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EXHIBIT 3.1
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
MULTILINK TECHNOLOGY CORPORATION,
a California corporation
The undersigned Richard N. Nottenburg hereby certifies that:
ONE: He is the duly elected and acting President and Secretary,
respectively, of said corporation.
TWO: The Articles of Incorporation of said corporation shall be amended and
restated to read in full as follows:
"ARTICLE I
The name of this corporation is Multilink Technology Corporation.
ARTICLE II
The purpose of this corporation is to engage in any lawful act or activity
for which corporation may be organized under the General Corporation Law of
California other than the banking business, the trust company business or the
practice of a profession permitted to be incorporated by the California
Corporations Code.
ARTICLE III
A. Classes of Stock; Stock Split; Conversion Into Class B Common Stock.
1. Classes of Stock. This corporation is authorized to issue three
classes of stock to be designated, respectively. "Class A Common Stock," "Class
B Common Stock" and "Preferred Stock." The Class A Common Stock and Class B
Common Stock are hereinafter referred to collectively as "Common Stock." The
total number of shares of stock which the corporation is authorized to issue is
Thirty-One Million (31,000,000) shares. Twenty Million (20,000,000) shares shall
be Class A Common Stock, par value $.0001 per share, Ten Million (10,000,000)
shares shall be Class B Common Stock, par value $.0001 per share, and One
Million (1,000,000) shares shall be Preferred Stock, par value $.0001 per share.
2. Stock Split; Conversion Into Class B Common Stock. Upon the
effectiveness of these amended and restated Articles of Incorporation, each
outstanding share of Common Stock of the corporation will automatically be
converted, without any further action on the part of the holder thereof, into
two hundred (200) shares of Class B Common Stock.
B. Common Stock. The Board of Directors of the corporation may authorize
the issuance of shares of Class A Common Stock and shares of Class B Common
Stock from time to time. Shares of Common Stock that are redeemed, purchased or
otherwise acquired by the corporation may be reissued except as otherwise
provided by law. The Board of Directors shall
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have no power to alter the rights with respect to Class A Common Stock or Class
B Common Stock.
1. Dividends and Distributions. Subject to the preferences
applicable to Preferred Stock outstanding at any time, the holders of shares of
Class A Common Stock and the holders of shares of Class B Common Stock shall be
entitled to receive such dividends, payable in cash or otherwise, as may be
declared thereon by the Board of Directors from time to time out of assets or
funds of the corporation legally available therefor, provided that the holders
of shares of Class A Common Stock and shares of Class B Common Stock shall be
entitled to share equally, on a per share basis, in such dividends, subject to
the limitations described below. If dividends or other distributions are
declared that are payable in shares of Class A Common Stock or shares of Class B
Common Stock, including distributions pursuant to stock subdivisions or
combinations of Class A Common Stock or Class B Common Stock which occur after
the first date upon which the corporation has issued shares of both Class A
Common Stock and Class B Common Stock, only shares of Class A Common Stock shall
be distributed with respect to Class A Common Stock and only shares of Class B
Common Stock shall be distributed with respect to Class B Common Stock, unless
the Board of Directors of the corporation determines in its discretion that it
is more desirable to distribute shares of Class A Common Stock with respect to
Class B Common Stock, in which case shares of Class A Common Stock shall be
distributed with respect to Class B Common Stock, provided that the number of
shares of Class A Common Stock that shall be distributed with respect to Class B
Common Stock shall be equal to the number of shares of Class B Common Stock that
otherwise would have been distributed. If the corporation shall in any manner
subdivide or combine the outstanding shares of Class A Common Stock or Class B
Common Stock, the outstanding shares of the other such series of Common Stock
shall be proportionately subdivided or combined in the same manner and on the
same basis as the outstanding shares of Class A Common Stock or Class B Common
Stock, as the case may be, which have been subdivided or combined.
2. Voting Rights. The holders of shares of Class A Common Stock and
of Class B Common Stock shall have the following voting rights:
a. Each share of Class A Common Stock shall entitle the holder
thereof to one (1) vote on all matters submitted to a vote of the shareholders
of the corporation.
b. Each share of Class B Common Stock shall entitle the holder
thereof to ten (10) votes on all matters submitted to a vote of the
shareholders of the corporation.
c. The holders of shares of Class A Common Stock and the
holders of shares of Class B Common Stock shall vote together as one class on
a11 matters submitted to a vote of shareholders of the corporation, except (i)
as otherwise required by applicable law and (ii) in the case of a proposed
issuance of shares of Class B Common Stock, which issuance shall require the
affirmative vote of the holders of a majority of the outstanding shares of
Class B Common Stock voting separately as a class.
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3. Transfer of Class B Common Stock to Permitted Transferee.
a. Except as provided in Section 3(b) or Section 4 of this
Article IIIB, no person holding shares of Class B Common Stock or any beneficial
interest therein (a "Class B Holder") may voluntarily or involuntarily transfer
(including without limitation the power to vote such shares of Class B Common
Stock by proxy or otherwise except for proxies given to any Permitted Transferee
of the Class B Holder), sell, assign, devise or bequeath any of such Class B
Holder's interest in his Class B Common Stock, and the corporation and the
transfer agent for the Class B Common Stock, if any (the "Transfer Agent"),
shall not register the transfer of such shares of Class B Common Stock, whether
by sale, grant of proxy, assignment, gift, devise, bequest, appointment or
otherwise, except to a "Permitted Transferee" of such Class B Holder, which term
shall include the corporation and shall have the following additional meanings
in the following cases:
(i) In the case of a Class B Holder who is a natural person
holding record and beneficial ownership of the shares of Class B Common
Stock in question, "Permitted Transferee" means: (a) the spouse of such
Class B Holder (the "Spouse"); (b) a lineal descendant, or the spouse of
such lineal descendant (collectively, "Descendants"), of such Class B
Holder or of the Spouse; (c) the trustee of a trust (including a voting
trust) for the benefit of such Class B Holder, the Spouse, other
Descendants, or an organization contributions to which are deductible for
federal income, estate or gift tax purposes (a "Charitable Organization"),
and for the benefit of no other person; provided that such trust may grant
a general or special power of appointment to the Spouse or to the
Descendants and may permit trust assets to be used to pay taxes, legacies
and other obligations of the trust or of the estate of such Class B Holder
payable by reason of the death of such Class B Holder or the death of the
Spouse or a Descendant, and that such trust (subject to the grant of a
power of appointment as provided above) must prohibit transfer of shares of
Class B Common Stock or a beneficial interest therein to persons other than
Permitted Transferees as defined in subparagraph (ii) of this Section 3(a)
(a "Trust"); (d) a Charitable Organization established by such Class B
Holder or a Descendant; (e) an Individual Retirement Account, as defined in
Section 408(a) of the Internal Revenue Code, of which such Class B Holder
is a participant or beneficiary, provided that such Class B Holder is
vested with the power to direct the investment of funds deposited into such
Individual Retirement Account and to control the voting of securities held
by such Individual Retirement Account (an "IRA"); (f) a pension, profit
sharing, stock bonus or other type of plan or trust of which such Class B
Holder is a participant or beneficiary and which satisfies the requirements
for qualification under Section 401 of the Internal Revenue Code, provided
that such Class B Holder is vested with the power to direct the investment
of funds deposited into such plan or trust and to control the voting of
securities held by such plan or trust (a "Plan"); (g) a corporation all of
the outstanding capital stock of which is owned by, or a partnership all of
the partners of which are, such Class B Holder, his or her Spouse, his or
her Descendants, any Permitted Transferee of the Class B Holder and/or any
other Class B Holder or its Permitted Transferee determined pursuant to
this subparagraph (i) of this Section 3(a),
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provided that if any share (or any interest in any share) of capital stock
of such a corporation (or of any survivor of a merger or consolidation of
such corporation), or any partnership interest in such a partnership, is
acquired by any person who is not within such class of persons, all shares
of Class B Common Stock then held by such corporation or partnership, as
the case may be, shall be deemed without further act on anyone's part to be
converted into shares of Class A Common Stock and stock certificates
formerly representing such shares of Class B Common Stock shall thereupon
and thereafter be deemed to represent the like number of shares of Class A
Common Stock in the manner set forth in Section 4(b) of this Article IIIB;
(h) another Class B Holder or such Class B Holder's Permitted Transferee
determined pursuant to this subparagraph (i) of this Section 3(a); and (i)
in the event of the death of such Class B Holder, such Class B Holder's
estate.
