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EXHIBIT 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
PDF SOLUTIONS, INC.
The undersigned, John K. Kibarian and Peter Cohn certify that:
1. They are the duly elected President and Chief Executive Officer and
Secretary, respectively of PDF Solutions, Inc., a California corporation.
2. The Articles of Incorporation of this corporation are amended and
restated to read in full as follows:
"I
The name of this corporation is: PDF Solutions, Inc.
II
The purpose of this corporation is to engage in any lawful act or
activity for which a 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.
III
(A) Classes of Stock. The corporation is authorized to issue two classes
of shares to be designated respectively "Preferred Stock" and "Common Stock" and
each class shall have a par value of $0.0001 per share. The total number of
shares of Preferred Stock authorized is 9,300,000 and the total number of shares
of Common Stock authorized is 50,000,000.
(B) Rights, Preferences and Restrictions of Preferred Stock. The
Preferred Stock authorized by these Amended and Restated Articles of
Incorporation may be issued from time to time in one or more series. The first
series of Preferred Stock shall be designated "Series A Preferred Stock" and
shall consist of 8,750,000 shares. The second series of Preferred Stock shall be
designated "Series B Preferred Stock" and shall consist of 550,000 shares. The
rights, preferences, privileges, and restrictions granted to and imposed on the
Preferred Stock are as follows:
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(1) Dividends.
(aa) The holders of outstanding Preferred Stock shall, in pari
passu, be entitled to receive in any fiscal year, when, as and if declared by
the Board of Directors, out of any assets at the time legally available
therefor, dividends in cash at the rate of $0.02 per share of Series A Preferred
Stock per annum and at the rate of $0.76 per share of Series B Preferred Stock
per annum, before any cash dividend is paid on Common Stock. Such dividend or
distribution may be payable annually or otherwise as the Board of Directors may
from time to time determine. Dividends or distributions (other than dividends
payable solely in shares of Common Stock) may be declared and paid upon shares
of Common Stock in any fiscal year of the corporation only if dividends shall
have been paid on or declared and set apart upon all shares of Preferred Stock
at such annual rate; and no further dividends shall be paid to holders of shares
of Preferred Stock in excess of such annual rate in any fiscal year unless at
the same time equivalent dividends are paid to holders of shares of Common
Stock. The right to such dividends on shares of Preferred Stock shall not be
cumulative and no right shall accrue to holders of shares of Preferred Stock by
reason of the fact that dividends on said shares are not declared in any prior
year, nor shall any undeclared or unpaid dividend bear or accrue interest.
(bb) 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 to purchase any such securities or evidences of indebtedness, then, in
each such case the holders of the Preferred Stock shall be entitled to a
proportionate share of any such distribution as though the holders of the
Preferred Stock were the holders of the number of shares of Common Stock of the
corporation into which their respective shares of Preferred Stock are
convertible as of the record date fixed for the determination of the holders of
Common Stock of the corporation entitled to receive such distribution.
(2) Voting Rights.
(aa) In General. Subject to subsection (bb) hereof and except as
otherwise required by law, the holders of Preferred Stock and the holders of
Common Stock shall be entitled to notice of any shareholders' meeting and to
vote as a single class upon any matter submitted to the shareholders for a vote,
as follows: (i) each holder of Preferred Stock shall have one vote for each full
share of Common Stock into which its shares of Preferred Stock would be
convertible on the record date for the vote and (ii) the holders of Common Stock
shall have one vote per share of Common Stock.
