EXHIBIT 4.20
CERTIFICATE OF DESIGNATION OF RIGHTS AND PREFERENCES
OF
CLASS A CONVERTIBLE PREFERRED STOCK
OF
WAM!NET INC.
The undersigned, Edward J. Driscoll, Jr., hereby certifies that:
A. He is the duly elected and acting Secretary of WAM!NET Inc. (the
"Company"), a Minnesota corporation.
B. The Articles of Incorporation of this Company provide for a class of
up to 49,500,000 shares known as Undesignated Stock, which shares may be issued
from time to time in one or more classes or series.
C. The Board of Directors of the Company is authorized, pursuant to
Article 6 of the Company's Articles of Incorporation and Minnesota Statutes,
Section 302A.401, to fix or alter the rights, preferences, privileges, and
restrictions granted to or imposed upon any wholly unissued series of
Undesignated Stock, to fix the number of shares constituting the series, and to
determine the designation thereof.
D. It is the desire of the Board of Directors of the Company, pursuant
to its authority, to fix the rights, preferences, restrictions and other matters
relating to the Undesignated Stock and the number of shares of Undesignated
Stock.
E. Pursuant to authority given by Article 6 of the Company's Articles
of Incorporation, the Company's Board of Directors has adopted the following
resolutions as of the 4th day of March, 1999;
RESOLVED, that, pursuant to Article 6 of the Articles of Incorporation of
WAM!NET Inc. (the "Company"), the Board of Directors of the Company hereby
creates and designates a series of Preferred Stock, Ten Dollars ($10.00) par
value per share, and authorizes the issuance of up to One Hundred Fourteen
Thousand Two Hundred and Six (115,206) of such shares, and hereby fixes the
designation and the preferences and relative, participating, optional and other
special rights of such shares, and the qualifications, limitations or
restrictions as follows:
Section 1. Designation and Amount. The shares of the Preferred Stock shall be
----------------------
designated as "1999 Class A Preferred Stock." The number of shares constituting
the 1999 Class A Preferred Stock shall be One Hundred Fifteen Thousand Two
Hundred and Six (115,206). Each share of 1999 Class A Preferred Stock shall have
a par value of Ten Dollars ($10.00) per share. The number of shares of 1999
Class A Preferred Stock may be increased or decreased by resolution of the Board
of Directors; provided, that, no decrease shall reduce the number of shares of
1999 Class A Preferred Stock to a number less than the number of shares then
outstanding, plus the
number of shares of 1999 Class A Preferred Stock, if any, reserved for issuance
upon the exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the Company convertible into
1999 Class A Preferred Stock.
Section 2. Dividends and Distributions.
---------------------------
(A) The holders of shares of 1999 Class A Preferred Stock, in preference
to the holders of Common Stock of the Company, shall be entitled to receive,
when, as and if declared by the Board of Directors of the Company (the
"Directors"), a dividend (the "Quarterly Dividend") in the amount of Seventeen
and One-half Cents ($.175) per share payable out of the net earnings of the
Company constituting funds legally available for the purpose. The Quarterly
Dividend shall begin to accrue on January 1, 1999, and shall be payable in cash
on the first day of March, June, September and December in each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of 1999 Class A Preferred Stock. If the net
earnings in any year are not sufficient to pay the Quarterly Dividend, either in
whole or in part, then any unpaid portion of such dividend will become a charge
against the net earnings of the Company, and will be paid in full out of the net
earnings of the Company in subsequent years before any dividends are paid on the
Common Stock of the Company in those years. No dividends will be paid or set
apart for payment on the Common Stock, no distribution will be made on the
Common Stock, and no shares of Common Stock will be redeemed, retired or
otherwise acquired for valuable consideration unless all theretofore unpaid
Quarterly Dividends have been declared, and the Company has paid those dividends
or has set aside a sum sufficient to pay them.
