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EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION OF
ANDA NETWORKS, INC.
(PURSUANT TO SECTIONS 242 AND 245 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE)
Anda Networks, Inc., a corporation organized and existing under
and by virtue of the provisions of the General Corporation Law of the State of
Delaware (the "General Corporation Law"),
DOES HEREBY CERTIFY:
FIRST: That the name of this corporation is Anda Networks, Inc.
and that this corporation was originally incorporated pursuant to the General
Corporation Law on January 28, 1998 under the name PackeTel Inc.
SECOND: That the Board of Directors duly adopted resolutions
proposing to amend and restate the Certificate of Incorporation of this
corporation, declaring said amendment and restatement to be advisable and in the
best interests of this corporation, which resolution setting forth the proposed
amendment and restatement is as follows:
RESOLVED, that the Certificate of Incorporation of this
corporation be amended and restated in its entirety as follows:
ARTICLE I
The name of this corporation is Anda Networks, Inc.
ARTICLE II
The address of the registered office of this corporation in the
State of Delaware is 15 E. North Street, in the City of Dover, County of Kent.
The name of its registered agent at such address is Incorporating Services, Ltd.
ARTICLE III
The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
ARTICLE IV
A. Classes of Stock. This corporation is authorized to issue two
classes of stock to be designated, respectively, "Common Stock" and "Preferred
Stock."
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The total number of shares that this corporation is authorized to issue is
eighty-nine million, eight hundred forty-eight thousand, two hundred and fifty
seven (89,848,257) shares. Fifty-eight million (58,000,000) shares shall be
Common Stock and thirty-one million eight hundred forty-eight thousand two
hundred and fifty-seven (31,848,257) shares shall be Preferred Stock, each with
a par value of $0.0001 per share.
B. Rights, Preferences and Restrictions of Preferred Stock. The
Preferred Stock authorized by this Restated Certificate of Incorporation may be
issued from time to time in one or more series. The rights, preferences,
privileges, and restrictions granted to and imposed on the Series A Preferred
Stock, which series shall consist of five million six hundred thousand
(5,600,000) shares (the "Series A Preferred Stock"), Series B Preferred Stock,
which series shall consist of nine million, eight hundred seventy-three thousand
two hundred and fifty-seven (9,873,257) shares (the "Series B Preferred Stock"),
the Series C Preferred Stock, which series shall consist of eleven million
twenty-five thousand (11,025,000) shares (the "Series C Preferred Stock") and
the Series D Preferred Stock, which series shall consist of five million three
hundred and fifty thousand (5,350,000) shares (the "Series D Preferred Stock"),
are as set forth below in this Article IV(B).
1. Dividend Provisions. The holders of shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock shall be entitled to receive dividends, out of any assets
legally available therefor, prior and in preference to any declaration or
payment of any dividend (payable other than in Common Stock or other securities
and rights convertible into or entitling the holder thereof to receive, directly
or indirectly, additional shares of Common Stock of this corporation) on the
Common Stock of this corporation, at the rate of $0.02 per share per annum for
the Series A Preferred Stock, $0.03 per share per annum for the Series B
Preferred Stock, $0.20 per share per annum for the Series C Preferred Stock,
$1.37 per share per annum for the Series D Preferred Stock (each amount as
adjusted for any stock splits, stock dividends, recapitalizations or the like)
or, if greater (as determined on a per annum basis and on an as converted basis
for the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock), an amount equal to that paid on any other
outstanding shares of this corporation, payable when, as, and if declared by the
Board of Directors. Such dividends shall not be cumulative. The holders of each
of the outstanding Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock (voting as separate series and on
an as converted basis) can waive any dividend preference that holders of each
such series of Preferred Stock shall be entitled to receive under this Section 1
upon the affirmative vote or written consent of the holders of a majority of
each such series of Preferred Stock then outstanding.
2. Liquidation Preference.
(a) In the event of any liquidation, dissolution or
winding up of this corporation, either voluntary or involuntary, the holders of
Series A Preferred Stock,
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Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock
shall be entitled to receive, prior and in preference to any distribution of any
of the assets of this corporation to the holders of Common Stock by reason of
their ownership thereof, (A) in the case of the Series A Preferred Stock, an
amount per share equal to the sum of (i) $0.25 for each outstanding share of
Series A Preferred Stock (the "Original Series A Issue Price"), and (ii) an
amount equal to declared but unpaid dividends on such share (as adjusted for any
stock splits, stock dividends, recapitalizations or the like), (B) in the case
of the Series B Preferred Stock, an amount per share equal to the sum of (i)
$0.333 for each outstanding share of Series B Preferred Stock (the "Original
Series B Issue Price"), and (ii) an amount equal to declared but unpaid
dividends on such share (as adjusted for any stock splits, stock dividends,
recapitalizations or the like), (C) in the case of the Series C Preferred Stock,
an amount per share equal to the sum of (i) $2.00 for each outstanding share of
Series C Preferred Stock (the "Original Series C Issue Price"), and (ii) an
amount equal to declared but unpaid dividends on such share, and (D) in the case
of the Series D Preferred Stock, an amount per share equal to the sum of (i)
$13.72 for each outstanding share (as adjusted for any stock splits, stock
dividends, reoptimizations or the like) of Series D Preferred Stock (the
"Original Series D Issue Price"), and (ii) an amount equal to declared but
unpaid dividends on such share (as adjusted for any stock splits, stock
dividends, recapitalizations or the like). If upon the occurrence of such event,
the assets and funds thus distributed among the holders of the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock shall be insufficient to permit the payment to such holders of
the full aforesaid preferential amounts, then the entire assets and funds of
this corporation legally available for distribution shall be distributed ratably
among the holders of the Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock so that each holder
receives the same percentage of the applicable preferential amount.
