EXHIBIT 3.1.1
CERTIFICATE OF DESIGNATIONS,
PREFERENCES AND RIGHTS
OF SERIES A PREFERRED STOCK
OF
HELISYS, INC.,
a Delaware corporation
Pursuant to Section 151 of the General Corporation Law of the State of Delaware
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HELISYS, INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Corporation"), hereby certifies,
pursuant to the authority contained in the Certificate of Incorporation and in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware that the following resolution has been duly adopted by the
Board of Directors of the Corporation creating a series of its Preferred Stock
designated as Series A Preferred Stock:
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board of Directors of the Corporation (the "Board") by the
provisions of the Certificate of Incorporation of the Corporation (the
"Certificate of Incorporation"), there hereby is created, out of the
1,000,000 shares of Preferred Stock, par value $0.001 per share, of the
Corporation authorized in Article 4 of the Certificate of Incorporation
(the "Preferred Stock"), a series of the Preferred Stock of the Corporation
consisting of 320,000 shares, which shall be designated Series A
Convertible Preferred Stock, which series shall have the following powers,
designations, preferences and relative, participating, optional and other
rights, and the following qualifications, limitations and restrictions:
A. RIGHTS, PREFERENCES AND RESTRICTIONS OF SERIES A PREFERRED STOCK.
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The following is a statement of the designations, powers,
privileges, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions
relating to the Series A Preferred Stock ("Preferred Stock"):
1. Dividends. When, as and if declared by the Board of
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Directors, the holders of the outstanding shares of the Preferred Stock
shall be entitled to receive, out of funds legally available therefor,
cumulative dividends, commencing on November 18, 1997, at the rate of ten
percent (10%) per annum, and payable upon (i) conversion of the Preferred
Stock, as expressly provided in Section 4 below, or (ii) liquidation,
dissolution or winding up pursuant to Section 2 hereof. Such dividends
shall accrue, whether or not earned or declared; provided, however, that
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such dividends shall cease accruing on November 18, 1999, or at any time
thereafter, in the event that the fair market value of the Common Stock (as
determined pursuant to Section 4(a)(i) below) on November 18, 1999, or on
such later date, equals or exceeds $3.00 per share. Any accumulation of
dividends on the Preferred Stock shall not bear interest.
2. Liquidation, Dissolution or Winding Up.
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(a) Preference - Preferred Stock. In the event of any
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liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, holders of each share of Preferred Stock shall be
entitled to be paid out of the assets of the Corporation, whether such
assets are capital, surplus, or earnings, before any sums shall be paid or
any assets distributed among the holders of shares of Common Stock, an
amount equal to $6.25 per share of Preferred Stock, plus any accrued but
unpaid dividends. If the assets of the Corporation shall be insufficient to
permit the payment in full to the holders of the Preferred Stock of the
amount thus distributable, then the entire assets of the Corporation
available for such distribution shall be distributed ratably among the
holders of the Preferred Stock. After such payment shall have been made in
full to the holders of the Preferred Stock or funds necessary for such
payment shall have been set aside by the Corporation in trust for the
account of holders of the Preferred Stock so as to be available for such
payment, holders of the Preferred Stock shall be entitled to no further
participation in the distribution of the assets of the Corporation and
shall have no further rights of conversion, and the remaining assets
available for distribution shall be distributed ratably among the holders
of the Common Stock.
(b) A consolidation or merger (other than a consolidation
or merger in which the holders of voting securities of the Corporation
immediately before the consolidation or merger own (immediately after the
consolidation or merger) voting securities of the surviving or acquiring
corporation, or of a parent party of such surviving or acquiring
corporation, possessing more than 50% of the voting power of such surviving
or acquiring corporation or parent party) of the Corporation or a sale of
all or substantially all of the assets of the Corporation shall be regarded
as a liquidation, dissolution or winding up of the affairs of the
Corporation within the meaning of this Section 2.
(c) Each holder of Preferred Stock shall have the right to
elect the benefits of the provisions of Section 4(g) hereof in lieu of
receiving payment in liquidation, dissolution or winding up of the
Corporation pursuant to this Section 2. The election procedures shall be as
provided in Section 4(g) hereof.