(B) Dividends shall begin to accrue and accumulate on outstanding shares
of 1999 Class A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, in which case dividends on such
shares shall begin to accrue from the date of issue of such shares, or (i) from
such Quarterly Dividend Date if additional consideration, prorated for the
number of elapsed days since such Quarterly Dividend Date, is paid upon
issuance, (ii) unless the date of issue is a Quarterly Dividend Payment Date or
is a date after the record date for the determination of holders of shares of
1999 Class A Preferred Stock entitled to receive Quarterly Dividends and before
such Quarterly Dividend Payment Date, in either of which events such Quarterly
Dividends shall begin to accrue and accumulate from such Quarterly Dividend
Payment Date. Accrued but unpaid Quarterly Dividends shall not bear interest.
Dividends paid on the shares of 1999 Class A Preferred Stock in an amount less
than the total amount of Quarterly Dividends then accrued and payable shall be
allocated pro rata on a share-by-share basis among all such shares of 1999 Class
A Preferred Stock then outstanding. The Directors may fix a record date for the
determination of holders of shares of 1999 Class A Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be no more than sixty (60) days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of 1999 Class A Preferred
-------------
Stock shall have the following voting rights:
2
(A) Each share of 1999 Class A Preferred Stock shall entitle the holder
thereof to one (1) vote for each share of 1999 Class A Preferred Stock standing
in the name of the holder on the books of the Company. The holders of 1999 Class
A Preferred Stock, voting separately as a class, shall be entitled to elect that
number of Directors as is equal to the largest whole number less than a majority
of all Directors. The right to elect Directors may be exercised at any annual
meeting of the stockholders of the Company, at any special meeting held in place
of an annual meeting, or at a special meeting called to elect directors. The
right to elect directors shall continue until December 31, 2000, and then
expire. The directors elected by the 1999 Class A Preferred Stock shall serve
until the next annual or special meeting of the stockholders of the Company and
until their respective successors have been elected by the holders of 1999 Class
A Preferred Stock and have been qualified. The term of office of any person
elected as a director by the holders of 1999 Class A Preferred Stock shall
terminate on December 31, 2000. The vacancies created thereby may be filled by
resolution of the remaining Directors who shall have been elected by a vote of
the holders of the Common Stock of the Company. If the office of a director
elected by the holders of 1999 Class A Preferred Stock is vacant prior to
December 31, 2000, due to resignation, removal or death, the vacancy shall be
filled by the majority vote of the directors then in office, even if less than a
quorum, upon the recommendation of the remaining director or directors who were
elected by the holders of the 1999 Class A Preferred Stock. If the office of a
director who was elected by the holders of Common Stock is vacant prior to
December 31, 2000, due to resignation, removal or death, the vacancy shall be
filled by the majority vote of the directors then in office, even if less than a
quorum, upon the recommendation of the remaining director or directors who were
elected by the holders of the Common Stock. If the vacancy is not so filled
within forty (40) days after the creation of the vacancy, a special meeting of
the holders of Preferred Stock and/or Common Stock shall be called and the
vacancy or vacancies shall be filled at that meeting.
(B) In addition to the right to elect Directors as provided in Section
3(A), the holder of each share of 1999 Class A Preferred Stock shall be entitled
to one (1) vote, voting together with the holders of Common Stock as a single
class, on all matters, excluding the election of Directors, submitted to the
vote of shareholders of the Company.
(C) Except as otherwise provided in Section 3(A) or in Section 10, or in
any Certificate of Designation creating another class or series of preferred
stock, or in any similar stock of the Company hereafter created, or by law, the
holders of shares of 1999 Class A Preferred Stock and the holders of shares of
Common Stock and any other capital stock of the Company having general voting
rights shall vote together as one class on all matters submitted to a vote of
stockholders of the Company.
(D) Except as expressly set forth herein, or as otherwise provided by
law, holders of 1999 Class A Preferred Stock shall have no special voting rights
and their consent, as a separate class, 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. Certain Restrictions.