(b) Upon the completion of the distribution required by
subsection (a) of this Section 2, the remaining assets of this corporation
available for distribution to stockholders shall be distributed among the
holders of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock and Common Stock pro rata based on the
number of shares of Common Stock held by each (assuming full conversion of all
such Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock) until (i) with respect to the holders of
Series A Preferred Stock, such holders shall have received an aggregate of $0.50
per share (as adjusted for any stock splits, stock dividends, recapitalizations
or the like) (including amounts paid pursuant to subsection (a) of this Section
2), (ii) with respect to the holders of Series B Preferred Stock, such holders
shall have received an aggregate of $0.66 per share (as adjusted for any stock
splits, stock dividends, recapitalizations or the like) (including amounts paid
pursuant to subsection (a) of this Section 2), (iii) with respect to the holders
of Series C Preferred Stock, such holders shall have received an aggregate of
$4.00 per share (as adjusted for any stock splits, stock dividends,
recapitalizations or the like) (including amounts paid pursuant to subsection
(a) of this Section 2), and (iv) with respect to the holders of Series D
Preferred Stock, such holders shall have received an aggregate of $27.44 per
share (as adjusted for any
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stock splits, stock dividends, recapitalizations or the like) (including amounts
paid pursuant to subsection (a) of this Section 2); thereafter, the holders of
the Common Stock of this corporation shall receive all of the remaining assets
of this corporation pro rata based on the number of shares of Common Stock held
by each. Nothing in this Section 2 shall be deemed to limit the right of a
holder from converting shares of Preferred Stock into shares of Common Stock
prior to a distribution under this Section 2.
(c) (i) For purposes of this Section 2, a liquidation,
dissolution or winding up of this corporation shall be deemed to be occasioned
by, or to include, (A) the acquisition of this corporation by another entity by
means of any transaction or series of related transactions (including, without
limitation, any reorganization, merger or consolidation) that results in the
transfer of fifty percent (50%) or more of the outstanding voting power of this
corporation; or (B) a sale of all or substantially all of the assets of this
corporation.
(ii) In any of such events, if the consideration
received by this corporation is other than cash, its value will be deemed its
fair market value. Any securities shall be valued as follows:
(A) Securities not subject to investment
letter or other similar restrictions on free marketability covered by (B) below:
(1) If traded on a securities
exchange or through the Nasdaq National Market, the value shall be deemed to be
the average of the closing prices of the securities on such exchange or system
over the thirty (30) day period ending three (3) days prior to the closing;
(2) If actively traded
over-the-counter, the value shall be deemed to be the average of the closing bid
or sale prices (whichever is applicable) over the thirty (30) day period ending
three (3) days prior to the closing; and
(3) If there is no active public
market, the value shall be the fair market value thereof, as mutually determined
by this corporation and the holders of a majority of the voting power of all
then outstanding shares of Preferred Stock.
(B) The method of valuation of securities
subject to investment letter or other restrictions on free marketability (other
than restrictions arising solely by virtue of a stockholder's status as an
affiliate or former affiliate) shall be to make an appropriate discount from the
market value determined as above in (A) (1), (2) or (3) to reflect the
approximate fair market value thereof, as mutually determined by this
corporation and the holders of at least a majority of the voting power of all
then outstanding shares of such Preferred Stock.
(iii) In the event the requirements of this
subsection 2(c) are not complied with, this corporation shall forthwith either:
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(A) cause such closing to be postponed until
such time as the requirements of this Section 2 have been complied with; or
(B) cancel such transaction, in which event
the rights, preferences and privileges of the holders of the Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock shall revert to and be the same as such rights, preferences and privileges
existing immediately prior to the date of the first notice referred to in
subsection 2(c)(iv) hereof.
(iv) This corporation shall give each holder of
record of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock written notice of such impending transaction
not later than twenty (20) days prior to the stockholders' meeting called to
approve such transaction, or twenty (20) days prior to the closing of such
transaction, whichever is earlier, and shall also notify such holders in writing
of the final approval of such transaction. The first of such notices shall
describe the material terms and conditions of the impending transaction and the
provisions of this Section 2, and this corporation shall thereafter give such
holders prompt notice of any material changes. The transaction shall in no event
take place sooner than twenty (20) days after this corporation has given the
first notice provided for herein or sooner than ten (10) days after this
corporation has given notice of any material changes provided for herein;
provided, however, that such periods may be shortened upon the written consent
of the holders of Preferred Stock that are entitled to such notice rights or
similar notice rights and that represent a majority of the voting power of all
then outstanding shares of such Preferred Stock.