(d) Whenever the distribution provided for herein shall be
paid in property other than cash, the value of such distribution shall be
the fair market value of such property as determined in good faith by the
Board of Directors of the Corporation.
3. Voting Power. Each holder of Preferred Stock shall be
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entitled to vote on all matters and shall be entitled to that number of
votes equal to the largest number of whole shares of Common Stock into
which such holder's shares of Preferred Stock could be converted, pursuant
to the provisions of Section 4 hereof, at the record date for the
determination of stockholders entitled to vote on such matter or, if no
such record date is established, at the date such vote is taken or any
written consent of shareholders is solicited. Except as otherwise expressly
provided herein or as required by law, the holders of shares of Preferred
Stock and Common Stock shall vote together as a class on all matters.
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4. Conversion Rights. The holders of the Preferred Stock shall
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have the following conversion rights:
(a) General.
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(i) Subject to and in compliance with the provisions
of this Section 4, any shares of the Preferred Stock may, at the option of
the holder, be converted at any time or from time to time into fully-paid
and nonassessable shares (calculated as to each conversion to the largest
whole share) of Common Stock. The number of shares of Common Stock to which
a holder of Preferred Stock shall be entitled upon conversion shall be the
product obtained by multiplying the Applicable Conversion Rate (determined
as provided in Section 4(b)) by the number of shares of Preferred Stock
being converted together with payment of accrued but unpaid dividends
either (i) in cash or (ii) in shares of Common Stock by converting the
accrued and unpaid dividends at the then fair market value of such Common
Stock. The method of payment of the dividends as provided in (i) and (ii)
above shall be at the election of the holder of the Preferred Stock, with
the fair market value determined as follows: (i) if the Common Stock is
publicly traded, the average over the preceding twenty (20) trading days of
the mean of the closing bid and asked prices on the over-the-counter market
as reported by NASDAQ, or, if then traded on a national securities exchange
or the NASDAQ National Market, the average over the preceding twenty (20)
trading days of the mean of the high and low prices on the principal
national securities exchange or the NASDAQ National Market on which it is
so traded over the preceding twenty (20) trading days, and (ii) if the
Common Stock is not publicly traded, then as agreed upon by the Corporation
and a majority in interest of the holders of the Preferred Stock. If no
such agreement is reached within thirty (30) days, the fair market value
shall be determined by appraisal; and
(ii) each share of Preferred Stock shall automatically
be converted into a number of shares of Common Stock equal to the product
obtained by multiplying the Applicable Conversion Rate determined as
provided in Section 4(b) by the number of shares of Preferred Stock being
converted on November __, 2002, if such Preferred Stock remains outstanding
on November __, 2002.
(b) Applicable Conversion Rate. The conversion rate in
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effect at any time (the "Applicable Conversion Rate") shall be the quotient
obtained by dividing $6.25, by the Applicable Conversion Value, calculated
as provided in Section 4(c).
(c) Applicable Conversion Value. The Applicable Conversion
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Value in effect from time to time, except as adjusted in accordance with
Section 4(d) hereof, shall be $1.25.
(d) Adjustments to Applicable Conversion Value.
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(i) Upon Sale of Common Stock. If the Corporation
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shall, while there are any shares of Preferred Stock outstanding, issue or
sell shares of its Common Stock without consideration or at a price per
share less than the Applicable Conversion Value in effect immediately prior
to such issuance or sale, then in each such case such Applicable Conversion
Value upon each such issuance or sale, except as hereinafter provided,
shall be
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adjusted to an amount determined by multiplying the Applicable Conversion
Value by a fraction:
(A) the numerator of which shall be (a) the number of shares of
Common Stock outstanding immediately prior to the issuance of such
additional shares of Common Stock, plus (b) the number of shares of Common
Stock which the net aggregate consideration received by the Corporation for
the total number of such additional shares of Common Stock so issued would
purchase at the Applicable Conversion Value, and
(B) the denominator of which shall be (a) the number of shares
of Common Stock outstanding immediately prior to the issuance of such
additional shares of Common Stock, plus (b) the number of such additional
shares of Common Stock so issued.
