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AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
TECHNICLONE INTERNATIONAL CORPORATION,
A CALIFORNIA CORPORATION
The undersigned, LON H. STONE and WILLIAM V. MODING, hereby certify as
follows:
1. They are the duly elected and acting President and Secretary,
respectively, of TECHNICLONE INTERNATIONAL CORPORATION, a California corporation
(the "Corporation").
2. The Articles of Incorporation of this Corporation are hereby amended
and restated to read in full as follows:
"ARTICLE I
The name of this Corporation is TECHNICLONE INTERNATIONAL CORPORATION.
ARTICLE 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.
ARTICLE III
This Corporation is authorized to issue two classes of stock to be
designated "Common Stock" and "Preferred Stock", respectively. The total number
of shares that this Corporation is authorized to issue is Thirty Million One
Hundred Thousand (30,100,000) shares. Thirty Million (30,000,000) shares shall
be Common Stock, no par value, and One Hundred Thousand (100,000) shares shall
be Preferred Stock, $1.00 par value per share. The Preferred Stock shall be
divided into series. The first series shall consist of 10,000 shares and shall
be designated "Class A Convertible Preferred Stock" (the "Class A Stock").
The remaining Preferred Stock may be issued from time to time in one or
more series. Subject to the rights as hereinafter set forth of the holders of
the Class A Stock the Board of Directors of the Corporation is hereby authorized
to determine the number of series into which the shares of Preferred Stock may
be divided, and (except to the extent such matters are fixed by the Articles of
Incorporation) to determine and alter the rights, preferences, privileges and
restrictions
EXHIBIT 3.1(C) 24
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granted to or imposed upon any wholly unissued series of Preferred Stock, to fix
the designation and number of shares constituting any series prior to the issue
of shares of that series and to increase or decrease, within the limits stated
in any resolution or resolutions of the Board of Directors originally fixing the
number of shares constituting any series (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.
The powers, preferences and rights of, and the qualifications,
limitations or restrictions on, the Class A Stock are as follows:
1. DIVIDENDS. The holders of Class A Stock shall be entitled to receive
out of funds legally available therefor, a dividend in an amount equal to any
dividends payable to holders of the Common Stock of the Corporation, based on
the largest number of full shares of Common Stock into which such holder's
shares of Class A Stock could be converted pursuant to the Articles of
Incorporation immediately prior to the record date for the payment of each such
dividend. No dividend may be declared and paid upon shares of Common Stock in
any fiscal year of the Corporation unless a dividend of an equal amount is
simultaneously declared and paid upon all shares of Class A Stock for such
fiscal year of the Corporation. Dividends shall not be cumulative and no
undeclared or unpaid dividend shall bear interest.
2. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) PREFERENCE - PREFERRED STOCK. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
the holders of each share of Class A Stock shall be entitled to be paid out of
the assets of the Corporation available for distribution to holders of the
Corporation's capital stock of all classes, whether such assets are capital,
surplus, or earnings, before any sums shall be paid or any assets distributed
among the holders of shares of Common Stock, an amount equal to $60.00 per share
of Class A Stock plus any and all declared but unpaid dividends on such shares
(the "Class A Preference Price"). If the assets of the Corporation shall be
insufficient to permit the payment in full to all holders of the Class A Stock
of their full aforesaid preferential amounts, then the entire assets of the
Corporation available for such distribution shall be distributed ratably among
all of the holders of the Class A Stock in proportion to each such holder's full
preferential amount. After the Class A Preference Price shall have been paid in
full to the holders of the Class A Stock, or funds necessary for such payment
shall have been set aside by the Corporation in trust for the account of holders
of the Class A Stock so as to be available for such payment, the remaining
assets of the Corporation available for distribution to shareholders shall be
distributed among the holders of Common Stock and Class A Stock pro-rata based
on the number of shares of Common Stock they hold or have the right to obtain
upon conversion of their Preferred Stock.