(ii) In the case of a Class B Holder holding the shares of
Class B Common Stock in question as trustee of an IRA, a Plan or a Trust
other than a Trust described in subparagraph (iii) of this Section 3(a),
"Permitted Transferee" means: (a) any participant in or beneficiary of such
IRA, such Plan or such Trust, or the person who transferred such shares of
Class B Common Stock to such IRA, such Plan or such Trust, and (b) a
Permitted Transferee of any such person or persons determined pursuant to
subparagraph (i) of this Section 3(a).
(iii) In the case of a Class B Holder holding the shares of
Class B Common Stock in question as trustee pursuant to a Trust which was
irrevocable on the Record Date (as defined below), "Permitted Transferee"
means any person as of the Record Date to whom or for whose benefit
principal may be distributed either during or at the end of the term of
such Trust whether by power of appointment or otherwise. For purposes of
these Articles of Incorporation, there shall be one "Record Date," which
date shall be the date that is the record date for determining the persons
to whom the Class B Common Stock is first distributed by the corporation.
(iv) In the case of a Class B Holder holding record (but
not beneficial) ownership of the shares of Class B Common Stock in question
as nominee for the person who was the beneficial owner thereof on the
Record Date, "Permitted Transferee" means such beneficial owner and a
Permitted Transferee of such beneficial owner determined pursuant to
subparagraph (i), (ii), (iii), (v) or (vi) of this Section 3(a), as the
case may be.
(v) In the case of a Class B Holder that is a partnership
holding record and beneficial ownership of the shares of Class B Common
Stock in question, "Permitted Transferee" means any partner of such
partnership, provided that such partner was a partner in the partnership at
the time it first became a Class B Holder, or any Permitted Transferee of
such partner determined pursuant to subparagraph (i) of this Section 3(a).
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(vi) In the case of a Class B Holder that is a
corporation, other than a Charitable Organization described in clause (d)
of subparagraph (i) of this Section 3(a), holding record and beneficial
ownership of the shares of Class B Common Stock in question (a "Corporate
Holder"), "Permitted Transferee" means (a) any shareholder of such
Corporate Holder, provided that such shareholder was a shareholder of the
Corporate Holder at the time it first became a Class B Holder, or any
Permitted Transferee of any such shareholder determined pursuant to
subparagraph (i) of this Section 3(a); and (b) the survivor (the
"Survivor") of a merger or consolidation of such Corporate Holder, so long
as such Survivor is controlled, directly or indirectly, by those
shareholders of the Corporate Holder who were shareholders of the Corporate
Holder at the time the Corporate Holder first became a Class B Holder or
any Permitted Transferees of such shareholders determined pursuant to
subparagraph (i) of this Section 3(a).
(vii) In the case of a Class B Holder that is the estate of
a deceased Class B Holder, or that is the estate of a bankrupt or insolvent
Class B Holder, and provided such deceased, bankrupt or insolvent Class B
Holder, as the case may be, held record and beneficial ownership of the
shares of Class B Common Stock in question, "Permitted Transferee" means a
Permitted Transferee of such deceased, bankrupt or insolvent Class B Holder
as determined pursuant to subparagraphs (i), (v) or (vi) of this Section
3(a), as the case may be.
(viii) In the case of any Class B Holder who desires to make
a bona fide gift, "Permitted Transferee" means any other Class B Holder or
its Permitted Transferee determined pursuant to subparagraph (i) of this
Section 3(a).
(ix) In the case of any Class B Holder, "Permitted
Transferee" means any person or entity that will hold record (but not
beneficial) ownership of the shares of Class B Stock in question as nominee
for the Class B Holder or its Permitted Transferee determined pursuant to
subparagraph (i), (ii), (iii), (v) or (vi) of this Section 3(a), as the
case may be.
b. Notwithstanding anything to the contrary set forth herein,
any Class B Holder may pledge such holder's shares of Class B Common Stock to a
pledgee pursuant to a bona fide pledge of such shares as collateral security for
indebtedness due to the pledgee, provided that such shares shall not be
transferred to, registered in the name of or voted by the pledgee and shall
remain subject to this Section 3. In the event of foreclosure or other similar
action by the pledgee, such pledged shares of Class B Common Stock may only be
transferred to a Permitted Transferee of the pledgor or converted into shares of
Class A Common Stock, as the pledgee may elect.
c. For purposes of this Section 3:
(i) The relationship of any person that is derived by or
through legal adoption shall be considered a natural relationship.
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(ii) Each joint owner of shares (if a Permitted
Transferee) or owner of a community property interest in shares (if a
Permitted Transferee) of Class B Common Stock shall be considered a "Class
B Holder" of such shares.
(iii) A minor for whom shares of Class B Common Stock are
held pursuant to a Uniform Transfer to Minors Act or similar law shall be
considered a Class B Holder of such shares.
(iv) Unless otherwise specified, the term "person" means
and includes natural persons, corporations, partnerships, limited liability
companies, unincorporated associations, firms, joint ventures, trusts and
all other entities.
(v) The conversion of Class B Common Stock into
securities of another corporation in connection with a merger effected for
the purpose of reincorporating the corporation in another state shall not
constitute a transfer of such Class B Common Stock.
d. Except as otherwise provided in Section 4(b), any purported
transfer of shares of Class B Common Stock not permitted hereunder shall be void
and of no effect, and the purported transferee shall have no rights as a
shareholder of the corporation and no other rights against or with respect to
the corporation. The corporation may, as a condition to the transfer or the
registration of transfer of shares of Class B Common Stock to a purported
Permitted Transferee, require the furnishing of such affidavits or other proof
as it deems necessary to establish that such transferee is a Permitted
Transferee. Each certificate representing shares of Class B Common Stock shall
be endorsed with a legend that states that shares of Class B Common Stock are
not transferable other than to certain transferees and are subject to certain
restrictions as set forth in the Articles of Incorporation filed by the
corporation with the Secretary of State of the State of California.
4. Transfer of Class B Common Stock to Person Other than Permitted
Transferee; Conversion and Exchange of Class B Common Stock.
a. Each share of Class B Common Stock, at the option of its
holder, may at any time be converted into one (1) fully paid and nonassessable
share of Class A Common Stock. Such right shall be exercised by the surrender of
the certificate representing such share of Class B Common Stock to be converted
to the corporation at any time during normal business hours at the principal
executive offices of the corporation or at the office of the Transfer Agent,
accompanied by a written notice of the election by the holder thereof to convert
and (if so required by the corporation or the Transfer Agent) by instruments of
transfer, in form satisfactory to the corporation and to the Transfer Agent,
duly executed by such holder or such holder's duly authorized attorney, and
transfer tax stamps or funds therefor, if required pursuant to Section 4(e).
b. If the beneficial ownership (as determined under Rule 13d-3
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of
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1934, as amended) of any share or any interest in any share of Class B Common
Stock changes, voluntarily or involuntarily, such that each new beneficial owner
of such share is not a "Permitted Transferee" (as defined in Section 3(a) of
this Article IIIB) of the beneficial owner of such share of Class B Common Stock
immediately prior to such change in beneficial ownership, then each such share
shall thereupon be converted automatically into one (1) fully paid and
nonassessable share of Class A Common Stock. A determination by the Secretary of
the corporation that a change in beneficial ownership requires conversion under
this paragraph shall be conclusive. Upon making such determination, the
Secretary of the corporation shall promptly request of the holder of record of
each such share that each such holder promptly deliver, and each such holder
shall promptly deliver, the certificate representing each such share to the
corporation for documentation of such conversion, together with instruments of
transfer, in form satisfactory to the corporation and Transfer Agent, duly
executed by such holder or such holder's duly authorized attorney, and together
with transfer tax stamps or funds therefor, if required pursuant to Section 4(e)
of this Article IIIB.
