Exhibit 3.48
ENDORSED - FILED
IN THE OFFICE OF THE SECRETARY OF STATE
OF THE STATE OF CALIFORNIA
DEC 13 2002
BILL JONES, SECRETARY OF STATE
AMENDED AND RESTATED
CERTIFICATE OF DETERMINATION OF PREFERENCES
OF
SERIES CC PREFERRED STOCK
OF
DISC, INC.
We, Robert W. Riland III 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 said Corporation, said Board of Directors on
July 31, 2002 adopted the following resolution adding 5,864 shares of Preferred
Stock designated as Series CC Preferred Stock, (the "Additional Series CC
Preferred") to the 70,988 shares of Series CC Preferred Stock previously
authorized by the Board on June 29, 2001, none of which Additional Series CC
Preferred shares have been issued as of the date hereof:
"RESOLVED: That the Board approves of an amendment and
restatement of the Original Series CC Certificate to increase the
number of authorized shares of Series CC Preferred Stock, initially
consisting of 70,988 shares, by 5,864 shares, such that the total
authorized number of shares shall be 76,852. The designations, powers,
preferences and relative and other special rights and the
qualifications, limitations and restrictions of the additional shares
of Series CC Preferred Stock shall be as set forth in the Original
Series CC Certificate."
The Certificate of Determination of Preferences of Series CC Preferred
Stock is hereby amended and restated 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 CC Preferred Stock," no par value, and
the number of shares constituting such series shall be 76,852.
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 CC 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 Stock, Series Q
Preferred Stock, Series R Preferred Stock, Series S Preferred Stock,
Series T Preferred Stock, Series U Preferred Stock, Series V Preferred
Stock, Series W Preferred Stock, Series X Preferred Stock, Series Y
Preferred Stock, Series Z Preferred Stock, Series AA Preferred Stock,
and Series BB 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 CC 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
CC 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 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 or Series N Preferred Stock,
Series O Preferred Stock, Series P Preferred Stock, Series Q Preferred
Stock, Series R Preferred Stock, Series S Preferred Stock, Series T
Preferred Stock, Series U Preferred Stock, Series V Preferred Stock,
Series W Preferred Stock, Series X Preferred Stock, Series Y Preferred
Stock, Series Z Preferred Stock, Series AA Preferred Stock, and Series
BB Preferred Stock dividends shall simultaneously be declared and paid
on the outstanding shares of Series CC Preferred Stock, pari passu with
the 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 or
Series N Preferred Stock, Series O Preferred Stock, Series P Preferred
Stock, Series Q Preferred Stock, Series R Preferred Stock, Series S
Preferred Stock, Series T Preferred Stock, Series U Preferred Stock,
Series V Preferred Stock, Series W Preferred Stock, Series X Preferred
Stock, Series Y Preferred Stock, Series Z Preferred Stock, and Series
AA Preferred Stock, and Series BB Preferred Stock based upon the number
of shares of Common Stock into which 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, Series T Preferred
Stock, Series U Preferred Stock, Series V Preferred Stock, Series W
Preferred Stock, Series X Preferred Stock, Series Y Preferred Stock,
Series Z Preferred Stock, Series AA Preferred Stock, Series BB
Preferred Stock and Series CC 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 CC Preferred Stock
were entitled immediately prior to such event under the preceding
sentence shall be adjusted as set forth in Section 4(C) hereof.