(b) CONSOLIDATION TREATED AS LIQUIDATION. A consolidation or merger,
other than a consolidation or merger in which the holders of voting securities
of the Corporation immediately before the consolidation or merger own
(immediately after the consolidation or merger) voting securities of the
surviving or acquiring corporation, or of a parent of such surviving or
acquiring corporation, possessing more than 60% of the voting power of such
surviving or acquiring corporation or parent of the corporation (a "Qualifying
Merger"), or a sale of all or substantially all of the assets of the Corporation
shall be regarded as a liquidation, dissolution or winding up of the affairs of
the Corporation within the meaning of this Section 2.
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(c) ELECTION. Each holder of Class A Stock shall have the right to
elect the benefits of the provisions of Section 4(h) hereof in lieu of receiving
payment in liquidation, dissolution or winding up of the Corporation pursuant to
Section 2(b). The election procedures shall be as provided in Section 4(h)
hereof.
(d) PROPERTY. Whenever the distribution provided for herein shall be
paid in property other than cash, the value of such distribution shall be the
fair market value of such property as determined in good faith by the Board of
Directors of the Corporation.
3. VOTING POWER. Except as otherwise required by law or as otherwise
set forth herein, the shares of Class A Stock shall be voted equally with the
shares of Common Stock upon the following basis: Each holder of Class A Stock
shall be entitled, notwithstanding any provision hereof, to notice of any
shareholders' meeting in accordance with the bylaws of this Corporation, and
shall be entitled to vote, together with holders of Common Stock as a single
class, with respect to any questions upon which holders of Common Stock have the
right to vote. Each holder of Class A Stock shall be entitled to that number of
votes equal to the largest number of whole shares of Common Stock into which
such holder's shares of Class A Stock could be converted, pursuant to the
provisions of Section 4 hereof, at the record date for the determination of
shareholders entitled to vote on such matter or, if no such record date is
established, at the date such vote is taken or any written consent of
shareholders is solicited.
4. CONVERSION RIGHTS. The holders of the Class A Stock shall have the
following conversion rights:
(a) GENERAL. Subject to and in compliance with the provisions of
this Section 4, any shares of the Class A Stock may, at the option of the
holder, be converted at any time or from time to time into fully-paid and
nonassessable shares (calculated as to each conversion to the largest whole
share) of Common Stock. The number of shares of Common Stock to which a holder
of Class A Stock shall be entitled upon conversion shall be the product obtained
by multiplying the applicable conversion rate (determined as provided in Section
4(b)) by the number of shares of Class A Stock being converted.
(b) CONVERSION RATE. The conversion rate per share of Class A Stock
in effect at any time (the "Conversion Rate") shall be the quotient obtained by
dividing $60.00 by the Conversion Price, calculated as provided in Section 4(c).
(c) CONVERSION PRICE. The initial Conversion Price shall be $1.50
(the "Conversion Price").
(d) MECHANICS OF CONVERSION. Each holder of Class A Stock, who
desires to convert the same into shares of Common Stock, subject to the
provisions of this paragraph (d), shall surrender the certificate or
certificates therefor, duly endorsed, at the office of the Corporation or of any
transfer agent for the Common Stock, and shall give written notice to the
Corporation at its principal office that such holder elects to convert the same
and shall state therein the number of shares of Class A Stock being converted.
Thereupon the Corporation shall promptly issue and deliver at such office to
such holder a certificate or certificates for the number of shares of Common
Stock to which such holder is entitled and shall promptly pay in cash all
declared but unpaid dividends on the shares being converted or, if the
Corporation so elects or is legally or
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financially unable to pay such dividends in cash, Common Stock (valued at the
Common Stock's fair market value at the time of surrender as determined in good
faith by the Board). Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of such surrender of the
certificate representing the shares to be converted (the "Conversion Date"), and
the person entitled to receive the shares of Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder of such shares
of Common Stock on such date. The Class A Stock may be converted in any multiple
of One Hundred (100) shares or more.
