EXHIBIT 4.3
NETWORK COMPUTING DEVICES, INC.
AMENDED AND RESTATED
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS
OF THE TERMS OF THE SERIES B PREFERRED STOCK
(Pursuant to Section 151 of the General Corporation Law of the State of
Delaware)
The undersigned President and Chief Executive Officer of Network Computing
Devices, Inc., organized and existing under the General Corporation Law of the
State of Delaware, in accordance with the provisions of Section 103 thereof,
DOES HEREBY CERTIFY:
1. That, pursuant to the authority conferred upon the Board of Directors
by the Amended and Restated Certificate of Incorporation of the Corporation, the
said Board of Directors on December 14, 2000 adopted a resolution creating a
series of 290,000 shares of Preferred Stock designated as Series B Preferred
Stock, pursuant to which the Corporation filed a Certificate of Designations,
Preferences and Rights of the Terms of the Series B Preferred Stock with the
Secretary of State of the State of Delaware.
2. That, pursuant to the authority conferred upon the Board of Directors
by the Amended and Restated Certificate of Incorporation of the Corporation, the
said Board of Directors on March 30, 2001 adopted the following resolution
changing the designations, preferences and rights of the terms of the Series B
Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Corporation in accordance with the provisions of its Certificate of
Incorporation, the Board of Directors hereby amends and restates the
designations, preferences and rights of the Series B Preferred Stock as follows:
Section 1: DESIGNATION AND AMOUNT.
The shares of such series shall be designated as "Series B Preferred Stock"
(the "Series B Preferred Stock"), par value $.001 per share. The number of
shares initially constituting the Series B Preferred Stock shall be Two Hundred
Ninety Thousand (290,000) Shares.
Section 2: DIVIDENDS AND DISTRIBUTIONS.
(a) DIVIDENDS. The holders of the Series B Preferred Stock (the
"Series B Holders each a Holder") shall be entitled to receive when, as and if
declared by the Board of Directors, out of any assets legally available
therefor, dividends not less than, and in preference and priority to any payment
of, any dividend or distribution on the Common Stock or any other class or
series of stock of the Corporation ranking junior to the Series B Preferred
Stock and PRO RATA with payment of any dividend on any class or series of stock
of the Corporation ranking on a parity with the Series B Preferred Stock as to
dividends. Such dividends on the Series B Preferred Stock shall accrue at the
rate of forty-one cents ($.41) per share per annum from the date of issuance to
the date of payment, based on the actual number of days elapsed, and shall be
payable on the payment date fixed by the declaration or, if no payment date is
fixed, shall accrue
semi-annually on May 31st, and November 30th of each year, and upon any
Liquidation (as hereinafter defined).
(b) DISTRIBUTIONS. As used in this Section 2, the term "distribution"
shall mean a transfer of cash, property or securities without consideration,
whether by way of dividend or otherwise, or the purchase or redemption of shares
of the Corporation.
(c) NECESSARY ACTIONS. The Corporation shall take any and all
corporate action necessary to declare and pay the dividends required.
Section 3: LIQUIDATION.
(a) LIQUIDATION DEFINED. "Liquidation" means any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, other than any dissolution, liquidation or winding up in connection
with any reincorporation of the Corporation in another jurisdiction. A Corporate
Transaction (as hereinafter defined) shall be deemed to be a Liquidation. As
used herein, "Corporate Transaction" shall mean (i) any consolidation or merger
of the Corporation with or into any other corporation or other entity or person,
or any other corporate reorganization, in which the stockholders of the
Corporation immediately prior to such consolidation, merger or reorganization
own less than fifty percent (50%) of the Corporation's voting power immediately
after such consolidation, merger or reorganization, or (ii) a sale, lease,
transfer or other disposition of all or substantially all of the assets of the
Corporation.
(b) RIGHTS. Upon a Liquidation, as hereinabove defined, after payment
or provision for payment of the debts and other liabilities of the Corporation,
and prior to any distribution to the holders of Series A Participating Preferred
Stock or Common Stock of the Corporation, the Series B Holders shall be entitled
to receive, out of the remaining assets of the Corporation available for
distribution to its stockholders, with respect to each share of Series B
Preferred Stock an amount equal to Seven Dollars ($7.00) per Share plus accrued
and unpaid dividends, if any, in accordance with Section 3(a) above (the "Series
B Liquidation Preference"). Following the payment of the full amount of the
Series B Liquidation Preference and any preference that is payable to the
holders of Series A Participating Preferred Stock, the holders of Series B
Preferred Stock and Common Stock and, to the extent provided for in the
Certificate of Incorporation, the Series A Participating Preferred Stock, shall
receive their ratable and proportionate share, on a per share and as-converted
to Common Stock basis, of the remaining assets to be distributed with respect to
such Series B Preferred Stock, Series A Participating Preferred Stock and Common
Stock, respectively. If the Corporation has outstanding a class of capital stock
ranking on a parity with the Series B Preferred Stock, distributions upon a
Liquidation shall be made ratably on the Series B Preferred Stock and all other
such parity stock in proportion to the total amounts to which the holders of all
such shares are entitled upon Liquidation, which in the case of the holders of
shares of Series B Preferred Stock shall be the Series B Liquidation Preference.
