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                                                        Exhibit 3.40


                                                     ENDORSED - FILED
                                         IN THE OFFICE OF THE SECRETARY OF STATE
                                                OF THE STATE OF CALIFORNIA

                                                        NOV - 5 2002

                                               BILL JONES, SECRETARY OF STATE

                   CERTIFICATE OF DETERMINATION OF PREFERENCES
                                       OF
                            SERIES MM PREFERRED STOCK
                                       OF
                                   DISC, INC.

         We, Robert W. Riland III and Henry Madrid, hereby certify that we are
the President and the Chief Financial Officer, respectively, of DISC, INC., a
corporation organized and existing under the General Corporation Law of the
State of California, and further, DO HEREBY CERTIFY:

         That pursuant to the authority conferred upon the Board of Directors
by the Articles of Incorporation of the said Corporation, said Board of
Directors on July 31, 2002 adopted resolutions creating 28,846 shares of
Preferred Stock designated as Series MM Preferred Stock (none of which shares
have been issued as of the date hereof) including the following resolution:

                  "RESOLVED: That pursuant to the authority vested in the Board
         of Directors of the corporation by the Articles of Incorporation, the
         Board of Directors does hereby provide for the issuance of a series of
         Preferred Stock, no par value, of the Corporation, to be designated
         "Series MM Preferred Stock," consisting of 28,846 shares and to the
         extent that the designations, powers, preferences and relative and
         other special rights and the qualifications, limitations and
         restrictions of the Series MM Preferred Stock are not stated and
         expressed in the Articles of Incorporation, does hereby fix and herein
         state and express such designations, powers, preferences and relative
         and other special rights and the qualifications, limitations and
         restrictions thereof."

         The Certificate of Determination of Preferences of Series MM Preferred
Stock is as follows (all terms used herein which are defined in the Articles of
Incorporation shall be deemed to have the meanings provided therein):

                  Section 1. Designation and Amount. The shares of such series
         shall be designated as "Series MM Preferred Stock," no par value, and
         the number of shares constituting such series shall be 28,846.

                  Section 2. Dividends and Distributions.

                           (A)      Subject to the prior and superior right of
         the holders of any shares of Series C Preferred Stock ranking prior and
         superior to the shares of Series MM Preferred Stock with respect to
         dividends, and pari passu with the rights of the holders of shares of
         Series D Preferred Stock, Series E Preferred Stock, Series F Preferred
         Stock, Series G Preferred Stock, Series H Preferred Stock, Series I
         Preferred Stock, Series J Preferred Stock, Series K Preferred Stock,
         Series L Preferred Stock, Series M Preferred Stock, Series N Preferred
         Stock, Series O Preferred Stock, Series P Preferred Stock, Series Q
         Preferred Stock, Series R Preferred Stock, Series S Preferred Stock,
         Series T Preferred Stock, Series U Preferred Stock, Series V Preferred
         Stock, Series W Preferred Stock, Series X Preferred Stock, Series Y
         Preferred Stock, Series Z Preferred Stock, Series AA Preferred Stock,
         Series BB Preferred Stock, Series CC Preferred Stock, Series DD
         Preferred Stock, Series EE Preferred Stock, Series FF Preferred Stock,
         Series GG Preferred Stock, Series HH Preferred Stock, Series II
         Preferred Stock, Series JJ Preferred Stock, Series KK Preferred Stock
         and

