Articles of Incorporation - ATG Inc.
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF ATG INC.
Doreen Chiu and Frank Chiu certify that:
1. They are the President and Secretary, respectively, of ATG Inc., a
California corporation.
2. The Articles of Incorporation of this Corporation are amended and
restated in their entirety to read as follows:
I
The name of this Corporation is ATG 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) This Corporation is authorized to issue two classes of shares,
designated "Preferred Stock" and "Common Stock." The total number of shares
which this Corporation shall have authority to issue is 21,000,000 of which
20,000,000 shares shall be Common Stock and 1,000,000 shares shall be Preferred
Stock, all of which shall be designated "Series A Preferred Stock."
(b) A statement of the rights, preferences, privileges and restrictions
granted to or imposed on the Series A Preferred Stock and the holders thereof is
as follows:
(1) Dividends. Any dividends declared by the Board of Directors shall
be distributed among all holders of Series A Preferred Stock and all holders of
Common Stock in proportion to the number of shares of Common Stock which would
be held by each such holder if all shares of Series A Preferred Stock were
converted into Common Stock at the then effective Conversion Price (as defined
in paragraph 3(a) below).
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In the event that the Corporation shall have declared but unpaid dividends
outstanding immediately prior to, and in the event of, a conversion of Series A
Preferred Stock (as provided in paragraph 3 hereof), the Corporation shall, at
the option of each holder, pay in cash to each holder of Series A Preferred
Stock subject to conversion the full amount of any such dividends or allow such
dividends to be converted into Common Stock in accordance with, and pursuant to
the terms specified in, paragraph 3 hereof.
(2) Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up
of the Corporation, either voluntary or involuntary, the holders of the Series A
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, for each share
of Series A Preferred Stock then held by them an amount equal to (i) $5.00 plus
(ii) a premium equal to an annual rate of ten percent (10%) of such amount,
compounded annually from the date a share of Series A Preferred is first issued
plus (iii) all declared but unpaid dividends on the Series A Preferred Stock
(the "Liquidation Preference"). If, upon occurrence of such event the assets and
funds thus distributed among the holders of the Series A 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 among the holders of the Series A
Preferred Stock in proportion to the number of shares of Series A Preferred
Stock held by each such holder.
After payment has been made to the holders of the Series A Preferred Stock
of the Liquidation Preference the holders of the Common Stock shall be entitled
to receive the remaining assets of the Corporation.
(b) For purposes of this paragraph 2, a liquidation, dissolution
or winding up of the Corporation shall be deemed to be occasioned by, and to
include, (i) the Corporation's sale of all or substantially all of its assets or
(ii) any transaction or series of related transactions (including, without
limitation, any reorganization, merger or consolidation) which will result in
the holders of the outstanding voting equity securities of the Corporation
immediately prior to such transaction holding less than fifty percent (50%) of
the voting equity securities of the surviving entity immediately following such
transaction.
(c) For purposes of this paragraph 2, the amount of assets and
surplus funds of this Corporation available for distribution upon a liquidation,
dissolution or winding up of this Corporation shall be determined as follows:
(i) insofar as it consists of cash, be computed at the
aggregate amount of cash held by this Corporation at the time of the
liquidation, dissolution or winding up, excluding amounts paid or payable for
accrued interest or accrued dividends: and
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(ii) insofar as it consists of property other than cash, be
computed at the fair value thereof at the time of the liquidation, dissolution
or winding up, as determined in good faith by the Board.
(3) Conversion. The holders of the Series A Preferred Stock shall
have conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series A Preferred Stock
shall be convertible, at the option of the holder thereof at any time prior to
5:00 p.m., Pacific Time, on the day preceding the Redemption Date for any such
share as to which a Redemption Call has been delivered to the Corporation
pursuant to Section 9 below, into such number of fully paid and nonassessable
shares of Common Stock as is determined by dividing $5.00 (the "Original
Purchase Price") by the Conversion Price, determined as hereinafter provided, in
effect at the time of conversion. The price at which shares of Common Stock
shall be deliverable upon conversion (the "Conversion Price") shall initially be
$5.00 per share of Common Stock. Such initial Conversion Price shall be subject
to adjustment as hereinafter provided.