If upon any Liquidation the assets of the Corporation available for distribution
to its stockholders shall be insufficient to pay the Series B Holders the full
Series B Liquidation Preference to which they shall be entitled, the Series B
Holders shall share pro rata in any distribution of assets in accordance with
such full Series B Liquidation Preference amounts.
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Section 4: VOTING RIGHTS.
In addition to other rights provided herein or by law, the Series B Holders
shall be entitled to vote on all matters submitted to the stockholders of the
Corporation for vote or consent and, except when a single class vote is
required, will vote with the holders of Common Stock as one class. Each Series B
Holder shall be entitled to one vote per share of Common Stock issuable upon
conversion of the shares of Series B Preferred Stock then held by such Series B
Holder.
Section 5: CONVERSION.
(a) RATE. The Series B Shares shall be convertible, at the option of
the Series B Holder, at a rate of ten (10) shares of Common Stock for each share
of Series B Preferred Stock, subject to appropriate adjustment in the event of
any stock split, stock dividend or reverse stock split affecting the Common
Stock where the Series B Preferred Stock is not treated in an equivalent manner.
(b) MECHANICS OF CONVERSION. Upon delivery to the Company of the
certificate or certificates for the shares of Series B Preferred Stock to be
converted, duly endorsed or assigned in blank to the Company (if required by
it), the Company shall issue and deliver to or upon the written order of a
Series B Holder, to the place designated by such holder, a certificate or
certificates for the number of full shares of Common Stock to which such holder
is entitled.
Section 6: REDEMPTION.
The Series B Preferred Stock may not be redeemed by the Corporation without
the consent of the holders of all of the Series B Preferred Stock then
outstanding.
Section 7: NO REISSUANCE.
No shares of Series B Preferred Stock acquired by the Company by reason of
exchange, conversion or otherwise shall be reissued and all such shares shall be
canceled, retired and eliminated from the shares of Series B Preferred Stock
which the Company shall be authorized to issue.
Section 8: PROTECTIVE PROVISIONS.
(a) REQUIRED CONSENTS. In addition to any other vote or consent
required herein or by law, the affirmative vote or written consent of the Series
B Holders owning a majority of the outstanding Series B Preferred Stock, voting
together as a separate class, shall be necessary for effecting or validating the
following actions:
(i) Any amendment, alteration, repeal, or waiver of any
provision of the Certificate of Incorporation of the Company (including the
filing of any Certificate of Designations), as in effect from time to time (the
"Certificate of Incorporation"), or the Bylaws of the Company, that affects
adversely the voting powers, preferences, priorities or other special rights or
privileges, qualifications, limitations, or restrictions of the Series B
Preferred Stock;
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(ii) Any redemption or repurchase of capital stock of the
Company (except for acquisitions of Common Stock by the Company under stock
option or restricted stock agreements with employees approved by the Board of
Directors);
(iii) Any material disbursement of funds outside of the ordinary
course of the Company's business;
(iv) Any consolidation or merger of the Company with or into any
other Company or other entity or person, or the entering into any other
corporate reorganization;
(v) Any termination of the Company's line of business as of the
date of the first issuance of Series B Preferred Stock or substitution of an
unrelated line of business as its principal focus of the Company's activities;
(vi) Any voluntary dissolution, liquidation winding-up or
partial liquidation of the Company, or any distribution or transaction in the
nature of a partial liquidation or distribution, or any sale or other transfer
of all or substantially all of the assets of the Company (including shares, or
all or substantially all of the assets, of any subsidiary of the Company); or
(vii) Any increase or decrease in the authorized number of Series
B Preferred Stock or in the number of shares of any series or class of the
Company's capital stock which is authorized or outstanding.
(b) FINANCIAL REPORTS. The Company will furnish to the Series B
Holders, as soon as practicable, and in any case within 75 days after the end of
each fiscal quarter, unaudited quarterly financial statements, and within 90
days after the end of each fiscal year, annual audited financial statements (all
prepared in accordance with generally accepted accounting principles
consistently applied).
Section 9: NO IMPAIRMENT
The Company will not, by amendment of its Certificate of Incorporation or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of the Series B
Preferred Stock set forth herein, and will at all times in good faith assist in
the carrying out of all such terms and in the taking of all such action as may
be necessary or appropriate in order to protect the rights of the Series B
Holders against impairment. Without limiting the generality of the foregoing,
the Company will take all such action as may be necessary or appropriate in
order that the Company may reserve for issuance, and validly and legally issue
fully paid and non-assessable Company Shares on the conversion of all Series B
Preferred Stock from time to time outstanding.
Section 10: NOTICES.
All notices, requests and other communications shall be in writing
addressed to the Company at its principal office or to the Series B Holders at
their addresses appearing on the stock ownership records of the Company and
delivered by a nationally recognized overnight
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mail carrier, certified mail return receipt requested or facsimile. Any notice
sent by nationally-recognized overnight mail carrier shall be deemed to be
delivered on the expected date of delivery. Any notice sent by certified mail,
return receipt requested, shall be deemed to be delivered 3 days after mailing.
Any notice sent by facsimile shall be deemed delivered upon the receipt by
sender of written confirmation of transmission.
3. That the foregoing amendment has been duly adopted in accordance with
Section 242 of the General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, I have executed and subscribed this Certificate and do
affirm the foregoing as true under the penalties of perjury this 30th day of
March, 2001.
_________________________________
Rudolph G. Morin, President
and Chief Executive Officer
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