Exhibit 3.40
ENDORSED - FILED
IN THE OFFICE OF THE SECRETARY OF STATE
OF THE STATE OF CALIFORNIA
NOV - 5 2002
BILL JONES, SECRETARY OF STATE
CERTIFICATE OF DETERMINATION OF PREFERENCES
OF
SERIES MM 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 the said Corporation, said Board of
Directors on July 31, 2002 adopted resolutions creating 28,846 shares of
Preferred Stock designated as Series MM Preferred Stock (none of which shares
have been issued as of the date hereof) including the following resolution:
"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 MM Preferred Stock," consisting of 28,846 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 MM 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."
The Certificate of Determination of Preferences of Series MM Preferred
Stock is 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 MM Preferred Stock," no par value, and
the number of shares constituting such series shall be 28,846.
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 MM 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,
Series BB Preferred Stock, Series CC Preferred Stock, Series DD
Preferred Stock, Series EE Preferred Stock, Series FF Preferred Stock,
Series GG Preferred Stock, Series HH Preferred Stock, Series II
Preferred Stock, Series JJ Preferred Stock, Series KK Preferred Stock
and
Series LL 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 MM 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 MM 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, 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, Series CC Preferred Stock, Series DD
Preferred Stock, Series EE Preferred Stock, Series FF Preferred Stock,
Series GG Preferred Stock, Series HH Preferred Stock, Series II
Preferred Stock, Series JJ Preferred Stock, Series KK Preferred Stock
and Series LL Preferred Stock, dividends shall simultaneously be
declared and paid on the outstanding shares of Series MM 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, 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, Series CC
Preferred Stock, Series DD Preferred Stock, Series EE Preferred Stock,
Series FF Preferred Stock, Series GG Preferred Stock, Series HH
Preferred Stock, Series II Preferred Stock, Series JJ Preferred Stock,
Series KK Preferred Stock and Series LL 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, Series CC Preferred Stock, Series DD Preferred Stock,
Series EE Preferred Stock, Series FF Preferred Stock, Series GG
Preferred Stock, Series HH Preferred Stock, Series II Preferred Stock,
Series JJ Preferred Stock, Series KK Preferred Stock, Series LL
Preferred Stock and Series MM Preferred Stock are then convertible. In
the event the Corporation shall at any time after the date of the
filing of the 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 MM Preferred Stock
were entitled immediately prior to such event under the preceding
sentence shall be adjusted as set forth in Section 4(C) hereof.
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(B) The Corporation shall declare a dividend or
distribution on the Series MM 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 MM
Preferred Stock shall have the following voting rights:
(A) Each holder of Series MM Preferred Stock is
entitled to a number of votes equal to the number of shares of Common
Stock into which the holder's Series MM Preferred Stock is then
convertible. Except as provided by law, the Common Stock and Series MM
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 MM 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 MM 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 MM 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 MM Preferred Stock
may, at any time, in such holder's sole discretion, convert all or any
part of such holder's shares of Series MM 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 MM 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
MM 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
MM 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
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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 MM 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 MM 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 MM
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
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$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 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 $3.30 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"), the 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"), the liquidation
preference of the Series CC Preferred Stock in the amount of $16.20 per
share plus any declared but unpaid dividends ("Series CC Liquidation
Preference"), the liquidation preference of the Series DD Preferred
Stock in the amount of $20.00 per share plus any declared but unpaid
dividends ("Series DD Liquidation Preference"), the liquidation
preference of the Series EE Preferred Stock in the amount of $11.10
per share plus any declared but unpaid dividends ("Series EE
Liquidation Preference"), the liquidation preference of the Series FF
Preferred Stock in the amount of $9.70 per share plus any declared but
unpaid dividends ("Series FF Liquidation Preference"), the liquidation
preference of the Series GG Preferred Stock in the amount of $11.10
per share plus any declared but unpaid dividends ("Series GG
Liquidation Preference"), the liquidation preference of the Series HH
Preferred Stock in the amount of $12.30 per share plus any declared but
unpaid dividends ("Series HH Liquidation Preference"), the liquidation
preference of the Series II Preferred Stock in the amount of $15.00 per
share plus any declared but unpaid dividends ("Series II Liquidation
Preference"), the liquidation preference of the Series JJ Preferred
Stock in the amount of $14.50 per share plus any declared but unpaid
dividends ("Series JJ Liquidation Preference"), the liquidation
preference of the
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Series KK Preferred Stock in the amount of $13.60 per share plus any
declared but unpaid dividends ("Series KK Liquidation Preference"), and
the liquidation preference of the Series LL Preferred Stock in the
amount of $15.30 per share plus any declared but unpaid dividends
("Series LL 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 MM
Preferred Stock unless, prior thereto, the holders of shares of Series
MM Preferred Stock shall have received an amount equal to $10.40 per
share of Series MM Preferred Stock plus any declared but unpaid
dividends ("Series MM 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, the Series CC Liquidation
Preference, the Series DD Liquidation Preference, the Series EE
Liquidation Preference, the Series FF Liquidation Preference, the
Series GG Liquidation Preference, the Series HH Liquidation Preference,
the Series II Liquidation Preference, the Series JJ Liquidation
Preference, the Series KK Liquidation Preference, the Series LL
Liquidation Preference, the Series MM Liquidation Preference and the
liquidation preferences of all other series of Preferred Stock, if any,
which rank on a parity with the Series MM 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 MM 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 MM 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 MM Preferred Stock without the affirmative vote of the holders
of a majority or more of the outstanding shares of Series MM Preferred
Stock, voting separately as a class.
Section 9. Fractional Shares. Series MM 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 MM 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 November 1, 2002.
/s/ Robert W. Riland III
-------------------------------------
Robert W. Riland III
President and Chief Executive Officer
/s/ Henry Madrid
-------------------------------------
Henry Madrid
Chief Financial Officer
[SEAL]