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EXHIBIT 3.22
CERTIFICATE OF DETERMINATION OF PREFERENCES
OF
SERIES U PREFERRED STOCK
OF
DISC, INC.
We, J. Richard Ellis and Henry Madrid, hereby certify that we are the
President and the Chief Financial Officer, respectively, of DISC, INC., a
corporation organized and existing under the General Corporation Law of the
State of California, and further, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by
the Articles of Incorporation of the said Corporation, the said Board of
Directors on June 30, 1999 adopted the following resolution creating a series of
38,961 shares of Preferred Stock designated as Series U Preferred Stock, none of
which shares have been issued:
"RESOLVED, that pursuant to the authority vested in the Board of
Directors of the corporation by the Articles of Incorporation, the Board
of Directors does hereby provide for the issuance of a series of Preferred
Stock, no par value, of the Corporation, to be designated "Series U
Preferred Stock," initially consisting of 38,961 shares and to the extent
that the designations, powers, preferences and relative and other special
rights and the qualifications, limitations and restrictions of the Series
U Preferred Stock are not stated and expressed in the Articles of
Incorporation, does hereby fix and herein state and express such
designations, powers, preferences and relative and other special rights
and the qualifications, limitations and restrictions thereof, as follows
(all terms used herein which are defined in the Articles of Incorporation
shall be deemed to have the meanings provided therein):
Section 1. Designation and Amount. The shares of such series shall
be designated as "Series U Preferred Stock," no par value, and the number
of shares constituting such series shall be 38,961.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior right of the holders of
any shares of Series C Preferred Stock ranking prior and superior to the
shares of Series U Preferred Stock with respect to dividends, and pari
passu with the
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rights of the holders of shares of Series D Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock, Series G Preferred Stock,
Series H Preferred Stock, Series I Preferred Stock, Series J Preferred
Stock, Series K Preferred Stock, Series L Preferred Stock, Series M
Preferred Stock, Series N Preferred Stock, Series O Preferred Stock,
Series P Preferred Stock, Series Q Preferred Stock, Series R Preferred
Stock, Series S Preferred Stock and Series T Preferred Stock with respect
to dividends, subject to the rights of any series of Preferred Stock which
may hereafter come into existence, the holders of shares of Series U
Preferred Stock shall be entitled to receive when, as and if declared by
the Board of Directors out of funds legally available for the purpose,
dividends in the same amount per share as declared on the Common Stock,
treating such number of shares of Series U Preferred Stock for this
purpose as equal to the number of shares of Common Stock into which it is
then convertible. In the event any dividends are declared or paid on the
outstanding shares of any series of Preferred Stock with dividend rights
ranking pari passu with the Series U Preferred Stock, dividends shall
simultaneously be declared and paid on the outstanding shares of Series U
Preferred Stock, pari passu with the shares of such other series of
Preferred Stock with dividend rights ranking pari passu with the Series U
Preferred Stock, based upon the number of shares of Common Stock into
which shares of Series U Preferred Stock and such other series of
Preferred Stock with dividend rights ranking pari passu with the Series U
Preferred Stock are then convertible. In the event the Corporation shall
at any time after the date of the filing of this Certificate of
Determination of Preferences (the "Rights Declaration Date") (i) declare
any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each such case, the
amount of Common Stock or other consideration to which holders of shares
of Series U Preferred Stock were entitled immediately prior to such event
under the preceding sentences of this Section 2(A) shall be adjusted as
set forth in Section 4(C) hereof.
(B) The Corporation shall declare a dividend or distribution
on the Series U Preferred Stock as provided in paragraph (A) above prior
to declaring a dividend payable on shares of Common Stock.
Section 3. Voting Rights. The holders of shares of Series U
Preferred Stock shall have the following voting rights:
(A) Each holder of Series U Preferred Stock is entitled to a
number of votes equal to the number of shares of Common Stock into which
the holder's Series U Preferred Stock is then convertible. In the event
the Corporation shall at any time after the Rights Declaration Date (i)
declare any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each
such case the number of votes per share to which holders of shares of
Series U Preferred Stock were entitled immediately prior to such event
shall be adjusted as set forth in Section 4(C) hereof.
