Exhibit 3.1
CERTIFICATE OF DESIGNATION
OF THE
SERIES A PREFERRED STOCK
OF
DIGIMARC CORPORATION
The undersigned officers of Digimarc
Corporation, a Delaware corporation (the “ Corporation
”), DO HEREBY CERTIFY:
That, pursuant to the authority
conferred upon the Board of Directors of the Corporation by its
Second Amended and Restated Certificate of Incorporation, as
amended (the “ Certificate of Incorporation ”),
the said Board of Directors, at a duly called meeting held
on November 16, 2004, at which a quorum was present and acted
throughout, adopted the following resolution, which resolution
remains in full force and effect on the date hereof, creating a
series of Preferred Stock having a par value of $.001 per share,
designated as Series A Preferred Stock (the “ Series A
Preferred Stock ”), out of the Corporation’s shares
of preferred stock of the par value of $.001 per share (the
“ Preferred Stock ”):
RESOLVED, that pursuant to the
authority vested in the Board of Directors in accordance with the
provisions of its Certificate of Incorporation, the Board of
Directors does hereby create, authorize and provide for 300,000
shares of its authorized Preferred Stock to be designated and
issued as the “Series A Preferred Stock”, having the
voting powers, designation, relative, participating, optional and
other special rights, preferences and qualifications, limitations
and restrictions that are set forth as follows:
1.
Dividends and
Distributions .
(A)
Subject to the prior and superior
rights of the holders of any shares of any other series of
Preferred Stock or any other shares of stock of the Corporation
ranking prior and superior to the shares of Series A Preferred
Stock with respect to dividends, each holder of one one-hundredth
(1/100) of a share (a “ Unit ”) of Series A
Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available
for that purpose, (i) quarterly dividends payable in cash on
the last day of February, May, August and November in each year
(each such date being a “ Quarterly Dividend Payment
Date ”), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a Unit of Series A
Preferred Stock, in an amount per Unit (rounded to the nearest
cent) equal to the greater of (a) $0.01 or
(b) subject to the provision for adjustment hereinafter set
forth, the aggregate per share amount of all cash dividends
declared on shares of the Common Stock since the immediately
preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of
a Unit of Series A Preferred Stock, and (ii) subject to the
provision for adjustment hereinafter set forth, quarterly
distributions (payable in kind) on each Quarterly Dividend Payment
Date in an amount per Unit equal to the aggregate per share amount
of all non-cash dividends or other distributions (other than a
dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock, by reclassification or
otherwise) declared on shares of Common Stock since the immediately
preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend
Payment Date, since the first issuance of a Unit
of Series A Preferred Stock. In the event that the
Corporation shall at any time after November 16, 2004 (the
“ Rights Declaration Date ”) (i) declare
any dividend on outstanding shares of Common Stock payable in
shares of Common Stock, (ii) subdivide outstanding shares of
Common Stock or (iii) combine outstanding shares of Common
Stock into a smaller number of shares, then in each such case the
amount to which the holder of a Unit of Series A Preferred Stock
was entitled immediately prior to such event under clause
(b) or clause (ii) of the preceding sentence shall be adjusted
by multiplying such amount by a fraction (y) the numerator of which
shall be the number of shares of Common Stock that are outstanding
immediately after such event and (z) the denominator of which shall
be the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B)
The Corporation shall declare a
dividend or distribution on Units of Series A Preferred Stock as
provided in paragraph (A) above immediately after it declares
a dividend or distribution on the shares of Common Stock (other
than a dividend payable in shares of Common Stock or a subdivision
of the outstanding shares of Common Stock, by reclassification or
otherwise); provided , however , that, in the event
no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date
and the next subsequent Quarterly Dividend Payment Date, a dividend
of $0.01 per Unit on the Series A Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(C)
Dividends shall begin to accrue and
shall be cumulative on each outstanding Unit of Series A Preferred
Stock from the Quarterly Dividend Payment Date next preceding the
date of issuance of a Unit of Series A Preferred Stock, unless the
date of issuance of such Unit is prior to the record date for the
first Quarterly Dividend Payment Date, in which case dividends on
such Unit shall begin to accrue from the date of issuance of such
Unit, or unless the date of issuance is a Quarterly Dividend
Payment Date or is a date after the record date for the
determination of holders of Units of Series A Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall not
bear interest. Dividends paid on Units of Series A Preferred
Stock in an amount less than the aggregate amount of all such
dividends at the time accrued and payable on such Units shall be
allocated pro rata on a Unit-by-Unit basis among all Units of
Series A Preferred Stock at the time outstanding. The Board
of Directors may fix a record date for the determination of holders
of Units of Series A Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date
shall be no more than 30 days prior to the date fixed for the
payment thereof.
2.
Voting Rights
. The holders of Units of
Series A Preferred Stock shall have the following voting
rights:
(A)
Subject to the provision for
adjustment hereinafter set forth, each Unit of Series A Preferred
Stock shall entitle the holder thereof to one vote on all matters
submitted to a vote of the stockholders of the Corporation.
In the event the Corporation shall, at any time after the Rights
Declaration Date, (i) declare any dividend on outstanding
shares of Common Stock payable