--------------------
3
A. Whenever Quarterly Dividends or distributions payable on 1999 Class
A Preferred Stock as provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid Quarterly Dividends and distributions, whether or not
declared, on shares of 1999 Class A Preferred Stock outstanding shall have been
paid in full, the Company shall not, without the express affirmative unanimous
approval of the Directors elected by holders of the 1999 Class A Preferred
Stock:
(1) declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the 1999 Class A
Preferred Stock;
(2) declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the 1999 Class A
Preferred Stock, except dividends paid ratably on the 1999 Class A
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(3) redeem or purchase or otherwise acquire for consideration shares of
any stock of the Company ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the 1999 Class A
Preferred Stock, provided that the Company may at any time redeem,
purchase or otherwise acquire shares of any such junior stock in
exchange for shares of any stock of the Company ranking junior (as
to dividends and upon dissolution, liquidation and winding up) to
the 1999 Class A Preferred Stock; or
(4) redeem or purchase or otherwise acquire for consideration any shares
of 1999 Class A Preferred Stock, or any shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or
winding up) with the 1999 Class A Preferred Stock, except in
accordance with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
B. The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under Paragraph A of this Section 4, purchase
or otherwise acquire such shares at such time and in such manner.
Section 5. Liquidation, Dissolution or Winding Up. Upon any voluntary
--------------------------------------
or involuntary liquidation, dissolution or winding up of the affairs of the
Company, no distribution shall be made (a) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the 1999 Class A Preferred Stock, or (b) to the holders of shares
of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the 1999 Class A Preferred Stock unless each
holder of 1999 Class A Preferred
4
Stock has received in cash out of the assets of the Company, whether from
capital or earnings, available for distribution to the shareholders of the
Company, before any amount is paid to the holders of Common Stock, the sum of
Ten Dollars ($10.00) per share for each share of 1999 Class A Preferred Stock
held by the holder, plus an amount equal to the sum of all accumulated and
unpaid dividends to the date affixed for the payment of the distribution on the
shares of 1999 Class A Preferred Stock held by the holder. The sale or transfer
by the Company of all or substantially all of its assets shall not, for the
purposes of determining preferences and liquidation, be deemed to be a
liquidation, dissolution or winding up of the Company.
Section 6. Preemptive Rights. No holder of any shares of 1999 Class A
-----------------
Preferred Stock shall be entitled as such, as a matter of right, to subscribe
for, purchase or receive any part of any class whatsoever, or of securities
convertible into or exchangeable for any stock or any class whatsoever, whether
now or hereafter authorized or whether issued for cash or other consideration or
by way of a dividend.
Section 7. Mandatory Redemption. Unless earlier redeemed or acquired in
--------------------
whole or in part by the Company with the consent of the holder, the shares of
1999 Class A Preferred Stock that remain issued and outstanding shall expire and
shall be automatically redeemed on December 31, 2000, at par value, plus an
amount equal to all accumulated and unpaid dividends, if any, due with respect
to the 1999 Class A Preferred Stock (collectively, the "Redemption Price").
Redemption shall be in cash out of any funds legally available for the
redemption of the 1999 Class A Preferred Stock.
Section 8. Rank. The 1999 Class A Preferred Stock shall rank, with
----
respect to payment of dividends and distribution of assets (except with respect
to events that do not give rise to a right of the holders of the 1999 Class A
Preferred Stock to receive distributions) (a) junior to any other class or
series of the Company's preferred stock which shall specifically provide that
such class or series shall rank senior to the 1999 Class A Preferred Stock
("Senior Stock"); (b) on parity with (i) the Company's Class B Convertible
Preferred Stock, par value $0.01 per share, (ii) the Company's Class C
Convertible Preferred Stock, par value $0.01 per share, (iii) the Company's
Class D Convertible Preferred Stock, par value $0.01 per share, and (iv) any
other class or series of the Company's preferred stock which shall specifically
provide that such class or series shall rank on parity with the Class B
Preferred Stock ((i) through (iv) collectively, the "Parity Stock"); and (c)
prior to (i) the Company's Common Stock and (ii) any other class or series of
the Company's preferred stock except for any class or series which are Senior
Stock or Parity Stock ((i) and (ii) together, the "Junior Stock").
Section 9. Reacquired Shares. Any shares of 1999 Class A Preferred
-----------------
Stock purchased or otherwise acquired by the Company 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
undesignated stock and may be reissued subject to the conditions and
restrictions on issuance in the Articles of Incorporation, or in any other
Certificate of Designations creating another class or series of stock or as
otherwise required by law.