(B) Except as otherwise provided herein or by law, the holders
of shares of Series U Preferred Stock and the holders of shares of Common
Stock (and any authorized series of Preferred Stock convertible into
shares of Common Stock and with voting rights equal to the number of
shares of Common Stock into which such series of Preferred Stock is then
convertible) shall vote together as one class on all matters submitted to
a vote of shareholders of the Corporation.
(C) Except as required by law or under Section 8 hereof,
holders of Series U Preferred Stock shall have no special voting rights
and their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set forth herein) for
taking any corporate action.
Section 4. Conversion Rights.
(A) Each holder of Series U Preferred Stock may, at any time,
in such holder's sole discretion, convert all or any part of such holder's
shares of Series U Preferred Stock into fully paid and nonassessable
shares of Common Stock at the rate of ten (10) shares of Common Stock for
each share of Series U Preferred Stock surrendered for conversion.
(B) Such conversion may be effected by surrender of such
holder's certificate or certificates for the shares of Series U Preferred
Stock to be converted, duly endorsed, at the principal office of the
Corporation, with a written notice stating (i) that such holder elects to
convert all or a specified number of shares of Series U Preferred Stock
into shares of Common Stock, and (ii) the name in which such holder
desires a certificate for the shares of Common Stock to be issued.
Promptly thereafter, the Company shall issue and deliver to such holder a
certificate for the number of shares of Common Stock to which such holder
shall be entitled. Such conversion shall be deemed to
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have been made at the close of business on the date of such surrender, and
such holder shall be treated for all purposes as the record holder of such
shares of Common Stock on that date.
(C) In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable
in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a smaller number of
shares, then, in each case, the number of shares of Common Stock issuable
upon the conversion of each share of Series U Preferred Stock shall be
adjusted by multiplying such amount by a fraction, the numerator of which
is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock
that are outstanding immediately prior to such event.
(D) In the event the Corporation shall at any time or from
time to time after the Rights Declaration Date make or issue, or fix a
record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in securities of the
Corporation or any of its subsidiaries, or of any other corporation or
third party, other than in shares of Common Stock, then, in each such
event, provisions shall be made so that the holders of Series U Preferred
Stock shall receive, upon the conversion thereof, securities of the
Corporation or any of its subsidiaries or of any other corporation or
third party which they would have received had their stock been converted
into Common Stock on the date of such event.
Section 5. Any shares of Series U Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be
retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares
of Preferred Stock and may be reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set
forth herein.
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Section 6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or otherwise), dissolution
or winding up of the Corporation, following the first priority liquidation
preference of the Series C Preferred Stock in the amount of $5.00 per
share plus any declared but unpaid dividends, and pari passu with the
liquidation preference of the Series D Preferred Stock in the amount of
$5.00 per share plus any declared but unpaid dividends ("Series D
Liquidation Preference"), the liquidation preference of the Series E
Preferred Stock in the amount of $4.00 per share plus any declared but
unpaid dividends ("Series E Liquidation Preference"), the liquidation
preference of the Series F Preferred Stock in the amount of $8.00 per
share plus any declared but unpaid dividends ("Series F Liquidation
Preference"), the liquidation preference of the Series G Preferred Stock
in the amount of $20.00 per share plus any declared but unpaid dividends
("Series G Liquidation Preference"), the liquidation preference of the
Series H Preferred Stock in the amount of $38.30 per share plus any
declared but unpaid dividends ("Series H Liquidation Preference"), the
liquidation preference of the Series I Preferred Stock in the amount of
$4.19 per share plus any declared but unpaid dividends ("Series I