(e) CASH IN LIEU OF FRACTIONAL SHARES. No fractional shares of
Common Stock or scrip representing fractional shares shall be issued upon the
conversion of shares of Class A Stock. Instead of any fractional shares of
Common Stock which would otherwise be issuable upon conversion of the Class A
Stock, the Corporation shall pay to the holder of the shares of Class A Stock
which were converted a cash adjustment in respect of such fractional shares in
an amount equal to the same fraction of the market price per share of the Common
Stock (as determined in a reasonable manner prescribed by the Board of
Directors) at the close of business on the Conversion Date. The determination as
to whether or not any fractional shares which are issuable shall be based upon
the total number of shares of Class A Stock being converted at any one time by
any holder thereof, not upon each share of Class A Stock being converted.
(f) DIVIDENDS. In the event the Corporation 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 securities of the
Corporation other than shares of Common Stock or in assets (excluding cash
dividends or distributions), then and in each such event provision shall be made
so that the holders of the Class A Stock shall receive upon conversion thereof
in addition to the number of shares of Common Stock receivable thereupon, the
number of securities or such other assets of the Corporation which they would
have received had their Class A Stock been converted into 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 or
such other assets receivable by them as aforesaid during such period, giving
application to all adjustments called for during such period under this Section
4 with respect to the rights of the holders of the Class A Stock.
(g) RECAPITALIZATION OR RECLASSIFICATION. If the Common Stock of the
Corporation shall be changed into the same or different number of shares of any
class or classes of stock of the Corporation, whether by recapitalization,
reclassification or otherwise (other than a subdivision or combination of shares
or stock dividend provided for elsewhere in the Articles of Incorporation, as
amended, or a reorganization, merger, consolidation or sale of assets provided
for elsewhere in the Articles of Incorporation, as amended), then and in each
such event the holder of each share of Class A Stock shall have the right
thereafter to convert such shares into the kind and amount of shares of stock
and other securities and property receivable upon such reorganization,
reclassification or other change by holders of the number of shares of Common
Stock into which such share of Class A Stock would have been converted (taking
into account all accrued and unpaid dividends and interest with respect to such
Class A Stock) immediately prior to such reorganization, reclassification or
change, all subject to further adjustment as provided herein.
(h) CAPITAL REORGANIZATION, MERGER OR SALE OF ASSETS. If at any time
or from time to time there shall be a capital reorganization of the Common Stock
or a merger or
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consolidation of the Corporation with or into another corporation, or the sale
of all or substantially all of the Corporation's properties and assets to any
other person followed by a liquidation of the Corporation, then, as a part of
such transaction, provision shall be made so that the holders of each share of
the Class A Stock shall thereafter be entitled to receive the number of shares
of stock or other securities or property of the Corporation, or of the successor
corporation resulting from such merger or consolidation, to which a holder of
Common Stock issuable upon conversion of such share of Class A Stock would have
been entitled on such transaction. In any such case, appropriate adjustment
shall be made in the application of the provisions of this Section 4 with
respect to the rights of the holders of the Class A Stock after such transaction
to the end that the provisions of this Section 4 (including adjustment of the
Conversion Price then in effect and the number of shares purchasable upon
conversion of the Class A Stock) shall be applicable after that event in as
nearly equivalent a manner as may be practicable.
Notwithstanding the preceding paragraph, each holder of Class A Stock,
upon the occurrence of a capital reorganization, merger or consolidation of the
Corporation, or the sale of all or substantially all its assets and properties,
which is deemed a liquidation pursuant to Section 2(b) above, shall have the
option of electing treatment of his shares of Class A Stock under either this
Section 4(h) or, to the extent applicable, Section 2 hereof. A notice of such
election shall be submitted in writing to the Corporation at its principal
offices no later than ten (10) days before the effective date of such event,
but, if a holder fails to make any election, he shall be deemed to have elected
the benefits of Section 2 hereof to the extent applicable.
(i) SALE OF SHARES BELOW CONVERSION PRICE.