Each share of Series A Preferred Stock shall automatically be converted
into shares of Common Stock at the then effective Conversion Price (i) in the
event of the effectiveness 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 at least $10.00 (as
adjusted for stock splits, reverse stock splits and the like effected after the
date on which the first share of Series A Preferred Stock is issued (the
"Original Issue Date")) and an aggregate offering price to the public of not
less than $15,000,000 or (ii) at the election of the holders of a majority of
the outstanding shares of Series A Preferred Stock. In the event of such an
offering, the person(s) entitled to receive the Common Stock issuable upon such
conversion of Series A Preferred Stock shall not be deemed to have converted
such Series A Preferred Stock until immediately prior to the closing of such
underwritten public offering.
(b) Mechanics of Conversion. No fractional shares of Common
Stock shall be issued upon conversion of Series A Preferred Stock. In lieu of
any fractional share to which a holder would otherwise be entitled, the
Corporation shall pay cash equal to such fraction multiplied by the fair market
value of the Common Stock as determined by the Board of Directors. Before any
holder of Series A Preferred Stock shall be entitled to convert the same into
full shares of Common Stock, he shall surrender the certificate or certificates
therefor, duly endorsed, at the office of the Corporation or of any transfer
agent for the Series A Preferred Stock, and shall give written notice to the
Corporation at such office that he elects to convert the same. Such notice shall
also state whether the holder elects, pursuant to paragraph 1 hereof, to receive
declared but unpaid dividends on the Series A Preferred Stock proposed to be
converted in cash, or to convert such dividends into shares of Common Stock at
their fair market value as determined by the Board of Directors. The Corporation
shall, as soon as practicable thereafter, issue and deliver at such office to
such holder of Series A Preferred Stock, a certificate or certificates for the
number of shares of Common Stock to which he shall be entitled as aforesaid
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and a check payable to the holder in the amount of any cash amounts payable as
the result of a conversion into a fractional share of Common Stock, and any
declared but unpaid dividends on the converted Series A Preferred Stock which
the holder elected to receive in cash. Such conversion shall be deemed to have
been made immediately prior to the close of business on the date of such
surrender of the shares of Series A Preferred Stock 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. If the conversion is in
connection with an underwritten public offering of securities registered
pursuant to the Securities Act of 1933, the conversion shall be conditioned upon
the closing of such public offering, in which event the person(s) entitled to
receive the Common Stock issuable upon such conversion of the Series A Preferred
Stock shall not be deemed to have converted such Series A Preferred Stock until
immediately prior to such closing.
(c) Adjustments to Conversion Price for Diluting Issues.
(i) Special Definitions. For purposes of this paragraph 3,
the following definitions shall apply:
(1) "Options" shall mean rights, options or warrants
to subscribe for, purchase or otherwise acquire either Common Stock or
Convertible Securities.
(2) "Convertible Securities" shall mean any evidences
of indebtedness, shares (other than the Series A Preferred Stock) or other
securities convertible into or exchangeable for Common Stock.
(3) "Series A Original Issue Date" shall mean the date
on which a share of Series A Preferred was first issued.