c. As promptly as practicable following the surrender for
conversion of a certificate representing shares of Class B Common Stock in the
manner provided in paragraphs (a) or (b), as applicable, of this Section 4 and
the payment in cash of any amount required by the provisions of Section 4(e) of
this Article IIIB, the corporation will deliver or cause to be delivered at the
office of the Transfer Agent to or upon the written order of the holder of such
certificate, a certificate or certificates representing the number of full
shares of Class A Common Stock issuable upon such conversion, issued in such
name or names as such holder may direct. In the case of a conversion under
Section 4(a) of this Article IIIB, such conversion shall be deemed to have been
made immediately prior to the close of business on the date of the surrender of
the certificate representing shares of Class B Common Stock. In the case of a
conversion under Section 4(b), such conversion shall be deemed to have been made
on the date that the beneficial ownership of such share has changed as set forth
in Section 4(b). Upon the date any conversion under Section 4(a) is made, all
rights of the holder of such shares as such holder shall cease, and the person
or persons in whose name or names the certificate or certificates representing
the shares of Class A Common Stock are to be issued shall be treated for all
purposes as having become the record holder or holders of such shares of Class A
Common Stock; provided, however, that any such surrender and payment on any date
when the stock transfer books of the corporation shall be closed shall
constitute the person or persons in whose name or names the certificate or
certificates representing shares of Class A Common Stock are to be issued as the
record holder or holders thereof for all purposes immediately prior to the close
of business on the next succeeding day on which stock transfer books are open.
Upon the date any conversion under Section 4(b) is made, all rights of the
holder of such share as such holder shall cease, and the new beneficial owner or
owners of such shares shall be treated for all purposes as having become the
record holder or holders of such shares of Class A Common Stock.
d. The corporation covenants that it will at all times reserve
and keep available, solely for the purpose of issue upon conversion of the
outstanding shares of Class B Common Stock, such number of shares of Class A
Common Stock as shall be issuable upon the conversion of all such outstanding
shares of Class B Common Stock, provided that nothing
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contained herein shall be construed to preclude the corporation from satisfying
its obligations in respect of the conversion of the outstanding shares of Class
B Common Stock by delivery of purchased shares of Class A Common Stock that are
held in the treasury of the corporation. The corporation covenants that if any
shares of Class A Common Stock required to be reserved for purposes of
conversion hereunder require registration with or approval of any governmental
authority under any federal or state law before such shares of Class A Common
Stock may be issued upon conversion, the corporation will cause such shares to
be duly registered or approved, as the case may be. The corporation will
endeavor to list the shares of Class A Common Stock required to be delivered
upon conversion prior to such delivery upon each national securities exchange or
automated quotation system upon which the outstanding Class A Common Stock is
listed at the time of such delivery. The corporation covenants that all shares
of Class A Common Stock that shall be issued upon conversion of the shares of
fully paid and nonassessable Class B Common Stock will, upon issue, be fully
paid and nonassessable.
e. The issuance of certificates for shares of Class A Common
Stock upon conversion of shares of Class B Common Stock shall be made without
charge for any stamp or other similar tax in respect of such issuance. However,
if any such certificate is to be issued in a name other than that of the holder
of the share or shares of Class B Common Stock converted, then the person or
persons requesting the issuance thereof shall pay to the corporation the amount
of any tax that may be payable in respect of any transfer involved in such
issuance or shall establish to the satisfaction of the corporation that such tax
has been paid.
5. Liquidation Rights. Subject to the preferences applicable to
preferred stock outstanding at any time, upon the liquidation, dissolution or
winding up of the corporation, all of the remaining assets of this corporation
to be distributed shall be distributed ratably to the holders of Common Stock in
proportion to the amount of such stock owned by each such holder, provided that
the holders of Share of Class A Common Stock and shares of Class B Common Stock
shall be entitled to share equally, on a per share basis, in such distribution.
A consolidation or merger of the corporation with or into any other corporation
or corporations, or a sale of all or substantially all of the assets of the
corporation, shall not be deemed to be a liquidation, dissolution, or winding
up, within the meaning of this Section 6 of this Article IIIB.
6. Redemption. The Common Stock is not redeemable.
C. Preferred Stock. The Preferred Stock authorized by these Articles of
Incorporation may be issued from time to time in one or more series. The Board
of Directors is authorized to determine the designation of any such series and
to fix the number of shares of any such series. The Board of Directors may
determine to alter the rights, preferences, privileges, and restrictions granted
to and imposed upon any wholly unissued series of Preferred Stock. The Board of
Directors may, within the limits and restrictions stated in any resolution or
resolutions of the Board of Directors originally fixing the number of shares
constituting any series, increase or decrease (but not below the number of
shares of such series then outstanding) the number of shares of any such series
subsequent to the issue of shares of that series.
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ARTICLE IV
A. The liability of the directors of this corporation for monetary
damages shall be eliminated to the fullest extent permissible under California
law.
B. This corporation is authorized to provide indemnification of agents
(as defined in Section 317 of the California Corporations Code) through bylaw
provisions, agreements with the agents, vote of shareholders or disinterested
directors, or otherwise in excess of the indemnification otherwise permitted by
Section 317 of the California Corporations Code, subject only to applicable
limits set forth in Section 204 of the California Corporations Code with respect
to actions for breach of duty to the corporation and its shareholders."
THREE: The foregoing amendment has been approved by the Board of
Directors of said corporation.
FOUR: The foregoing amendment was approved by the holders of the
requisite number of shares of said corporation in accordance with Sections 902
and 903 of the General Corporation Law of California; the total number of
outstanding shares of each class entitled to vote with respect to the foregoing
amendment was fifteen thousand (15,000) shares of Common Stock. The number of
shares voting in favor of the foregoing amendment equaled or exceeded the vote
required, such required vote being a majority of the outstanding shares of
Common Stock.
The undersigned further declare under penalty of perjury under the
laws of the State of California that the matters set forth in this certificate
are true and correct of their own knowledge.
IN WITNESS WHEREOF, the undersigned has executed this certificate on
February 26, 1999.
/s/ Richard N. Nottenburg
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Richard N. Nottenburg
President and Secretary
[SEAL]
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AMENDED AND RESTATED CERTIFICATE OF
DETERMINATION OF RIGHTS AND PREFERENCES
OF PREFERRED SHARES
OF
MULTILINK TECHNOLOGY CORPORATION,
a California corporation
PURSUANT TO THE PROVISIONS OF SECTION 401
OF THE GENERAL CORPORATION LAW OF THE STATE OF CALIFORNIA
The undersigned, Richard N. Nottenburg, certifies that:
FIRST: He is the President and the Secretary of Multilink Technology
Corporation, a California corporation (the "Corporation").
SECOND: That the Board of Directors of the Corporation, pursuant to
the authority so vested in it by the Amended and Restated Articles of
Incorporation of the Corporation, as amended, and in accordance with the
provisions of Section 401 of the General Corporation Law of the State of
California (the "California Corporation Law"), duly adopted the following
resolutions amending and restating the designation of rights, preferences,
privileges and restrictions of the Corporation's Series A Convertible Preferred
Stock, par value $0.0001 per share (the "Series A Preferred") and creating the
following class of Preferred Stock designated as Series B Convertible Preferred
Stock, par value $0.0001 per share (the "Series B Preferred").
THIRD: That the following resolutions designate one hundred seventy-
one thousand one hundred sixty-four (171,164) shares of Series A Preferred, and
that as of the date hereof, one hundred seventy-one thousand one hundred sixty-
four (171,164) shares of Series A Preferred have been issued.
FOURTH: That the following resolutions designate one hundred fifty
thousand (150,000) shares of Series B Preferred, and that as of the date hereof,
no shares of Series B Preferred have been issued.
FIFTH: The resolutions duly adopted by the Board of Directors of the
Company are as follows:
WHEREAS, the Articles of Incorporation, as amended, of the Company
authorize Preferred Stock consisting of one million (1,000,000) shares, par
value of $0.0001 per share (the "Preferred Stock"), issuable from time to time
in one or more series;
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WHEREAS, the Board of Directors of the Company is authorized, subject
to limitations prescribed by law and by the provisions of Article III of the
Corporation's Amended and Restated Articles of Incorporation, as amended, to
establish and fix the number of shares to be included in any series of Preferred
Stock and the designation of rights, preferences, privileges and restrictions of
the shares of such series;
WHEREAS, the Board of Directors of the Company previously approved and
filed with the California Secretary of State a Certificate of Determination of
Rights and Preferences of Preferred Shares and a Certificate of Amendment
thereto (together the "Original Certificate of Determination"):
WHEREAS, it is the desire of the Board of Directors to amend and
restate the Original Certificate of Determination to amend and restate
designation of rights, preferences, privileges and restrictions of the Series A
Preferred and to establish and fix the number of shares to be included in the
Series B Preferred and the designation of rights, preferences, privileges and
restrictions of the shares of such new series.