(1) If at any time from March 1, 1992 to February 28,
1995 the Corporation issues or sells, or is deemed by the express provisions of
this subparagraph (i) to have issued or sold, Additional Shares of Common Stock
(as hereinafter defined), other than as provided above or upon a subdivision or
combination of shares of Common Stock as provided in subparagraph (h) above, for
an Effective Price (as hereinafter defined) less than the then existing
Conversion Price for the Class A Stock (or, if an adjusted Conversion Price
shall be in effect for the Class A Stock by reason of a previous adjustment,
then less than such adjusted Conversion Price), then and in each such case the
then existing Conversion Price for the Class A Stock shall be reduced, as of the
opening of business on the date of such issue or sale, by the Corporation to the
Effective Price for each such share of Additional Shares of Common Stock so
issued.
(2) For the purpose of making any adjustment required
under this subparagraph (i), the consideration received by the Corporation for
any issue or sale of securities shall (A) to the extent it consists of cash be
computed at the net amount of cash received by the Corporation after the
deduction of any expenses payable by the Corporation and any underwriting or
similar commissions, compensation, or concessions paid or allowed by the
Corporation in connection with such issue or sale, (B) to the extent it consists
of property other than cash, be computed at the fair value of that property as
determined in good faith by the Board, and (C) if Additional Shares of Common
Stock, Convertible Securities (as hereinafter defined) or rights or options to
purchase either Additional Shares of Common Stock or Convertible Securities are
issued or sold together with other stock or securities or other assets of the
Corporation for a consideration which covers both, be computed as the portion of
the consideration so received that may be reasonably determined in good faith by
the Board to be allocable to such Additional Shares of Common Stock, Convertible
Securities or rights or options.
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(3) For the purpose of the adjustment required under
this subparagraph (i), if the Corporation issues or sells any rights or options
for the purchase of, or stock or other securities convertible into, Additional
Shares of Common Stock (such convertible stock or securities being hereinafter
referred to as "Convertible Securities") and if the Effective Price of such
Additional Shares of Common Stock is less than the Conversion Price then in
effect for the Class A Stock, then in each case the Corporation shall be deemed
to have issued at the time of the issuance of such rights or options or
Convertible Securities the maximum number of Additional Shares of Common Stock
issuable upon exercise or conversion thereof and to have received as
consideration for the issuance of such shares an amount equal to the total
amount of the consideration, if any, received by the Corporation for the
issuance of such rights or options or Convertible Securities, plus, in the case
of such rights or options, the minimum amounts of consideration, if any, payable
to the Corporation upon the exercise of such rights or options, plus, in the
case of Convertible Securities, the minimum amounts of consideration, if any,
payable to the Corporation (other than by cancellation of liabilities or
obligations evidenced by such Convertible Securities) upon the conversion
thereof. No further adjustment of the Conversion Price for the Class A Stock
shall be made as a result of the actual issuance of Additional Shares of Common
Stock on the exercise of any such rights or options or the conversion of any
such Convertible Securities. If any such rights or options or the conversion
privilege represented by any such Convertible Securities shall expire or
otherwise terminate without having been exercised, the Conversion Price for the
Class A Stock adjusted upon the issuance of such rights, options or Convertible
Securities shall be readjusted to the Conversion Price for the Class A Stock
which would have been in effect had an adjustment been made on the basis that
the only Additional Shares of Common Stock so issued were the Additional Shares
of Common Stock, if any, actually issued or sold on the exercise of such rights
or options or rights of conversion of such Convertible Securities, and such
Additional Shares of Common Stock, if any, were issued or sold for the
consideration actually received by the Corporation upon such exercise, plus the
consideration, if any, actually received by the Corporation for the granting of
all such rights or options, whether or not exercised, plus the consideration
received for issuing or selling the Convertible Securities actually converted,
plus the consideration if any, actually received by the Corporation (other than
by cancellation of liabilities or obligations evidenced by such Convertible
Securities) on the conversion of such Convertible Securities.
