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The following form of the Certificate of Designation replaces in its entirety
the form previously included as Exhibit 3.1.1(a) to Appendix A to the proxy
statement/prospectus included in the initial filing of this Registration
Statement on Form S-4. The actual form of the Certificate of Designation has not
been amended, but the registrant inadvertently previously filed the wrong form
of Certificate.
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EXHIBIT 3.5
FORM OF
CERTIFICATE OF DESIGNATION
OF
POWERS, PREFERENCES, RIGHTS, QUALIFICATIONS,
LIMITATIONS AND RESTRICTIONS
OF
SERIES H CONVERTIBLE PREFERRED STOCK
OF
EXABYTE CORPORATION
DESIGNATION OF SERIES H PREFERRED
1. Designation. Exabyte Corporation, a Delaware corporation (the
"Corporation"), hereby certifies that Ten Million (10,000,000) of authorized
shares of Preferred Stock are hereby designated "Series H Preferred Stock" (the
"Series H Preferred"). The rights, preferences, privileges, restrictions and
other matters relating to the Series H Preferred are as follows:
2. Voting Rights. Except as otherwise provided herein or as required by
law, the Series H Preferred shall vote with the shares of the Common Stock of
the Corporation (and not as a separate class) at any annual or special meeting
of stockholders of the Corporation, and may act by written consent in the same
manner as the Common Stock, in either case upon the following basis: each holder
of shares of Series H Preferred shall be entitled to such number of votes as
shall be equal to the whole number of shares of Common Stock into which such
holder's aggregate number of shares of Series H Preferred are convertible
(pursuant to Section 5 below) immediately after the close of business on the
record date fixed for such meeting or the effective date of such written
consent. Following the conversion of any Series H Preferred into Common Stock
pursuant to Section 5, the Common Stock so issued shall be voting Common Stock
as set forth in Article Fourth of the Restated Certificate of Incorporation, as
amended to date.
3. Liquidation Rights.
(a) Liquidation Value. Upon any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, before any distribution or
payment shall be made to the holders of any Common Stock and any other stock of
the Corporation that is not by its terms expressly senior to in right of payment
to the Series H Preferred (collectively, "Junior Stock"), the holders of Series
H Preferred, pari passu with the holders of any other capital stock ("Pari Passu
Stock") of the Corporation that is not Junior Stock or expressly senior in right
of payment with regards to any liquidation, dissolution or winding up of the
Corporation to the Series H Preferred, shall be entitled to be paid out of the
assets of the Corporation an amount with respect to each then outstanding share
of Series H Preferred equal to the Original Series H Issue Price (the "Series H
Liquidation Value").
(b) Proportionate Payments. If, upon any liquidation, dissolution or
winding up, the assets of the Corporation shall be insufficient to make payment
in full to all holders of Series H Preferred and Pari Passu Stock, then such
assets shall be distributed among the holders of Series H Preferred and Pari
Passu Stock at the time outstanding, ratably in proportion to the full amounts
to which they would otherwise be respectively entitled.
(c) Participation Rights. After the payment of the full liquidation
preference of the Series H Preferred and Pari Passu Stock as set forth in
Section 3(a) above, the remaining funds and other assets of the Corporation
legally available for distribution, if any, shall be distributed pro rata among
the holders of the Common Stock, the Pari Passu Stock and the Series H Preferred
on an as-converted basis.
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4. Redemption Rights.
(a) Optional Redemptions. Commencing on the second annual anniversary of
the Original Series H Issue Date, the Corporation shall have the right but not
the obligation to redeem some or all shares of the then-outstanding Series H
Preferred at a price per share equal to $3.00 (the "Redemption Value");
provided, however, that the Closing Price of the Common Stock on each of the 30
consecutive trading days prior to the date that the Corporation delivers notice
of a redemption pursuant to Section 4(c) below, shall be greater than the
Redemption Value.