(bb) Voting for Board of Directors. The Board of Directors of
this corporation shall consist of six members. The holders of shares of
Preferred Stock, voting separately as a class, shall elect two members of the
Board of Directors of the corporation (the "PREFERRED DIRECTORS"). The holders
of shares of Common Stock, voting separately as a class, shall elect two members
of the Board of Directors of the corporation (the "COMMON DIRECTORS"). The
remaining two members of the Board of Directors (the "MUTUALLY AGREED UPON
DIRECTORS") shall be elected by the holders of the shares of Common Stock and
Preferred Stock, voting together as a class. If a vacancy on the Board of
Directors is to be filled by the Board of Directors, only a director or
directors elected by the same class of shareholders as those who would be
entitled to vote to fill such vacancy, if any, shall vote to fill such vacancy,
unless such vacancy is the position held by Mutually Agreed Upon Director, in
which case
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such vacancy may be filled by the majority of the remaining directors. No action
by members of the Board of Directors filling a vacancy on the Board of Directors
shall be effective until 10 days after all Board members who do not have a right
to vote on such appointment have received notice thereof. A majority of the
Board members entitled to receive such notice may waive such notice requirement
on behalf of all such Board members. A director may be removed from the Board of
Directors with or without cause by the vote or consent of a majority of the
holders of the outstanding class or series with voting power to elect him or her
in accordance with the California General Corporation Law.
(3) Conversion. The holders of the Preferred Stock shall have conversion
rights as follows (the "CONVERSION RIGHTS"):
(aa) Right to Convert.
(i) Each share of Preferred Stock shall be convertible,
at the option of the holder thereof, at any time after the date of issuance of
such share at the office of this corporation or any transfer agent for the
Preferred Stock, into such number of fully paid and nonassessable shares of
Common Stock as is determined by dividing (A) $0.40 in the case of the Series A
Preferred Stock and (B) $9.50 in the case of the Series B Preferred Stock by the
Conversion Price at the time in effect for such share. The initial "CONVERSION
PRICE" for shares of Preferred Stock shall be $0.40 for share of Series A
Preferred Stock and $9.50 for shares of Series B Preferred Stock. Such initial
Conversion Price shall be subject, however, to the adjustments described below.
The number of shares into which each share of Preferred Stock shall be converted
shall be known as the "CONVERSION RATE." Any increase or decrease in the
Conversion Price shall be reflected in a decrease or increase in the Conversion
Rate as determined by reference to the first sentence of this section
III(B)(3)(aa)(i).
(ii) Each share of Preferred Stock shall automatically
be converted into shares of Common Stock at the then effective Conversion Rate
in the event of, and contingent upon, the consummation 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
Common Stock for the account of the corporation to the public at a price per
share of not less than $9.50 (as adjusted for stock splits, reverse stock splits
and the like) and an aggregate offering price of not less than $7,500,000. Each
share of Series A Preferred Stock shall automatically be converted into shares
of common stock upon the consent of the holders of not less than a majority in
voting interest of the then outstanding shares of Series A Preferred Stock. Each
share of Series B Preferred Stock shall automatically be converted into shares
of common stock upon the consent of the holders of not less than a majority in
voting interest of the then outstanding shares of Series B Preferred Stock.
(iii) No fractional shares of Common Stock shall be
issued upon conversion of the Preferred Stock and any shares of Preferred Stock
surrendered for conversion which would otherwise result in a fractional share of
Common Stock shall be redeemed for the then fair market value thereof as
determined by the corporation's Board of Directors, payable as promptly as
possible whenever funds are legally available therefor. If more than one share
of Preferred Stock is surrendered for conversion at any one time by the same
holder, the number of full shares of Common Stock to be issued upon conversion
shall be computed on the basis of the aggregate number of shares of Preferred
Stock so surrendered.
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(bb) Mechanics of Conversion. Before any holder of Preferred
Stock shall be entitled to convert the same into shares of Common Stock, such
holder shall surrender the certificate or certificates therefor, duly endorsed,
at the office of the corporation or of any transfer agent for the 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 the name or names in
which such holder wishes the certificate or certificates for the number of
shares of Common Stock to be issued. The corporation shall, as soon as
practicable thereafter, issue and deliver at such office to such holder of
Preferred Stock, or to such holder's nominee or nominees, 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 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 on such date.