The numerator and the denominator in Sections 4(d)(i)(A) and (B)
above, shall include the number of shares subject to issuance pursuant to
any convertible securities, including the Preferred Stock, as well as any
warrants, options, subscription rights or purchase rights then outstanding.
No adjustment shall be made under this subsection (d) until such
adjustment would cause the Applicable Conversion Value to be decreased (or
increased pursuant to the foregoing paragraph) by more than two percent
(2%), provided that any such adjustments shall be added to subsequent
adjustments.
The Corporation's issuance of up to an aggregate of (i) 150,000 shares
under the Employee Stock Purchase Plan, and (ii) 200,950 shares of Common
Stock, or options exercisable therefor, net of repurchase or expiration of
such options, pursuant to any stock purchase or stock option plan or other
employee incentive program approved by the Board of Directors to the
Corporation's employees, directors, officers or consultants shall not be
deemed an issuance of additional shares of Common Stock and shall have no
effect on the calculations contemplated by this Section 4(d) except as
specifically otherwise set forth herein.
The completion of a consolidation or merger in which the holders of
voting securities of the Corporation immediately before the consolidation
or merger own (immediately after the consolidation or merger) voting
securities of the surviving or acquiring corporation, or of a parent party
of such surviving or acquiring corporation, possessing more than 50% of the
voting power of such surviving or acquiring corporation or parent party of
the Corporation shall not be deemed an issuance of additional shares of
Common Stock and shall have no effect on the calculations contemplated by
this Section 4(d), except as specifically otherwise set forth herein.
Except as discussed in the preceding paragraph, for the purposes of
this Section 4(d), the issuance of any warrants, options, subscriptions or
purchase rights with respect to shares of Common Stock and the issuance of
any securities convertible into or exchangeable for shares of Common Stock
(or the issuance of any warrants, options or any rights with respect to
such convertible or exchangeable securities) shall be deemed an issuance at
such time of such Common Stock if the Net Consideration Per Share (as
hereinafter
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determined) which may be received by the Corporation for such Common Stock
shall be less than the Applicable Conversion Value at the time of such
issuance. Any obligation, agreement or undertaking to issue warrants,
options, subscriptions or purchase rights at any time in the future shall
be deemed to be an issuance at the time such obligation, agreement or
undertaking is made or arises. No adjustment of the Applicable Conversion
Value shall be made under this Section 4(d) upon the issuance of any shares
of Common Stock which are issued pursuant to the exercise of any warrants,
options, subscriptions or purchase rights or pursuant to the exercise of
any conversion or exchange rights in any convertible securities if any
adjustment shall previously have been made upon the issuance of any such
warrants, options or subscriptions or purchase rights or upon the issuance
of any convertible securities (or upon the issuance of any warrants,
options or any rights therefor) as above provided. Any adjustment of the
Applicable Conversion Value with respect to this paragraph which relates to
warrants, options, subscriptions or purchase rights with respect to shares
of Common Stock shall be disregarded if and when any of such warrants,
options, subscriptions or purchase rights expire or are cancelled without
being exercised, so that the Applicable Conversion Value effective
immediately upon such cancellation or expiration shall be equal to the
Applicable Conversion Value in effect immediately prior to the time of the
issuance of the expired or cancelled warrants, options, subscriptions or
purchase rights, with such additional adjustments as would have been made
to that Applicable Conversion Value had the expired or cancelled warrants,
options, subscriptions or purchase rights not been issued. For purposes of
this paragraph, the "Net Consideration Per Share" which may be received by
the Corporation shall be determined as follows:
(A) The "Net Consideration Per Share" shall mean the amount
equal to the total amount of consideration, if any, received by the
Corporation for the issuance of such warrants, options, subscriptions or
other purchase rights or convertible or exchangeable securities, plus the
minimum amount of consideration, if any, payable to the Corporation upon
exercise or conversion thereof, divided by the aggregate number of shares
of Common Stock that would be issued if all such warrants, options,
subscriptions or other purchase rights or convertible or exchangeable
securities were exercised, exchanged or converted.