(b) Redemption Payments. For each share of Series H Preferred which is to
be redeemed hereunder, the Corporation shall be obligated on the Scheduled
Redemption Date (as defined below) to pay to the holder thereof (upon surrender
by such holder at the Corporation's principal office of the certificate
representing such share) an amount in cash equal to the Redemption Value.
(c) Notice of Redemption. The Corporation shall mail written notice of
each redemption of Series H Preferred to each record holder thereof not more
than 60 nor less than 30 days prior to the date fixed for such purpose (the
"Scheduled Redemption Date"). The holders of Series H Preferred to be redeemed
shall in any event have the right to convert their shares into Common Stock at
any time prior to the close of business on the Scheduled Redemption Date. In
case fewer than the total number of shares represented by any certificate are
redeemed, a new certificate representing the number of unredeemed shares shall
be issued to the holder thereof without cost to such holder within five business
days after surrender of the certificate representing the redeemed shares.
(d) Determination of the Number of Shares to be Redeemed. The number of
shares of Series H Preferred to be redeemed from each holder thereof in
redemptions hereunder shall be the number of shares determined by multiplying
the total number of shares of Series H Preferred to be redeemed by a fraction,
the numerator of which shall be the total number of shares of Series H Preferred
then held by such holder and the denominator of which shall be the total number
of shares of Series H Preferred then outstanding.
5. Conversion Rights.
The holders of the Series H Preferred shall have the following rights with
respect to the conversion of the Series H Preferred into shares of Common Stock:
(a) Optional Conversion. Subject to and in compliance with the
provisions of this Section 5, any shares of Series H Preferred may, at the
option of the holder, be converted at any time into fully-paid and
nonassessable shares of Common Stock. The number of shares of Common Stock
to which a holder of Series H Preferred shall be entitled upon conversion
shall be the product obtained by multiplying the "Series H Conversion Rate"
then in effect (determined as provided in Section 5(b)) by the number of
shares of Series H Preferred being converted.
(b) Series H Conversion Rate. The conversion rate in effect at any
time for conversion of the Series H Preferred (the "Series H Conversion
Rate") shall be the quotient obtained by dividing the Original Series H
Issue Price by the "Series H Conversion Price" calculated as provided in
Section 5(c).
(c) Conversion Price. The conversion price for the Series H Preferred
(the "Series H Conversion Price") shall initially be One Dollar ($1.00), as
appropriately adjusted for any future stock splits, stock combinations,
stock dividends or similar transactions affecting the Series H Preferred.
Such initial Series H Conversion Price shall be adjusted from time to time
in accordance with this Section 5. All references to the Series H
Conversion Price herein shall mean the Series H Conversion Price as so
adjusted.
For purposes of determining the adjusted Series H Conversion Price, the
number of shares of Common Stock outstanding at any given time shall not include
shares owned or held by or for the account
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of the Corporation or any Subsidiary, and the disposition of any shares so owned
or held shall be considered an issue or sale of Common Stock.
(d) Adjustment for Stock Splits and Combinations. If the Corporation shall
at any time or from time to time after the Original Series H Issue Date effect a
subdivision of the outstanding Common Stock, the Series H Conversion Price in
effect immediately before that subdivision shall be proportionately decreased.
Conversely, if the Corporation shall at any time or from time to time after the
Original Series H Issue Date combine the outstanding shares of Common Stock into
a smaller number of shares, the Series H Conversion Price in effect immediately
before the combination shall be proportionately increased. Any adjustment under
this Section 5(d) shall become effective at the close of business on the date
the subdivision or combination becomes effective.