(4) For the purpose of the adjustment required under
this paragraph (i), if the Corporation issues or sells any rights or options for
the purchase of Convertible Securities and if the Effective Price of the
Additional Shares of Common Stock underlying such Convertible Securities is less
than the Conversion Price then in effect for the Class A Stock, then in each
such case the Corporation shall be deemed to have issued at the time of the
issuance of such rights or options the maximum number of Additional Shares of
Common Stock issuable upon conversion of the total amount of Convertible
Securities covered by such rights or options and to have received as
consideration for the issuance of such Additional Shares of Common Stock an
amount equal to the amount of consideration, if any, received by the Corporation
for the issuance of such rights or options, plus the minimum amounts of
consideration, if any, payable to the Corporation upon the exercise of such
rights or options and plus the minimum amount of consideration, if any, payable
to the Corporation (other than by cancellation of liabilities or obligations
evidenced by such Convertible Securities) upon the conversion of such
Convertible Securities. No further adjustment of the Conversion Price shall be
made as a result of the actual issuance of the Convertible Securities upon the
exercise of such rights or options or upon the actual issuance of Additional
Shares of Common Stock upon the conversion of such Convertible Securities. The
provisions of subparagraph (3) above for the readjustment of the Conversion
Price for the Class
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A Stock upon the expiration of rights or options or the rights of conversion of
Convertible Securities shall apply mutatis mutandis to the rights, options and
Convertible Securities referred to in this subparagraph (4).
(5) "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued by the Corporation after the issuance date of the
Class A Stock, whether or not subsequently reacquired or retired by the
Corporation, other than (A) shares of Common Stock issued to employees or
directors of or consultants and advisers to the Corporation or any Subsidiary
pursuant to an existing stock purchase or stock option plans or other
arrangements approved by the Board so long as the aggregate number of shares
issued after the issuance date of the Class A Stock does not exceed 1,000,000
shares and (B) shares of Common Stock issued upon the exercise of warrants or
convertible debentures issued by the Corporation prior to the issuance date of
the Class A Stock. The "Effective Price" of Additional Shares of Common Stock
shall mean the quotient determined by dividing the total number of Additional
Shares of Common Stock issued or sold, or deemed to have been issued or sold by
the Corporation under this paragraph (i), into the aggregate consideration
received, or deemed to have been received by the Corporation for such issue
under this paragraph (i), for such Additional Shares of Common Stock. If, at any
time or from time to time after the issuance date of the Class A Stock the
Corporation effects a subdivision or combination of the outstanding Common Stock
or makes a dividend or other distribution payable in additional shares of Common
Stock, then the aggregate number of shares specifically excluded from the
definition of Additional Shares of Common Stock in (C) of this subparagraph (5)
shall be increased or decreased appropriately to reflect such subdivision,
combination, dividend, or other distribution.
(j) ACCOUNTANT'S CERTIFICATE AS TO ADJUSTMENTS. In each case of an
adjustment or readjustment of the Conversion Rate, the Corporation will furnish
each holder of Class A Stock with a certificate, prepared by its chief financial
officer showing such adjustment or readjustment, and stating in detail the facts
upon which such adjustment or readjustment is based. Upon the request of the
holders of a majority of the Class A Stock, the Corporation will cause its
independent public accountants to confirm the accuracy of such adjustment or
readjustment.
(k) PARTIAL CONVERSION. In the event some but not all of the shares
of Class A Stock represented by a certificate or certificates surrendered by a
holder are converted, the Corporation shall execute and deliver to or on the
order of the holder, at the expense of the Corporation, a new certificate
representing the number of shares of Class A Stock which were not converted.
(l) RESERVATION OF COMMON STOCK. 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
Class A Stock, such number of its shares of Common Stock as shall from time to
time be sufficient to effect the conversion of all outstanding shares of the
Class A 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 Class A Stock, the Corporation shall take such
corporate action as may be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such
purpose.