NOW, THEREFORE, BE IT RESOLVED, that pursuant to Article III of the
Corporation's Amended and Restated Articles of Incorporation, as amended, hereby
there is established the following series of Preferred Stock with such
designations and authorized number of shares as set forth herein: (a) one
hundred seventy-one thousand one hundred sixty-four (171,164) shares of Series A
Preferred and (b) one hundred fifty thousand (150,000) shares of Series B
Preferred. Such shares of Convertible Preferred Stock shall have the rights,
preferences, privileges and restrictions set forth in the following
Determination of Rights, Preferences, Privileges and Restrictions of Convertible
Preferred Stock (the "Determination of Preferred Stock"):
A. Convertible Preferred Stock.
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1. Definitions. As used in this Subsection A of this Determination
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of Preferred Stock, the following capitalized terms have the following meanings:
(a) "Articles of Incorporation" shall mean the Amended and
Restated Articles of Incorporation of the Corporation, as amended, to date.
(b) "Board" shall mean the Board of Directors of the
Corporation.
(c) "Class A Common Stock" shall mean the Class A Common Stock
of the Corporation, par value $0.0001 per share.
(d) "Class B Common Stock" shall mean the Class B Common Stock
of the Corporation, par value $0.0001 per share.
(e) "Common Stock" shall mean the Class A Common Stock and the
Class B Common Stock.
(f) "Conversion Price" shall have the meaning set forth in
Section 5(a)(ii).
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(g) "Conversion Rights" shall have the meaning set forth in the
preamble to Section 5.
(h) "Convertible Preferred Stock" shall mean the Series A
Preferred and the Series B Preferred.
(i) "Convertible Securities" shall mean evidences of
indebtedness, shares of stock or other securities which are at any time
directly or indirectly convertible into or exchangeable for additional
shares of Class A Common Stock.
(j) "Corporation" shall have the meaning set forth in the
recitals.
(k) "Deferred Series A Redemption Date" shall have the meaning
set forth in the Section 6(a).
(l) "Deferred Series B Redemption Date" shall have the meaning
set forth in the Section 6(b).
(m) "Liquidation Event" shall have the meaning set forth in
Section 3(a).
(n) "Preferred Stock" shall have the meaning set forth in the
recitals.
(o) "Qualified Public Offering" shall have the meaning set forth
in Section 5(b)(i)(A).
(p) "Redemption Date" shall have the meaning set forth in
Section 6(b).
(q) "Redemption Notice" shall have the meaning set forth in
Section 6(d).
(r) "Redemption Price" shall have the meaning set forth in
Section 6(c).
(s) "Related Party" shall mean, with respect to an individual,
such individual's immediate family members and any trust, corporation,
partnership, limited liability company or other entity owned or controlled
by such individual or his or her immediate family members, and, with
respect to a corporation, any person or entity who controls, is controlled
by, or is under common control with, such corporation.
(t) "Series A Conversion Price" shall have the meaning set forth
in Section 5(a)(i).
(u) "Series A Initial Redemption Date" shall have the meaning
set forth in the Section 6(a).
-3-
<PAGE>
(v) "Series A Preferred" shall have the meaning set forth in the
recitals.
(w) "Series A Redemption Date" shall have the meaning set forth
in the Section 6(a).
(x) "Series A Redemption Price" shall have the meaning set forth
in Section 6(c).
(y) "Series B Conversion Price" shall have the meaning set forth
in Section 5(a)(ii).
(z) "Series B Initial Redemption Date" shall have the meaning
set forth in the Section 6(b).
(aa) "Series B Preferred" shall have the meaning set forth in the
recitals.
(bb) "Series B Redemption Date" shall have the meaning set forth
in the Section 6(b).
(cc) "Series B Redemption Price" shall have the meaning set forth
in Section 6(c).
2. Dividends
---------
In each fiscal year of the Corporation, the holders of shares of
Convertible Preferred Stock shall be entitled to receive, before any cash
dividends shall be paid or declared and set aside for the Common Stock in such
fiscal year, when and as declared by the Board, out of funds legally available
for that purpose, dividends payable in an amount per share for such fiscal year
equal to the per share amount, if any, of any cash dividend to be declared, paid
or set aside for each share of Common Stock during such fiscal year, multiplied
by the number of shares of Class A Common Stock into which each such share of
Convertible Preferred Stock is then convertible. The Series A Preferred and
Series B Preferred shall rank on a parity as to the declaration and payment of
all dividends. Dividends for the Convertible Preferred Stock declared by the
Board but not paid shall accrue. No dividend shall be declared or paid to any
holders of shares of the capital stock of the Corporation, including without
limitation holders of Common Stock, unless and until such a dividend of an
equal or greater amount (determined on such as-converted basis) has first been
declared and paid to the holders of shares of the Convertible Preferred Stock
on a pari passu basis.
3. Liquidation, Dissolution or Winding Up
--------------------------------------
(a) In the event of a voluntary or involuntary liquidation,
dissolution or winding up of the Corporation (a "Liquidation Event"), all
assets and funds of the Corporation legally available for distribution
shall be distributed to the holders of the Common Stock and the Convertible
Preferred Stock in the following order of priority:
-4-
<PAGE>
(i) First, ratably among the holders of the Convertible
Preferred Stock on a pari passu basis until (A) the Series A
Preferred holders have received the preferential amount of Ninety
Dollars ($90.00) per share plus all declared and unpaid dividends
thereon and (B) the Series B Preferred holders have received the
preferential amount of Four Hundred Dollars ($400.00) per share plus
all declared and unpaid dividends thereon; provided, that, the Series
A Preferred and Series B Preferred shall rank on a parity as to the
receipt of their respective preferential amounts for such series upon
the occurrence of a liquidation event: provided, further, that if the
assets and funds thus distributed among the holders of the Series A
Preferred and Series B Preferred are insufficient to permit the
payment to such holders of such full preferential amounts, then the
entire assets and funds of the Corporation legally available for
distribution shall be distributed ratably among the holders of the
Series A Preferred and Series B Preferred in proportion to such full
preferential amounts each such holder would be entitled to first
receive based upon the aggregate liquidation preference of the Series
A Preferred and the Series B Preferred held by each such holder and
the aggregate liquidation preference of all Series A Preferred and
Series B Preferred; and
(ii) Second, to the holders of the Common Stock and the
Convertible Preferred Stock on a pro rata basis according to the
number of shares of Common Stock (A) then held, with respect to the
Common Stock, and (B) in the case the Convertible Preferred Stock,
into which the shares of Convertible Preferred Stock then held are
convertible.
(b) A reorganization or merger of the Corporation with or into
any other corporation or entity, or a sale of all or substantially all of
the assets of the Corporation, in which transaction the Corporation's
shareholders immediately prior to such transaction do not retain
immediately after such transaction direct or indirect beneficial ownership
of more than fifty percent (50%) of the combined voting power of the
outstanding voting stock of the surviving corporation (or its parent),
shall be deemed to be a Liquidation Event within the meaning of this
Section 3.
(c) The dollar amounts specified in Section 3(a) and Section
6(c) shall be adjusted equitably in the event of any stock splits, stock
dividends or similar capital modifications affecting the Common Stock or
the Convertible Preferred Stock after the filing of this Amended and
Restated Certificate of Determination of Rights and Preferences of
Preferred Shares (the "Certificate of Determination"). No adjustment ?? any
Conversion Price pursuant to this Certificate of Determination shall
otherwise ?? the above liquidation preference dollar amounts.
(d) Insofar as any distribution pursuant to Section 3(a)
consists of property other than cash, the value thereof shall be, for
purposes of the provisions of Section 3(a), the fair value at the time of
such distribution as determined in good faith by the Board.