Section 10. Amendment. If any proposed amendment to these Articles of
---------
Incorporation would alter or change the preferences, special rights or powers
given to the 1999
5
Class A Preferred Stock so as to affect the 1999 Class A Preferred Stock
adversely, or would authorize the issuance of a class or classes of stock having
preferences or rights with respect to dividends or dissolution or the
distribution of assets that would be superior to the preferences or rights of
the 1999 Class A Preferred Stock, then the holders of the 1999 Class A Preferred
Stock shall be entitled to vote as a series upon such amendment, and the
affirmative vote of two-thirds of the outstanding shares of 1999 Class A
Preferred Stock shall be necessary to the adoption thereof, in addition to such
other vote as may be required by law.
RESOLVED FURTHER, that the officers of this Company be, and each of them
acting alone is, hereby authorized and instructed to take all steps necessary to
execute, deliver and file, for and on behalf of this Company and in its name,
any and all documents required in connection with the establishment and
authorization of the Company's Class A Preferred Stock, including but not
limited to filing the Statement of Rights and Preferences with the Minnesota
Secretary of State in accordance with Minnesota Statutes, Section 302A.401.
F. The undersigned further declares under penalty of perjury that the
matters set out in the foregoing Certificate are true and correct of his own
knowledge.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the 4th day of March 1999.
/s/ Edward J. Driscoll, Jr.
----------------------------------------
Edward J. Driscoll, Jr.
Secretary
6
ARTICLES OF CORRECTION
OF
CERTIFICATE OF DESIGNATION OF RIGHTS AND PREFERENCES
OF
CLASS A CONVERTIBLE PREFERRED STOCK
OF
WAM!NET INC.
The undersigned, Edward J. Driscoll, Jr., Secretary of WAM!NET INC., a
Minnesota Corporation (the "Corporation"), acting pursuant to the provisions of
Minnesota Statutes, Section 5.16, does hereby correct and amend the Certificate
of Designation of Rights and Preferences of Class A Convertible Preferred Stock
as follows effective as of the 4th day of March, 1999:
1.) The undersigned, Edward J. Driscoll, Jr., executed and filed a
Certificate of Designation of Rights and Preferences of Class A
Convertible Preferred Stock which was filed with the Minnesota
Secretary of State on March 4, 1999.
2.) The Certificate of Designation of Rights and Preferences of Class A
Convertible Preferred Stock inadvertently referenced "Convertible"
-----------
Stock in its title, the Certificate of Designation of Rights and
Preferences of Class A Convertible Preferred Stock title should read
"Certificate of Designation of Rights and Preferences of Class A
Preferred Stock."
3.) In Section 1, the number of shares constituting the 1999 Class A
Preferred Stock incorrectly states "One Hundred Fourteen Thousand Two
--------
Hundred and Six (115,206)." The number of shares constituting the 1999
-------
Class A Preferred Stock should read "One Hundred Fifteen Thousand Two
Hundred and Six (115,206).
IN WITNESS WHEREOF, I have hereunder subscribed my name effective the 4th
day of March, 1999.
/s/ Edward J. Driscoll, Jr.
-------------------------------------
Edward J. Driscoll, Jr., Secretary
CERTIFICATE OF DESIGNATION OF RIGHTS AND PREFERENCES
OF
CLASS A PREFERRED STOCK
OF
WAM!NET INC.
The undersigned, Edward J. Driscoll, Jr., hereby certifies that:
A. He is the duly elected and acting Secretary of WAM!NET Inc. (the
"Company"), a Minnesota corporation.
B. The Articles of Incorporation of this Company provide for a class of
up to 49,500,000 shares known as Undesignated Stock, which shares may be issued
from time to time in one or more classes or series.
C. The Board of Directors of the Company is authorized, pursuant to
Article 6 of the Company's Articles of Incorporation and Minnesota Statutes,
Section 302A.401, to fix or alter the rights, preferences, privileges, and
restrictions granted to or imposed upon any wholly unissued series of
Undesignated Stock, to fix the number of shares constituting the series, and to
determine the designation thereof.
D. It is the desire of the Board of Directors of the Company, pursuant to
its authority, to fix the rights, preferences, restrictions and other matters
relating to the Undesignated Stock and the number of shares of Undesignated
Stock.