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         Series LL Preferred Stock with respect to dividends, subject to the
         rights of any series of Preferred Stock which may hereafter come into
         existence, the holders of shares of Series MM Preferred Stock shall be
         entitled to receive when, as and if declared by the Board of Directors
         out of funds legally available for the purpose, dividends in the same
         amount per share as declared on the Common Stock, treating such number
         of shares of Series MM Preferred Stock for this purpose as equal to the
         number of shares of Common Stock into which it is then convertible. In
         the event any dividends are declared or paid on the outstanding shares
         of Series D Preferred Stock, Series E Preferred Stock, Series F
         Preferred Stock, Series G Preferred Stock, Series H Preferred Stock,
         Series I Preferred Stock, Series J Preferred Stock, Series K Preferred
         Stock, Series L Preferred Stock, Series M Preferred Stock, Series N
         Preferred Stock, Series O Preferred Stock, Series P Preferred Stock,
         Series Q Preferred Stock, Series R Preferred Stock, Series S Preferred
         Stock, Series T Preferred Stock, Series U Preferred Stock, Series V
         Preferred Stock, Series W Preferred Stock, Series X Preferred Stock,
         Series Y Preferred Stock, Series Z Preferred Stock, Series AA Preferred
         Stock, Series BB Preferred Stock, Series CC Preferred Stock, Series DD
         Preferred Stock, Series EE Preferred Stock, Series FF Preferred Stock,
         Series GG Preferred Stock, Series HH Preferred Stock, Series II
         Preferred Stock, Series JJ Preferred Stock, Series KK Preferred Stock
         and Series LL Preferred Stock, dividends shall simultaneously be
         declared and paid on the outstanding shares of Series MM Preferred
         Stock, pari passu with the shares of Series D Preferred Stock, Series
         E Preferred Stock, Series F Preferred Stock, Series G Preferred Stock,
         Series H Preferred Stock, Series I Preferred Stock, Series J Preferred
         Stock, Series K Preferred Stock, Series L Preferred Stock, Series M
         Preferred Stock, Series N Preferred Stock, Series O Preferred Stock,
         Series P Preferred Stock, Series Q Preferred Stock, Series R Preferred
         Stock, Series S Preferred Stock, Series T Preferred Stock, Series U
         Preferred Stock, Series V Preferred Stock, Series W Preferred Stock,
         Series X Preferred Stock, Series Y Preferred Stock, Series Z Preferred
         Stock, Series AA Preferred Stock, Series BB Preferred Stock, Series CC
         Preferred Stock, Series DD Preferred Stock, Series EE Preferred Stock,
         Series FF Preferred Stock, Series GG Preferred Stock, Series HH
         Preferred Stock, Series II Preferred Stock, Series JJ Preferred Stock,
         Series KK Preferred Stock and Series LL Preferred Stock based upon the
         number of shares of Common Stock into which shares of Series D
         Preferred Stock, Series E Preferred Stock, Series F Preferred Stock,
         Series G Preferred Stock, Series H Preferred Stock, Series I Preferred
         Stock, Series J Preferred Stock, Series K Preferred Stock, Series L
         Preferred Stock, Series M Preferred Stock, Series N Preferred Stock,
         Series O Preferred Stock, Series P Preferred Stock, Series Q Preferred
         Stock, Series R Preferred Stock, Series S Preferred Stock, Series T
         Preferred Stock, Series U Preferred Stock, Series V Preferred Stock,
         Series W Preferred Stock, Series X Preferred Stock, Series Y Preferred
         Stock, Series Z Preferred Stock, Series AA Preferred Stock, Series BB
         Preferred Stock, Series CC Preferred Stock, Series DD Preferred Stock,
         Series EE Preferred Stock, Series FF Preferred Stock, Series GG
         Preferred Stock, Series HH Preferred Stock, Series II Preferred Stock,
         Series JJ Preferred Stock, Series KK Preferred Stock, Series LL
         Preferred Stock and Series MM Preferred Stock are then convertible. In
         the event the Corporation shall at any time after the date of the
         filing of the Certificate of Determination of Preferences (the "Rights
         Declaration Date") (i) declare any dividend on Common Stock payable in
         shares of Common Stock, (ii) subdivide the outstanding Common Stock, or
         (iii) combine the outstanding Common Stock into a smaller number of
         shares, then in each such case, the amount of Common Stock or other
         consideration to which holders of shares of Series MM Preferred Stock
         were entitled immediately prior to such event under the preceding
         sentence shall be adjusted as set forth in Section 4(C) hereof.

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                           (B)      The Corporation shall declare a dividend or
         distribution on the Series MM Preferred Stock as provided in paragraph
         (A) above prior to declaring a dividend payable on shares of Common
         Stock.

                  Section 3. Voting Rights. The holders of shares of Series MM
         Preferred Stock shall have the following voting rights:

                           (A)      Each holder of Series MM Preferred Stock is
         entitled to a number of votes equal to the number of shares of Common
         Stock into which the holder's Series MM Preferred Stock is then
         convertible. Except as provided by law, the Common Stock and Series MM
         Preferred Stock (and any series of Preferred Stock which may be
         subsequently authorized which is convertible into shares of Common
         Stock and which has voting rights equal to the number of shares of
         Common Stock into which such series of Preferred Stock is then
         convertible) shall vote together as a single class on all matters to
         come before the shareholders for approval. In the event the Corporation
         shall at any time after the Rights Declaration Date (i) declare any
         dividend on Common Stock payable in shares of Common Stock, (ii)
         subdivide the outstanding Common Stock, or (iii) combine the
         outstanding Common Stock into a smaller number of shares, then in each
         such case the number of votes per share to which holders of shares of
         Series MM Preferred Stock were entitled immediately prior to such event
         shall be adjusted as set forth in Section 4(C) hereof.