(B) The Corporation shall declare a dividend or
distribution on the Series CC 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 CC
Preferred Stock shall have the following voting rights:
(A) Each holder of Series CC Preferred Stock is
entitled to a number of votes equal to the number of shares of Common
Stock into which the holder's Series CC
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Preferred Stock is then convertible. Except as provided by law, the
Common Stock and Series CC Preferred Stock (and any series of Preferred
Stock which may be subsequently authorized which is convertible into
shares of Common Stock and which has 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 a single class on all matters
to come before the shareholders for approval. 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 CC 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 CC Preferred Stock and the holders
of shares of Common Stock (and any series of Preferred Stock which may
be subsequently authorized which is convertible into shares of Common
Stock and which has 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 CC 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 CC Preferred Stock
may, at any time, in such holder's sole discretion, convert all or any
part of such holder's shares of Series CC 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 CC 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
CC 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
CC 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 CC Preferred Stock
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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 CC 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. Reacquired Shares. Any shares of Series CC
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 $.90 per share plus any declared but unpaid
dividends ("Series N Liquidation Preference"), the liquidation
preference of the
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Series O Preferred Stock in the amount of $1.06 per share plus any
declared but unpaid dividends ("Series O Liquidation Preference"), the
liquidation preference of the Series P Preferred Stock in the amount of
$8.20 per share plus any declared but unpaid dividends ("Series P
Liquidation Preference"), the liquidation preference of the Series Q
Preferred Stock in the amount of $6.20 per share plus any declared but
unpaid dividends ("Series Q Liquidation Preference"), the liquidation
preference of the Series R Preferred Stock in the amount of $5.80 share
plus any declared but unpaid dividends ("Series R Liquidation
Preference"), the liquidation preference of the Series S Preferred
Stock in the amount of $3.20 per share plus any declared but unpaid
dividends ("Series S Liquidation Preference"), the liquidation
preference of the Series T Preferred Stock in the amount of $20.20 per
share plus any declared but unpaid dividends ("Series T Liquidation
Preference"), the liquidation preference of the Series U Preferred
Stock in the amount of $15.40 per share plus any declared but unpaid
dividends ("Series U Liquidation Preference"), the liquidation
preference of the Series V Preferred Stock in the amount of $10.60 per
share plus any declared but unpaid dividends ("Series V Liquidation
Preference"), the liquidation preference of the Series W Preferred
Stock in the amount of $14.90 per share plus any declared but unpaid
dividends ("Series W Liquidation Preference"), the liquidation
preference of the Series X Preferred Stock in the amount of $25.00 per
share plus any declared but unpaid dividends ("Series X Liquidation
Preference"), the liquidation preference of the Series Y Preferred
Stock in the amount of $19.10 per share plus any declared but unpaid
dividends ("Series Y Liquidation Preference"), the liquidation
preference of the Series Z Preferred Stock in the amount of $21.30 per
share plus any declared but unpaid dividends ("Series Z Liquidation
Preference"), the liquidation preference of the Series AA Preferred
Stock in the amount of $18.10 per share plus any declared but unpaid
dividends ("Series AA Liquidation Preference"), and t he liquidation
preference of the Series BB Preferred Stock in the amount of $18.30 per
share plus any declared but unpaid dividends ("Series BB 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 CC Preferred Stock unless,
prior thereto, the holders of shares of Series CC Preferred Stock shall
have received an amount equal to $16.20 per share of Series CC
Preferred Stock plus any declared but unpaid dividends ("Series CC
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, the Series W Liquidation Preference, the Series
X Liquidation Preference, the Series Y Liquidation Preference, the
Series Z Liquidation Preference, the Series AA Liquidation Preference,
the Series BB Liquidation Preference, and the Series CC Liquidation
Preference and the liquidation preferences of all other series of
Preferred Stock, if any, which rank on a parity with the Series CC
Preferred Stock, then such remaining assets
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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 CC 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 CC 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 CC Preferred Stock without the affirmative vote of the holders
of a majority or more of the outstanding shares of Series CC Preferred
Stock, voting separately as a class.
Section 9. Fractional Shares. Series CC Preferred Stock may be
issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to have the
benefit of all other rights of holders of Series CC Preferred Stock.
(remainder of page intentionally left blank)
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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 December 12, 2002.
/s/ Robert W. Riland III
-------------------------------------
Robert W. Riland III
President and Chief Executive Officer
/s/ Henry Madrid
-------------------------------------
Henry Madrid
Chief Financial Officer
[SEAL]