(cc) Adjustment of Conversion Price For Combinations or
Consolidations of Common Stock. In the event the corporation, at any time or
from time to time after the effective date of a written agreement by the
corporation for the initial sale of Series B Preferred Stock (hereinafter
referred to as the "ORIGINAL ISSUE DATE"), effects a subdivision or combination
of its outstanding Common Stock into a greater or lesser number of shares
without a proportionate and corresponding subdivision or combination of its
outstanding Preferred Stock, then and in each such event the Conversion Price
for the Preferred Stock shall be decreased or increased proportionately.
(dd) Adjustments for Reorganization, Reclassification, Exchange
and Substitution. If the Common Stock issuable upon conversion of the Preferred
Stock shall be changed into the same or a different number of shares of any
other class or classes of stock or other securities or property, whether by
reorganization (unless such reorganization is deemed a liquidation under Section
III(B)(4)(bb) hereof), reclassification or otherwise (other than a subdivision
or combination of shares provided for above), the Conversion Rate then in effect
shall, concurrently with the effectiveness of such reorganization or
reclassification, be proportionately adjusted such that the Preferred Stock
shall be convertible into, in lieu of the number of shares of Common Stock which
the holders would otherwise have been entitled to receive, a number of shares of
such other class or classes of stock or other securities or property equivalent
to the number of shares of Common Stock that would have been subject to receipt
by the holders upon conversion of the Preferred Stock immediately before such
event; and, in any such case, appropriate adjustment shall be made in the
application of the provisions herein set forth with respect to the rights and
interest thereafter of the holders of the 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 thereafter be applicable, as
nearly as reasonably may be, in relation to any shares of stock or other
property thereafter deliverable upon the conversion of the Preferred Stock.
(ee) Adjustment of Conversion Price for Dividends, Distributions
and Common Stock Equivalents. In the event the corporation at any time or from
time to time after the Original Issue Date shall make or issue, or fix a record
date for the determination of holders of Common Stock entitled to receive a
dividend or other distribution payable in additional shares of Common Stock
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or other securities or rights (hereinafter referred to as "COMMON STOCK
EQUIVALENTS") convertible into or entitling the holder thereof to receive
additional shares of Common Stock without payment of any consideration by such
holder for such Common Stock Equivalents or the additional shares of Common
Stock, then and in each such event the maximum number of shares (as set forth in
the instrument relating thereto without regard to any provisions contained
therein for a subsequent adjustment of such number) of Common Stock issuable in
payment of such dividend or distribution or upon conversion or exercise of such
Common Stock Equivalents shall be deemed to be issued and outstanding as of the
time of such issuance or, in the event such a record date shall have been fixed,
as of the close of business on such record date. In each such event, the
Conversion Price for the Preferred Stock shall be decreased as of the time of
such issuance or, in the event such a record date shall have been fixed, as of
the close of business on such record date, by dividing the Conversion Price for
such series by a fraction,
(i) the numerator of which shall be the total number of
shares of Common Stock issued and outstanding or deemed to be issued and
outstanding immediately prior to the time of such issuance on the close of
business on such record date plus the number of shares of Common Stock issuable
in payment of such dividend or distribution or upon conversion or exercise of
such Common Stock Equivalents, and
(ii) the denominator of which shall be the total number
of shares of Common Stock issued and outstanding or deemed to be issued and
outstanding immediately prior to the time of such issuance on the close of
business on such record date provided, however, (A) if such record date shall
have been fixed and such dividend is not fully paid or if such distribution is
fully made on the date fixed therefor, the Conversion Price for such series
shall be recomputed accordingly as of the close of business on such record date
and thereafter the Conversion Price for such series shall be adjusted pursuant
to this paragraph III(B)(3)(ee) as of the time of actual payment of such
dividends or distribution; (B) if such Common Stock Equivalents provide, with
the passage of time or otherwise, for any decrease in the number of shares of
Common Stock issuable upon conversion or exercise thereof, the Conversion Price
for such series shall, upon any such decrease becoming effective, be recomputed
to reflect such decrease insofar as it affects the rights of conversion or
exercise of the Common Stock Equivalents then outstanding; and (C) upon the
expiration of any rights or conversion or exercise under any unexercised Common
Stock Equivalents, the Conversion Price for such series computed upon the
original issue thereof shall, upon such expiration, be recomputed as if the only
additional shares of Common Stock issued were the shares of such stock, if any,
actually issued upon the conversion or exercise of such Common Stock
Equivalents.