                           (B)      Except as otherwise provided herein or by
         law, the holders of shares of Series MM Preferred Stock and the holders
         of shares of Common Stock (and any series of Preferred Stock which may
         be subsequently authorized which is convertible into shares of Common
         Stock and which has voting rights equal to the number of shares of
         Common Stock into which such series of Preferred Stock is then
         convertible) shall vote together as one class on all matters submitted
         to a vote of shareholders of the Corporation.

                           (C)      Except as required by law or under Section 8
         hereof, holders of Series MM Preferred Stock shall have no special
         voting rights and their consent 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. Conversion Rights.

                           (A)      Each holder of Series MM Preferred Stock
         may, at any time, in such holder's sole discretion, convert all or any
         part of such holder's shares of Series MM Preferred Stock into fully
         paid and nonassessable shares of Common Stock at the rate of ten (10)
         shares of Common Stock for each share of Series MM Preferred Stock
         surrendered for conversion.

                           (B)      Such conversion may be effected by surrender
         of such holder's certificate or certificates for the shares of Series
         MM Preferred Stock to be converted, duly endorsed, at the principal
         office of the Corporation, with a written notice stating (i) that such
         holder elects to convert all or a specified number of shares of Series
         MM Preferred Stock into shares of Common Stock, and (ii) the name in
         which such holder desires a certificate for the shares of Common Stock
         to be issued. Promptly thereafter, the Company shall issue and deliver
         to such holder a certificate for the number of shares of Common Stock
         to which such holder shall be entitled. Such conversion shall be deemed
         to have been made at the close of

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         business on the date of such surrender, and such holder shall be
         treated for all purposes as the record holder of such shares of Common
         Stock on that date.

                           (C)      In the event the Corporation shall at any
         time after the Rights Declaration Date (i) declare any dividend on
         Common Stock payable in shares of Common Stock, (ii) subdivide the
         outstanding Common Stock, or (iii) combine the outstanding Common Stock
         into a smaller number of shares, then, in each case, the number of
         shares of Common Stock issuable upon the Conversion of each share of
         Series MM Preferred Stock shall be adjusted by multiplying such amount
         by a fraction, the numerator of which is the number of shares of Common
         Stock outstanding immediately after such event and the denominator of
         which is the number of shares of Common Stock that are outstanding
         immediately prior to such event.

                           (D)      In the event the Corporation shall at any
         time or from time to time after the Rights Declaration Date make or
         issue, or 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 or any of its subsidiaries, or of any
         other corporation or third party, other than in shares of Common Stock,
         then, in each such event, provisions shall be made so that the holders
         of Series MM Preferred Stock shall receive, upon the conversion
         thereof, securities of the Corporation or any of its subsidiaries or of
         any other corporation or third party which they would have received had
         their stock been converted into Common Stock on the date of such event.

                  Section 5. Reacquired Shares. Any shares of Series MM
         Preferred Stock purchased or otherwise acquired by the Corporation 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 Preferred Stock and may be
         reissued as part of a new series of Preferred Stock to be created by
         resolution or resolutions of the Board of Directors, subject to the
         conditions and restrictions on issuance set forth herein.

                  Section 6. Liquidation, Dissolution or Winding Up.