(e) Adjustment for Common Stock Dividends and Distributions. If the
Corporation at any time or from time to time after the Original Series H Issue
Date makes, or fixes a record date for the determination of holders of Common
Stock entitled to receive, a divided or other distribution payable in additional
shares of Common Stock, in each such event the Series H Conversion Price that is
then in effect shall be decreased as of the time of such issuance or, in the
event such record date is fixed, as of the close of business on such record
date, by multiplying the Series H Conversion Price then in effect by a fraction
(1) the numerator of which is the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date, and (2) the denominator of which is the total
number of shares of Common Stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record date plus the
number of shares of Common Stock issuable in payment of such dividend or
distribution; provided, however, that if such record date is fixed and such
dividend is not fully paid or if such distribution is not fully made on the date
fixed therefor, the Series H Conversion Price shall be recomputed accordingly as
of the close of business on such record date and thereafter the Series H
Conversion Price shall be adjusted pursuant to this Section 5(e) to reflect the
actual payment of such dividend or distribution.
(f) Adjustment for Reclassification, Exchange and Substitution. If at any
time or from time to time after the Original Series H Issue Date, the Common
Stock issuable upon the conversion of the Series H Preferred is changed into the
same or a different number of shares of any class or classes of stock, whether
by recapitalization, reclassification or otherwise (other than a subdivision or
combination of shares or stock dividend or a reorganization, merger,
consolidation or sale of assets provided for elsewhere in this Section 5), in
any such event each holder of Series H Preferred shall have the right thereafter
to convert such stock into the kind and amount of stock and other securities and
property receivable in connection with such recapitalization, reclassification
or other change by holders of the maximum number of shares of Common Stock into
which such shares of Series H Preferred could have been converted immediately
prior to such recapitalization, reclassification or change, all subject to
further adjustments as provided herein or with respect to such other securities
or property by the terms thereof.
(g) Reorganizations, Mergers, Consolidations or Sales of Assets. If at any
time or from time to time after the Original Series H Issue Date, there is a
capital reorganization of the Common Stock (other than a recapitalization,
subdivision, combination, reclassification, exchange or substitution of shares
provided for elsewhere in this Section 5) or, subject to Section 6(v), in the
case of any consolidation or merger of the Company with or into another
corporation or business entity (other than a consolidation or merger (i) with a
subsidiary in which the Company is the surviving corporation or (ii) which does
not result in any reclassification, capital reorganization or other change of
outstanding shares of Common Stock), as a part of such capital reorganization,
provision shall be made so that the holders of the Series H Preferred shall
thereafter be entitled to receive upon conversion of the Series H Preferred the
number of shares of stock or other securities or property of the Corporation to
which a holder of the maximum number of shares of Common Stock deliverable upon
conversion would have been entitled in connection with such transaction, subject
to adjustment in respect of such stock or securities by the terms thereof. In
any such case, appropriate adjustment shall be made in the application of the
provisions of this Section 5 with respect to the rights of the holders of Series
H Preferred after the transaction to the end that the provisions of this Section
5 (including adjustment of the Series H Conversion Price then in effect and the
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number of shares issuable upon conversion of the Series H Preferred) shall be
applicable after that event and be as nearly equivalent as practicable. Subject
to Section 6(v), in case of a consolidation or merger, the surviving or
successor corporation or other entity shall duly execute and deliver to each
Holder of the Series H Preferred a supplement hereto acknowledging such
corporation's or entity's obligations under this Section 5(g). The foregoing
provisions of this subsection 5(g) shall similarly apply to successive
reclassifications, capital reorganizations and other changes, consolidations or
merger.