E. Pursuant to authority given by Article 6 of the Company's Articles of
Incorporation, the Company's Board of Directors has adopted the following
resolutions as of the 4th day of March, 1999;
RESOLVED, that, pursuant to Article 6 of the Articles of Incorporation of
WAM!NET Inc. (the "Company"), the Board of Directors of the Company hereby
creates and designates a series of Preferred Stock, Ten Dollars ($10.00) par
value per share, and authorizes the issuance of up to One Hundred Fifteen
Thousand Two Hundred and Six (115,206) of such shares, and hereby fixes the
designation and the preferences and relative, participating, optional and other
special rights of such shares, and the qualifications, limitations or
restrictions as follows:
Section 1. Designation and Amount. The shares of the Preferred Stock shall be
----------------------
designated as "1999 Class A Preferred Stock." The number of shares constituting
the 1999 Class A Preferred Stock shall be One Hundred Fifteen Thousand Two
Hundred and Six (115,206). Each share of 1999 Class A Preferred Stock shall have
a par value of Ten Dollars ($10.00) per share. The number of shares of 1999
Class A Preferred Stock may be increased or decreased by resolution of the Board
of Directors; provided, that, no decrease shall reduce the number of shares of
1999 Class A Preferred Stock to a number less than the number of shares then
outstanding, plus the
number of shares of 1999 Class A Preferred Stock, if any, reserved for issuance
upon the exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the Company convertible into
1999 Class A Preferred Stock.
Section 2. Dividends and Distributions.
---------------------------
(A) The holders of shares of 1999 Class A Preferred Stock, in preference
to the holders of Common Stock of the Company, shall be entitled to receive,
when, as and if declared by the Board of Directors of the Company (the
"Directors"), a dividend (the "Quarterly Dividend") in the amount of Seventeen
and One-half Cents ($.175) per share payable out of the net earnings of the
Company constituting funds legally available for the purpose. The Quarterly
Dividend shall begin to accrue on January 1, 1999, and shall be payable in cash
on the first day of March, June, September and December in each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of 1999 Class A Preferred Stock. If the net
earnings in any year are not sufficient to pay the Quarterly Dividend, either in
whole or in part, then any unpaid portion of such dividend will become a charge
against the net earnings of the Company, and will be paid in full out of the net
earnings of the Company in subsequent years before any dividends are paid on the
Common Stock of the Company in those years. No dividends will be paid or set
apart for payment on the Common Stock, no distribution will be made on the
Common Stock, and no shares of Common Stock will be redeemed, retired or
otherwise acquired for valuable consideration unless all theretofore unpaid
Quarterly Dividends have been declared, and the Company has paid those dividends
or has set aside a sum sufficient to pay them.
(B) Dividends shall begin to accrue and accumulate on outstanding shares
of 1999 Class A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, in which case dividends on such
shares shall begin to accrue from the date of issue of such shares, or (i) from
such Quarterly Dividend Date if additional consideration, prorated for the
number of elapsed days since such Quarterly Dividend Date, is paid upon
issuance, (ii) unless the date of issue is a Quarterly Dividend Payment Date or
is a date after the record date for the determination of holders of shares of
1999 Class A Preferred Stock entitled to receive Quarterly Dividends and before
such Quarterly Dividend Payment Date, in either of which events such Quarterly
Dividends shall begin to accrue and accumulate from such Quarterly Dividend
Payment Date. Accrued but unpaid Quarterly Dividends shall not bear interest.