(ff) Adjustment of Conversion Price for Subsequent Sales Below
Conversion Price. If the corporation shall issue, after the date upon which any
shares of Series B 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 in effect immediately prior to the
issuance of such Additional Stock, then such Conversion Price shall be adjusted
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 plus the number of shares of Common Stock that the aggregate
consideration received by the corporation for such issuance would purchase at
the Conversion Price in effect immediately prior to the issuance of such
Additional Stock and the denominator of which shall be
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the number of shares of Common Stock outstanding immediately prior to such
issuance plus the number of shares of such Additional Stock so issued. For
purposes of this paragraph III(B)(3)(ff) and paragraph III(B)(3)(ee), the shares
of issued or issuable Common Stock that are excluded from the definition of
Additional Stock will be deemed outstanding.
(i) No adjustment of the Conversion Price for any series
of Preferred Stock shall be made in an amount less than one cent per share, and
any adjustments which are not required to be made by reason of this sentence
shall not be carried forward nor taken into account in any subsequent
adjustment. Except to the limited extent provided for in paragraphs
III(B)(3)(ff)(iv)(C) and III(B)(3)(ff)(iv)(D), no adjustment of such Conversion
Price pursuant to this paragraph III(B)(3)(ff)(i) shall have the effect of
increasing the Conversion Price above the Conversion Price in effect immediately
prior to such adjustment.
(ii) In the case of the issuance of Common Stock for
cash, the consideration shall be deemed to be the amount of cash paid therefor
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.
(iii) 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.
(iv) In the case of the issuance, whether before, on or
after the Purchase Date of such series of Preferred Stock, 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 (which are
not excluded from the definition of Additional Stock), the following provisions
shall apply:
(A) The aggregate maximum number of shares of Common Stock
deliverable upon exercise 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 paragraphs III(B)(3)(ff)(ii) and
III(B)(3)(ff)(iii)), if any, received by the corporation upon the issuance of
such options or rights plus the minimum purchase price provided in such options
or rights for the Common Stock covered thereby.
(B) The aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange 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 the corporation
for any such securities and related options or rights (excluding any cash
received on account of accrued interest or accrued dividends), plus the
additional consideration, if any, to be received by the corporation upon the
conversion or exchange of such
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securities or the exercise of any related options or rights (the consideration
in each case to be determined in the manner provided in paragraphs
III(B)(3)(ff)(ii) and III(B)(3)(ff)(iii)).
(C) In the event of any change in the number of shares of Common
Stock deliverable or any increase in the consideration payable to this
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, the
Conversion Price of any series of Preferred Stock obtained with respect to the
adjustment which was made upon the issuance of such options, rights or
securities, and any subsequent adjustments based thereon, 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.
(D) 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 any series of Preferred Stock obtained with respect to the
adjustment which was made upon the issuance of such options, rights or
securities or options or rights related to such securities, and any subsequent
adjustments based thereon, shall be recomputed to reflect the issuance of only
the number of shares of Common Stock 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. 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, only the number of shares of Common
Stock 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 shall continue to be deemed to be issued.
(E) All Common Stock deemed issued pursuant to this paragraph
III(B)(3)(ff)(iv)(E) shall be considered issued only at the time of its deemed
issuance and any actual issuance of such stock shall not be an actual issuance
or a deemed issuance of the corporation's Common Stock under the provisions of
this paragraph III(B)(3).