3. Redemption.
(a) At any time after March 24, 2005, but within sixty
(60) days after the receipt by this corporation of a written request from the
holders of not less than sixty-six and two-thirds percent (66 2/3%) of the then
outstanding Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock (voting together as a single class
and not as separate series and on an as-converted basis) that all or, if less
than all, a specified percentage of such holders' shares of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock (which percentage shall be the same for the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock)
be redeemed, this corporation shall, to the extent it may lawfully do so, redeem
in three (3) equal annual installments (each payment date being referred to
herein as a "Redemption Date") the shares specified in such request, and all
other specified pursuant to the notice provisions of Section 3(b) hereof, by
paying in cash therefor an amount (i) per share of Series A Preferred Stock (the
"Series A Redemption Price") equal to the sum of (1) $0.25 per share (as
adjusted for any stock splits, stock dividends, recapitalizations or the like),
(2) all declared but unpaid dividends on such share, and (3) an amount equal to
ten percent of the Original Series A Issue Price per annum, compounded annually
from the Purchase Date (as defined below), (ii) per share of Series B Preferred
Stock (the
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"Series B Redemption Price") equal to the sum of (1) $0.333 per share (as
adjusted for any stock splits, stock dividends, recapitalizations or the like),
(2) all declared but unpaid dividends on such share, and (3) an amount equal to
ten percent of the Original Series B Issue Price per annum, compounded annually
from the Purchase Date (as defined below), (iii) per share of Series C Preferred
Stock (the "Series C Redemption Price") equal to the sum of (1) $2.00 per share
(as adjusted for any stock splits, stock dividends, recapitalizations or the
like), (2) all declared but unpaid dividends on such share, and (3) an amount
equal to ten percent of the Original Series C Issue Price per annum, compounded
annually from the Purchase Date (as defined below) and (iv) per share of Series
D Preferred Stock (the "Series D Redemption Price") equal to the sum of (1)
$13.72 per share (as adjusted for any stock splits, stock dividends,
recapitalizations or the like), (2) all declared but unpaid dividends on such
share and (3) an amount equal to ten percent of the Original Series D Issue
Price per annum, compounded annually from the Purchase Date (as defined below).
Any redemption of the Series A Preferred Stock, Series B Preferred Stock and
Series D Preferred Stock effected pursuant to this subsection 3(a) shall be made
on a pro rata basis among the holders of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock in
proportion to the full applicable Redemption Price each such holder is otherwise
entitled to receive under this subsection (a).
(b) At least fifteen (15) but no more than thirty (30)
days prior to each Redemption Date, written notice shall be mailed, first class
postage prepaid, to each holder of record (at the close of business on the
business day next preceding the day on which notice is given) of the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock, at the address last shown on the records of this corporation
for such holder, notifying such holder of the redemption to be effected,
specifying the Redemption Date, the Redemption Price, the place at which payment
may be obtained and calling upon such holder to surrender to this corporation,
in the manner and at the place designated, his, her or its certificate or
certificates representing the number of shares it desires to redeem (the
"Redemption Notice"). Except as provided in subsection (3)(c), on or after the
Redemption Date, each holder of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock or Series D Preferred Stock who desires to have
shares redeemed shall surrender to this corporation the certificate or
certificates representing such shares, in the manner and at the place designated
in the Redemption Notice, and thereupon the applicable Redemption Price of such
shares shall be payable to the order of the person whose name appears on such
certificate or certificates as the owner thereof and each surrendered
certificate shall be cancelled. In the event less than all the shares
represented by any such certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares in a reasonable time period or after
such redemption.
(c) From and after the Redemption Date, unless there shall
have been a default in payment of the Redemption Price, all rights of the
holders of shares of Series A Preferred Stock, Series B Preferred Stock, Series
C Preferred Stock and Series D Preferred Stock designated for redemption in the
Redemption Notice as
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holders of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock, respectively (except the right to
receive the applicable Redemption Price without interest upon surrender of their
certificate or certificates) shall cease with respect to such shares, and such
shares shall not thereafter be transferred on the books of this corporation or
be deemed to be outstanding for any purpose whatsoever. If the funds of this
corporation legally available for redemption of shares of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock on the Redemption Date are insufficient to redeem the total number of
shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock delivered to the Company for redemption on
such date, those funds that are legally available will be used to redeem the
maximum possible number of such shares ratably among the holders of such shares
to be redeemed such that each holder of a share of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock
receives the same percentage of the applicable Redemption Price. The shares of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock not redeemed (including shares to be redeemed in
subsequent installments) shall remain outstanding and entitled to all the rights
and preferences provided herein. At any time thereafter when additional funds of
this corporation are legally available for the redemption of shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock, such funds will immediately be used to redeem the balance of
the shares that this corporation has become obliged to redeem on any Redemption
Date but that it has not redeemed.
4. Conversion. The holders of the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock
shall have conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock shall be convertible, at the option of the holder thereof, at any time
after the date of issuance of such share and on or prior to the fifth day prior
to the Redemption Date, if any, as may have been fixed in any Redemption Notice
with respect to such share of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock or Series D Preferred Stock, at the office of
this corporation or any transfer agent for such stock, into such number of fully
paid and nonassessable shares of Common Stock as is determined by dividing the
Original Issue Price for such series by the Conversion Price applicable to such
share, determined as hereafter provided, in effect on the date the certificate
is surrendered for conversion. The initial Conversion Price per share for shares
of Series A Preferred Stock shall be the Original Series A Issue Price, the
initial Conversion Price per share for shares of Series B Preferred Stock shall
be the Original Series B Issue Price, the initial Conversion Price per share for
shares of Series C Preferred Stock shall be the Original Series C Issue Price
and the initial Conversion Price per share for the shares of Series D Preferred
Stock shall be the Original Series D Issue Price; provided, however, that the
Conversion Price for the Series A Preferred Stock, Series B Preferred Stock,
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Series C Preferred Stock and Series D Preferred Stock shall be subject to
adjustment as set forth in subsection 4(d).