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5. AUTOMATIC CONVERSION.
(a) PUBLIC OFFERING. Each share of Class A Stock shall automatically
be converted into shares of Common Stock based on the then effective Conversion
Rate for the Class A Stock immediately upon (A) 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 for the account of the Corporation in which the aggregate gross proceeds
received by the Corporation at the public offering price equals or exceeds
$5,000,000, the public offering price per share of which equals or exceeds a
price per share of Common Stock of Six Dollars ($6.00) and the obligation of the
underwriters with respect to which is that if any of the securities being
offered are purchased, all such securities must be purchased; (B) the
commencement date of the Phase III Clinical Trials for the Corporation's LYM-1
antibody; or (C) the closing of a consolidation or merger of the Corporation
with another corporation in which the Corporation is not the surviving entity,
provided that the holders of Common Stock receive in cash (or cash equivalents)
or marketable securities which are of a class of securities registered under
Section 12 of the Securities Exchange Act of 1934 and which are not restricted
as to resale under the Securities Act of 1933, a sum equal to or in excess of
Six Dollars ($6.00) per share; provided, however, that such conversion shall be
conditioned upon payment, or declaration and setting aside of a sum sufficient
for payment, by the Corporation of all declared but unpaid dividends on the
outstanding Class A Stock payable either in cash or Common Stock (valued at the
Common Stock's fair market value), or both.
(b) MECHANICS OF CONVERSION. Upon the occurrence of either event
specified in paragraph (a) above, the outstanding shares of Class A Stock shall
be converted automatically without any further action by the holders of such
shares and whether or not the certificates representing such shares are
surrendered to the Corporation or its transfer agent; provided, however, that
the Corporation shall not be obligated to issue certificates evidencing the
shares of Common Stock issuable upon such conversion unless the certificates
evidencing such shares of Class A Stock are either delivered to the Corporation
or its transfer agent as provided below, or the holder notifies the Corporation
or its transfer agent that such certificates have been lost, stolen or destroyed
and executes an agreement satisfactory to the Corporation to indemnify the
Corporation from any loss incurred by it in connection with the certificates.
Upon the occurrence of such automatic conversion of Class A Stock, the holders
of Class A Stock shall surrender the certificates representing such shares at
the office of the Corporation or any transfer agent for the Common Stock.
Thereupon, there shall be issued and delivered to such holder promptly at such
office and in its name as shown on such surrendered certificate or certificates,
a certificate or certificates for the number of shares of Common Stock into
which the shares surrendered were convertible on the date on which such
automatic conversion occurred, and the Corporation shall promptly pay in cash or
Common Stock (taken at the Common Stock's fair market value as of the date of
such conversion), or both, all declared but unpaid dividends on the shares being
converted.
6. NO REISSUANCE OF THE PREFERRED STOCK. No share or shares of the
Class A Stock acquired by the Corporation by reason of redemption, purchase,
conversion or otherwise shall be reissued. The Corporation may from time to time
take such appropriate corporate action as may be necessary to reduce the
authorized number of shares of the Class A Stock accordingly.