(B) The "Net Consideration Per Share" which may be received by
the Corporation shall be determined in each instance as of the date of
issuance of warrants, options, subscriptions or other purchase rights or
convertible or exchangeable securities without giving effect to any
possible future price adjustments or rate adjustments which may be
applicable with respect to such warrants, options, subscriptions or other
purchase rights or convertible or exchangeable securities.
For purposes of this Section 4(d), if a part or all of the
consideration received by the Corporation in connection with the issuance
of shares of Common Stock or the issuance of any of the securities
described in this Section 4(d) consists of property other than cash, the
value of such contribution shall be the fair market value of such property
as determined in good faith by the Board of Directors of the Corporation,
whereupon such value shall be given to such consideration and shall be
recorded on the books of the Corporation with respect to receipt of such
property.
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This Section 4(d) shall not apply under any of the circumstances which
would constitute an Extraordinary Common Stock Event (as hereinafter
defined in Section 4(d)(ii)).
(ii) Upon the happening of an Extraordinary Common Stock Event (as
hereinafter defined), the Applicable Conversion Value (and all other
conversion values set forth in Section (d)(i) above) shall, simultaneously
with the happening of such Extraordinary Common Stock Event, be adjusted by
multiplying the then effective Applicable Conversion Value by a fraction,
the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such Extraordinary Common Stock Event and
the denominator of which shall be the number of shares of Common Stock
outstanding immediately after such Extraordinary Common Stock Event, and
the product so obtained shall thereafter be the Applicable Conversion
Value. The Applicable Conversion Value, as so adjusted, shall be readjusted
in the same manner upon the happening of any successive Extraordinary
Common Stock Event or Events.
"Extraordinary Common Stock Event" shall mean (i) the issue of
additional shares of the Common Stock as a dividend or other distribution
on outstanding Common Stock, (ii) subdivision of outstanding shares of
Common Stock into a greater number of shares of the Common Stock, or (iii)
combination of outstanding shares of the Common Stock into a smaller number
of shares of the Common Stock.
(e) Dividends. In the event the Corporation shall make or issue, or
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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 other than shares of Common Stock or in assets (excluding cash
dividends or distributions), then and in each such event provision shall be
made so that the holders of the Preferred Stock shall receive upon
conversion thereof in addition to the number of shares of Common Stock
receivable thereupon, the number of securities or such other assets of the
Corporation which they would have received had their Preferred Stock been
converted into Common Stock on the date of such event and had they
thereafter, during the period from the date of such event to and including
the Conversion Date (as that term is hereafter defined in Section 4(i)),
retained such securities or such other assets receivable by them as
aforesaid during such period, giving application to all adjustments called
for during such period under this Section 4 with respect to the rights of
the holders of the Preferred Stock.
(f) Recapitalization or Reclassification. If the Common Stock
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issuable upon the conversion of the Preferred Stock shall be changed into
the same or different number of shares of any class or classes of stock of
the Corporation, whether by recapitalization, reclassification or otherwise
(other than a subdivision or combination of shares or stock dividend
provided for elsewhere in this Section 4, or a reorganization, merger,
consolidation or sale of assets provided for elsewhere in this Section 4),
then and in each such event the holder of each share of Preferred Stock
shall have the right thereafter to convert such share into the kind and
amount of shares of stock and other securities and property receivable upon
such reorganization, reclassification or other change by holders of the
number of shares of Common Stock into which such share of Preferred Stock
might have been converted (taking into account all accrued and unpaid
dividends and interest with respect to such Preferred
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Stock) immediately prior to such reorganization, reclassification or
change, all subject to further adjustment as provided herein.