(gg) No Impairment. The corporation will not, by amendment of its
Articles of Incorporation or through any reorganization, recapitalization,
transfer of assets, 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 the corporation, but
will at all times in good faith assist in the carrying out of all the provisions
of this paragraph III(B)(3) 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 Preferred Stock against impairment.
(hh) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Conversion Price for Preferred Stock pursuant
to this paragraph III(B)(3), the 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 Preferred Stock a certificate setting
forth such adjustment or readjustment and showing in detail the facts upon which
such adjustment or readjustment
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is based. The corporation shall, upon the written request at any time of any
holder of Preferred Stock, furnish or cause to be furnished to such holder a
like certificate setting forth (i) such adjustments and readjustments, (ii) the
Conversion Price at the time in effect, and (iii) the number of shares of Common
Stock and the amount, if any, of the property which at the time would be
received upon the conversion of such holder's shares of Preferred Stock.
(ii) Notices of Record Date. In the event of the establishment 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) or other distribution, any Common Stock
Equivalents or 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, the corporation shall mail to each holder of Preferred Stock,
at least twenty (20) days prior to the date specified therein, 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.
(jj) Reservation of Stock Issuable Upon Conversion. The corporation
shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock solely for the purpose of effecting the conversion of the
shares of the Preferred Stock such number of its shares of Common Stock as shall
from time to time be sufficient to effect the conversion of all then outstanding
shares of the 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 Preferred Stock, the corporation will take
such corporate action as may, in the opinion of its counsel, be necessary to
increase its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purpose.
(kk) Notices. Any notices required by the provisions of this paragraph
III(B)(3) to be given to the holders of shares of Preferred Stock shall be
deemed given if deposited in the United States mail, postage prepaid, and
addressed to each holder of record at such holder's address appearing on the
books of the corporation.
(ll) Additional Stock. "ADDITIONAL STOCK" shall mean any shares of
Common Stock issued (or deemed to have been issued pursuant to paragraph
III(B)(3)(ff)(IV)) by this corporation on or after the Original Issue Date other
than:
(i) shares issued or issuable pursuant to a transaction
described in paragraphs III(B)(3)(cc) through III(B)(3)(ff) hereof,
(ii) Common Stock issued to officers, directors, employees and
consultants of this corporation directly (and approved by a majority of the
Preferred Directors) or pursuant to a stock option plan, restricted stock plan
or a combination restricted stock and stock option plan,
(iii) options, warrants or stock (including stock issued upon
conversion of any such options or warrants) previously or in the future issued
or issuable in connection with borrowings from banks or other similar financial
institutions, capital equipment leases, technology
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acquisitions or licenses, or other comparable transactions, provided the
foregoing are approved by a majority of the Preferred Directors; or
(iv) shares issued or issuable upon conversion of any series of
Preferred Stock.
(4) Liquidation Preference.
(aa) In the event of any liquidation, dissolution or winding up
of the corporation, either voluntary or involuntary, the holders of the
Preferred Stock shall be entitled to receive, prior and in preference to any
distribution of any of the assets or surplus funds of the corporation to the
holders of the Common Stock by reason of their ownership thereof, an amount per
share equal to: (i) $0.40 per share for each share of Series A Preferred Stock
then held by them and (ii) $9.50 per share for each share of Series B Preferred
Stock then held by them, and, in addition, an amount equal to all declared but
unpaid dividends on the Preferred Stock, if any. If, upon the occurrence of such
event, the assets and funds thus distributed among the holders of the Preferred
Stock shall be insufficient to permit the payment to such holders of the full
preferential amount, then the entire assets and funds of the corporation legally
available for distribution shall be distributed ratably among the holders of the
Preferred Stock, in proportion to the preferential amount each such holder is
otherwise entitled to receive. After payment has been made to the holders of the
Preferred Stock of the full amounts to which they shall be entitled as
aforesaid, any remaining assets shall be distributed ratably to the holders of
the corporation's Common Stock.