(h) Certificate of Adjustment. In each case of an adjustment or
readjustment of the Series H Conversion Price for the number of shares of Common
Stock or other securities issuable upon conversion of the Series H Preferred,
the Corporation, at its expense, shall compute such adjustment or readjustment
in accordance with the provisions hereof and prepare a certificate showing such
adjustment or readjustment, and shall mail such certificate, by first class
mail, postage prepaid, to each registered holder of Series H Preferred at the
holder's address as shown in the Corporation's books. The certificate shall set
forth such adjustment or readjustment, showing in detail the facts upon which
such adjustment or readjustment is based, including a statement of (1) the
consideration received or deemed to be received by the Corporation for any
additional shares of Common Stock issued or sold or deemed to have been issued
or sold, (2) the Series H Conversion Price at the time in effect, (3) the number
of additional shares of Common Stock issued or sold or deemed to have been
issued or sold, and (4) the type and amount, if any, of other property which at
the time would be received upon conversion of the Series H Preferred. The
Company shall provide each Holder of the Series H Preferred with not less than
10 days prior written notice of any event, other than an Acquisition or Asset
Transfer, resulting in an adjustment under Section 5. With respect to a proposed
Acquisition or Asset Transfer, the holders of the Series H Preferred shall be
given sufficient notice of such event so that they will have a minimum of 30
days to consider whether or not to consent to such proposed Acquisition or Asset
Transfer pursuant to Section 6.
(i) Mechanics of Conversion. Each holder of Series H Preferred who desires
to convert the same into shares of Common Stock pursuant to this Section 5 shall
surrender the certificate or certificates therefor, duly endorsed, at the office
of the Corporation or any transfer agent for the Series H Preferred, and shall
give written notice to the Corporation at such office that such holder elects to
convert the same. Such notice shall state the number of shares of Series H
Preferred being converted. Thereupon, the Corporation shall promptly issue and
deliver at such office to such holder a certificate or certificates for the
number of shares of Common Stock to which such holder is entitled. Such
conversion shall be deemed to have been made at the close of business on the
date of such surrender of the certificate representing the shares of Series H
Preferred to be converted, and the person entitled to receive the shares of
Common Stock issuable upon such conversion shall be treated for all purposes as
the record holder of such shares of Common Stock on such date.
(j) Fractional Shares. No fractional shares of Common Stock shall be
issued upon conversion of Series H Preferred. All shares of Common Stock
(including fractions thereof) issuable upon conversion of more than one share of
Series H Preferred by a holder thereof shall be aggregated for purposes of
determination whether the conversion would result in the issuance of any
fractional share. If, after the aforementioned aggregation, the conversion would
result in the issuance of any fractional share, the Corporation shall, in lieu
of issuing any fractional share, pay cash equal to the product of such fraction
multiplied by the Common Stock's fair market value (as determined by the Board)
on the date of conversion.
6. Protective Provisions. In addition to any other rights provided by law
or in the Restated Certificate of Incorporation, so long as any shares of Series
H Preferred shall be outstanding, the Corporation shall not, without first
obtaining the affirmative vote or written consent of the holders of not less
than a majority of the outstanding shares of the Series H Preferred Stock, which
consent in each case
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shall not be unreasonably withheld or delayed (provided that the Holders are
given not less than 30 days to consider such proposed actions), take any of the
following actions:
(i) any amendment or change of the rights, preferences, privileges or
powers of, or the restrictions provided for the benefit of, the Series H
Preferred that adversely affects such rights, preferences, privileges or
powers of the Series H Preferred;
(ii) any action that authorizes, creates or issues shares of any class
of stock having preferences superior to the Series H Preferred;
(iii) any action that reclassifies any outstanding shares into shares
having preferences or priority as to dividends or assets senior to the
preference of the Series H Preferred Stock;
(iv) any amendment of the Company's Restated Certificate of
Incorporation that adversely affects the rights of the Series H Preferred;
or
(v) any Acquisition or Asset Transfer.
7. Certain Definitions.
"Acquisition" means any merger, consolidation, business combination,
reorganization or recapitalization of the Corporation (including, without
limitation, pursuant to a tender offer) in any single transaction or series of
related transactions in any such case in which the stockholders of the
Corporation immediately prior to such transaction own capital stock representing
less than fifty percent (50%) of the Corporation's voting power immediately
after such transaction, or any transaction or series of related transactions in
which capital stock representing in excess of fifty percent (50%) of the
Corporation's voting power is transferred.
"Asset Transfer" means any sale, lease or other disposition of all or
substantially all of the assets of the Corporation.
