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EXHIBIT 3.15
CERTIFICATE OF DETERMINATION OF PREFERENCES
OF
SERIES N 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 December 31, 1996 adopted the following resolution creating a
series of 666,667 shares of Preferred Stock designated as Series N 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 N Preferred Stock," initially
consisting of 666,667 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 N
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 N Preferred Stock," no par
value, and the number of shares constituting such series shall be
666,667.
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 N 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 and Series M 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 N 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
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Common Stock, treating such number of shares of Series N 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 or Series M Preferred Stock, dividends shall
simultaneously be declared and paid on the outstanding shares of
Series N 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 and Series M 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 and Series N
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 N 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 N 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 N Preferred Stock shall have the following voting rights:
(A) Each holder of Series N Preferred Stock is
entitled to a number of votes equal to the number of shares of Common
Stock into which the holder's Series N Preferred Stock is then
convertible. Except as provided by law, the Common Stock and Series N
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 N Preferred Stock were entitled immediately prior to
such event shall be adjusted as set forth in Section 4(C) hereof.
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(B) Except as otherwise provided herein or by
law, the holders of shares of Series N 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 N 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 N Preferred Stock may,
at any time, in such holder's sole discretion, convert all or any
part of such holder's shares of Series N Preferred Stock into fully
paid and nonassessable shares of Common Stock at the rate of one (1)
share of Common Stock for each share of Series N 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
N 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 N 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 N 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
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party, other than in shares of Common Stock, then, in each such
event, provisions shall be made so that the holders of Series N
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 N
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") and 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") 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 N Preferred Stock unless, prior thereto,
the holders of shares of Series N Preferred Stock shall have received
an amount equal to $.90 per share of Series N Preferred Stock plus
any declared but unpaid dividends ("Series N Liquidation
Preference").
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(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
and the liquidation preferences of all other series of Preferred
Stock, if any, which rank on a parity with the Series N 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 N
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 N 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 N Preferred Stock without the
affirmative vote of the holders of a majority or more of the
outstanding shares of Series N Preferred Stock, voting separately as
a class.
Section 9. Fractional Shares. Series N 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 N 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 January 5, 1998.
/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
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