(4) "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued (or, pursuant to paragraph 3(c)(iii), deemed to be
issued) by the Corporation after the Series A Original Issue Date, other than
shares of Common Stock issued or issuable:
(A) upon conversion of shares of Series A
Preferred Stock;
(B) to directors, officers or employees of, or
consultants to, the Corporation pursuant to a stock grant, option plan or
purchase plan or other stock incentive program or issuance (collectively, the
"Plans") unanimously approved by the Board of Directors;
(C) upon exercise or conversion of warrants to
purchase shares of the capital stock of the Corporation issued to First Taiwan
Investment & Development Inc. ("First Taiwan") (or entities designated by First
Taiwan) pursuant to Section
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8.3 of the Stock Purchase Agreement for Series A Preferred Stock among the
Corporation, First Interstate and other certain other parties, or warrants to
purchase shares of the capital stock of the Corporation issued in connection
with equipment lease financing transactions or bank financing transactions
unanimously approved by the Board of Directors, where the issuance of such
warrants is not principally for the purpose of raising additional equity capital
for the Corporation;
(D) pursuant to the acquisition of another
corporation by the Corporation or any subsidiary of the Corporation by merger,
purchase of substantially all of the assets, or other reorganization unanimously
approved by the Board of Directors whereby the Corporation owns more than fifty
percent (50%) of the voting power of such other corporation following such
acquisition;
(E) as a dividend or distribution on the Series A
Preferred Stock; and
(F) by way of dividend or other distribution on
shares of Common Stock excluded from the definition of Additional Shares of
Common Stock by the foregoing clauses (A), (B), (C), (D) or (E) or on shares of
Common Stock so excluded.
(ii) No Adjustment of Conversion Price. No adjustment in
the Conversion Price of Series A Preferred Stock shall be made in respect of the
issuance of Additional Shares of Common Stock unless the consideration per
share for an Additional Share of Common Stock issued or deemed to be issued by
the Corporation is less than the Conversion Price in effect on the date of, and
immediately prior to such issue, for such share of Series A Preferred Stock.
(iii) Deemed Issue of Additional Shares of Common Stock. In
the event the Corporation at any time or from time to time after the Series A
Original Issue Date, as the case may be, shall issue any Options or Convertible
Securities or shall fix a record date for the determination of holders of any
class of securities entitled to receive any such Options or Convertible
Securities, then 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 upon the exercise
of such Options or, in the case of Convertible Securities and Options therefor,
the conversion or exchange of such Convertible Securities, shall be deemed to be
Additional Shares of Common Stock issued as of the time of such issue or, in
case such a record date shall have been fixed, as of the close of business on
such record date, provided that Additional Shares of Common Stock shall not be
deemed to have been issued unless the consideration per share (determined
pursuant to paragraph 3(c)(v) hereof) of such Additional Shares of Common Stock
would be less than the Series A Conversion Price in effect on the date of and
immediately prior to such issue, or such record date, as the case may be, and
provided further that in any such case in which Additional Shares of Common
Stock are deemed to be issued:
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(1) no further adjustment in the applicable Conversion
Price shall be made upon the subsequent issue of Convertible Securities or
shares of Common Stock upon the exercise of such Options or conversion or
exchange of such Convertible Securities;
(2) if such Options or Convertible Securities by their
terms provide, with the passage of time or otherwise, for any increase or
decrease in the consideration payable to the Corporation, or increase or
decrease in the number of shares of Common Stock issuable, upon the exercise,
conversion or exchange thereof, the applicable Conversion Price computed upon
the original issue thereof (or upon the occurrence of a record date with respect
thereto), and any subsequent adjustments based thereon, shall, upon any such
increase or decrease becoming effective, be recomputed to reflect such increase
or decrease insofar as it affects such Options or the rights of conversion or
exchange under such Convertible Securities; and
(3) no readjustment pursuant to clause (2) above shall
have the effect of increasing the applicable Conversion Price to an amount which
exceeds the lower of (i) the Conversion Price on the original adjustment date,
or (ii) the Conversion Price that would have resulted from any issuance of
Additional Shares of Common Stock between the original adjustment date and such
readjustment date.
(iv) Adjustment of Conversion Price Upon Issuance of
Additional Shares of Common Stock.
