common Stock, then, following the
record date of such combination, the Conversion Price for the
Series A Preferred Stock shall be appropriately increased 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.
(e) Other Distributions. In the event this corporation shall
declare a distribution payable in securities of other persons,
evidences of indebtedness issued by this corporation or other persons,
assets (excluding cash dividends) or options or rights not referred to
in subsection 6(d)(iii), the, in each such case for the purpose of
this subsection 6(e), the holders of the Series A Preferred Stock
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 shares of Series A Preferred Stock
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.
(f) 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 6 or Section 4) provisions
shall be made so that each holder of Series A Preferred Stock shall
thereafter be entitled to receive upon conversion of the Series A
Preferred Stock the number of shares of stock or other securities or
property of the Company or otherwise, to which a holder of the Common
Stock deliverable upon conversion of such holder's Series A Preferred
Stock would have been entitled on such recapitalization. In any such
case, appropriate adjustment shall be made in the application of the
provisions of this Section 6 with respect to the rights of the holders
of the Series A Preferred Stock after the recapitalization to the end
that the provisions of this Section 6 (including adjustment of the
Conversion Price then in effect for the Series A Preferred Stock and
the number of shares purchasable upon conversion of the Series A
Preferred Stock) shall be applicable after that event as nearly
equivalent as may be practicable.
(g) No Impairment. This corporation will not, by amendment of its
Articles 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 this corporation,
but will at all times in good faith assist in the carrying out of all
the provisions of this Section 6 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 A Preferred Stock against
impairment.
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(h) No Fractional Shares and Certificate as to Adjustments.
(i) No fractional share shall be issued upon the conversion
of any shares or shares of the Series A Preferred Stock, 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 Stock 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 the Conversion Price of the Series A Preferred Stock pursuant
to this Section 6, this corporation, at its expense, shall
promptly computer such adjustment or readjustment in accordance
with the terms hereof and prepare and furnish to each holder of
Series A Preferred Stock a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon
which such adjustment or readjustment is based. This corporation
shall, upon the written request at any time of any holder of
Series A Preferred Stock, furnish or cause to be furnished to
such holder a like certificate setting forth (A) such adjustment
and readjustment, (B) the Conversion Price of the Series A
Preferred Stock held by such holder at the time in effect, 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 Series A Preferred Stock.
(i) Notices of Record Date. In the event of any taking by this
corporation of a record of the holders of any class of securities for
the purpose of determining the holders thereof who are entitled to
receive any dividend (other than a 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, this corporation shall mail
to each holder of Series A Preferred Stock, 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 of right, and the amount and character of such dividend,
distribution or right.
(j) Reservation of Stock Issuable Upon Conversion. This
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
Stock, 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 Stock. If at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient
to effect the conversion of all then outstanding shares of the Series
A Preferred Stock, in addition to such other remedies as shall be
available to the holder of such Series A Preferred Stock, this
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, including, without limitation, using its best
efforts to obtain the requisite shareholder approval of any necessary
amendment to the corporation's Articles of Incorporation.
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<PAGE>
(k) Notices. Unless otherwise provided, any notice required or
permitted under this Section 6 shall be given in writing and shall be
deemed effectively given upon personal or facsimile delivery to the
party to be notified or upon deposit with the United States Post
Office, by registered or certified mail, or with a nationally
recognized overnight delivery service, postage prepaid and addressed
to each holder of record at his address appearing on the books of this
corporation.
7. Voting Rights. The holder of each share of Series A Preferred Stock
shall have the right to one vote for each share of Common Stock into which
such Series A Preferred Stock could then be converted, and with respect to
such vote, such holder shall have full voting rights and powers equal to
the voting rights and powers of the holders of Common Stock, and shall be
entitled, notwithstanding any provision hereof, to notice of any
shareholders' meeting in accordance with the Bylaws of this corporation,
and shall be entitled to vote, together with holders of Common Stock, with
respect to any question upon which holders of Common Stock have the right
to vote. Fractional votes shall not be permitted and any fractional voting
rights available on an as-converted basis (after aggregating all shares
into which shares of the Series A Preferred Stock held by each holder could
be converted) shall be rounded to the nearest whole number (with one-half
being rounded upward).
8. Protective Provisions. Subject to the rights of series of Preferred
Stock which may from time to time come into existence, so long as any
shares of Series A Preferred Stock are outstanding, this corporation shall
not without first obtaining the approval (by vote or written consent, as
provided by law) of the holders of at least two thirds (66.67% ) of the
then outstanding shares of Series A Preferred Stock;
(a) sell, convey, or otherwise dispose of or encumber all or
substantially all of its property or business or merge with and into
any other corporation where the corporation is not the surviving
corporation (other than a wholly-owned subsidiary corporation), or
effect any transaction or series of related transactions in which more
than fifty percent (50%) of the voting power of the corporation is
disposed of, or effect any voluntary liquidation, dissolution or
winding up of the corporation or recapitalization of the corporation;
or
(b) alter or change the rights, preferences or privileges of the
shares of Series A Preferred Stock so as to adversely affect such
shares; or
(c) increase or decrease (other than by redemption or conversion)
the total number of authorized shares of capital stock or any series
of capital stock, provided, however, that no such approval shall be
required to increase the total number of authorized shares of Common
Stock to less than or equal to fifteen million 15,000,000) shares; or
(d) authorize or issue, or obligate itself to issue, any equity
security, including any other security convertible into or exercisable
for any equity security, (i) having a preference over, or being on a
parity with, the rights, preferences and privileges of the Series A
Preferred Stock with respect to dividends, liquidation or voting
(provided that additional shares of Common Stock having the same
number of votes per share as the Series A Preferred Stock may be
issued), or (ii) having rights similar to any of the rights of the
Series A Preferred Stock
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under this Section 8; or
(e) redeem, purchase or otherwise acquire (or pay into or set
aside for a sinking fund for such purpose) any share or shares of
Common Stock; provided, however, that this restriction shall not apply
to the repurchase of share of Common Stock from certain shareholders
pursuant to that certain Shareholder Agreement dated June 8, 1994 or
that certain Shareholders' Agreement dated on or about February 12,
1998 or the repurchase of shares of Common Stock from employees,
officers, directors, consultants or other persons performing services
for the corporation or any subsidiary pursuant to agreements under
which the corporation has the option to repurchase such shares at cost
upon the occurrence of certain events, such as the termination of
employment; or
(f) issue, or obligate itself to issue, greater than 533,333
shares of Series A Preferred Stock; or
(g) pay any dividends on the corporation's Common Stock; or
(h) amend the corporation's Articles of Incorporation, provided,
however, that no such approval shall be required for an amendment to
the corporation's Articles of Incorporation to increase the total
number of authorized shares of Common Stock to less than or equal to
fifteen million (15,000,000) shares; or
(i) increase the authorized number of directors of the
corporation to more than thirteen (13).