                           (A)      Upon any liquidation (voluntary or
         otherwise), dissolution or winding up of the Corporation, following the
         first priority liquidation preference of the Series C Preferred Stock
         in the amount of $5.00 per share plus any declared but unpaid
         dividends, and pari passu with the liquidation preference of the Series
         D Preferred Stock in the amount of $5.00 per share plus any declared
         but unpaid dividends ("Series D Liquidation Preference"), the
         liquidation preference of the Series E Preferred Stock in the amount of
         $4.00 per share plus any declared but unpaid dividends ("Series E
         Liquidation Preference"), the liquidation preference of the Series F
         Preferred Stock in the amount of $8.00 per share plus any declared but
         unpaid dividends ("Series F Liquidation Preference"), the liquidation
         preference of the Series G Preferred Stock in the amount of $20.00 per
         share plus any declared but unpaid dividends ("Series G Liquidation
         Preference"), the liquidation preference of the Series H Preferred
         Stock in the amount of $38.30 per share plus any declared but unpaid
         dividends ("Series H Liquidation Preference"), the liquidation
         preference of the Series I Preferred Stock in the amount of $4.19 per
         share plus any declared but unpaid dividends ("Series I Liquidation
         Preference"), the liquidation preference of the Series J Preferred
         Stock in the amount of $2.98 per share plus any declared but unpaid
         dividends ("Series J Liquidation Preference"), the liquidation
         preference of the Series K Preferred Stock in the amount of

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         $3.19 per share plus any declared but unpaid dividends ("Series K
         Liquidation Preference"), the liquidation preference of the Series L
         Preferred Stock in the amount of $2.76 per share plus any declared but
         unpaid dividends ("Series L Liquidation Preference"), the liquidation
         preference of the Series M Preferred Stock in the amount of $2.23 per
         share plus any declared but unpaid dividends ("Series M Liquidation
         Preference"), the liquidation preference of the Series N Preferred
         Stock in the amount of $.90 per share plus any declared but unpaid
         dividends ("Series N Liquidation Preference"), the liquidation
         preference of the Series O Preferred Stock in the amount of $1.06 per
         share plus any declared but unpaid dividends ("Series O Liquidation
         Preference"), the liquidation preference of the Series P Preferred
         Stock in the amount of $8.20 per share plus any declared but unpaid
         dividends ("Series P Liquidation Preference"), the liquidation
         preference of the Series Q Preferred Stock in the amount of $6.20 per
         share plus any declared but unpaid dividends ("Series Q Liquidation
         Preference"), the liquidation preference of the Series R Preferred
         Stock in the amount of $5.80 share plus any declared but unpaid
         dividends ("Series R Liquidation Preference"), the liquidation
         preference of the Series S Preferred Stock in the amount of $3.30 per
         share plus any declared but unpaid dividends ("Series S Liquidation
         Preference"), the liquidation preference of the Series T Preferred
         Stock in the amount of $20.20 per share plus any declared but unpaid
         dividends ("Series T Liquidation Preference"), the liquidation
         preference of the Series U Preferred Stock in the amount of $15.40 per
         share plus any declared but unpaid dividends ("Series U Liquidation
         Preference"), the liquidation preference of the Series V Preferred
         Stock in the amount of $10.60 per share plus any declared but unpaid
         dividends ("Series V Liquidation Preference"), the liquidation
         preference of the Series W Preferred Stock in the amount of $14.90 per
         share plus any declared but unpaid dividends ("Series W Liquidation
         Preference"), the liquidation preference of the Series X Preferred
         Stock in the amount of $25.00 per share plus any declared but unpaid
         dividends ("Series X Liquidation Preference"), the liquidation
         preference of the Series Y Preferred Stock in the amount of $19.10 per
         share plus any declared but unpaid dividends ("Series Y Liquidation
         Preference"), the liquidation preference of the Series Z Preferred
         Stock in the amount of $21.30 per share plus any declared but unpaid
         dividends ("Series Z Liquidation Preference"), the liquidation
         preference of the Series AA Preferred Stock in the amount of $18.10 per
         share plus any declared but unpaid dividends ("Series AA Liquidation
         Preference"), the liquidation preference of the Series BB Preferred
         Stock in the amount of $18.30 per share plus any declared but unpaid
         dividends ("Series BB Liquidation Preference"), the liquidation
         preference of the Series CC Preferred Stock in the amount of $16.20 per
         share plus any declared but unpaid dividends ("Series CC Liquidation
         Preference"), the liquidation preference of the Series DD Preferred
         Stock in the amount of $20.00 per share plus any declared but unpaid
         dividends ("Series DD Liquidation Preference"), the liquidation
         preference of the Series EE Preferred Stock in the amount of $11.10
         per share plus any declared but unpaid dividends ("Series EE
         Liquidation Preference"), the liquidation preference of the Series FF
         Preferred Stock in the amount of $9.70 per share plus any declared but
         unpaid dividends ("Series FF Liquidation Preference"), the liquidation
         preference of the Series GG Preferred Stock in the amount of $11.10
         per share plus any declared but unpaid dividends ("Series GG
         Liquidation Preference"), the liquidation preference of the Series HH
         Preferred Stock in the amount of $12.30 per share plus any declared but
         unpaid dividends ("Series HH Liquidation Preference"), the liquidation
         preference of the Series II Preferred Stock in the amount of $15.00 per
         share plus any declared but unpaid dividends ("Series II Liquidation
         Preference"), the liquidation preference of the Series JJ Preferred
         Stock in the amount of $14.50 per share plus any declared but unpaid
         dividends ("Series JJ Liquidation Preference"), the liquidation
         preference of the