(b) Automatic Conversion. Each share of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock shall automatically be converted into shares of Common Stock at the
Conversion Price at the time in effect for such series immediately upon the
earlier of (i) this corporation's sale of its Common Stock in a firm commitment
underwritten public offering pursuant to a registration statement on Form S-1 or
Form SB-2 under the Securities Act of 1933, as amended, filed with the
Securities and Exchange Commission before March 24, 2001, the public offering
price of which was not less than $13.72 per share (as adjusted for any stock
splits, stock dividends, recapitalizations or the like) and $15,000,000 in the
aggregate; (ii) this corporation's sale of its Common Stock in a firm commitment
underwritten public offering pursuant to a registration statement on Form S-1 or
Form SB-2 under the Securities Act of 1933, as amended, the public offering
price of which was not less than $20.58 per share (as adjusted for any stock
splits, stock dividends, recapitalizations or the like) and $15,000,000 in the
aggregate; or (iii) the date specified by written consent or agreement of the
holders of a majority of the then outstanding shares of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock (voting together as a single class and not as separate series and on an
as-converted basis).
(c) Mechanics of Conversion. Before any holder of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D
Preferred Stock shall be entitled to convert the same into shares of Common
Stock, he or she shall surrender the certificate or certificates therefor, duly
endorsed, at the office of this corporation or of any transfer agent for the
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
the Series D Preferred Stock, and shall give written notice to this corporation
at its principal corporate office, of the election to convert the same and shall
state therein the name or names in which the certificate or certificates for
shares of Common Stock are to be issued. This corporation shall, as soon as
practicable thereafter, issue and deliver at such office to such holder of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or
Series D Preferred Stock, or to the nominee or nominees of such holder, a
certificate or certificates for the number of shares of Common Stock to which
such holder shall be entitled as aforesaid. Such conversion shall be deemed to
have been made immediately prior to the close of business on the date of such
surrender of the shares of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock or Series D Preferred Stock to be converted, and the
person or persons entitled to receive the shares of Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock as of such date. If the conversion is in
connection with an underwritten offering of securities registered pursuant to
the Securities Act of 1933, the conversion may, at the option of any holder
tendering Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock or Series D Preferred Stock for conversion, be conditioned upon the
closing with the underwriters of the sale of securities pursuant to such
offering, in
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which event the persons entitled to receive the Common Stock upon conversion of
the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock
or the Series D Preferred Stock shall not be deemed to have converted such
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or
Series D Preferred Stock until immediately prior to the closing of such sale of
securities.
(d) Conversion Price Adjustments of Preferred Stock for
Certain Dilutive Issuances, Splits and Combinations. The Conversion Price of the
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock shall be subject to adjustment from time to time as
follows:
(i) (A) If this corporation shall issue, after the
date upon which any shares of Series D Preferred Stock were first issued (the
"Purchase Date"), any Additional Stock (as defined below) without consideration
or for a consideration per share less than the Conversion Price for the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D
Preferred Stock, as the case may be, in effect immediately prior to the issuance
of such Additional Stock, the Conversion Price for such series in effect
immediately prior to each such issuance shall forthwith (except as otherwise
provided in this clause (i)) be adjusted to a price determined by multiplying
such Conversion Price by a fraction, the numerator of which shall be the number
of shares of Common Stock outstanding immediately prior to such issuance
(including shares of Common Stock deemed to be issued pursuant to subsection
4(d)(i)(E)(1) or (2)) plus the number of shares of Common Stock that the
aggregate consideration received by this corporation for such issuance would
purchase at such Conversion Price; and the denominator of which shall be the
number of shares of Common Stock outstanding immediately prior to such issuance
(including shares of Common Stock deemed to be issued pursuant to subsection
4(d)(i)(E)(1) or (2)) plus the number of shares of such Additional Stock.
(B) No adjustment of the Conversion Price
for the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock or Series D Preferred Stock shall be made in an amount less than one cent
per share, provided that any adjustments that are not required to be made by
reason of this sentence shall be carried forward and shall be either taken into
account in any subsequent adjustment made prior to three (3) years from the date
of the event giving rise to the adjustment being carried forward, or shall be
made at the end of three (3) years from the date of the event giving rise to the
adjustment being carried forward. Except to the limited extent provided for in
subsections (E)(3) and (E)(4), no adjustment of such Conversion Price pursuant
to this subsection 4(d)(i) shall have the effect of increasing the Conversion
Price of the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock or Series D Preferred Stock above the Conversion Price in effect
immediately prior to such adjustment.
(C) In the case of the issuance of Common
Stock for cash, the consideration shall be deemed to be the amount of cash paid
therefor
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before deducting any reasonable discounts, commissions or other expenses
allowed, paid or incurred by this corporation for any underwriting or otherwise
in connection with the issuance and sale thereof.
(D) In the case of the issuance of the
Common Stock for a consideration in whole or in part other than cash, the
consideration other than cash shall be deemed to be the fair value thereof as
determined by the Board of Directors irrespective of any accounting treatment.