Dividends paid on the shares of 1999 Class A Preferred Stock in an amount less
than the total amount of Quarterly Dividends then accrued and payable shall be
allocated pro rata on a share-by-share basis among all such shares of 1999 Class
A Preferred Stock then outstanding. The Directors may fix a record date for the
determination of holders of shares of 1999 Class A Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be no more than sixty (60) days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of 1999 Class A Preferred
-------------
Stock shall have the following voting rights:
2
(A) Each share of 1999 Class A Preferred Stock shall entitle the holder
thereof to one (1) vote for each share of 1999 Class A Preferred Stock standing
in the name of the holder on the books of the Company. The holders of 1999 Class
A Preferred Stock, voting separately as a class, shall be entitled to elect that
number of Directors as is equal to the largest whole number less than a majority
of all Directors. The right to elect Directors may be exercised at any annual
meeting of the stockholders of the Company, at any special meeting held in place
of an annual meeting, or at a special meeting called to elect directors. The
right to elect directors shall continue until December 31, 2000, and then
expire. The directors elected by the 1999 Class A Preferred Stock shall serve
until the next annual or special meeting of the stockholders of the Company and
until their respective successors have been elected by the holders of 1999 Class
A Preferred Stock and have been qualified. The term of office of any person
elected as a director by the holders of 1999 Class A Preferred Stock shall
terminate on December 31, 2000. The vacancies created thereby may be filled by
resolution of the remaining Directors who shall have been elected by a vote of
the holders of the Common Stock of the Company. If the office of a director
elected by the holders of 1999 Class A Preferred Stock is vacant prior to
December 31, 2000, due to resignation, removal or death, the vacancy shall be
filled by the majority vote of the directors then in office, even if less than a
quorum, upon the recommendation of the remaining director or directors who were
elected by the holders of the 1999 Class A Preferred Stock. If the office of a
director who was elected by the holders of Common Stock is vacant prior to
December 31, 2000, due to resignation, removal or death, the vacancy shall be
filled by the majority vote of the directors then in office, even if less than a
quorum, upon the recommendation of the remaining director or directors who were
elected by the holders of the Common Stock. If the vacancy is not so filled
within forty (40) days after the creation of the vacancy, a special meeting of
the holders of Preferred Stock and/or Common Stock shall be called and the
vacancy or vacancies shall be filled at that meeting.
(B) In addition to the right to elect Directors as provided in Section
3(A), the holder of each share of 1999 Class A Preferred Stock shall be entitled
to one (1) vote, voting together with the holders of Common Stock as a single
class, on all matters, excluding the election of Directors, submitted to the
vote of shareholders of the Company.
(C) Except as otherwise provided in Section 3(A) or in Section 10, or in
any Certificate of Designation creating another class or series of preferred
stock, or in any similar stock of the Company hereafter created, or by law, the
holders of shares of 1999 Class A Preferred Stock and the holders of shares of
Common Stock and any other capital stock of the Company having general voting
rights shall vote together as one class on all matters submitted to a vote of
stockholders of the Company.
(D) Except as expressly set forth herein, or as otherwise provided by
law, holders of 1999 Class A Preferred Stock shall have no special voting rights
and their consent, as a separate class, 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. Certain Restrictions.
--------------------
3
A. Whenever Quarterly Dividends or distributions payable on 1999 Class
A Preferred Stock as provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid Quarterly Dividends and distributions, whether or not
declared, on shares of 1999 Class A Preferred Stock outstanding shall have been
paid in full, the Company shall not, without the express affirmative unanimous
approval of the Directors elected by holders of the 1999 Class A Preferred
Stock:
(1) declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the 1999 Class A
Preferred Stock;
(2) declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the 1999 Class A
Preferred Stock, except dividends paid ratably on the 1999 Class A
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(3) redeem or purchase or otherwise acquire for consideration shares of
any stock of the Company ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the 1999 Class A
Preferred Stock, provided that the Company may at any time redeem,
purchase or otherwise acquire shares of any such junior stock in
exchange for shares of any stock of the Company ranking junior (as
to dividends and upon dissolution, liquidation and winding up) to
the 1999 Class A Preferred Stock; or
(4) redeem or purchase or otherwise acquire for consideration any shares
of 1999 Class A Preferred Stock, or any shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or
winding up) with the 1999 Class A Preferred Stock, except in
accordance with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
B. The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under Paragraph A of this Section 4, purchase
or otherwise acquire such shares at such time and in such manner.
Section 5. Liquidation, Dissolution or Winding Up. Upon any voluntary or
--------------------------------------
involuntary liquidation, dissolution or winding up of the affairs of the
Company, no distribution shall be made (a) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the 1999 Class A Preferred Stock, or (b) to the holders of shares
of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the 1999 Class A Preferred Stock unless each
holder of 1999 Class A Preferred
4
Stock has received in cash out of the assets of the Company, whether from
capital or earnings, available for distribution to the shareholders of the
Company, before any amount is paid to the holders of Common Stock, the sum of
Ten Dollars ($10.00) per share for each share of 1999 Class A Preferred Stock
held by the holder, plus an amount equal to the sum of all accumulated and
unpaid dividends to the date affixed for the payment of the distribution on the
shares of 1999 Class A Preferred Stock held by the holder. The sale or transfer
by the Company of all or substantially all of its assets shall not, for the
purposes of determining preferences and liquidation, be deemed to be a
liquidation, dissolution or winding up of the Company.