"Closing Price" means the closing bid price of the Common Stock on the
principal United States securities exchange or trading market on which such
security is listed or traded as reported by Nasdaq, or if the foregoing does not
apply, the last reported bid price of such security in the over-the-counter
market on the electronic bulletin board for such security.
"Common Stock" means the Company's authorized common stock, $.001 par value
per share.
"Original Series H Issue Date" means [ , 2001.]
"Original Series H Issue Price" means One Dollar ($1.00) per share.
"Subsidiary" means any corporation of which the shares of outstanding
capital stock possessing the voting power (under ordinary circumstances) in
electing the board of directors are, at the time as of which any determination
is being made, owned by the Corporation either directly or indirectly through
Subsidiaries.
8. Amendment and Waiver.
No amendment, modification or waiver of any of the terms or provisions of
the Series H Preferred shall be binding or effective without the prior written
consent of the holders of a majority of the then outstanding shares of Series H
Preferred (the "Required Holders"). Any amendment, modification or waiver of any
of the terms or provisions of the Series H Preferred by the Required Holders,
whether prospective or retroactively effective, shall be binding upon all
holders of Series H Preferred Stock.
9. General Provisions.
(a) Registration of Transfer. The Corporation shall keep at its principal
office a register for the registration of the Series H Preferred. Upon the
surrender of any certificate representing Series H Preferred at such place, the
Corporation shall, at the request of the record holder of such certificate,
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execute and deliver (at the Corporation's expense) a new certificate or
certificates in exchange therefor representing in the aggregate the number of
shares represented by the surrendered certificate. Each such new certificate
shall be registered in such name and shall represent such number of shares as is
requested by the holder of the surrendered certificate and shall be
substantially identical in form to the surrendered certificate.
(b) Replacement. Upon receipt of evidence reasonably satisfactory to the
Corporation (an affidavit of the registered holder shall be satisfactory) of the
ownership and the loss, theft, destruction or mutilation of any certificate
evidencing shares of Series H Preferred, and in the case of any such loss, theft
or destruction, upon receipt of indemnity reasonably satisfactory to the
Corporation (provided that if the holder is a financial institution or other
institutional investor its own agreement shall be satisfactory), or in the case
of any such mutilation upon surrender of such certificate, the Corporation shall
(at its expense) execute and deliver in lieu of such certificate a new
certificate of like kind representing the number of shares of such class
represented by such lost, stolen, destroyed or mutilated certificate and dated
the date of such lost, stolen, destroyed or mutilated certificate.
(c) Reservation of Common Stock Issuable Upon Conversion. The Corporation
shall at all 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 Series H Preferred, 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 Series H Preferred. 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 Series H Preferred, the
Corporation will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such purpose.
(d) Notices. Any notice required by the provisions of this Certificate of
Designation shall be in writing and shall be deemed effectively given: (i) upon
personal delivery to the party to be notified, (ii) when sent by confirmed telex
or facsimile if sent during normal business hours of the recipient; if not, then
on the next business day, (iii) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid, or (iv)
one (1) day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All notices
to stockholders shall be addressed to each holder of record at the address of
such holder appearing on the books of the Corporation.
(e) Payment of Taxes. The Corporation will pay all taxes (other than taxes
based upon income) and other governmental charges that may be imposed with
respect to the issue or delivery of shares of Common Stock upon conversion of
shares of Series H Preferred, excluding any tax or other charge imposed in
connection with any transfer involved in the issue and delivery of shares of
Common Stock in a name other than that in which the shares of Series H Preferred
so converted were registered.
(f) No Dilution or Impairment. The Corporation shall not amend its
Restated Certificate of Incorporation or participate in any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, for the purpose of avoiding or seeking
to avoid the observance or performance of any of the terms to be observed or
performed hereunder by the Corporation.
(g) No Reissuance of Series H Preferred. No share or shares of Series H
Preferred acquired by the Corporation by reason of redemption, purchase,
conversion or otherwise shall be reissued.
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