9. Status of Redeemed or Converted Stock. In the event (a) any shares
of Series A Preferred Stock shall be redeemed pursuant to Section 5 hereof
or (b) any shares of Series A Preferred Stock shall be converted pursuant
to Section 6 hereof, the shares so redeemed or converted shall be
cancelled, and such shares shall not be issuable by the corporation.
RESOLVED, FURTHER, that the Chairman, President, or any Vice President, and
the Secretary or the Chief Financial Officer of this corporation are hereby
authorized to execute, verify, and file a Certificate of Designation of
Preferences in accordance with Minnesota law.
C. The authorized number of shares of Preferred Stock of said corporation
is 1,000,000. 666,667 shares of Preferred Stock are hereby being designated
Series A Preferred Stock, none of which has been issued.
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<PAGE>
We further declare under penalty of perjury under the laws of the State of
Minnesota that the matters set forth in this Certificate are true and correct of
our own knowledge.
DATED: February 12, 1998
/s/ Allen J. Berning
-----------------------------------------
Allen J. Berning, Chief Executive Officer
/s/ Gary L. Lingbeck
----------------------------------------
Gary L. Lingbeck, Secretary
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<PAGE>
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
PEMSTAR INC.
1. The name of the corporation is PEMSTAR INC., a Minnesota corporation.
2. The Articles of Incorporation are hereby amended by modifying the first
paragraph of Article 3 to read as follows:
The aggregate number of shares of stock that the corporation is
authorized to issue is 55,000,000, of which 50,000,000 shares are
designated as common shares with a par value of $.01 per share and
5,000,000 shares are designated as preferred shares with a par value
of $.01 per share.
3. This amendment has been adopted pursuant to Chapter 302A of the
Minnesota Business Corporation Act.
IN WITNESS WHEREOF, the undersigned, President of PEMSTAR INC., being duly
authorized on behalf of PEMSTAR INC., has executed this document on this 2nd day
of June, 1999.
/s/ Allen J. Berning
--------------------------------------
Allen J. Berning, President
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<PAGE>
ARTICLES OF AMENDMENT
OF
CERTIFICATE OF DESIGNATION OF PREFERENCES
OF
SERIES A PREFERRED STOCK
OF
PEMSTAR INC.
1. The name of the corporation is PEMSTAR INC., a Minnesota corporation.
2. The Certificate of Designation of Preferences of Series A Preferred
Stock of PEMSTAR INC. is hereby amended by deleting the reference to "February
12" in the first line of Section 5(a) and inserting in lieu thereof "September
15".
3. This amendment has been adopted pursuant to Chapter 302A of the
Minnesota Business Corporation Act.
IN WITNESS WHEREOF, the undersigned, President of PEMSTAR INC., being duly
authorized on behalf of PEMSTAR INC., has executed this document on this 2nd day
of June, 1999.
/s/ Allen J. Berning
--------------------------------------
Allen J. Berning, President
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<PAGE>
CERTIFICATE OF DESIGNATION OF PREFERENCES
OF SERIES B PREFERRED STOCK
OF PEMSTAR INC.,
a Minnesota corporation
The undersigned Robert R. Murphy and David L. Sippel hereby certify that:
A. They are the duly elected and acting Chief Financial Officer and Vice
President, respectively, of said corporation.
B. Pursuant to authority given by said corporation's Articles of
Incorporation, as amended to date, the Board of Directors of said corporation
has duly adopted the following resolutions:
RESOLVED, that the Board of Directors does hereby provide for the issue of
a series of Preferred Stock of the corporation consisting of One Million
(1,000,000) shares designated as "Series B Preferred Stock," and does hereby fix
the rights, preferences, privileges, and restrictions and other matters relating
to said Series B Preferred Stock as follows:
1. Designation. The series of Preferred Stock shall be designated
"Series B Preferred Stock."
2. Number. The number of authorized shares constituting the Series B
Preferred Stock shall be One Million (1,000,000) shares.
3. Rank. Unless otherwise specified herein, the Series B Preferred
Stock shall rank on a parity with the Series A Preferred Stock in terms of
the operation of the dividend provisions set forth in Section 4 hereof, the
liquidation preference provisions set forth in Section 5 hereof, and the
redemption provisions set forth in Section 6 hereof.