(g) Capital Reorganization, Merger or Sale of Assets. If at any
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time or from time to time there shall be a capital reorganization of the
Common Stock (other than a subdivision, combination, reclassification or
exchange of shares provided for elsewhere in this Section 4) or a merger or
consolidation of the Corporation with or into another corporation, or the
sale of all or substantially all of the Corporation's properties and assets
to any other person, then, as a part of such reorganization, merger,
consolidation or sale, provision shall be made so that the holders of the
Preferred Stock shall thereafter be entitled to receive upon conversion of
the Preferred Stock, the number of shares of stock or other securities or
property of the Corporation, or of the successor corporation resulting from
such merger, consolidation or sale, to which a holder of Common Stock
issuable upon conversion would have been entitled on such capital
reorganization, merger, consolidation, or sale or an amount of cash
receivable as if the Preferred Stock had converted into shares of Common
Stock. In any such case, appropriate adjustment shall be made in the
application of the provisions of this Section 4 with respect to the rights
of the holders of the Preferred Stock after the reorganization, merger,
consolidation or sale to the end that the provisions of this Section 4
(including adjustment of the Applicable Conversion Value then in effect and
the number of shares purchasable upon conversion of the Preferred Stock)
shall be applicable after that event in as nearly equivalent a manner as
may be practicable.
Each holder of Preferred Stock upon the occurrence of a capital
reorganization, merger or consolidation of the Corporation, or the sale of
all or substantially all its assets and properties as such events are more
fully set forth in the first paragraph of this Section 4(g), shall have the
option of electing treatment of his shares of Preferred Stock under either
this Section 4(g) or Section 2 hereof by giving the Corporation written
notice of such election at least ten days prior to the close of such
transaction unless such holders received notice of transaction less than 20
days prior to the close of such transaction, then the notice of election
shall be 10 days after such notice.
(h) Accountant's Certificate as to Adjustments. In each case of an
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adjustment or readjustment of the Applicable Conversion Rate, the
Corporation will furnish each holder of Preferred Stock with a certificate,
prepared by its chief financial officer showing such adjustment or
readjustment, and stating in detail the facts upon which such adjustment or
readjustment is based. Upon the request of the holders of a majority of
either series of the Preferred Stock, the Corporation will cause its
independent public accountants to confirm the accuracy of such adjustment
or readjustment.
(i) Exercise of Conversion Privilege. To exercise its conversion
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privilege, a holder of Preferred Stock shall surrender the certificate or
certificates representing the shares being converted to the Corporation at
its principal office, and shall give written notice to the Corporation at
that office that such holder elects to convert such shares. Such notice
shall also state the name or names (with address or addresses) in which the
certificate or certificates for shares of Common Stock issuable upon such
conversion shall be issued. The certificate or certificates for shares of
Preferred Stock surrendered for conversion shall be accompanied by proper
assignment thereof to the Corporation or in blank if the conversion
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occurs automatically on November __, 2002, the Corporation shall give
holders of Preferred Stock 15 days written notice of such conversion.
Except for the automatic conversions when the Conversion Date shall be
November __, 2002, the date when such written notice is received by the
Corporation, together with the certificate or certificates representing the
shares of Preferred Stock being converted, shall be the "Conversion Date."
As promptly as practicable, but in any event within 15 days after the
Conversion Date, the Corporation shall issue and shall deliver to the
holder of the shares of Preferred Stock being converted such certificate or
certificates as it may request for the number of whole shares of Common
Stock issuable upon the conversion of such shares of Preferred Stock in
accordance with the provisions of this Section 4, and cash in the amount of
all accrued and unpaid dividends on such shares of Preferred Stock up to
and including the Conversion Date.
(j) Cash in Lieu of Fractional Shares. No fractional shares of
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Common Stock or scrip representing fractional shares shall be issued upon
the conversion of shares of Preferred Stock. Instead of any fractional
shares of Common Stock which would otherwise be issuable upon conversion of
Preferred Stock, the Corporation shall pay to the holder of the shares of
Preferred Stock which were converted a cash adjustment in respect of such
fractional shares in an amount equal to the same fraction of the market
price per share of the Common Stock (as determined in a reasonable manner
prescribed by the Board of Directors) at the close of business on the
Conversion Date. The determination as to whether or not any fractional
shares are issuable shall be based upon the total number of shares of
Preferred Stock being converted at any one time by any holder thereof, not
upon each share of Preferred Stock being converted.