-5-
<PAGE>
(e) Each holder of Convertible Preferred Stock shall be deemed
to have consented, for purposes of Sections 502, 503 and 506 of the
California Corporations Code, to distributions made by the Corporation and
approved by the Board in connection with the repurchase of shares of Common
Stock issued to or held by employees, directors or consultants upon
termination of their employment or services pursuant to agreements
providing for such right of repurchase between the Corporation and such
persons.
4. Voting
------
(a) At all meetings of the shareholders of the Corporation and
in the case of any actions of shareholders in lieu of a meeting, (i) each
share of Series A Preferred shall be entitled to that number of votes equal
to ten (10) times the number of whole shares of Class A Common Stock into
which such share of Series A Preferred is then convertible and (ii) each
share of Series B Preferred shall be entitled to the number of votes equal
to the number of whole shares of Class A Common Stock into which such share
of Series B Preferred is then convertible (in accordance with Section 5
hereof) on the record date set for the meeting or action or, if no record
date is set, on the date of such meeting or the date such action is taken.
Except as otherwise expressly provided below in this Section 4, in Article
III.A.2.c. of the Articles of Incorporation or as required by law, the
holders of Common Stock and Convertible Preferred Stock shall vote together
as a single class in accordance with the preceding sentence, and neither
the Common Stock nor any of the Convertible Preferred Stock shall be
entitled to vote as a separate class on any matter to be voted on by
shareholders of the Corporation.
(b) The Corporation shall not amend, alter or repeal the
preferences, privileges, special rights or other powers of the Series A
Preferred, as set forth herein, in a manner adverse to the holders thereof,
without the affirmative vote of the holders of a majority of the then
outstanding shares of the Series A Preferred.
(c) The Corporation shall not amend, alter or repeal the
preferences, privileges, special rights or other powers of the Series B
Preferred, as set forth herein, in a manner adverse to the holders thereof,
without the affirmative vote of the holders of a majority of the then
outstanding shares of the Series B Preferred.
(d) The Corporation shall not authorize or issue, or obligate
itself to issue, any equity security which is senior to the Series A
Preferred as to dividend rights, redemption or sinking fund rights,
liquidation preferences, conversion rights, voting rights or otherwise, nor
shall the Corporation increase or decrease the authorized number of shares
of the Series A Preferred, without the affirmative vote of the holders of a
majority of the then outstanding shares of the Series A Preferred.
(e) The Corporation shall not authorize or issue, or obligate
itself to issue, any equity security which is senior to the Series B
Preferred as to dividend rights, redemption or sinking fund rights,
liquidation preferences, conversion rights, voting rights or otherwise, nor
shall the Corporation increase or decrease the authorized number of shares
of the Series D Preferred, without the affirmative vote of the holders of a
majority of the then outstanding shares of the Series B Preferred.
-6-
<PAGE>
(f) The Corporation shall not declare or pay any dividend or
other distribution upon the Common Stock or Convertible Preferred Stock, or
purchase, redeem, to otherwise acquire any shares of Common Stock or
Convertible Preferred Stock, or otherwise effect any "Distribution to its
shareholders" as defined in Section 166 of the California Corporations Code
("Section 166") without the affirmative vote of the holders of a majority
of the then outstanding shares of the Convertible Preferred Stock;
provided, however, that such vote shall not be required in connection with
either (i) any redemption of shares of Convertible Preferred Stock in
accordance with the provisions of this Certificate of Determination, or
(ii) the repurchase by the Corporation of shares issued by it to employees,
directors, or consultants to the extent that such repurchase does not
constitute a "Distribution to its shareholders" within the meaning of
clause (c) of Section 166.
(g) The Corporation shall not acquire or otherwise own any
subsidiary except any subsidiary which is owned entirely by the Corporation
or any subsidiary which is owned in part by the Corporation if such
partially owned subsidiary is not owned in part by any officer, director or
shareholder of the Corporation or any Related Party of any officer,
director or shareholder of the Corporation, without the affirmative vote
of the holders of a majority of the then outstanding shares of the
Convertible Preferred Stock.
(h) Notwithstanding the provisions of paragraph (d) above, the
actions of the Corporation specified therein shall not require the separate
affirmative vote of the holders of a majority of the Series A Preferred if
less than twenty-five percent (25%) of the aggregate number of shares of
Series A Preferred theretofore issued by the Corporation are at the time
outstanding.
(i) Notwithstanding the provisions of paragraph (e) above, the
actions of the Corporation specified therein shall not require the separate
affirmative vote of the holders of a majority of the Series B Preferred if
less than twenty-five percent (25%) of the aggregate number of shares of
the Series B Preferred theretofore issued by the Corporation are at the
time outstanding.
(j) Notwithstanding the provisions of paragraphs (f) and (g)
above, the actions of the Corporations specified therein shall not require
the separate affirmative vote of the holders of a majority of the
Convertible Preferred Stock if less than fifty percent (50%) of the
aggregate number of shares of Convertible Preferred Stock theretofore
issued by the Corporation are at the time outstanding.
5. Conversion
----------
The holders of the Convertible Preferred Stock shall have the following
Conversion rights (the "Conversion Rights"):
(a) Optional Conversion.
-------------------
(i) Series A Preferred. Each share of Series A Preferred
------------------
shall be convertible, without the payment of any additional
consideration by the holder
-7-
<PAGE>
thereof and at the option of the holder thereof, at any time after the
date of issuance of such share, at the office of the Corporation or
any transfer agent for the Class A Common Stock, into such number of
fully paid and nonassessable shares of Class A Common Stock as is
determined by dividing Ninety Dollars ($90.00) by the applicable
Series A Conversion Price (determined as hereinafter provided) in
effect at the time of conversion. The Series A Conversion Price at
which shares of Class A Common Stock shall be deliverable upon
conversion of the Series A Preferred without the payment of any
additional consideration by the holder thereof (the "Series A
Conversion Price"), at the time of the filing of this Certificate of
Determination, initially shall be Nine Dollars ($9.00). Such initial
Series A Conversion Price shall be subject to adjustment, in order to
adjust the number of shares of Class A Common Stock into which the
Series A Preferred is convertible, as hereinafter provided.
(ii) Series B Preferred. Each share of Series B Preferred
------------------
shall be convertible, without the payment of any additional
consideration by the holder thereof and at the option of the holder
thereof, at any time after the date of issuance of such share, at the
office of the Corporation or any transfer agent for the Class A Common
Stock, into such number of fully paid and nonassessable shares of
Class A Common Stock as is determined by dividing Four Hundred Dollars
($400.00) by the applicable Series B Conversion Price (determined as
hereinafter provided) in effect at the time of conversion. The Series
B Conversion Price at which shares of Class A Common Stock shall be
deliverable upon conversion of the Series B Preferred without the
payment of any additional consideration by the holder thereof (the
"Series B Conversion Price"), at the time of the filing of this
Certificate of Determination, initially shall be Forty Dollars
($40.00). Such initial Series B Conversion Price shall be subject to
adjustment, in order to adjust the number of shares of Class A Common
Stock into which the Series B Preferred is convertible, as hereinafter
provided. The term "Conversion Price" shall mean the Series A
Conversion Price or the Series B Conversion Price, as applicable.
(b) Automatic Conversion.
--------------------
(i) Series A Preferred. Each share of Series A Preferred
------------------
shall be converted into shares of Class A Common Stock automatically
upon:
(A) the closing of a firm commitment underwritten
public offering pursuant to an effective registration statement
under the Securities Act of 1933, as amended, covering the offer
and sale of the Corporation's Common Stock if the aggregate
purchase price of the Common Stock sold pursuant to such
registration equals or exceeds Fifteen Million Dollars
($15,000,000) (a "Qualified Public Offering"); or
(B) the optional conversion into Class A Common Stock
of a cumulative number of shares of the Series A Preferred
-8-
<PAGE>
representing a majority of the aggregate number of shares of the
Series A Preferred theretofore issued by the Corporation.
(ii) Series B Preferred. Each share of Series B Preferred
------------------
shall be converted into shares of Class A Common Stock
automatically upon:
(A) the closing of a Qualified Public Offering; or
(B) the optional conversion into Class A Common Stock
of a cumulative number of shares of the Series B Preferred
representing a majority of the aggregate number of shares of the
Series B Preferred theretofore issued by the Corporation.