4. Dividend Provisions.
(a) Subject to the rights of series of Preferred Stock which may
from time to time come into existence, the holders of shares of Series
B Preferred Stock shall be entitled to receive dividends, out of any
assets legally available therefor, prior and in preference to any
declaration or payment of any dividend (payable other than in Common
Stock or other securities and rights convertible into or entitling the
holder thereof to receive, directly or indirectly, additional shares
of Common Stock of this corporation) on the Common Stock of this
corporation, at the rate of $1.44 per share of Series B Preferred
Stock (subject to appropriate adjustments for stock splits, stock
dividends, combinations or other recapitalizations with respect to
such shares) per annum (the "Preferred Dividend Preference"). Such
dividends shall not be cumulative and shall be payable when, as and if
declared by
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<PAGE>
the Board of Directors. If the Board of Directors shall declare a
dividend upon the Series A Preferred Stock, then the Board of
Directors shall declare a dividend upon the Series B Preferred Stock.
(b) After paying the full Preferred Dividend Preference in any
calendar year, whenever this corporation declares a further dividend
in such calendar year, the holders of Common Stock and the holders of
Series A Preferred Stock and Series B Preferred Stock shall be
entitled to receive dividends ratably based on the number of shares of
Common Stock held by each on an as-if-converted to Common Stock basis.
5. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of
this corporation, either voluntary or involuntary, subject to the
rights of series of Preferred Stock that may from time to time come
into existence, the holders of Series B Preferred Stock shall be
entitled to receive, prior and in preference to any distribution of
any of the assets of this corporation to the holders of Common Stock
by reason of their ownership thereof, an amount per share equal to the
sum of (i) $18.00 for each outstanding share of Series B Preferred
Stock (subject to appropriate adjustments for stock splits, stock
dividends, combinations or other recapitalizations with respect to
such shares and hereafter referred to as the "Original Series B Issue
Price"), and (ii) an amount equal to declared but unpaid dividends on
such share. If upon the occurrence of such event, the assets and funds
to be distributed among the holders of the Series A Preferred Stock
and Series B Preferred Stock shall be insufficient to permit the
payment to such holders of the full aforesaid preferential amounts,
then, subject to the rights of series of Preferred Stock that may from
time to time come into existence, the entire assets and funds of the
corporation legally available for distribution shall be distributed
ratably among the holders of the Series A Preferred Stock and Series B
Preferred Stock in proportion to the preferential amount each such
holder would otherwise be entitled to receive.
(b) Upon the completion of the distribution required by
subsection (a) of this Section 5, the remaining assets of the
corporation available for distribution to shareholders shall be
distributed among the holders of Series A Preferred Stock, Series B
Preferred Stock and Common Stock pro rata based on the number of
shares of Common Stock held by each (assuming conversion of all such
Series A Preferred Stock and Series B Preferred Stock) until and only
until the holders of Series A Preferred Stock shall have received an
aggregate of $7.50 per share and the holders of the Series B Preferred
Stock shall have received an aggregate of $9.00 per share (not
including amounts paid pursuant to subsection (a) of this Section 5
and Section 5(a) of the Certificate of Designation of Preferences of
Series A Preferred Stock); thereafter, if assets remain in this
corporation, the holders of the Common Stock of this corporation shall
receive all of the remaining assets of this corporation pro rata based
on the number of shares of Common Stock held by each.
(c)(i) A consolidation or merger of this corporation with or into
any other corporation or corporations (other than any merger effected
solely for the purpose of changing the domicile of the corporation),
or a sale, conveyance or disposition of all or substantially all of
the assets of this
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<PAGE>
corporation or the effectuation by the corporation of a transaction or
series of related transactions in which more than 50% of the voting
power of the corporation is disposed of, shall be deemed to be a
liquidation, dissolution or winding up within the meaning of this
Section 5.
(ii) In any of such events, if the consideration received by
the corporation is other than cash, its value will be deemed its
fair market value. Any securities shall be valued as follows:
(A) Securities not subject to investment letter or
other similar restrictions on free marketability covered by
(B) below shall be valued as follows:
(1) If traded on a securities exchange or through
the Nasdaq National Market System, the value shall be
deemed to be the average of the closing prices of the
securities on such exchange over the thirty (30) day
period ending three (3) trading days prior to the
closing;
(2) If actively traded over-the-counter, the value
shall be deemed to be the average of the closing bid or
sale prices (whichever is applicable) over the thirty
(30) day period ending three (3) trading days prior to
the closing; and
(3) If there is no active public market, the value
shall be the fair market value thereof, as mutually
determined by the Board of Directors of the corporation
and the holders of at least a majority of the voting
power of all then outstanding shares of Series B
Preferred Stock.
(B) The method of valuation of securities subject to
investment letter or other restrictions on free
marketability (other than restrictions arising solely by
virtue of a shareholder's status as an affiliate or former
affiliate) shall be to make an appropriate discount from the
market value determined as above in (A) (1), (2) or (3) to
reflect the approximate fair market value thereof, as
mutually determined by the Board of Directors and the
holders of at least a majority of the voting power of all
then outstanding shares of such Series B Preferred Stock.
(iii) In the event the requirements of this subsection 5(c)
are not complied with, this corporation shall forthwith either:
(A) cause such closing to be postponed until such time
as the requirements of this subsection 5(c) have been
complied with; or
(B) cancel such transaction, in which event the rights,
preferences and privileges of the holders of the Series B
Preferred Stock shall revert to and be the same as such
rights, preferences and privileges existing immediately
prior to the date of the first notice referred to in
subsection 5(c)(iv) hereof.