(1) In the event this Corporation shall issue
Additional Shares of Common Stock (including Additional Shares of Common Stock
deemed to be issued pursuant to paragraph 3(c)(iii)) without consideration or
for a consideration per share less than the Series A Conversion Price in effect
on the date of and immediately prior to such issuance, then and in such event,
such Conversion Price shall be reduced, concurrently with such issue, to a price
(calculated to the nearest cent) determined by multiplying such Conversion Price
by a fraction, the numerator of which shall be the number of shares of Common
Stock issuable upon conversion of the Series A Preferred Stock outstanding
immediately prior to such issue plus the number of shares of Common Stock which
the aggregate consideration received by the Corporation for the total number of
Additional Shares of Common Stock so issued would purchase at such Conversion
Price; and the denominator of which shall be the number of shares of Common
Stock issuable upon conversion of the Series A Preferred Stock outstanding
immediately prior to such issue plus the number of such Additional Shares of
Common Stock so issued.
(v) Determination of Consideration. For purposes of this
paragraph 3(c), the consideration received by the Corporation for the issue of
any Additional Shares of Common Stock shall be computed as follows:
(1) Cash and Property: Such consideration shall:
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(A) insofar as it consists of cash, be computed
at the aggregate amount of cash received by the Corporation excluding amounts
paid or payable for accrued interest or accrued dividends;
(B) insofar as it consists of property other than
cash, be computed at the fair value thereof at the time of such issue, as
determined by the Board of Directors in the good faith exercise of its
reasonable business judgment; and
(C) in the event Additional Shares of Common
Stock are issued together with other shares or securities or other assets of the
Corporation for consideration which covers both, be the proportion of such
consideration so received, computed as provided in clauses (A) and (B) above, as
determined in good faith by the Board of Directors.
(2) Options and Convertible Securities. The
consideration per share received by the Corporation for Additional Shares of
Common Stock deemed to have been issued pursuant to paragraph 3(c)(iii)(1),
relating to Options and Convertible Securities, shall be determined by dividing
(x) the total amount, if any, received or
receivable by the Corporation as consideration for the issue of such Options or
Convertible Securities, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating thereto, without regard
to any provision contained therein for a subsequent adjustment of such
consideration) payable to the Corporation upon the exercise of such Options or
the conversion or exchange of such Convertible Securities, or in the case of
Options for Convertible Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such Convertible Securities by
(y) the maximum number of shares of Common Stock
(as set forth in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of such number) issuable
upon the exercise of such Options or the conversion or exchange of such
Convertible Securities.
(vi) Adjustments for Stock Dividends, Subdivisions,
Combinations or Consolidations. In the event the Corporation shall pay a stock
dividend on the Common Stock, or the outstanding shares of Common Stock shall be
subdivided, combined or consolidated, by reclassification or otherwise, into a
greater or lesser number of shares of Common Stock, the Conversion Price in
effect immediately prior to such subdivision or combination shall, concurrently
with the effectiveness of such subdivision, combination or consolidation, be
proportionately adjusted.
(d) Special Adjustment Upon Initial Public Offering. Upon the
closing of an underwritten public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended, covering the offering
and sale of Common Stock of the Company, then the Conversion Price of the Series
A Preferred Stock shall be the lower of (i) the
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then current Conversion Price or (ii) the price determined by multiplying the
Price To The Public in such underwritten public offering by the discount factor
appropriate for the year in which such closing occurs applicable to the date of
such closing.
Calendar Year in which
Closing of Underwritten
Public Offering Occurs Discount Factor
June 30, 1995 or earlier .5
July 1, 1995 through .333333
June 30, 1996
July 1, 1996 or later .25
For purposes of this paragraph (d), the "Price To The Public" shall mean
the aggregate price per share paid by the purchasers, without reduction for any
underwriting discounts or commissions or expenses of the offering.
(e) No Impairment. The Corporation will not, by amendment of its
Articles of Incorporation or through any reorganization, 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 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 Series A Preferred Stock
against impairment.