(c) Fractional Shares. No fractional shares of Common Stock
-----------------
shall be issued upon conversion of the Convertible Preferred Stock. In lieu
of any fractional shares to which the holder would otherwise be entitled,
the Corporation shall pay cash equal to such fraction multiplied by the
then effective Conversion Price.
(d) Mechanics of Optional Conversion. Before any holder of
--------------------------------
Convertible Preferred Stock shall be entitled to convert the same into full
shares of Class A Common Stock, such holder shall surrender the certificate
or certificates therefor, endorsed or accompanied by written instrument or
instruments of transfer, in form satisfactory to the Corporation, duly
executed by the registered holder or by his attorney duly authorized in
writing, at the office of the Corporation or of any transfer agent for the
Convertible Preferred Stock, and shall give written notice to the
Corporation at such office that such holder elects to convert the same and
shall state therein such holder's name or the names of the nominees in
which such holder wishes the certificate or certificates for shares of
Class A Common Stock to be issued. As soon as practicable thereafter, the
Corporation shall issue and deliver at such office to such holder of
Convertible Preferred Stock, or to such holder's nominee or nominees, a
certificate or certificates for the number of shares of Class A Common
Stock to which such holder shall be entitled as aforesaid, together with
cash in lieu of any fraction of a share. 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 Convertible Preferred Stock to be
converted, and the person or persons entitled to receive the shares of
Class A Common Stock issuable upon conversion shall be treated for all
purposes as the record holder or holders of such shares of Class A Common
Stock at the close of business on such date. From and after such date, all
rights of the holder with respect to the Convertible Preferred Stock so
converted shall terminate, except only the right of such holder to receive
certificates for the number of shares of Class A Common Stock issuable
up011 conversion thereof and cash for fractional shares, plus any dividends
thereon declared and unpaid as of the time of such conversion.
(e) Mechanics of Automatic Conversion. All holders of record of
---------------------------------
shares of Convertible Preferred Stock will be given written notice of the
date of any automatic conversion referenced in Section 5(b). Such notice
will be sent by mail; first class, postage prepaid, to each record holder
of Convertible Preferred Stock at such
-9-
<PAGE>
holder's address appearing on the stock register. Promptly after receiving such
notice, each holder of shares of Convertible Preferred Stock shall surrender
such holder's certificate or certificates for all such shares to the Corporation
at the place designated in such notice, and thereafter shall receive
certificates for the number of shares of Class A Common Stock or such other
securities to which such holder is entitled. Upon the date of any such automatic
conversion, all rights with respect to the Convertible Preferred Stock will
terminate, except only the right of the holders thereof, upon surrender of their
certificate or certificates therefore, to receive certificates for the number of
shares of Class A Common Stock or such other securities into which such
Convertible Preferred Stock has been converted and cash for fractional shares,
plus any dividends thereon declared and unpaid as of the time of such
conversion. All certificates evidencing shares of Convertible Preferred Stock
which are converted automatically in accordance with the provisions hereof shall
be deemed to have been retired and canceled from and after the date of such
automatic conversion, and the shares of Convertible Preferred Stock represented
thereby converted into Class A Common Stock for all purposes, notwithstanding
the failure of the holder or holders thereof to surrender such certificates. As
soon as practicable after the date of any such automatic conversion and the
surrender of the certificate or certificates for Convertible Preferred Stock as
aforesaid, the Corporation shall cause to be issued and delivered to such
holder, or to such holder's written order, a certificate or certificates for the
number of full shares of Class A Common Stock or such other securities issuable
on such conversion in accordance with the provisions hereof and cash as provided
in Subsection 5(c) in respect of any fraction of a share of Common Stock
otherwise issuable upon such conversion.
(f) Certain Adjustments to Conversion Price.
---------------------------------------
(i) Adjustment for Stock Splits, Stock Dividends and
------------------------------------------------
Combinations of Common Stock. In the event the outstanding shares of Class
----------------------------
A Common Stock shall be subdivided (split), or combined (reverse split)
further, by reclassification or otherwise, after the filing of this
Certificate of Determination, or in the event of any dividend or other
distribution payable on the Class A Common Stock in shares of Class A
Common Stock, the Conversion Price in effect immediately prior to such
subdivision, combination, dividend or other distribution shall be adjusted
proportionately, concurrently with the effectiveness of such subdivision,
combination or dividend or other distribution.
(ii) Adjustment for Merger or Reorganization, Etc. In case of a
--------------------------------------------
reclassification, reorganization or exchange transaction or any
consolidation or merger of the Corporation with another corporation (other
than a merger or other reorganization which is deemed to be a liquidation
pursuant to Section 3(b) of this Subsection (A), each share of Convertible
Preferred Stock shall be convertible thereafter into the number of shares
of stock or other securities or property to which a holder of the number of
shares of Class A Common Stock of the Corporation deliverable upon
conversion of such Convertible Preferred Stock would have been entitled
upon such reclassification, reorganization, exchange, consolidation, merger
or conveyance; and, in any such case, appropriate adjustment (as determined
by the Board) shall be made in the application of the
-10-
<PAGE>
provisions herein set forth with respect to the rights and interests
thereafter of the holders of the Convertible Preferred Stock, to the end
that the provisions set forth herein (including provisions with respect to
changes in and other adjustments of the Conversion Price) shall be
applicable thereafter, as nearly as reasonably may be, in relation to any
shares of stock or other property thereafter deliverable upon the
conversion of the Convertible Preferred Stock.
(iii) Adjustments for Other Dividends and Distributions. In the
-------------------------------------------------
event the Corporation at any time or from time to time after the filing of
this Certificate of Determination makes or fixes a record date for the
determination of holders of Class A Common Stock entitled to receive a
dividend or other distribution payable in securities of the Company other
than shares of Class A Common Stock, then and in each such event provision
shall be made so that the holders of Convertible Preferred Stock shall
receive upon conversion thereof, in addition to the number of shares of
Class A Common Stock receivable thereupon, the amount of securities of the
Company which they would have received had their Convertible Preferred
Stock been converted into Class A Common Stock on the date of such event
and had they thereafter, during the period from the date of such event to
and including the conversion date, retained such securities receivable by
them as aforesaid during such period, subject to all other adjustments
called for during such period under this Section 5 with respect to the
rights of the holders of the Convertible Preferred Stock.
(g) Certificate as to Adjustments. Upon the occurrence of each
-----------------------------
adjustment or readjustment of a Conversion Price of any of the Convertible
Preferred Stock pursuant to this Section 5, the Corporation, at its expense,
promptly shall compute such adjustment or readjustment in accordance with the
terms hereof and furnish to each holder of such Convertible Preferred Stock a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based. At any time, upon
the written request of any holder of any Convertible Preferred Stock, the
Corporation shall furnish or cause to be furnished to such holder a like
certificate setting forth: (i) such adjustments and readjustments; (ii) the
applicable Conversion Price of such Convertible Preferred Stock at the time in
effect; and (iii) the number of shares of Class A Common Stock and the amount,
if any, of other property which at the time would be received upon the
conversion of such Convertible Preferred Stock.
(h) Notices of Record Date. In the event of any taking by the
----------------------
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 which is the same as cash dividends paid in
previous quarters) or other distribution, any capital reorganization of the
Corporation, any reclassification or recapitalization of the Corporation's
capital stock, any consolidation or merger with or into another corporation, any
transfer of all or substantially all of the assets of the Corporation or any
dissolution, liquidation or winding up of the Corporation, the Corporation shall
mail to each holder of Convertible Preferred Stock, at least ten (10) days prior
to the date specified for the taking of a record, a notice specifying the date
on
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<PAGE>
which any such record is to be taken for the purpose of such dividend,
distribution or other such event.
(i) Class A Common Stock Reserved. The Corporation shall reserve and
-----------------------------
keep available out of its authorized but unissued Common Stock such number of
shares of Class A Common Stock as shall be sufficient to effect the full
conversion of all outstanding Convertible Preferred Stock from time to time.
(j) Payment of Taxes. The Corporation will pay all taxes (other than
----------------
taxes based upon income) and other governmental charges that may be imposed with
respect to the issue or delivery of shares of Common Stock upon conversion of
shares of Convertible Preferred Stock, other than any tax or other charge
imposed in connection with any transfer involved in the issue and delivery of
shares of Common Stock in a name other than that in which the shares of
Convertible Preferred Stock so converted were registered.