(k) Partial Conversion. In the event some but not all of the
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shares of Preferred Stock represented by a certificate or certificates
surrendered by a holder are converted, the Corporation shall execute and
deliver to or on the order of the holder, at the expense of the
Corporation, a new certificate representing the number of shares of
Preferred Stock which were not converted.
(l) Reservation of Common Stock. The Corporation shall at all
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times reserve and keep available out of its authorized but unissued shares
of Common Stock, solely for the purpose of effecting the conversion of the
shares of the Preferred Stock, such number of its shares of Common Stock as
shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Preferred Stock, and if at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to
effect the conversion of all then outstanding shares of the Preferred
Stock, the Corporation shall take such corporate action as may be necessary
to increase its authorized but unissued shares of Common Stock to such
number of shares as shall be sufficient for such purpose.
5. No Redemption. The Preferred Stock shall not be redeemable by the
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Corporation.
6. No Reissuance of the Preferred Stock. No share or shares of the
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Preferred Stock acquired by the Corporation by reason of purchase,
conversion or otherwise shall be reissued. The Corporation may from time to
time take such appropriate corporate
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action as may be necessary to reduce the authorized number of shares of the
Preferred Stock accordingly.
7. No Dilution or Impairment. Except as expressly provided herein,
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the Corporation 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 Preferred Stock set forth herein, but 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 holders of the Preferred Stock against dilution or other impairment.
Without limiting the generality of the foregoing, the Corporation (a) will
not increase the par value of any shares of stock receivable on the
conversion of the Preferred Stock above the amount payable therefor on such
conversion, (b) will take all such action as may be necessary or
appropriate in order that the Corporation may validly and legally issue
fully paid and non-assessable shares of stock on the conversion of all
Preferred Stock from time to time outstanding, (c) will not issue any
capital stock of any class which is preferred as to dividends or as to the
distribution of assets upon voluntary or involuntary dissolution,
liquidation or winding up of the Corporation, unless the rights of the
holders thereof shall be limited to a fixed sum or percentage of par value
in respect of participation in dividends and in any such distribution of
assets, and (d) will not transfer all or substantially all of its
properties and assets to any other person (corporate or otherwise), or
consolidate with or merge into any other person or permit any such person
to consolidate with or merge into the Corporation (if the Corporation is
not the surviving person), unless such other person shall expressly assume
in writing and will be bound by all the terms of the Preferred Stock set
forth herein.
8. Notices of Record Date. In the event of (a) any taking by the
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Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend or other distribution, or any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other securities
or property, or to receive any other right, or
(a) any capital reorganization of the Corporation, any
reclassification or recapitalization of the capital stock of the
Corporation, any merger or consolidation of the Corporation, or any
transfer of all or substantially all of the assets of the Corporation to
any other corporation, or any other entity or person, or
(b) any voluntary or involuntary dissolution, liquidation or
winding up of the Corporation, then and in each such event the Corporation
shall mail or cause to be mailed to each holder of Preferred Stock a notice
specifying (i) the date on which any such record is to be taken for the
purpose of such dividend, distribution or right and a description of such
dividend, distribution or right, (ii) the date on which any such
reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding up is expected
to become effective, (iii) the time, if any, that is to be fixed, as to
when the holders of record of Common Stock (or other securities) shall be
entitled to exchange their shares of Common Stock (or other securities) for
securities or other property deliverable upon such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
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dissolution, liquidation or winding up. Such notice shall be mailed at
least 30 days prior to the date specified in such notice on which such
action is to be taken.
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IN WITNESS WHEREOF, Helisys, Inc. has caused this Certificate of
Designation, Preferences and Rights of Series A Preferred Stock to be duly
executed by Michael Feygin, its President and Chief Executive Officer, and
attested to by Dave T. Okazaki, its Chief Financial Officer, this 18 day of
November, 1997.
HELISYS, INC.
By: /s/ MICHAEL FEYGIN
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Michael Feygin,
President and Chief Executive Officer
ATTEST:
By: /s/ DAVE T. OKAZAKI
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Dave T. Okazaki, Chief Financial Officer
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