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<PAGE>
(iv) The corporation shall give each holder of record of
Series B Preferred Stock written notice of such impending
transaction not later than thirty (30) days prior to the
shareholders' meeting called to approve such transaction, or
thirty (30) days prior to the closing of such transaction,
whichever is earlier, and shall also notify such holders in
writing of the final approval of such transaction. The first of
such notices shall describe the material terms and conditions of
the impending transaction and the provisions of this Section 5,
and the corporation shall thereafter give such holders prompt
notice of any material changes. The transaction shall in no event
take place sooner than thirty (30) days after the corporation has
given the first notice provided for herein or sooner than ten
(10) days after the corporation has given notice of any material
changes provided for herein; provided, however, that such periods
may be shortened upon the written consent of the holders of
Series B Preferred Stock that are entitled to such notice rights
or similar notice rights and that represent at least a majority
of the voting power of all then outstanding shares of such Series
B Preferred Stock.
(v) Any notice required by the provisions of this Section 5
to be given to the holders of shares of Series B Preferred Stock
shall be deemed given when deposited in the United States mail,
postage prepaid, and addressed to each holder of record at his
address appearing on the books of this corporation.
(vi) The provisions of this Section 5 are in addition to the
protective provisions of Section 9 hereof.
6. Redemption.
(a) At any time after September 15, 2002, but within forty-five
(45) days (the "Redemption Date") after the receipt by this
corporation of a written request from the holders of not less than a
majority of the then outstanding shares of Series B Preferred Stock
that all of such holders' shares be redeemed, and immediately prior to
the surrender by such holders of the certificates representing such
shares, this corporation shall, to the extent it may lawfully do so,
redeem all of the then outstanding shares of Series B Preferred Stock
by paying in cash therefor a sum per share equal to the Original
Series B Issue Price (as adjusted for any stock dividends,
combinations or splits with respect to such share) plus an amount
equal to all declared but unpaid dividends on such share as of the
Redemption Date (the "Redemption Price") to the holders of the Series
B Preferred Stock in three equal annual installments beginning on the
Redemption Date. If pursuant to Section 6(a) of the Certificate of
Designation of Preferences of Series A Preferred Stock, holders of
Series A Preferred Stock elect to have the shares of Series A
Preferred Stock redeemed, then the holders of not less than a majority
of the then outstanding shares of Series B Preferred Stock may elect
to have the outstanding shares of Series B Preferred Stock redeemed
contemporaneously with the redemption of the Series A Preferred Stock.
The Company shall provide sufficient notice to the holders of Series B
Preferred Stock to provide for such election. Any redemption effected
pursuant to this subsection 6(a) shall be made on a pro rata basis
among the holders of the Series B Preferred Stock in proportion to the
number of shares of Series B Preferred Stock then held by such
holders.
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<PAGE>
(b) Not less than twenty (20) days prior to the Redemption Date,
written notice shall be mailed, first class postage prepaid, to each
holder of record (at the close of business on the business day next
preceding the day on which notice is given) of the Series B Preferred
Stock at the address last shown on the records of this corporation for
such holder, notifying such holder of the redemption to be effected,
specifying the number of shares to be redeemed from such holder (which
shall be all of the shares of Series B Preferred Stock held by such
holder), the Redemption Date, the Redemption Price, the place at which
payment may be obtained and calling upon such holder to surrender to
this corporation, in the manner and at the place designated, his, her
or its certificate or certificates representing all of the shares of
the Series B Preferred Stock held by such holder (the "Redemption
Notice"). Except as provided in subsection 6(c) hereof, on or after
the Redemption Date, each holder of Series B Preferred Stock shall
surrender to this corporation the certificate or certificates
representing such shares, in the manner and at the place designated in
the Redemption Notice, and thereupon the Redemption Price of such
shares shall be payable to the order of the person whose name appears
on such certificate or certificates as the owner thereof and each
surrendered certificate shall be cancelled.
(c) From and after the Redemption Date, unless there shall have
been a default in payment of the Redemption Price, all rights of the
holders of shares of Series B Preferred Stock designated in the
Redemption Notice as holders of Series B Preferred Stock (except the
right to receive the respective Redemption Price without interest upon
surrender of their certificate or certificates) shall cease with
respect to such shares, and such shares shall not thereafter be
transferred on the books of this corporation or be deemed to be
outstanding for any purpose whatsoever. If the funds of the
corporation legally available for redemption of shares of Series B
Preferred Stock on the Redemption Date, or any subsequent date on
which payment is due the holders of Series B Preferred Stock pursuant
to this Section 6, are insufficient to redeem the total number of
shares of Series B Preferred Stock on such date, those funds which are
legally available will be used to redeem the maximum possible number
of such shares ratably among the holders of the Series B Preferred
Stock or, if applicable, the Series A Preferred Stock in proportion to
the amount of such stock owned by each such holder. At any time
thereafter when additional funds of the corporation are legally
available for the redemption of shares of Series B Preferred Stock,
such funds will immediately be used to redeem the balance of the
shares which the corporation has become obliged to redeem on the
Redemption Date but which it has not redeemed. Notwithstanding
anything herein to the contrary, the number of shares of Series B
Preferred Stock for which the corporation has not yet paid the full
Redemption Price as of any date after the Redemption Date shall remain
outstanding and entitled to all the rights and preferences provided
herein.
7. Conversion. The holders of the Series B Preferred Stock shall have
conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series B Preferred Stock
shall be convertible, at the option of the holder thereof, at any time
and from time to time after the date of issuance of such share at the
office of this corporation or any transfer agent for such stock, into
such number of fully paid
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<PAGE>
and nonassessable shares of Common Stock as is determined by dividing
the Original Series B Issue Price by the Conversion Price at the time
in effect for such share. The initial Conversion Price per share for
shares of Series B Preferred Stock shall be the Original Series B
Issue Price; provided, however, that the Conversion Price for the
Series B Preferred Stock shall be subject to adjustment as set forth
in subsection 7(d).