(k) No Impairment. The Corporation will not avoid or seek to avoid
-------------
the observance or performance of any of the terms to be observed or performed
hereunder by the Corporation by amendment of its Articles of Incorporation or
through any reorganization, recapitalization, transfer of assets, consolidation
merger, dissolution, issue or sale of securities, or any other voluntary action.
The Company will assist in the carrying out of all the provisions hereof at all
times, in good faith, 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
Convertible Preferred Stock as set forth herein against impairment.
6. Mandatory Redemption of Convertible Preferred Stock.
---------------------------------------------------
(a) Mandatory Redemption of Series A Preferred. Beginning on any date
------------------------------------------
specified by the affirmative vote of the holders of a majority of the then
outstanding shares of the Series A Preferred, which date shall be no sooner
than March 31, 2005 (the "Series A Initial Redemption Date"), but only if such
majority so elects and so specifies a Series A Redemption Date, the Corporation
shall redeem the Series A Preferred in the manner and at the applicable Series A
Redemption Price (hereinafter specified). The Corporation shall redeem the
Series A Preferred in three (3) equal annual installments beginning on the
Series A Initial Redemption Date and on each of the first and second
anniversaries of the Series A Initial Redemption Date (each, a "Series A
Redemption Date"). In the event the Corporation does not have sufficient funds
legally available to redeem all of the Series A Preferred on any Series A
Redemption Date, the Corporation shall redeem pro rata (based upon the number of
shares held by each holder) the maximum number of shares of Series A Preferred
it can legally redeem on such date, and shall redeem the remainder as soon as
the Corporation has funds legally available therefor on one or more occasions as
necessary. Each deferred date upon which the Corporation redeems shares of
Series A Preferred in accordance with the immediately preceding sentence is
also herein referred to as a "Deferred Series A Redemption Date."
(b) Mandatory Redemption of Series B Preferred. Beginning on any
------------------------------------------
date specified by the affirmative vote of the holders of a majority of the then
outstanding
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<PAGE>
shares of the Series B Preferred, which date shall be no sooner than March 31,
2005 (the "Series B Initial Redemption Date"), but only if such majority so
elects and so specifies a Series B Redemption Date, the Corporation shall redeem
the Series B Preferred in the manner and at the applicable Series B Redemption
Price (hereinafter specified). The Corporation shall redeem the Series B
Preferred in three (3) equal annual installments beginning on the Series B
Initial Redemption Date and on each of the first and second anniversaries of the
Series B Initial Redemption Date (each, a "Series B Redemption Date"). In the
event the Corporation does not have sufficient funds legally available to redeem
all of the Series B Preferred on any Series B Redemption Date, the Corporation
shall redeem pro rata (based upon the number of shares held by each holder) the
maximum number of shares of Series B Preferred it can legally redeem on such
date, and shall redeem the remainder as soon as the Corporation has funds
legally available therefor on one or more occasions as necessary. Each deferred
date upon which the Corporation redeems shares of Series B Preferred in
accordance with the immediately preceding sentence is also herein referred to as
a "Deferred Series B Redemption Date." The term "Redemption Date" shall mean the
Series A Redemption Date or the Series B Redemption Date, as applicable.
(c) Price. The redemption price shall be an amount per share equal to
-----
(i) Ninety Dollars ($90.00) plus any dividends declared but unpaid thereon for
the Series A Preferred (the "Series A Redemption Price") or (ii) Four Hundred
Dollars ($400.00) plus any dividends declared but unpaid thereon for the Series
B Preferred (the "Series B Redemption Price") The term "Redemption Price" shall
mean the Series A Redemption Price or Series B Redemption Price, as applicable.
(d) Redemption Notice by Company. Not less than ten (10) days nor
----------------------------
more than thirty (30) days prior to the Initial Series A Redemption Date,
Initial Series B Redemption Date and any other Redemption Date, the Corporation
shall mail written notice (a "Redemption Notice"), postage prepaid, to each
holder of record of Convertible Preferred Stock at the holder's post office
address last shown on the records of the Corporation. Each Redemption Notice
shall state:
(i) the number of outstanding shares of:
(A) Series A Preferred to be redeemed on such Series A
Redemption Date, which in any event shall equal no more than one-third
(1/3) of all shares of Series A Preferred outstanding as of the
Initial Series A Redemption Date, and no more than one-half (1/2) of
all shares of Series A Preferred outstanding on any subsequent Series
A Redemption Date (other than a Deferred Series A Redemption Date, in
which case the Redemption Notice shall specify no more than that
number of shares of Series A Preferred that were not redeemed by the
Corporation on the most recent Series A Redemption Date due to a lack
of sufficient funds legally available for such redemption); or
(B) Series B Preferred to be redeemed on such Series B
Redemption Date, which in any event shall equal no more than one-
third
-13-
<PAGE>
(1/3) of all shares of Series B Preferred outstanding as of the
Initial Series B Redemption Date, and no more than one-half (1/2)
of all shares of Series B Preferred outstanding on any subsequent
Series B Redemption Date (other than a Deferred Series B
Redemption Date, in which case the Redemption Notice shall
specify no more than that number of shares of Series B Preferred
that were not redeemed by the Corporation on the most recent
Series B Redemption Date due to a lack of sufficient funds
legally available for such redemption);
(ii) the number of shares of the Series A Preferred or
Series B Preferred, as applicable, held by the holder which the
Corporation shall redeem on such Redemption Date in accordance with
the provisions hereof;
(iii) that the shares of Series A Preferred or Series B
Preferred, as applicable, to be redeemed by the Corporation shall be
redeemed on such Redemption Date, which shall be specified as a
calendar date and shall be a business day;
(iv) the applicable Redemption Price; and
(v) the time and manner in, and place at, which the holder
is to surrender to the Corporation the certificate or certificates
representing the shares of Series A Preferred or Series B preferred,
as applicable, to be redeemed on the Redemption Date.
(e) Surrender of Stock. On or before each Redemption Date, each
------------------
holder of Convertible Preferred Stock to be redeemed pursuant to this
Section 6 shall surrender to the Corporation the certificate or
certificates representing the shares to be redeemed on such Redemption
Date, in the manner and at the place designated in the Redemption Notice,
and upon each such Redemption Date the Redemption Price for such shares
shall be payable to the order of the person whose name appears on such
certificate or certificates as the owner thereof, or to such payee as such
owner may designate in writing to the Corporation prior to each such
Redemption Date, and each surrendered certificate shall be canceled and
retired.
(f) Termination of Rights. If a Redemption Notice is duly given
---------------------
and if, on or prior to a Redemption Date, the Redemption Price is paid,
then, notwithstanding that the certificates evidencing any of the shares of
Convertible Preferred Stock so called for redemption have not been
surrendered, all rights with respect to such shares shall cease forthwith
after such Redemption Date cease.
7. Reissuance of Preferred Stock.
-----------------------------
No shares of Convertible Preferred Stock which are redeemed, purchased
or acquired by the Corporation or converted into Common Stock shall be reissued,
and all such share shall be canceled and eliminated from the shares which the
Corporation shall be authorized to issue.
-14-
<PAGE>
SIXTH: The foregoing amendment was approved by the holders of the
requisite number of shares of said Corporation in accordance with Sections 902
and 903 of the General Corporation Law of California; the total number of
outstanding shares of each class entitled to vote with respect to the foregoing
amendment was two hundred thousand shares of Class A Common Stock, two million
eight hundred thousand shares of Class B Common Stock and one hundred seventy-
one thousand one hundred sixty-four (171,164) shares of Series A Preferred.
The number of shares voting in favor of the foregoing amendment equaled or
exceeded the vote required, such required vote being (i) a majority of the
outstanding shares of Common Stock and Series A Preferred voting together as a
single class, and (ii) a majority of the outstanding shares of Series A
Preferred voting as a single class.
The undersigned declares under penalty of perjury under the laws of
the State of California that the matters set forth in this certificate are true
of my own knowledge.
