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EXHIBIT 3.23
CERTIFICATE OF DETERMINATION OF PREFERENCES
OF
SERIES V 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 September 30, 1999 adopted the following resolution creating a
series of 66,038 shares of Preferred Stock designated as Series V 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 V Preferred Stock," initially consisting of 66,038 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 V 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 V Preferred Stock," no par value, and the
number of shares constituting such series shall be 66,038.
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 V Preferred Stock with respect to
dividends, and pari passu with the 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
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Stock, Series Q Preferred Stock, Series R Preferred Stock, Series S
Preferred Stock, Series T Preferred Stock and Series U 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 V 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 V 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 V
Preferred Stock, dividends shall simultaneously be declared and paid on
the outstanding shares of Series V Preferred Stock, pari passu with the
shares of such other series of Preferred Stock with dividend rights
ranking pari passu with the Series V Preferred Stock, based upon the
number of shares of Common Stock into which shares of Series V Preferred
Stock and such other series of Preferred Stock with dividend rights
ranking pari passu with the Series V 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 V 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 V 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 V
Preferred Stock shall have the following voting rights:
(A) Each holder of Series V Preferred Stock is entitled
to a number of votes equal to the number of shares of Common Stock into
which the holder's Series V 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 V 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 V 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 V 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 V Preferred Stock may, at any
time, in such holder's sole discretion, convert all or any part of such
holder's shares of Series V 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 V 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 V
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 V
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 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 V 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 V Preferred Stock shall receive, upon the conversion thereof,
securities of the Corporation or any of its
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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.
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Section 5. Reacquired Shares. Any shares of Series V 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.
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"), 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"), and the liquidation preference of
Series U Preferred Stock in the amount of $15.40 per share of series U
Preferred Stock plus any declared but unpaid dividends (the "Series U
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 V Preferred Stock
unless, prior thereto, the holders of shares of Series V Preferred Stock
shall have received an amount equal to $10.60 per share of Series V
Preferred Stock plus any declared but unpaid dividends ("Series V
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, the Series V Liquidation Preference
and the liquidation preferences of all other series of Preferred Stock,
if any, which rank on a parity with the Series V 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 V 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 V 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 V Preferred Stock without the affirmative vote of the holders of
a majority or more of the outstanding shares of Series V Preferred
Stock, voting separately as a class.
Section 9. Fractional Shares. Series V 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 V 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