(b) Automatic Conversion. Each share of Series B Preferred Stock
shall automatically be converted into shares of Common Stock at the
Conversion Price at the time in effect for such Series B Preferred
Stock immediately and without further action by the corporation or the
holder of such shares of Series B Preferred Stock upon the earlier of
the corporation's sale of its Common Stock in a firm commitment
underwritten public offering pursuant to a registration statement
under the Securities Act of 1933, as amended, the public offering
price of which is not less than $24.00 per share (subject to
appropriate adjustments for stock splits, stock dividends,
combinations or other recapitalizations with respect to such shares)
and $15,000,000 in the aggregate or the date specified by written
consent or agreement of the holders of two-thirds (2/3) of the then
outstanding shares of Series B Preferred Stock.
(c) Mechanics of Conversion. Before any holder of Series B
Preferred Stock shall be entitled to convert the same into shares of
Common Stock, he shall surrender the certificate or certificates
therefor, duly endorsed, at the office of this corporation or of any
transfer agent for the Series B Preferred Stock, and shall give
written notice to this 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. This corporation shall, as soon as practicable
thereafter, issue and deliver at such office to such holder of Series
B Preferred Stock, 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 B
Preferred Stock to be converted, and the person or persons 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 offering of securities registered
pursuant to the Securities Act of 1933, as amended, the conversion
may, at the option of any holder tendering Series B Preferred Stock
for conversion, be conditioned upon the closing with the underwriters
of the sale of securities pursuant to such offering, in which event
the person(s) entitled to receive the Common Stock upon conversion of
the Series B Preferred Stock shall not be deemed to have converted
such Series B Preferred Stock until immediately prior to the closing
of such sale of securities.
(d) Conversion Price Adjustments of Series B Preferred Stock. The
Conversion Price of the Series B Preferred Stock shall be subject to
adjustment from time to time as follows:
(i)(A) Upon the issuance by the corporation of any
Additional Stock (as defined below) after the date upon which any
shares of the Series B Preferred Stock were first issued (the
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<PAGE>
"Purchase Date"), without consideration or for a consideration
per share less than the Conversion Price for the Series B
Preferred Stock in effect immediately prior to the issuance of
such Additional Stock, the Conversion Price for the Series B
Preferred Stock in effect immediately prior to each such issuance
shall forthwith (except as otherwise provided in this clause (i))
be adjusted to a price determined by multiplying such Conversion
Price by a fraction, the numerator of which shall be the number
of shares of Common Stock outstanding immediately prior to such
issuance (excluding the number of shares of Common Stock issuable
upon the conversion of the Series B Preferred Stock) plus the
number of shares of Common Stock that the aggregate consideration
received by the corporation for such issuance would purchase at
the Conversion Price existing immediately prior to such issuance
of Additional Stock, and the denominator of which shall be the
number of shares of Common Stock outstanding immediately prior to
such issuance (excluding the number of shares of Common Stock
issuable upon the conversion of the Series B Preferred Stock)
plus the number of shares of such Additional Stock. However, the
foregoing calculation shall not take into account shares deemed
issued pursuant to Section 7(d)(i)(E) on account of options,
rights or convertible or exchangeable securities (or the actual
or deemed consideration therefor), except to the extent such
options, rights or convertible or exchangeable securities have
been exercised, converted or exchanged or the consideration to be
paid upon such exercise or exchange per share of underlying
Common Stock, or the conversion price then in effect for
convertible securities, is less than or equal to the per share
consideration for the Additional Stock which has given rise to
the Conversion Price adjustment being calculated.
(B) No adjustment of the Conversion Price for the Series B
Preferred Stock shall be made in an amount less than one cent per
share, provided that any adjustments which are not required to be
made by reason of this sentence shall be carried forward and
shall be either taken into account in any subsequent adjustment
made prior to 3 years from the date of the event giving rise to
the adjustment being carried forward, or shall be made at the end
of 3 years from the date of the event giving rise to the
adjustment being carried forward. Except to the limited extent
provided for in subsections 7(d)(i)(E)(3) and (E)(4), no
adjustment of the Conversion Price pursuant to this subsection
7(d)(i) shall have the effect of increasing the Conversion Price
above the Conversion Price in effect immediately prior to such
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 this
corporation for any underwriting or otherwise in connection with
the issuance and sale thereof.
(D) In the case of the issuance of 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.
(E) In the case of the issuance (whether before, on or after
the applicable Purchase Date) of options to purchase or rights to
subscribe for Common Stock, securities by their
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terms convertible into or exchangeable for Common Stock or
options to purchase or rights to subscribe for such convertible
or exchangeable securities, the following provisions shall apply
for all purposes of this subsection 7(d)(i) and subsection
7(d)(ii):
(1) The aggregate maximum number of shares of Common
Stock deliverable upon exercise (assuming the satisfaction
of any conditions to exercisability, including without
limitation, the passage of time, but without taking into
account potential antidilution adjustments) of such options
to purchase or rights to subscribe for Common Stock shall be
deemed to have been issued at the time such options or
rights were issued and for a consideration equal to the
consideration (determined in the manner provided in
subsections 7(d)(i)(C) and (d)(i)(D)), if any, received by
the corporation upon the issuance of such options or rights
plus the minimum exercise price provided in such options or
rights (without taking into account potential antidilution
adjustments) for the Common Stock covered thereby.
