EXHIBIT 3.3
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CERTIFICATE OF THE POWERS, DESIGNATIONS,
PREFERENCES AND RIGHTS OF
SERIES B PREFERRED STOCK
OF AUTODESK, INC.
Pursuant to Section 151(g) of the General Corporation Law
of the State of Delaware
We, Carol A. Bartz and Marcia K. Sterling, the President and the Secretary,
respectively, of Autodesk, Inc., a Delaware corporation (the "Company"), in
accordance with the provisions of Section 103 of the General Corporation Law of
the State of Delaware (the "DGCL"), DO HEREBY CERTIFY that, pursuant to the
provisions of Section 151(g) of the DGCL, the following resolutions were duly
adopted by the Board of Directors of the Company and pursuant to authority
conferred upon the Board of Directors by the provisions of the Amended and
Restated Certificate of Incorporation of the Company (the "Certificate of
Incorporation"), the Board of Directors of the Company, in an Action by Written
Consent dated January 18, 1999, adopted resolutions providing for the issuance
of a series of Preferred Stock of the Company and fixing the relative powers,
designations, preferences, rights, qualifications, limitations and restrictions
of such stock. These resolutions are as follows:
"RESOLVED, that pursuant to authority expressly granted to and vested in
the Board of Directors of the Company by the provisions of the Certificate of
Incorporation, the issuance of a series of Preferred Stock of the Company to be
designated "Series B Preferred Stock," par value $0.01 per share, which shall
consist of one of the 1,900,000 shares of Preferred Stock which the Company now
has authority to issue, be, and the same hereby is, authorized, and the Board
hereby fixes the powers, designations, preferences and relative, participating,
optional and other rights, and the qualifications, limitations and restrictions
thereof, of the sole share of such series (in addition to the powers,
designations, preferences and relative, participating, optional or other rights,
and the qualifications, limitations or restrictions thereof, set forth in the
Certificate of Incorporation which may be applicable to the Preferred Stock of
this series) as follows:
I. Authorized Number and Designation. One share of the Preferred Stock,
$0.01 par value per share, of the Company is hereby constituted as a series of
the Preferred Stock designated Series B Preferred Stock, $0.01 par value (the
"Series B Preferred").
II. Dividends and Distributions. The holder of Series B Preferred shall
not be entitled to receive any dividends declared and paid by the Company.
III. Voting Rights. Except as otherwise required by law or by the
Certificate of Incorporation: (i) the holder of record of the sole share of
Series B Preferred shall have a number of
votes equal to the number of votes that the holders (the "Holders") of the
outstanding Exchangeable Non-Voting Shares ("Exchangeable Shares") of Discreet
Logic Inc., a Quebec company ("New Discreet"), from time to time, would be
entitled to if all such Exchangeable Shares were exchanged by the Holders for
shares of the Common Stock of the Company ("Common Stock") pursuant to the
terms of the Exchangeable Shares, in each case for the election of directors
and on all matters submitted to a vote of the stockholders of the Company
("Voting Rights"); (ii) the holder of record of the sole share of Series B
Preferred shall not have the Voting Rights with respect to the Exchangeable
Shares owned by the Company, the Company's subsidiaries or any person or
entity directly or indirectly controlled by or under common control with the
Company (unless such person or entity, if any, was a director, executive
officer, or principal shareholder of Discreet Logic Inc., a Quebec company ("Old
Discreet"), prior to the date of filing hereof); and (iii) in respect of all
matters concerning the voting of shares, the Series B Preferred and the Common
Stock shall vote as a single class.
IV. Liquidation Preference. Upon any liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary, and subject to
any prior rights of holders of shares of Preferred Stock ranking senior to the
Series B Preferred, the holder of the share of Series B Preferred shall be
paid an amount equal to $1.00, together with payment to any class of stock
ranking equally with the Series B Preferred, and before payment shall be made
to the holders of any stock ranking on liquidation junior to the Series B
Preferred (such amount payable with respect to the Series B Preferred being
referred to as the "Series B Preferred Liquidation Preference Payment").
V. Ranking. The Series B Preferred shall rank junior to the Series A
Preferred Stock of the Company in all respects.
VI. Other Provisions. (a) Pursuant to the terms of that certain Second
Amended and Restated Agreement and Plan of Acquisition and Amalgamation dated as
of November 18, 1998, as amended, by and among the Company, Autodesk Development
B.V. ("Dutchco"), 9066-9771 Quebec Inc., Autodesk Canada Inc., 9066-9854 Quebec
Inc. and Old Discreet, one share of Series B Preferred is being issued to the
trustee (the "Trustee") under the Voting and Exchange Trust Agreement, dated as
of March 16, 1999 by and among the Company, Dutchco, New Discreet and the
Trustee.
(b) The holder of the sole share of Series B Preferred is entitled
to exercise the voting rights attendant thereto in such manner as such holder
desires.
(c) At such time as the Series B Preferred has no votes attached to
it because there are no Exchangeable Shares outstanding which are not owned by
the Company, any of its subsidiaries or any person directly or indirectly
controlled by or under common control of the Company, excluding such shares of
Series B Preferred owned by any person or entity, if any, that was a director,
executive officer or principal stockholder of Old Discreet prior to the date
of filing hereof, the Series B Preferred shall be cancelled.
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RESOLVED FURTHER, that the Chief Executive Officer, President or any Vice
President and the Secretary or any Assistant Secretary of the Company be, and
they hereby are, authorized and directed to prepare and file (or cause to be
prepared and filed) a Certificate of the Powers, Designations, Preferences and
Rights in accordance with the foregoing resolution and the provisions of
Delaware law and to take such actions as they may deem necessary or appropriate
to carry out the intent of the foregoing resolutions."
IN WITNESS WHEREOF, we have executed and subscribed to this Certificate and
do hereby affirm the foregoing as true under the penalties of perjury this 9th
day of March, 1999.
Autodesk, Inc.
/s/ Carol A Bartz
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Carol A. Bartz
Chairman and Chief Executive Officer
/s/ Marcia K. Sterling
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Marcia K. Sterling
Vice President, Business Development,
General Counsel and Secretary
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