Liquidation Preference"), the liquidation preference of the Series J
Preferred Stock in the amount of $2.98 per share plus any declared but
unpaid dividends ("Series J Liquidation Preference"), the liquidation
preference of the Series K Preferred Stock in the amount of $3.19 per
share plus any declared but unpaid dividends ("Series K Liquidation
Preference"), the liquidation preference of the Series L Preferred Stock
in the amount of $2.76 per share plus any declared but unpaid dividends
("Series L Liquidation Preference"), the liquidation preference of the
Series M Preferred Stock in the amount of $2.23 per share plus any
declared but unpaid dividends ("Series M Liquidation Preference"), the
liquidation preference of the Series N Preferred Stock in the amount of
$0.90 per share plus any declared but unpaid dividends ("Series N
Liquidation Preference"), the liquidation preference of the Series O
Preferred Stock in the amount of $1.06 per share of Series O Preferred
Stock plus any declared but unpaid dividends (the "Series O Liquidation
Preference"), the liquidation preference of the Series P Preferred Stock
in the amount of $8.20 per share of Series P Preferred Stock plus any
declared but unpaid dividends (the "Series P Liquidation Preference"), the
liquidation preference of the Series Q Preferred Stock in the amount of
$6.20 per share of Series Q Preferred Stock plus any declared but unpaid
dividends (the "Series Q Liquidation Preference"), the liquidation
preference of the Series R Preferred Stock in the amount of $5.80 per
share of Series R Preferred Stock plus any declared but unpaid dividends
(the "Series R Liquidation Preference"), the liquidation preference of
Series S Preferred Stock in the amount of $3.20 per share of Series S
Preferred Stock plus any declared but unpaid dividends (the "Series S
Liquidation Preference"), and the liquidation preference of Series T
Preferred Stock in the amount of $20.20 per share of Series T Preferred
Stock plus any declared but unpaid dividends (the "Series T Liquidation
Preference"), no distribution shall be made to the holders of shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series U Preferred Stock unless, prior
thereto, the holders of shares of Series U Preferred Stock shall have
received an amount equal to $15.40 per share of Series U Preferred Stock
plus any declared but unpaid dividends ("Series U Liquidation
Preference").
(B) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series D Liquidation
Preference, the Series E Liquidation Preference, the Series F Liquidation
Preference, the Series G Liquidation Preference, the Series H Liquidation
Preference, the Series I Liquidation Preference, the Series J Liquidation
Preference, the Series K Liquidation Preference, the Series L Liquidation
Preference, the Series M Liquidation Preference, the Series N Liquidation
Preference, the Series O Liquidation Preference, the Series P Liquidation
Preference, the Series Q Liquidation Preference, the Series R Liquidation
Preference, the Series S Liquidation Preference, the Series T Liquidation
Preference, the Series U Liquidation Preference and the liquidation
preferences of all other series of Preferred Stock, if any, which rank on
a parity with the Series U Preferred Stock, then such remaining assets
shall be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences.
Section 7. No Redemption. The shares of Series U Preferred Stock
shall not be redeemable.
Section 8. Amendment. The Articles of Incorporation of the
Corporation shall not be further amended in any manner which would (a)
alter or change the powers, preferences or special rights or privileges of
the Series U Preferred Stock so as to affect them adversely or (b) grant
to any other class of shares any rights superior to those of the Series U
Preferred Stock without the affirmative vote of the holders of a majority
or more of the outstanding shares of Series U Preferred Stock, voting
separately as a class.
Section 9. Fractional Shares. Series U Preferred Stock may be issued
in fractions of a share which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, to receive
dividends, to participate in distributions and to have the benefit of all
other rights of holders of Series U Preferred Stock."
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The undersigned declare under penalty of perjury that the matters set
forth in the foregoing Certificate are true of their own knowledge.
Executed at Milpitas, California on October 21, 1999.
/S/ J. Richard Ellis
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J. Richard Ellis
President and Chief Executive Officer
/S/ Henry Madrid
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Henry Madrid
Chief Financial Officer