(2) The aggregate maximum number of shares of Common
Stock deliverable upon conversion of or in exchange
(assuming the satisfaction of any conditions to
convertibility or exchangeability, including, without
limitation, the passage of time, but without taking into
account potential antidilution adjustments) for any such
convertible or exchangeable securities or upon the exercise
of options to purchase or rights to subscribe for such
convertible or exchangeable securities and subsequent
conversion or exchange thereof shall be deemed to have been
issued at the time such securities were issued or such
options or rights were issued and for a consideration equal
to the consideration, if any, received by the corporation
for any such securities and related options or rights
(excluding any cash received on account of accrued interest
or accrued dividends), plus the minimum additional
consideration, if any, to be received by the corporation
(without taking into account potential antidilution
adjustments) upon the conversion or exchange of such
securities or the exercise of any related options or rights
(the consideration in each case to be determined in the
manner provided in subsections 7(d)(i)(C) and (d)(i)(D)).
(3) In the event of any change in the number of shares
of Common Stock deliverable or in the consideration payable
to this corporation upon exercise of such options or rights
or upon conversion of or in exchange for such convertible or
exchangeable securities, including, but not limited to, a
change resulting from the antidilution provisions thereof,
the Conversion Price of the Series B Preferred Stock, to the
extent in any way affected by or computed using such
options, rights or securities, shall be recomputed to
reflect such change, but no further adjustment shall be made
for the actual issuance of Common Stock or any payment of
such consideration upon the exercise of any such options or
rights or the conversion or exchange of such securities.
(4) Upon the expiration of any such options or rights,
the termination of any such rights to convert or exchange or
the expiration of any options or rights related to such
convertible or exchangeable securities, the Conversion Price
of the Series B Preferred Stock, to the extent in any way
affected by or computed using such options, rights or
securities or options or rights related to such securities,
shall be recomputed to reflect the issuance of only the
number of shares
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<PAGE>
of Common Stock (and convertible or exchangeable securities
which remain in effect) actually issued upon the exercise of
such options or rights, upon the conversion or exchange of
such securities or upon the exercise of the options or
rights related to such securities.
(ii) "Additional Stock" shall mean any shares of Common Stock
issued (or deemed to have been issued pursuant to subsection
7(d)(i)(E)) by this corporation after the Purchase Date for the Series
B Preferred Stock other than:
(A) Common Stock issued pursuant to a transaction described
in subsection 7(d)(iii) hereof, or
(B) shares of Common Stock issued upon conversion of the
Series A or Series B Preferred Stock, or
(C) shares of Common Stock (or options, warrants or other
rights to purchase such Common Stock) issuable or issued to
employees, consultants, directors or vendors (if in transactions
with primarily non-financing purposes) of this corporation
directly or pursuant to a stock option plan or restricted stock
plan approved by the shareholders and Board of Directors of this
corporation at any time when the total number of shares of Common
Stock so issuable or issued (and not repurchased at cost by the
corporation in connection with the termination of employment or
commercial relationship) does not exceed 2,000,000 or
(D) shares of Common Stock issued or issuable (I) in a
public offering before or in connection with which all
outstanding shares of Series B Preferred Stock will be converted
to Common Stock or (II) upon exercise of warrants or rights
granted to underwriters in connection with such a public
offering.
(E) up to 218,500 shares of Common Stock issued to ITALADE
TECHNOLOGY (THAILAND) LIMITED ("ITALADE") pursuant to that joint
venture agreement dated as of April 4, 1997 between the
corporation and ITALADE.
(iii) In the event the corporation should at any time or from
time to time after the Purchase Date 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 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 Price of the Series B Preferred
Stock shall be appropriately decreased so that the number of shares of
Common Stock issuable on conversion of each share of such
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<PAGE>
series shall be increased in proportion to such increase of the
aggregate number of shares of Common Stock outstanding and those
issuable with respect to such Common Stock Equivalents.
(iv) If the number of shares of Common Stock outstanding at any
time after the Purchase Date is decreased by a combination of the
outstanding shares of Common Stock, then, following the record date of
such combination, the Conversion Price for the Series B Preferred
Stock shall be appropriately increased 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.
(e) Other Distributions. In the event this corporation shall declare a
distribution payable in securities of other persons, evidences of
indebtedness issued by this corporation or other persons, assets (excluding
cash dividends) or options or rights not referred to in subsection
7(d)(iii), then, in each such case for the purpose of this subsection 7(e),
the holders of the Series B Preferred Stock 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 shares of Series B Preferred Stock 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.
(f) 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 7 or Section 5) provision shall be made so that each holder
of Series B Preferred Stock shall thereafter be entitled to receive upon
conversion of the Series B Preferred Stock the number of shares of stock or
other securities or property of the Company or otherwise, to which a holder
of the Common Stock deliverable upon conversion of such holder's Series B
Preferred Stock would have been entitled on such recapitalization. In any
such case, appropriate adjustment shall be made in the application of the
provisions of this Section 7 with respect to the rights of the holders of
the Series B Preferred Stock after the recapitalization to the end that the
provisions of this Section 7 (including adjustment of the Conversion Price
then in effect for the Series B Preferred Stock and the number of shares
purchasable upon conversion of the Series B Preferred Stock) shall be
applicable after that event as nearly equivalent as may be practicable.
(g) No Impairment. This corporation will not, by amendment of its
Articles 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 this corporation, but will at all times in good faith assist
in the carrying out of all the provisions of this Section 7 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 B Preferred
Stock against impairment.
(h) No Fractional Shares and Certificate as to Adjustments.