(f) Notices of Record Date. In the event that this Corporation
shall propose at any time:
(i) to declare any dividend or distribution upon its
Common Stock, whether in cash, property, stock or other securities, whether or
not a regular cash dividend and whether or not out of earnings or earned
surplus;
(ii) to offer for subscription pro rata to the holders of
any class or series of its stock any additional shares of stock of any class or
series or other rights;
(iii) to effect any reclassification or recapitalization of
its Common Stock outstanding involving a change in the Common Stock; or
(iv) to merge with or into any other corporation (other
than a merger in which the holders of the outstanding voting equity securities
of the Corporation immediately prior to such merger hold more than fifty percent
(50%) of the voting power of the surviving entity immediately following such
merger), or sell, lease or convey all or substantially all its property or
business, or to liquidate, dissolve or wind up; then, in connection with each
such event, this Corporation shall send to the holders of the Series A Preferred
Stock:
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(1) at least twenty (20) days' prior written notice of
the date on which a record shall be taken for such dividend, distribution or
subscription rights (and specifying the date on which the holders of Common
Stock shall be entitled thereto) or for determining rights to vote in respect of
the matters referred to in (iii) and (iv) above; and
(2) in the case of the matters referred to in (iii)
and (iv) above, at least twenty (20) days' prior written notice of the date when
the same shall take place (and specifying the date on which the holders of
Common Stock shall be entitled to exchange their Common Stock for securities or
other property deliverable upon the occurrence of such event).
Each such written notice shall be given by first class mail, postage
prepaid, addressed to the holders of Series A Preferred Stock shares at the
address for each such holder as shown on the books of this Corporation.
(g) Recapitalization. If at any time or from time to time there
shall be a recapitalization of the Common Stock (other than a subdivision,
combination or merger or sale of assets transaction provided for elsewhere in
this paragraph 3 or paragraph 2) provision shall be made so that the holders of
the Series A Preferred Stock shall thereafter be entitled to receive upon
conversion of the Series A Preferred Stock the number of shares of stock or
other securities or property of the Corporation or otherwise, to which a holder
of Common Stock deliverable upon conversion of each share of such series would
have been entitled on such recapitalization. In any such case, appropriate
adjustment shall be made in the application of the provisions of this paragraph
3 with respect to the rights of the holders of the Series A Preferred Stock
after the recapitalization to the end that the provisions of this paragraph 3
(including adjustment of the Conversion Price then in effect and the number of
shares purchasable upon conversion of the Series A Preferred Stock) shall be
applicable after that event as nearly equivalent as may be practicable.
(4) Voting Rights. Except as otherwise required by law and as set
forth in Section 5 below, the Series A Preferred Stock shall be non-voting. The
holders of Common Stock shall be entitled to notice of any shareholders' meeting
and to vote upon any matter submitted to the shareholders for a vote.
(5) Protective Provisions. In addition to any other rights provided
by law, so long as any Series A 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 of such outstanding shares of
Series A Preferred Stock:
(a) 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 adversely the preferences, rights, privileges or powers of or
the restrictions provided for the benefit of, the Series A Preferred Stock;
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(b) authorize or issue 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 Series A Preferred Stock, or authorize or
issue shares of stock of any class or any bonds, debentures, notes or other
obligations 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 Series A Preferred Stock;
(c) reclassify any Common Stock into shares having any preference
or priority as to dividends or assets superior to or on a parity with any such
preference or priority of the Series A Preferred Stock.
(d) pay any cash dividends;
(e) redeem or purchase any of the Common Stock, provided,
however, that this restriction shall not apply to the repurchase of shares of
Common Stock from employees, officers, directors, consultants or other persons
performing services for the Corporation upon the termination of the employment,
consulting or other relationship between the Corporation and such persons;
(f) consummate a sale of all or substantially all of the
Corporation's assets or any transaction or series of related transactions
(including, without limitation, any reorganization, merger or consolidation)
which would result in the holders of the outstanding voting equity securities of
the Corporation immediately prior to such transaction holding less than fifty
percent (50%) of the voting power of the surviving entity immediately following
such transaction;
(g) increase the total number of authorized shares of Series A
Preferred Stock; or
(h) incur any indebtedness or grant any security interest in or
otherwise pledge or mortgage any of the Corporation's assets, other than in
connection with equipment leases entered into the ordinary course of business, a
revolving credit line from a commercial bank that does not exceed 80% of
eligible accounts receivable, or the refinancing of mortgages existing as of the
Series A Original Issue Date.