(E) In the case of the issuance (whether
before, on or after the Purchase Date) of options to purchase or rights to
subscribe for Common Stock, securities by their terms convertible into or
exchangeable for Common Stock or options to purchase or rights to subscribe for
such convertible or exchangeable securities, the following provisions shall
apply for all purposes of this subsection 4(d)(i) and subsection 4(d)(ii):
(1) The aggregate maximum number of
shares of Common Stock deliverable upon exercise (assuming the satisfaction of
any conditions to exercisability, including without limitation, the passage of
time, but without taking into account potential antidilution adjustments) of
such options to purchase or rights to subscribe for Common Stock shall be deemed
to have been issued at the time such options or rights were issued and for a
consideration equal to the consideration (determined in the manner provided in
subsections 4(d)(i)(C) and (d)(i)(D)), if any, received by this corporation upon
the issuance of such options or rights plus the minimum exercise price provided
in such options or rights (without taking into account potential antidilution
adjustments) for the Common Stock covered thereby.
(2) The aggregate maximum number of
shares of Common Stock deliverable upon conversion of, or in exchange (assuming
the satisfaction of any conditions to convertibility or exchangeability,
including, without limitation, the passage of time, but without taking into
account potential antidilution adjustments) for, any such convertible or
exchangeable securities or upon the exercise of options to purchase or rights to
subscribe for such convertible or exchangeable securities and subsequent
conversion or exchange thereof shall be deemed to have been issued at the time
such securities were issued or such options or rights were issued and for a
consideration equal to the consideration, if any, received by this corporation
for any such securities and related options or rights (excluding any cash
received on account of accrued interest or accrued dividends), plus the minimum
additional consideration, if any, to be received by this corporation (without
taking into account potential antidilution adjustments) upon the conversion or
exchange of such securities or the exercise of any related options or rights
(the consideration in each case to be determined in the manner provided in
subsections 4(d)(i)(C) and (d)(i)(D)).
(3) In the event of any change in
the number of shares of Common Stock deliverable or in the consideration payable
to this
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corporation upon exercise of such options or rights or upon conversion of or in
exchange for such convertible or exchangeable securities, including, but not
limited to, a change resulting from the antidilution provisions thereof (unless
such options or rights or convertible or exchangeable securities were merely
deemed to be included in the numerator and denominator for purposes of
determining the number of shares of Common Stock outstanding for purposes of
subsection 4(d)(i)(A)), the Conversion Price of the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock,
to the extent in any way affected by or computed using such options, rights or
securities, shall be recomputed to reflect such change, but no further
adjustment shall be made for the actual issuance of Common Stock or any payment
of such consideration upon the exercise of any such options or rights or the
conversion or exchange of such securities.
(4) Upon the expiration of any such
options or rights, the termination of any such rights to convert or exchange or
the expiration of any options or rights related to such convertible or
exchangeable securities, the Conversion Price of the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock,
to the extent in any way affected by or computed using such options, rights or
securities or options or rights related to such securities (unless such options
or rights were merely deemed to be included in the numerator and denominator for
purposes of determining the number of shares of Common Stock outstanding for
purposes of subsection 4(d)(i)(A)), shall be recomputed to reflect the issuance
of only the number of shares of Common Stock (and convertible or exchangeable
securities that remain in effect) actually issued upon the exercise of such
options or rights, upon the conversion or exchange of such securities or upon
the exercise of the options or rights related to such securities.
(5) The number of shares of Common
Stock deemed issued and the consideration deemed paid therefor pursuant to
subsections 4(d)(i)(E)(1) and (2) shall be appropriately adjusted to reflect any
change, termination or expiration of the type described in either subsection
4(d)(i)(E)(3) or (4).
(ii) "Additional Stock" shall mean any shares of
Common Stock issued (or deemed to have been issued pursuant to subsection
4(d)(i)(E)) by this corporation after the Purchase Date other than:
(A) Common Stock issued pursuant to a
transaction described in subsection 4(d)(iii) hereof; or
(B) Common Stock issuable or issued to
employees, consultants, directors or vendors (if in transactions with primarily
non-financing purposes) of this corporation directly or pursuant to a stock
option plan, stock purchase agreement or restricted stock plan approved by the
Board of Directors of this corporation.
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(iii) In the event this corporation should at any
time or from time to time after the Purchase Date fix a record date for the
effectuation of a split or subdivision of the outstanding shares of Common Stock
or the determination of holders of Common Stock entitled to receive a dividend
or other distribution payable in additional shares of Common Stock or other
securities or rights convertible into, or entitling the holder thereof to
receive directly or indirectly, additional shares of Common Stock (hereinafter
referred to as "Common Stock Equivalents") without payment of any consideration
by such holder for the additional shares of Common Stock or the Common Stock
Equivalents (including the additional shares of Common Stock issuable upon
conversion or exercise thereof), then, as of such record date (or the date of
such dividend distribution, split or subdivision if no record date is fixed),
the respective Conversion Price of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock shall be
appropriately decreased so that the number of shares of Common Stock issuable on
conversion of each share of such series shall be increased in proportion to such
increase of the aggregate of shares of Common Stock outstanding and those
issuable with respect to such Common Stock Equivalents.
(iv) If the number of shares of Common Stock
outstanding at any time after the Purchase Date is decreased by a combination of
the outstanding shares of Common Stock, then, following the record date of such
combination, the respective Conversion Prices for the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock
shall be appropriately increased so that the number of shares of Common Stock
issuable on conversion of each share of such series shall be decreased in
proportion to such decrease in outstanding shares.