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<PAGE>
(i) No fractional shares shall be issued upon the conversion of
any share or shares of the Series B Preferred Stock, 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 B Preferred Stock 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
the Conversion Price of the Series B Preferred Stock pursuant to this
Section 7, this corporation, at its expense, shall promptly compute
such adjustment or readjustment in accordance with the terms hereof
and prepare and furnish to each holder of Series B Preferred Stock a
certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is
based. This corporation shall, upon the written request at any time of
any holder of Series B Preferred Stock, furnish or cause to be
furnished to such holder a like certificate setting forth such
adjustment and readjustment, the Conversion Price of the Series B
Preferred Stock held by such holder at the time in effect, and 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 Series B Preferred Stock.
(i) Notices of Record Date. In the event of any taking by this
corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a 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,
this corporation shall mail to each holder of Series B Preferred Stock, 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.
(j) Reservation of Stock Issuable Upon Conversion. This 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 B Preferred Stock, 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 B Preferred
Stock. If at any time the number of authorized but unissued shares of
Common Stock shall not be sufficient to effect the conversion of all then
outstanding shares of the Series B Preferred Stock, in addition to such
other remedies as shall be available to the holder of such Series B
Preferred Stock, this 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, including, without limitation, using its best
efforts to obtain the requisite shareholder approval of any necessary
amendment to the corporation's Articles of Incorporation.
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<PAGE>
(k) Notices. Unless otherwise provided, any notice required or
permitted under this Section 7 shall be given in writing and shall be
deemed effectively given upon personal or facsimile delivery to the party
to be notified or upon deposit with the United States Post Office, by
registered or certified mail, or with a nationally recognized overnight
delivery service, postage prepaid and addressed to each holder of record at
his address appearing on the books of this corporation.
8. Voting Rights. The holder of each share of Series B Preferred Stock
shall have the right to one vote for each share of Common Stock into which such
Series B Preferred Stock could then be converted, and with respect to such vote,
such holder shall have full voting rights and powers equal to the voting rights
and powers of the holders of Common Stock, and shall be entitled,
notwithstanding any provision hereof, to notice of any shareholders' meeting in
accordance with the Bylaws of this corporation, and shall be entitled to vote,
together with holders of Common Stock, with respect to any question upon which
holders of Common Stock have the right to vote. Fractional votes shall not be
permitted and any fractional voting rights available on an as-converted basis
(after aggregating all shares into which shares of the Series B Preferred Stock
held by each holder could be converted) shall be rounded to the nearest whole
number (with one-half being rounded upward).
9. Protective Provisions. Subject to the rights of series of Preferred
Stock which may from time to time come into existence, so long as any shares of
Series B Preferred Stock are outstanding, this corporation shall not without
first obtaining the approval (by vote or written consent, as provided by law) of
the holders of at least two thirds (66.67%) of the then outstanding shares of
Series B Preferred Stock:
(a) sell, convey, or otherwise dispose of or encumber all or
substantially all of its property or business or merge with and into any
other corporation where the corporation is not the surviving corporation
(other than a wholly-owned subsidiary corporation), or effect any
transaction or series of related transactions in which more than fifty
percent (50%) of the voting power of the corporation is disposed of, or
effect any voluntary liquidation, dissolution or winding up of the
corporation or recapitalization of the corporation; or
(b) alter or change the rights, preferences or privileges of the
shares of Series B Preferred Stock so as to adversely affect such shares;
or
(c) increase or decrease (other than by redemption or conversion) the
total number of authorized shares of capital stock or any series of capital
stock; or
(d) authorize or issue, or obligate itself to issue, any equity
security, including any other security convertible into or exercisable for
any equity security, (i) having a preference over, or being on a parity
with, the rights, preferences and privileges of the Series B Preferred
Stock with respect to dividends, liquidation or voting (provided that
additional shares of Common Stock having the same number of votes per share
as the Series B Preferred Stock may be issued), or (ii) having rights
similar to any of the rights of the Series B Preferred Stock under this
Section 9; or
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<PAGE>
(e) redeem, purchase or otherwise acquire (or pay into or set aside
for a sinking fund for such purpose) any share or shares of Common Stock;
provided, however, that this restriction shall not apply to the repurchase
of shares of Common Stock from certain shareholders pursuant to that
certain Shareholder Agreement dated June 8, 1994 or that certain First
Amended and Restated Shareholders' Agreement dated on or about June 4,
1999, or the repurchase of shares of Common Stock from employees, officers,
directors, consultants or other persons performing services for the
corporation or any subsidiary pursuant to agreements under which the
corporation has the option to repurchase such shares at cost upon the
occurrence of certain events, such as the termination of employment; or
(f) issue, or obligate itself to issue, greater than 1,000,000 shares
of Series B Preferred Stock; or
(g) pay any dividends on the corporation's Common Stock; or
(h) amend the corporation's Articles of Incorporation, including all
Certificates of Designation thereto; or
(i) increase the authorized number of directors of the corporation to
more than thirteen (13).
10. Status of Redeemed or Converted Stock. In the event (a) any shares of
Series B Preferred Stock shall be redeemed pursuant to Section 6 hereof or (b)
any shares of Series B Preferred Stock shall be converted pursuant to Section 7
hereof, the shares so redeemed or converted shall be cancelled, and such shares
shall not be issuable by the corporation.
RESOLVED, FURTHER, that the Chairman, President, or any Vice President, and
the Secretary or the Chief Financial Officer of this corporation are hereby
authorized to execute, verify, and file a Certificate of Designation of
Preferences in accordance with Minnesota law.
C. The authorized number of shares of Preferred Stock of said corporation
is 5,000,000. 1,000,000 shares of Preferred Stock are hereby being designated
Series B Preferred Stock, none of which has been issued.
We further declare under penalty of perjury under the laws of the State of
Minnesota that the matters set forth in this Certificate are true and correct of
our own knowledge.