DATE: March 22, 2000 /s/ Richard N. Nottenburg
------------------------------
Richard N. Nottenburg,
President and Secretary
-15-
<PAGE>
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
MULTILINK TECHNOLOGY CORPORATION,
a California corporation
The undersigned, Richard N. Nottenburg hereby certifies that:
FIRST: He is the duly elected and acting President and Secretary of
Multilink Technology Corporation, a California corporation.
SECOND: Paragraph A of ARTICLE III of the Articles of Incorporation of this
corporation is amended to read as follows:
"ARTICLE III
A. Classes of Stock; Stock Split.
1. Classes of Stock. This corporation is authorized to issue three
classes of stock to be designated, respectively, "Class A Common Stock," "Class
B Common Stock" and "Preferred Stock." The Class A Common Stock and Class B
Common Stock are hereinafter referred to collectively as "Common Stock." The
total number of shares of stock which the corporation is authorized to issue is
Three Hundred Ten Million (310,000,000) shares. Two Hundred Million
(200,000,000) share shall be Class A Common Stock, par value $.0001 per share,
One Hundred Million (100,000,000) shares shall be Class B Common Stock, par
value $.0001 per share, and Ten Million (10,000,000) shares shall be Preferred
Stock, par value $.0001 per share.
2. Stock Split. Upon the Amendment of this article to read as herein
set forth, each outstanding share of Common Stock and Preferred Stock of the
corporation will automatically be split up and converted into ten (10) shares of
each said class or series."
THIRD: The foregoing amendment, hereby provides for equal treatment for
each outstanding share of the same class or series of all Common and Preferred
Stock of the Corporation. The designation of rights, preferences, privileges
and restrictions of the Corporation's Preferred Stock as set forth in the
Amended and Restated Certificate of Determination of Rights and Preferences of
Preferred Shares of the Corporation, remain in effect and unchanged.
FOURTH: The foregoing amendment of Articles of Incorporation has been
duly approved by the Corporation's board of directors.
<PAGE>
FIFTH: The foregoing amendment of Articles of Incorporation has been duly
approved by the holders of the requisite number of shares of said corporation in
accordance with Sections 902 and 903 of the General Corporation Law of
California; the total number of outstanding shares of each class entitled to
vote with respect to the foregoing amendment was two hundred thousand (200,000)
shares of Class A Common Stock, two million eight hundred thousand (2,800,000)
shares of Class B Common Stock, one hundred seventy-one thousand one hundred
sixty-four (171,164) shares of Series A Preferred Stock and one hundred
thousand (100,000) shares of Series B Preferred Stock. The number of shares
voting in favor of the foregoing amendment equaled or exceeded the vote
required, such required vote being (i) a majority of the outstanding shares of
Common Stock and Series A Preferred and Series B Preferred voting together as a
single class, (ii) a majority of the outstanding shares of Class A Common Stock
voting as a single class, (iii) a majority of the outstanding shares of Class B
Common Stock voting as a single class, (iv) a majority of the outstanding shares
of Series A Preferred voting as a single class, and (v) a majority of the Series
B Preferred voting as a single class.
-2-
<PAGE>
The undersigned further declares under penalty of perjury under the laws of
the State of California that the matters set forth in this certificate are true
and correct of his own knowledge.
IN WITNESS WHEREOF, the undersigned has executed this certificate on June
21, 2000.
/s/ Richard N. Nottenburg,
--------------------------------
Richard N. Nottenburg,
President and Secretary
<PAGE>
F I L E D
In the office of the Secretary of State
of the State of California
JUN 22 2000
/s/ Bill Jones
BILL JONES, Secretary of State
1748156
CERTIFICATE OF AMENDMENT OF
AMENDED AND RESTATED CERTIFICATE OF
DETERMINATION OF RIGHTS AND PREFERENCES
OF PREFERRED SHARES
OF
MULTILINK TECHNOLOGY CORPORATION,
a California corporation
PURSUANT TO THE PROVISIONS OF SECTION 401
OF THE GENERAL CORPORATION LAW OF THE STATE OF CALIFORNIA
The undersigned, Richard N. Nottenburg hereby certifies that:
FIRST: He is the duly elected and acting President and Secretary of
Multilink Technology Corporation, a California corporation.
SECOND: That the Board of Directors of the Corporation, pursuant to
the authority so vested in it by the Amended and Restated Articles of
Incorporation of the Corporation, as amended, and in accordance with the
provisions of Section 401 of the general Corporation Law of the State of
California (the "California Corporation Law"), duly adopted the following
resolutions amending the designation of rights, preferences, privileges and
restrictions of the Corporation's Series A Convertible Preferred Stock, par
value $0.0001 per share (the "Series A Preferred") and Series B Convertible
Preferred Stock, par value $0.0001 per share (the "Series B Preferred").
THIRD: That the following resolutions designate one million seven
hundred eleven thousand six hundred forty (1,711,640) shares of Series A
Preferred, and that as of the date hereof, one hundred seventy-one thousand one
hundred sixty-four (171,164) shares of Series A Preferred have been issued.
FOURTH: That the following resolutions designate one million five
hundred thousand (1,500,000) shares of Series B Preferred, and that as of the
date hereof, one hundred thousand (100,000) shares of Series B Preferred have
been issued.
FIFTH: The resolutions duly adopted by the Board of Directors of the
Corporation are as follows:
WHEREAS, the Amended and Restated Articles of Incorporation, as
amended, of the Corporation authorized Preferred Stock consisting of ten million
(10,000,000) shares, par value of $0.0001 per share (the "Preferred Stock"),
issuable from time to time in one or more series:
<PAGE>
WHEREAS, the Board of Directors of the Corporation is authorized,
subject to limitations prescribed by law and by the provisions of Article III of
the Corporation's Amended and Restated Articles of Incorporation, as amended, to
establish and fix the number of shares to be included in any series of Preferred
Stock and the designation of rights, preferences, privileges and restrictions of
the shares of such series;
WHEREAS, the Board of Directors of the Corporation previously approved
and filed with the California Secretary of State an Amended and Restated
Certificate of Determination of Rights and Preferences of Preferred Shares (the
"Certificate of Determination");
WHEREAS, it is the desire of the Board of Directors to amend the
Certificate of Determination to increase the authorized number of shares to be
included in the Series A Preferred and the Series B Preferred.
NOW, THEREFORE, BE IT RESOLVED, that pursuant to Article III of the
Corporation's Amended and Restated Articles of Incorporation, as amended, the
following series of Preferred Stock shall have the authorized number of shares
as set forth herein: (a) one million seven hundred eleven thousand, six hundred
forty (1,711,640) shares shall be designated Series A Preferred and (b) one
million five hundred thousand (1,500,000) shares shall be designated Series B
Preferred. Such shares of Convertible Preferred Stock shall have the rights,
preferences, privileges and restrictions set forth in the Certificate of
Determination, as amended.
FIFTH: The foregoing amendment of Amended and Restated Certificate of
Determination of Rights and Preferences of Preferred Shares has been duly
approved by the holders of the requisite number of shares of said corporation in
accordance with Sections 902 and 903 of the General Corporation Law of
California; the total number of outstanding shares of each class entitled to
vote with respect to the foregoing amendment was two hundred thousand (200,000)
shares of Class A Common Stock, two million eight hundred thousand (2,800,000)
shares of Class B Common Stock, one hundred seventy-one thousand one hundred
sixty-four (171,164) shares of Series A Preferred Stock and one hundred
thousand (100,000) shares of Series B Preferred Stock. The number of shares
voting in favor of the foregoing amendment equaled or exceeded the vote
required, such required vote being (i) a majority of the outstanding shares of
Common Stock and Series A Preferred and Series B Preferred voting together as a
single class, (ii) a majority of the outstanding shares of Class A Common Stock
voting as a single class, (iii) a majority of the outstanding shares of Class B
Common Stock voting as a single class, (iv) a majority of the outstanding shares
of Series A Preferred voting as a single class, and (v) a majority of the Series
B Preferred voting as a single class.
-2-
<PAGE>
The undersigned further declares under penalty of perjury under the
laws of the State of California that the matters set forth in this certificate
are true and correct of his own knowledge.
IN WITNESS WHEREOF, the undersigned has executed this certificate on
June 21, 2000
/s/ Richard N. Nottenburg
--------------------------------
Richard N. Nottenburg,
President and Secretary
[SEAL]