(e) Other Distributions. In the event this corporation
shall declare a distribution payable in securities of other persons, evidences
of indebtedness issued by this corporation or other persons, assets (excluding
cash dividends) or options or rights not referred to in subsection 4(d)(i),
then, in each such case for the purpose of this subsection 4(e), the holders of
the Series A Preferred Stock, Series B Preferred Stock and Series D Preferred
Stock shall be entitled to a proportionate share of any such distribution as
though they were the holders of the number of shares of Common Stock of this
corporation into which their shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock are
convertible as of the record date fixed for the determination of the holders of
Common Stock of this corporation entitled to receive such distribution.
(f) Recapitalizations. If at any time or from time to time
there shall be a recapitalization of the Common Stock (other than a subdivision,
combination or merger or sale of assets transaction provided for elsewhere in
this Section 4 or in Section 2) provision shall be made so that the holders of
the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock
and Series D Preferred Stock shall thereafter be entitled to receive upon
conversion of the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock or Series D Preferred Stock the number of shares of stock
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or other securities or property of the Corporation or otherwise, to which a
holder of Common Stock deliverable upon conversion would have been entitled on
such recapitalization. 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 Series A Preferred Stock, Series B Preferred Stock, Series
C Preferred Stock and Series D Preferred Stock after the recapitalization to the
end that the provisions of this Section 4 (including adjustment of the
Conversion Price then in effect and the number of shares purchasable upon
conversion of the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock) shall be applicable after that
event as nearly equivalent as may be practicable.
(g) No Impairment. This corporation will not, by amendment
of its Certificate of Incorporation or through any reorganization,
recapitalization, 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 to be observed or performed
hereunder by this corporation, but will at all times in good faith assist in the
carrying out of all the provisions of this Section 4 and in the taking of all
such action as may be necessary or appropriate in order to protect the
Conversion Rights of the holders of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock or Series D Preferred Stock against
impairment.
(h) No Fractional Shares and Certificate as to
Adjustments.
(i) No fractional shares shall be issued upon the
conversion of any share or shares of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock or Series D Preferred Stock and the
number of shares of Common Stock to be issued shall be rounded to the nearest
whole share. Whether or not fractional shares are issuable upon such conversion
shall be determined on the basis of the total number of shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock the holder is at the time converting into Common Stock and the
number of shares of Common Stock issuable upon such aggregate conversion.
(ii) Upon the occurrence of each adjustment or
readjustment of the Conversion Price of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock or Series D Preferred Stock pursuant
to this Section 4, this corporation, at its expense, shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and prepare and
furnish to each holder of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock a certificate setting
forth such adjustment or readjustment and showing in detail the facts upon which
such adjustment or readjustment is based. This corporation shall, upon the
written request at any time of any holder of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock or Series D Preferred Stock, furnish
or cause to be furnished to such holder a like certificate setting forth (A)
such adjustment and readjustment, (B) the Conversion Price for such series of
Preferred Stock at the time
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in effect, and (C) the number of shares of Common Stock and the amount, if any,
of other property that at the time would be received upon the conversion of a
share of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock or Series D Preferred Stock.
(i) Notices of Record Date. In the event of any taking by
this 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 (other than a cash dividend) or other distribution, 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, this
corporation shall mail to each holder of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock, at least
twenty (20) days prior to the date specified therein, a notice specifying the
date on which any such record is to be taken for the purpose of such dividend,
distribution or right, and the amount and character of such dividend,
distribution or right.
(j) Reservation of Stock Issuable Upon Conversion. This
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 A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock and Series D 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 Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D 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
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock, in addition to such other remedies as shall be
available to the holder of such Preferred Stock, this 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 purposes, including, without limitation, engaging
in best efforts to obtain the requisite stockholder approval of any necessary
amendment to this Restated Certificate of Incorporation.
(k) Notices. Any notice required by the provisions of this
Section 4 to be given to the holders of shares of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock
shall be deemed given if deposited in the United States mail, postage prepaid,
and addressed to each holder of record at his address appearing on the books of
this corporation.
5. Voting Rights.
(a) General Voting Rights. The holder of each share of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock shall have the right to one vote for each share of
Common Stock into
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which such Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock or Series D Preferred Stock could then be converted, and with
respect to such vote, such holder shall have full voting rights and powers equal
to the voting rights and powers of the holders of Common Stock, and shall be
entitled, notwithstanding any provision hereof, to notice of any stockholders'
meeting in accordance with the bylaws of this corporation, and shall be entitled
to vote, together with holders of Common Stock, with respect to any question
upon which holders of Common Stock have the right to vote. Fractional votes
shall not, however, be permitted and any fractional voting rights available on
an as-converted basis (after aggregating all shares into which shares of Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series
D Preferred Stock held by each holder could be converted) shall be rounded to
the nearest whole number (with one-half being rounded upward).
(b) Voting for the Election of Directors. As long as at
least a majority of the shares of Series A Preferred Stock originally issued
remain outstanding, the holders of such shares of Series A Preferred Stock shall
be entitled to elect two (2) directors of this corporation at each annual
election of directors. As long as at least a majority of the shares of Series B
Preferred Stock originally issued remain outstanding, the holders of such shares
of Series B Preferred Stock shall be entitled to elect two (2) directors of this
corporation at each annual election of directors. As long as at least a majority
of the shares of Series C Preferred Stock originally issued remain outstanding,
the holders of such shares of Series C Preferred Stock shall be entitled to
elect one (1) director of this corporation at each annual election of directors.
The holders of outstanding Common Stock shall be entitled to elect one (1)
director of this corporation at each annual election of directors. The holders
of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock and Common Stock (voting together as a single class and
not as separate series, and on an as-converted basis) shall be entitled to elect
any remaining directors of this corporation.