DATED: June 4, 1999
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<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this certificate on June
4, 1999.
/s/ Robert R. Murphy
-----------------------------------------
Robert R. Murphy, Chief Financial Officer
/s/ David L. Sippel
-----------------------------------------
David L. Sippel, Vice President
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<PAGE>
ARTICLES OF AMENDMENT
OF
CERTIFICATE OF DESIGNATION OF PREFERENCES
OF
SERIES B PREFERRED STOCK
OF
PEMSTAR INC.
1. The name of the corporation is PEMSTAR INC., a Minnesota corporation.
2. The Certificate of Designation of Preferences of Series B Preferred
Stock of PEMSTAR INC. is hereby amended by (i) deleting the reference to
"Section 5(a)" in the ninth line of Section 5(b) and inserting in lieu thereof
"Section 4(a)" and (ii) deleting the reference to "Section 6(a)" in the eleventh
line of Section 6(a) and inserting in lieu thereof "Section 5(a)".
3. This amendment has been adopted pursuant to Chapter 302A of the
Minnesota Business Corporation Act.
IN WITNESS WHEREOF, the undersigned, Chief Financial Officer of PEMSTAR
INC., being duly authorized on behalf of PEMSTAR INC., has executed this
document on this 4th day of June, 1999.
/s/ Robert R. Murphy
-----------------------------------------
Robert R. Murphy, Chief Financial Officer
33
<PAGE>
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
PEMSTAR INC.
1. The name of the corporation is PEMSTAR INC., a Minnesota corporation.
2. Article 7 of the Articles of Incorporation is hereby amended in its
entirety to provide as follows:
A director of the corporation shall not be liable to the corporation
or its shareholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the corporation or its shareholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of the law, (iii) under Section 302A.559 of the MBCA or Minnesota
Statutes Section 80A.23, (iv) for any transaction from which the director
derived an improper personal benefit or (v) for any act or omission
occurring prior to the date when the provisions of this Article 7 became
effective.
If the MBCA is hereafter amended to further eliminate or limit the
liability of a director of a corporation, then a director of the
corporation, in addition to the circumstances set forth herein, shall have
no liability as a director (or such liability shall be limited) to the
fullest extent permitted by the MBCA as so amended. No repeal or
modification of the foregoing provisions of this Article 7 nor, to the
fullest extent permitted by law, any modification of law, shall adversely
affect any right or protection of a director of the corporation existing at
the time of such repeal or modification.
3. The Articles of Incorporation are hereby amended to included the following
provisions:
ARTICLE 8
Without the affirmative vote of the holders of record of 66-2/3% of
all of the shares outstanding and entitled to vote on the following matters
and the approval of 66-2/3% of all of the directors of the corporation
(with any fractional number of directors resulting from application of such
percentage rounded up to the nearest whole number):
(a) The corporation shall not amend these Articles of Incorporation or the
amended and restated by-laws of the corporation in any manner
<PAGE>
that would permit a director to be removed from office other than for
cause.
(b) The corporation shall not amend or otherwise modify or repeal Articles
7, 8, 9, 10 or 11 of these Articles of Incorporation.
ARTICLE 9
The number of directors to constitute the whole board of directors
shall be such number (not less than one nor more than fifteen) as shall be
fixed from time to time by resolution of the board of directors adopted by
such vote as may be required in the amended and restated by-laws. The board
of directors shall be divided into three classes as nearly equal in number
as may be, with the term of office of one class expiring each year. The
directors of the first class shall be elected to hold office for a term
expiring at the annual meeting of shareholders in 2001, directors of the
second class shall be elected to hold office for a term expiring at the
next succeeding annual meeting in 2002, and directors of the third class
shall be elected to hold office for a term expiring at the second
succeeding annual meeting in 2003. Commencing in 2001, at each annual
meeting of shareholders, successors to the directors whose terms shall then
expire shall be elected to hold office for terms expiring at the third
succeeding annual meeting of shareholders. In case of any vacancies, by
reason of an increase in the number of directors or otherwise, each
additional director may be elected by a majority of the directors then in
office, even though less than a quorum of the board of directors, to serve
until the end of the remainder of the term of the class to which such
director is assigned and until his or her successor shall have been elected
and qualified. Directors shall continue in office until others are chosen
and qualified in their stead. When the number of directors is changed, any
newly created directorships or any decrease in directorships shall be so
assigned among the classes by a majority of the directors then in office,
though less than a quorum, as to make all classes as nearly equal in number
as may be feasible. No decrease in the number of directors shall shorten
the term of any incumbent director.
ARTICLE 10
In furtherance and not in limitation of the power conferred upon the
board of directors by law, the board of directors shall have power to
adopt, amend, alter and repeal from time to time the amended and restated
by-laws of the corporation by majority vote of all directors except that
any provision of the amended and restated by-laws requiring, for board
action, a vote of greater than a majority of the board shall not be
amended, altered or repealed except by such super-majority vote.
2
<PAGE>
ARTICLE 11
Subject to Article 8 of these Articles of Incorporation, the
corporation reserves the right to amend these Articles of Incorporation in
any manner provided herein or permitted by the MBCA and all rights and
powers conferred herein on shareholders, directors and officers, if any,
are subject to this reserved power.
4. These amendments have been adopted pursuant to Chapter 302A of the
Minnesota Business Corporations Act.
IN WITNESS WHEREOF, the undersigned Chief Executive Officer of PEMSTAR
INC., being duly authorized on behalf of the corporation, has executed these
Articles of Amendment as of this ___ day of _________________, 2000.
/s/ Allen J. Berning
-----------------------------------------
Allen J. Berning
Chief Executive Officer
PEMSTAR INC.
3