Section 6. Preemptive Rights. No holder of any shares of 1999 Class A
------------------
Preferred Stock shall be entitled as such, as a matter of right, to subscribe
for, purchase or receive any part of any class whatsoever, or of securities
convertible into or exchangeable for any stock or any class whatsoever, whether
now or hereafter authorized or whether issued for cash or other consideration or
by way of a dividend.
Section 7. Mandatory Redemption. Unless earlier redeemed or acquired in
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whole or in part by the Company with the consent of the holder, the shares of
1999 Class A Preferred Stock that remain issued and outstanding shall expire and
shall be automatically redeemed on December 31, 2000, at par value, plus an
amount equal to all accumulated and unpaid dividends, if any, due with respect
to the 1999 Class A Preferred Stock (collectively, the "Redemption Price").
Redemption shall be in cash out of any funds legally available for the
redemption of the 1999 Class A Preferred Stock.
Section 8. Rank. The 1999 Class A Preferred Stock shall rank, with
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respect to payment of dividends and distribution of assets (except with respect
to events that do not give rise to a right of the holders of the 1999 Class A
Preferred Stock to receive distributions) (a) junior to any other class or
series of the Company's preferred stock which shall specifically provide that
such class or series shall rank senior to the 1999 Class A Preferred Stock
("Senior Stock"); (b) on parity with (i) the Company's Class B Convertible
Preferred Stock, par value $0.01 per share, (ii) the Company's Class C
Convertible Preferred Stock, par value $0.01 per share, (iii) the Company's
Class D Convertible Preferred Stock, par value $0.01 per share, and (iv) any
other class or series of the Company's preferred stock which shall specifically
provide that such class or series shall rank on parity with the Class B
Preferred Stock ((i) through (iv) collectively, the "Parity Stock"); and (c)
prior to (i) the Company's Common Stock and (ii) any other class or series of
the Company's preferred stock except for any class or series which are Senior
Stock or Parity Stock ((i) and (ii) together, the "Junior Stock").
Section 9. Reacquired Shares. Any shares of 1999 Class A Preferred
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Stock purchased or otherwise acquired by the Company 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
undesignated stock and may be reissued subject to the conditions and
restrictions on issuance in the Articles of Incorporation, or in any other
Certificate of Designations creating another class or series of stock or as
otherwise required by law.
Section 10. Amendment. If any proposed amendment to these Articles of
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Incorporation would alter or change the preferences, special rights or powers
given to the 1999
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Class A Preferred Stock so as to affect the 1999 Class A Preferred Stock
adversely, or would authorize the issuance of a class or classes of stock having
preferences or rights with respect to dividends or dissolution or the
distribution of assets that would be superior to the preferences or rights of
the 1999 Class A Preferred Stock, then the holders of the 1999 Class A Preferred
Stock shall be entitled to vote as a series upon such amendment, and the
affirmative vote of two-thirds of the outstanding shares of 1999 Class A
Preferred Stock shall be necessary to the adoption thereof, in addition to such
other vote as may be required by law.
RESOLVED FURTHER, that the officers of this Company be, and each of them
acting alone is, hereby authorized and instructed to take all steps necessary to
execute, deliver and file, for and on behalf of this Company and in its name,
any and all documents required in connection with the establishment and
authorization of the Company's Class A Preferred Stock, including but not
limited to filing the Statement of Rights and Preferences with the Minnesota
Secretary of State in accordance with Minnesota Statutes, Section 302A.401.
F. The undersigned further declares under penalty of perjury that the
matters set out in the foregoing Certificate are true and correct of his own
knowledge.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the 4th day of March 1999.
/s/ Edward J. Driscoll, Jr.
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Edward J. Driscoll, Jr.
Secretary
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