In the case of any vacancy (other than a vacancy caused by
removal) in the office of a director occurring among the directors elected by
the holders of a class or series of stock pursuant to this Section 5(b), the
holders of that class or series may, by affirmative vote of a majority of the
shares of that class or series, elect a successor or successors to hold office
for the unexpired term of the director or directors whose place or places shall
be vacant. Any director who shall have been elected by the holders of a class or
series of stock may be removed during the aforesaid term of office, either with
or without cause, by, and only by, the affirmative vote of the holders of the
shares of the class or series of stock entitled to elect such director or
directors, given either at a special meeting of such stockholders duly called
for that purpose or pursuant to a written consent of stockholders, and any
vacancy thereby created may be filled by the holders of that class or series of
stock represented at the meeting or pursuant to unanimous written consent.
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6. Protective Provisions.
(a) This corporation shall not without first obtaining the
approval (by vote or written consent, as provided by law) of the holders of a
majority of the then outstanding shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock (voting
together as a single class and not as separate series, and on an as-converted
basis):
(i) sell, convey, or otherwise dispose of all or
substantially all of its property or business or merge into or consolidate with
any other corporation (other than a wholly-owned subsidiary corporation) or
effect any transaction or series of related transactions in which more than
fifty percent (50%) of the voting power of this corporation is disposed of;
(ii) increase or decrease (other than by redemption
or conversion pursuant to the terms hereof) the total number of authorized
shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock or Series D Preferred Stock;
(iii) authorize, designate or issue, or obligate
itself to issue, any other equity security, including any other security
convertible into or exercisable for any equity security having a preference
over, or being on a parity with, the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock or Series D Preferred Stock with
respect to voting, redemption, dividends or upon liquidation;
(iv) liquidate or dissolve this corporation; or
(v) redeem, purchase or otherwise acquire (or pay
into or set aside for a sinking fund for such purpose) any share or shares of
Preferred Stock or Common Stock; provided, however, that this restriction shall
not apply to (i) the repurchase of shares of Common Stock from employees,
officers, directors, consultants or other persons performing services for this
corporation or any subsidiary pursuant to agreements under which this
corporation has the option to repurchase such shares at cost or at cost upon the
occurrence of certain events, such as the termination of employment or (ii) the
redemption of any share or shares of Preferred Stock in accordance with Section
3.
(b) This corporation shall not without first obtaining the
approval (by vote or written consent, as provided by law) of the holders of at
least twenty-six percent (26%) of the then outstanding shares of the Series D
Preferred Stock, authorize, designate or issue, or obligate itself to issue, any
other equity security, including any other security convertible into or
exercisable for any equity security, having a preference over the Series D
Preferred Stock with respect to dividends or upon liquidation.
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(c) So long as at least a majority of the shares of Series
A Preferred Stock originally issued, remain outstanding, this corporation shall
not without first obtaining the approval (by vote or written consent, as
provided by law) of the holders of at least a majority of the then outstanding
shares of the Series A Preferred Stock (A) amend this corporation's Restated
Certificate of Incorporation to alter or change the rights, preferences or
privileges of the shares of such Series A Preferred Stock, if such Series A
Preferred Stock would be adversely affected by such amendment in a manner
different from other then outstanding series of this corporation's Preferred
Stock (it being understood that, without limiting the foregoing, different
series of Preferred Stock shall not be affected differently because of
proportional differences in the amounts of their respective issue prices,
liquidation preferences and redemption prices that arise out of differences in
the original issue price for each such series) or (B) increase or decrease
(other than by redemption or conversion pursuant to the terms hereof) the
aggregate number of authorized shares of such Series A Preferred Stock.
(d) So long as at least a majority of the shares of Series
B Preferred Stock originally issued, remain outstanding, this corporation shall
not without first obtaining the approval (by vote or written consent, as
provided by law) of the holders of at least a majority of the then outstanding
shares of the Series B Preferred Stock (A) amend this corporation's Restated
Certificate of Incorporation to alter or change the rights, preferences or
privileges of the shares of such Series B Preferred Stock, if such Series B
Preferred Stock would be adversely affected by such amendment in a manner
different from other then outstanding series of this corporation's Preferred
Stock (it being understood that, without limiting the foregoing, different
series of Preferred Stock shall not be affected differently because of
proportional differences in the amounts of their respective issue prices,
liquidation preferences and redemption prices that arise out of differences in
the original issue price for each such series) or (B) increase or decrease
(other than by redemption or conversion pursuant to the terms hereof) the
aggregate number of authorized shares of such Series B Preferred Stock.
(e) So long as at least a majority of the shares of Series
C Preferred Stock originally issued, remain outstanding, this corporation shall
not without first obtaining the approval (by vote or written consent, as
provided by law) of the holders of at least a majority of the then outstanding
shares of the Series C Preferred Stock (A) amend this corporation's Restated
Certificate of Incorporation to alter or change the rights, preferences or
privileges of the shares of such Series C Preferred Stock, if such Series C
Preferred Stock would be adversely affected by such amendment in a manner
different from other then outstanding series of this corporation's Preferred
Stock (it being understood that, without limiting the foregoing, different
series of Preferred Stock shall not be affected differently because of
proportional differences in the amounts of their respective issue prices,
liquidation preferences and redemption prices that arise out of differences in
the original issue price for each such series) or (B) increase or decrease
(other than by redemption or conversion pursuant to the terms hereof) the
aggregate number of authorized shares of such Series C Preferred Stock.