(6) Status of Converted Stock. In the event any shares of Series A
Preferred Stock shall be converted pursuant to paragraph 3 hereof, the shares so
converted shall be canceled and shall not be issuable by the Corporation, and
the Articles of Incorporation of this Corporation shall be appropriately amended
to effect the corresponding reduction in the Corporation's authorized capital
stock.
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(7) Residual Rights. All rights accruing to the outstanding shares of
this Corporation not expressly provided for to the contrary herein shall be
vested in the Common Stock.
(8) Consent for Certain Repurchases of Common Stock Deemed to be
Distributions. Each holder of Series A Preferred Stock shall be deemed to have
consented, for purposes of Section 502, 503 and 506 of the California
Corporations Code, to distributions made by the Corporation in connection with
the repurchase of shares of Common Stock issued to or held by employees or
consultants upon termination of their employment or services pursuant to
agreements providing for such right of repurchase between the Corporation and
such persons.
(9) Redemption.
(a) Commencing on the later of (i) the third anniversary of the
Series A Original Issue Date and (ii) the date on which the Corporation sends
written notice to all holders of Series A Preferred Stock of their redemption
rights (the later of such dates shall be called the "Redemption Start Date"),
and continuing for 30 days from the Redemption Start Date, the holders of the
outstanding Series A Preferred Stock shall have the right to demand that the
Corporation redeem all or any part of the Series A Preferred Stock held by them
as set forth in this Section. The Corporation shall pay for each share it is
requested to redeem a sum per share (the "Redemption Price") equal to (i) $6.67
plus (ii) any declared but unpaid dividends as of the date fixed by the
Corporation for redemption of such share (the "Redemption Date"), all as
adjusted for any combinations, consolidations, stock distributions or stock
dividends with respect to any such shares. The Corporation shall be obligated to
send a written notice notifying the holders of Series A Preferred Stock of the
redemption right set forth in this Section. Such notice may not be sent,
however, more than 30 days in advance of the third anniversary of the Series A
Original Issue Date. Any demand for redemption of Series A Preferred Stock shall
be made in writing delivered to the Corporation on or before 5:00 p.m., Pacific
time, on the 30th day following the Redemption Start Date. Such demand (the
"Redemption Call") shall specify the number of shares to be redeemed.
(b) Upon receipt of the written demand for redemption from any
holder of outstanding Series A Preferred Stock in accordance with paragraph (a)
(a "Redemption Call"), the Corporation shall send written notice mailed first
class, postage prepaid to each holder of Series A Preferred Stock (other than
the holder delivering the Redemption Call) at the close of business on the
business day next preceding the day on which the Corporation sends such notice.
Such notice shall be sent to the address last shown on the records of the
Corporation for such holder or given by the holder to the Corporation for the
purpose of notice or, if no such address appears or is given, at the place where
the principal executive office of the Corporation is located. Such notice shall
state that a holder of Series A Preferred Stock has delivered to the Corporation
a Redemption Call, the date on which the right to require the Corporation to
redeem shares of Series A Preferred Stock shall terminate as set forth in
paragraph (a) and the date on which the Corporation will effect such redemption
(the "Redemption Date"). The Redemption
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Date shall be no later than 120 days following the date the first Redemption
Call is delivered to the Corporation.
(c) Immediately following the expiration of the time period
within which a holder of Series A Preferred Stock shall have the right to
deliver a Redemption Call to the Corporation, as set forth in paragraph (a), the
Corporation shall send written notice to all holders of Series A Preferred Stock
who have delivered to the Corporation a Redemption Call (the "Redemption
Notice"). The Redemption Notice shall notify each such holder of the Redemption
to be effected, specifying the number of shares to be redeemed from such holder,
the Redemption Date, the date on which such holders' rights to convert such
shares into Common Stock terminate and calling upon such holder to surrender to
the Corporation, in the manner and at the place designated, the certificate(s)
representing the shares to be redeemed. Except as provided in paragraph 9(d), on
or after such Redemption Date, each holder of Series A Preferred Stock to be
redeemed shall surrender to this Corporation the certificate or certificates
representing such shares, in the manner and at the place designated in the
Redemption Notice, and thereupon the Redemption Price in respect of each such
shares shall be payable to the order of the person whose name appears on such
certificate or certificates as the owner thereof and each surrendered
certificate shall be canceled. In the event less than all the shares represented
by any such certificate are redeemed on the Redemption Date, a new certificate
shall be issued to the holder representing the unredeemed shares.