7. RESTRICTIONS AND LIMITATIONS. So long as at least 50% of the shares
of the Class A Stock authorized upon the filing of this Certificate remain
outstanding, the Corporation shall
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not, and shall not permit any subsidiary to, without the affirmative vote or
written consent by the holders of more than 50% of the outstanding shares of
Class A Stock, voting as a single class:
(a) PURCHASES. Purchase, redeem or otherwise acquire (or pay into or
set aside for a sinking fund for such purpose) any of the Common Stock or
Preferred Stock junior to such series; provided, however, that this restriction
shall not apply to the repurchase of less than $100,000 during any one year of
shares of Common Stock from employees, consultants or other persons providing
services to the Corporation or any of its subsidiaries pursuant to an agreement
under which the Corporation has the option or the obligation to repurchase such
shares upon the occurrence of certain events, including the termination of
employment;
(b) DIVIDENDS. Declare or pay any dividends on or declare or make
any other distribution, direct or indirect, (other than a dividend payable
solely in shares of Common Stock or rights or options to purchase Common Stock)
on account of the Common Stock or set apart any sum for any such purpose;
(c) SALE OF ASSETS. Effect any sale, lease, assignment, transfer or
other conveyance of all or substantially all of the assets of the Corporation or
any corporation more than 50% of whose outstanding voting stock is owned by the
Corporation, or any consolidation or merger involving the Corporation or any of
its subsidiaries (excluding any merger or consolidation solely among the
Corporation and/or its wholly-owned subsidiaries and any merger in which the
Corporation is the surviving entity and the shareholders of the Corporation
immediately preceding the consummation of the merger hold more than 60% of the
voting power of the Corporation immediately following the consummation of the
merger), or any recapitalization, or any dissolution, liquidation or winding up,
of the Corporation, or make any agreement or become obligated to do so, unless
the obligations of the Corporation under such agreement are expressly
conditioned upon the approval required by this paragraph 7;
(d) SUBSIDIARY. Except for the formation of foreign subsidiaries
whose primary purpose is the distribution of the Corporation's products or any
subsidiaries existing on the date hereof, acquire more than a five percent (5%)
interest in any other corporation or entity; or
(e) ACCOUNTING. Adopt any material changes in the Corporation's
accounting policies and procedures other than those changes deemed necessary to
comply with generally accepted accounting principles consistently applied.
8. 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 or other distribution, or to receive any other right, or any capital
reorganization of the Corporation, any reclassification or recapitalization of
the capital stock of the Corporation, any merger or consolidation of the
Corporation, or any transfer of all or substantially all of the assets of the
Corporation to any other corporation, or any other entity or person, or any
voluntary or involuntary dissolution, liquidation or winding up of the
Corporation, then and in each such event the Corporation shall mail or cause to
be mailed to each holder of Class A Stock a notice specifying (i) the date on
which any such record is to be taken for the purpose of such dividend,
distribution or right and a description of such dividend, distribution or right,
(ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding up is expected to become effective, (iii) the time, if any,
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that is to be fixed, as to when the holders of record of Common Stock (or other
securities) shall be entitled to exchange their shares of Common Stock (or other
securities) for securities or other property deliverable upon such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding up. Such notice shall be mailed at
least 30 days prior to the date specified in such notice on which such action is
to be taken.
9. COMMON STOCK. 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.
ARTICLE IV
The liability of the directors of this Corporation for monetary
damages shall be eliminated to the fullest extent permissible under California
law.
ARTICLE V
This Corporation is authorized to indemnify the directors and
officers of this Corporation to the fullest extent permissible under California
law and in excess of that otherwise permitted under Section 317 of the
California Corporations Code."
3. The foregoing amendment and restatement of the articles of
incorporation has been duly approved by the Board of Directors of this
Corporation.
4. The foregoing amendment and restatement of the articles of
incorporation has been duly approved by the required vote of shareholders in
accordance with Sections 902 and 903 of the California General Corporation Law.
The Corporation has two classes of stock outstanding and each class of stock is
entitled to vote with respect to the foregoing amendment and restatement of the
articles of incorporation. The total number of outstanding shares of Common
Stock of this Corporation is 14,112,613 and the total number of outstanding
shares of Class A Convertible Preferred Stock is 10,000. The number of shares
voting in favor of the amendment and restatement exceeded the vote required. The
percentage vote required was more than fifty percent (50%) with respect to the
Common Stock and more than fifty percent (50%) with respect to the Class A
Convertible Preferred Stock.
The undersigned further declares under penalty of perjury that the
matters set forth in the foregoing Amended and Restated Articles of
Incorporation are true and correct of their own knowledge.
Executed at Tustin, California, on June 30, 1994.
/s/ Lon H. Stone
--------------------------------
Lon H. Stone, President
/s/ William V. Moding
--------------------------------
William V. Moding, Secretary
33