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(f) So long as at least a majority of the shares of Series
D Preferred Stock originally issued, remain outstanding, this corporation shall
not without first obtaining the approval (by vote or written consent, as
provided by law) of the holders of at least a majority of the then outstanding
shares of the Series D Preferred Stock (A) amend this corporation's Restated
Certificate of Incorporation to alter or change the rights, preferences or
privileges of the shares of such Series D Preferred Stock, if such Series D
Preferred Stock would be adversely affected by such amendment in a manner
different from other then outstanding series of this corporation's Preferred
Stock (it being understood that, without limiting the foregoing, different
series of Preferred Stock shall not be affected differently because of
proportional differences in the amounts of their respective issue prices,
liquidation preferences and redemption prices that arise out of differences in
the original issue price for each such series) or (B) increase or decrease
(other than by redemption or conversion pursuant to the terms hereof) the
aggregate number of authorized shares of such Series D Preferred Stock.
7. Status of Converted Stock. In the event any shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D
Preferred Stock shall be redeemed or converted pursuant to Section 3 or Section
4 hereof, the shares so redeemed or converted shall be cancelled and shall not
be issuable by this corporation. The Restated Certificate of Incorporation of
this corporation shall be appropriately amended to effect the corresponding
reduction in this corporation's authorized capital stock.
C. Common Stock. The rights, preferences, privileges and
restrictions granted to and imposed on the Common Stock are as set forth below
in this Article IV(C).
1. Dividend Rights. Subject to the prior rights of holders of all
classes of stock at the time outstanding having prior rights as to dividends,
the holders of the Common Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of any assets of this corporation
legally available therefor, such dividends as may be declared from time to time
by the Board of Directors.
2. Liquidation Rights. Upon the liquidation, dissolution or
winding up of this corporation, the assets of this corporation shall be
distributed as provided in Section 2 of Division (B) of Article IV hereof.
3. Voting Rights. The holder of each share of Common Stock shall
have the right to one vote for each such share, and shall be entitled to notice
of any stockholders' meeting in accordance with the bylaws of this corporation,
and shall be entitled to vote upon such matters and in such manner as may be
provided by law.
ARTICLE V
A director of this corporation shall, to the fullest extent
permitted by the General Corporation Law as it now exists or as it may hereafter
be amended, not be personally liable to this corporation or its stockholders for
monetary damages for breach
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of fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to this corporation or its stockholders, (ii) for
acts or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit. If the General Corporation Law is amended, after approval by
the stockholders of this Article, to authorize corporation action further
eliminating or limiting the personal liability of directors, then the liability
of a director of this corporation shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law, as so amended.
Any amendment, repeal or modification of this Article V, or the
adoption of any provision of this Restated Certificate of Incorporation
inconsistent with this Article V, by the stockholders of this corporation shall
not apply to or adversely affect any right or protection of a director of this
corporation existing at the time of such amendment, repeal, modification or
adoption.
ARTICLE VI
To the fullest extent permitted by applicable law, this
corporation is authorized to provide indemnification of (and advancement of
expenses to) agents of this corporation (and any other persons to which Delaware
law permits this corporation to provide indemnification) through bylaw
provisions, agreements with such agents or other persons, vote of stockholders
or disinterested directors or otherwise, in excess of the indemnification and
advancement otherwise permitted by Section 145 of the Delaware General
Corporation Law, subject only to limits created by applicable Delaware law
(statutory or non-statutory), with respect to actions for breach of duty to this
corporation, its stockholders and others.
ARTICLE VII
This corporation reserves the right to adopt, amend, alter,
supplement, rescind or repeal in any respect any provision contained in this
Restated Certificate of Incorporation, in the manner now or hereafter prescribed
by statute or applicable law, and all rights conferred upon stockholders herein
are granted subject to this reservation.
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ARTICLE VIII
The Board of Directors may from time to time adopt, amend, alter,
supplement, rescind or repeal any or all of the bylaws of this corporation
without any action on the part of the stockholders; provided, however, that the
stockholders may adopt, amend or repeal any bylaw adopted by the Board of
Directors, and no amendment or supplement to the bylaws adopted by the Board of
Directors shall vary or conflict with any amendment or supplement adopted by the
stockholders.
ARTICLE IX
Subject to any Protective Provisions, the number of directors of
this corporation shall be set from time to time by resolution of the Board of
Directors or by the stockholders.
ARTICLE X
Elections of directors need not be by written ballot unless the
bylaws of this corporation shall so provide.
ARTICLE XI
Meetings of stockholders may be held within or without the State
of Delaware, as the bylaws may provide. The books of this corporation may be
kept (subject to any statutory requirements) outside the State of Delaware at
such place or places as may be designated from time to time by the Board of
Directors or in the bylaws of this corporation.
* * *
THIRD: The foregoing amendment and restatement was approved by
the holders of the requisite number of shares of said corporation in accordance
with Section 228 of the General Corporation Law.
FOURTH: That said amendment and restatement was duly adopted in
accordance with the provisions of Section 242 and 245 of the General Corporation
Law.
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IN WITNESS WHEREOF, this Restated Certificate of Incorporation
has been executed by the President and the Secretary of Anda Networks, Inc. on
this 16th day of June, 2000.
/s/ Charles Kenmore
-----------------------------------
Charles Kenmore
President, Chief Executive Officer
and Secretary