(bb) A merger of the corporation with or into any other
corporation or corporations, or the merger of any other corporation or
corporations into the corporation, in which consolidation or merger the
shareholders of the corporation receive distributions in cash or securities of
another corporation or corporations as a result of such consolidation or merger,
or a sale of all or substantially all of the assets of the corporation, shall be
treated as a liquidation, dissolution or winding up for purposes of this
paragraph III(B)(4), unless the shareholders of this corporation hold at least
50% of the outstanding voting equity securities of the surviving corporation;
provided that nothing contained in this paragraph (bb) shall limit the right of
a holder of Preferred Stock to convert such shares into Common Stock prior to
the effective date of any such transaction.
(5) Protective Provisions. In addition to any other rights provided by
law, so long as 4,650,000 shares of Preferred Stock shall be outstanding, this
corporation shall not, without first obtaining the affirmative vote or written
consent of the holders of not less than a majority in voting interest of such
outstanding shares of Preferred Stock, voting together as a single class:
(aa) amend or repeal any provision of, or add any provision to,
this corporation's Articles of Incorporation or Bylaws if such action would
alter or change the preferences, rights, privileges or powers of, or the
restrictions provided for the benefit of, the Preferred Stock;
(bb) authorize shares of any class of stock having any
preference or priority as to dividends or assets superior to or on a parity with
any such preference or priority of the Preferred Stock, or authorize shares of
stock of any class or any bonds, debentures, notes or other obligations
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convertible into or exchangeable for, or having option rights to purchase, any
shares of stock of this corporation having any preference or priority as to
dividends or assets superior to or on a parity with any such preference or
priority of the Preferred Stock;
(cc) effect in any transaction or series of transactions a sale
or other conveyance of all or substantially all of the assets of the corporation
or any of its subsidiaries, or any consolidation or merger involving the
corporation or any of its subsidiaries where the corporation or such subsidiary
is not the surviving corporation, or any sale of more than 50% of the
corporation's capital stock; or
(dd) increase the authorized number of shares of Preferred
Stock.
(C) Common Stock.
(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 the 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 the corporation, the assets of the corporation shall be
distributed as provided in paragraph III(B)(4) hereof.
(3) Voting Rights. The holder of each share of Common Stock
shall have the right to one vote, and shall be entitled to notice of any
shareholders' 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.
IV
(A) Limitation of Directors' Liability. The liability of the directors
of this corporation for monetary damages shall be eliminated to the fullest
extent permissible under California law.
(B) Indemnification of Directors and Officers. This corporation is
authorized to indemnify the directors and officers of the corporation to the
fullest extent permissible under California law.
(C) Repeal or Modification. Any repeal or modification of the foregoing
provisions of this Article IV by the shareholders of the corporation shall not
adversely affect any right or protection of a director of the corporation
existing at the time of such repeal or modification."
* * * * *
3. The foregoing amendment and restatement of the Articles of
Incorporation has been duly approved by the Board of Directors.
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4. The foregoing amendment and restatement of the Articles of
Incorporation have been duly approved by the required vote of shareholders in
accordance with Sections 902 and 903 of the California Corporations Code. The
total number of outstanding shares of the corporation is 14,986,879 shares of
Common Stock and 8,750,000 shares of Series A Preferred Stock. The number of
shares voting in favor of the amendment equaled or exceeded the vote required.
The percentage vote required was (a) more than 50% of the outstanding shares of
Common Stock, voting together as a single class, (b) more than 50% of the
outstanding shares of Series A Preferred Stock, and (c) more than 50% of the
outstanding shares of Common Stock and Series A Preferred Stock, voting together
as a single class. No shares of Series B Preferred Stock are outstanding.
[SIGNATURE PAGE FOLLOWS]
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We further declare under penalty of perjury under the laws of the State
of California that the matter set forth in this certificate are true and correct
of our own knowledge.
Dated: July 31, 2000
/s/ John K. Kibarian
-------------------------------------
John K. Kibarian
President and Chief Executive Officer
/s/ Peter Cohn
-------------------------------------
Peter Cohn
Secretary
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