(d) From and after the Redemption Date, unless there shall have
been a default in payment of the Redemption Price, all rights of the holders of
shares of Series A Preferred Stock designated for redemption on such Redemption
Date as holders of Series A Preferred Stock (except the right to receive the
Redemption Price without interest upon surrender of their certificate or
certificates) shall cease with respect to such shares, and such shares shall not
thereafter be transferred on the books of this Corporation or be deemed to be
outstanding for any purpose whatsoever. If the funds of this Corporation legally
available on the Redemption Date for redemption of shares of Series A Preferred
Stock are insufficient to redeem the total number of shares of Series A
Preferred Stock as to which a Redemption Call has been delivered by the holder
thereof to the Corporation, those funds which are legally available will be used
to redeem the maximum possible number of such shares ratably among the holders
of such shares to be redeemed based upon their holdings of Series A Preferred
Stock. The shares of Series A Preferred Stock not redeemed shall remain
outstanding and entitled to all the rights and preferences provided herein. At
any time thereafter when additional funds of this Corporation are legally
available for the redemption of shares of Series A Preferred Stock, such funds
will immediately be used to redeem the balance of the shares which this
Corporation has become obligated to redeem on the Redemption Date but which it
has not redeemed.
(e) Three (3) days prior to the Redemption Date, this Corporation
shall deposit the Redemption Price of all outstanding shares of Series A
Preferred Stock designated for redemption on such Redemption Date, and not yet
converted, with a bank or trust company having aggregate capital and surplus in
excess of $200,000,000 as a trust fund for the benefit of the respective holders
of the shares designated for redemption and not yet redeemed.
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Simultaneously, this Corporation shall deposit irrevocable instruction and
authority to such bank or trust company to publish the notice of redemption
thereof (or to complete such publication if theretofore commenced) and to pay,
on and after the date fixed for redemption or prior thereto, the Redemption
Price of the Series A Preferred Stock to be redeemed to the holders thereof upon
surrender of their certificates. Any moneys deposited by this Corporation
pursuant to this paragraph for the redemption of shares which are thereafter
converted into shares of Common Stock no later than the close of business on the
Redemption Date shall be returned to this Corporation forthwith upon such
conversion. The balance of any moneys deposited by this Corporation pursuant to
this paragraph remaining unclaimed at the expiration of three (3) months
following the Redemption Date shall thereafter be returned to this Corporation,
provided that the shareholder to which such moneys would be payable hereunder
shall be entitled, upon proof of its ownership of the shares of Series A
Preferred Stock and payment of any bond requested by this Corporation, to
receive such moneys but without interest from the Redemption Date.
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 Corporate Agents. 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 Amended and Restated Articles of Incorporation have been
duly approved by the Board of Directors.
4. The foregoing Amended and Restated Articles of Incorporation have been
duly approved by the required vote of shareholders in accordance with Sections
902 and 903 of the Corporations Code. The total number of outstanding shares of
the Corporation is 4,948,786 shares of Common Stock and the Corporation has no
other class of securities outstanding. The number of shares voting in favor of
the amendment equaled or exceeded the vote required. The percentage vote
required was more than fifty percent (50%) of the Common Stock.
The undersigned declares under penalty of perjury that the matters set
forth in the foregoing certificate are true of her or his own knowledge.
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<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this certificate in Palo
Alto, California, this 23 day of February, 1994.
___________________________________
Doreen Chiu, President
___________________________________
Frank Chiu, Secretary
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