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         Series KK Preferred Stock in the amount of $13.60 per share plus any
         declared but unpaid dividends ("Series KK Liquidation Preference"), and
         the liquidation preference of the Series LL Preferred Stock in the
         amount of $15.30 per share plus any declared but unpaid dividends
         ("Series LL Liquidation Preference"), no distribution shall be made to
         the holders of shares of stock ranking junior (either as to dividends
         or upon liquidation, dissolution or winding up) to the Series MM
         Preferred Stock unless, prior thereto, the holders of shares of Series
         MM Preferred Stock shall have received an amount equal to $10.40 per
         share of Series MM Preferred Stock plus any declared but unpaid
         dividends ("Series MM Liquidation Preference").

                           (B)      In the event, however, that there are not
         sufficient assets available to permit payment in full of the Series D
         Liquidation Preference, the Series E Liquidation Preference, the Series
         F Liquidation Preference, the Series G Liquidation Preference, the
         Series H Liquidation Preference, the Series I Liquidation Preference,
         the Series J Liquidation Preference, the Series K Liquidation
         Preference, the Series L Liquidation Preference, the Series M
         Liquidation Preference, the Series N Liquidation Preference, the Series
         O Liquidation Preference, the Series P Liquidation Preference, the
         Series Q Liquidation Preference, the Series R Liquidation Preference,
         the Series S Liquidation Preference, the Series T Liquidation
         Preference, the Series U Liquidation Preference, the Series V
         Liquidation Preference, the Series W Liquidation Preference, the Series
         X Liquidation Preference, the Series Y Liquidation Preference, the
         Series Z Liquidation Preference, the Series AA Liquidation Preference,
         the Series BB Liquidation Preference, the Series CC Liquidation
         Preference, the Series DD Liquidation Preference, the Series EE
         Liquidation Preference, the Series FF Liquidation Preference, the
         Series GG Liquidation Preference, the Series HH Liquidation Preference,
         the Series II Liquidation Preference, the Series JJ Liquidation
         Preference, the Series KK Liquidation Preference, the Series LL
         Liquidation Preference, the Series MM Liquidation Preference and the
         liquidation preferences of all other series of Preferred Stock, if any,
         which rank on a parity with the Series MM Preferred Stock, then such
         remaining assets shall be distributed ratably to the holders of such
         parity shares in proportion to their respective liquidation
         preferences.

                  Section 7. No Redemption. The shares of Series MM Preferred
         Stock shall not be redeemable.

                  Section 8. Amendment. The Articles of Incorporation of the
         Corporation shall not be further amended in any manner which would (a)
         alter or change the powers, preferences or special rights or privileges
         of the Series MM Preferred Stock so as to affect them adversely or (b)
         grant to any other class of shares any rights superior to those of the
         Series MM Preferred Stock without the affirmative vote of the holders
         of a majority or more of the outstanding shares of Series MM Preferred
         Stock, voting separately as a class.

                  Section 9. Fractional Shares. Series MM Preferred Stock may be
         issued in fractions of a share which shall entitle the holder, in
         proportion to such holder's fractional shares, to exercise voting
         rights, receive dividends, participate in distributions and to have the
         benefit of all other rights of holders of Series MM Preferred Stock.

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         The undersigned declare under penalty of perjury that the matters set
forth in the foregoing Certificate are true of their own knowledge.

         Executed at Milpitas, California on November 1, 2002.

                                           /s/ Robert W. Riland III
                                           -------------------------------------
                                           Robert W. Riland III
                                           President and Chief Executive Officer

                                           /s/ Henry Madrid
                                           -------------------------------------
                                           Henry Madrid
                                           Chief Financial Officer

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