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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ANSYS DIAGNOSTICS, INC.
A DELAWARE CORPORATION
Ansys Diagnostics, Inc., a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
ONE: The original Certificate of Incorporation of this
corporation was filed with the Secretary of State of the State of Delaware on
March 1, 1999, under its present name.
TWO: This Amended and Restated Certificate of Incorporation was
duly adopted in accordance with the provisions of Sections 242 and 245 of the
Delaware General Corporation Law.
THREE: The stockholder approval required by Section 242 of the
Delaware General Corporation Law was obtained by written consent of the sole
stockholder of this corporation in accordance with Section 228 of the Delaware
General Corporation Law.
FOUR: The Amended and Restated Certificate of Incorporation of
this corporation shall be amended and restated to read in full as follows:
I.
The name of this corporation (hereinafter, the "Corporation") is
Ansys Diagnostics, Inc.
II.
The address of the registered office of the Corporation in the
State of Delaware is 9 East Loockerman Street, Dover, Delaware 19901, County of
Kent and the name of the registered agent at that address is National Registered
Agent, Inc.
III.
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
Laws of Delaware (the "GCL").
IV.
A. Classes of Stock. This Corporation is authorized to issue two
classes of stock to be designated, respectively, "Common Stock" and "Preferred
Stock." The total number of shares which the Corporation is authorized to issue
is Thirty Five Million (35,000,000) shares. Thirty Million (30,000,000) shares,
$.0001 par value per share, shall be Common Stock and Five Million (5,000,000)
shares, $.0001 par value per share, shall be Preferred Stock.
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B. Rights, Preferences and Restrictions of Preferred Stock. The rights,
preferences, privileges and restrictions granted to or imposed upon the shares
of preferred stock or the holders thereof are as follows:
1. Designation of Series A Redeemable Preferred Stock. Four
Thousand (4,000) shares of preferred stock of the Corporation shall be
designated and known as "Series A Redeemable Preferred Stock."
2. Designation of Series B Convertible Preferred Stock. Fourteen
Thousand (14,000) shares of preferred stock shall be designated and known as
"Series B Convertible Preferred Stock." The Series A Redeemable Preferred Stock
and the Series B Convertible Preferred Stock are sometimes hereinafter
collectively referred to as the "Preferred Stock."
3. Dividends. The holders of the shares of the outstanding
Preferred Stock shall be entitled to receive, when and as declared by the Board
of Directors of the Corporation, out of any assets at the time legally available
therefor, dividends at the rate of $10.00 per share of Preferred Stock per
annum, and no more, payable in cash quarterly on the first day of January,
March, June and September, each year beginning March 1, 1989. Such dividends
shall accrue on each such share from the date of its original issuance and shall
accrue from day to day, whether or not earned or declared.
Such dividends shall be cumulative so that if dividends in
respect of any previous quarterly dividend period shall not have been paid on or
declared and set apart for all Preferred Stock at the time outstanding, such
deficiency shall be fully paid on or declared and the full amount thereof set
apart for payment on such shares before the Corporation makes any distribution
(as hereinafter defined) to holders of shares of common stock of the Corporation
(the "Common Shares") or any other class or series of stock hereinafter
authorized. For purposes of this Section 3, "distribution" means the transfer of
cash or property without consideration, whether by way of dividend or otherwise
(except a dividend in Common Shares or shares of the Corporation ranking upon
liquidation, dissolution, winding up or otherwise junior in right of payment to
the shares of Preferred Stock) or the purchase or redemption of shares of the
Corporation for cash or property (except the purchase of up to 1,262,904 Common
Shares issued to employees of the Corporation, which the Corporation has the
right to repurchase under certain circumstances), including any such transfer,
purchase or redemption by a subsidiary of the Corporation. For purposes of this
Section 3, the time of any distribution by way of dividend shall be the date of
declaration thereof and the time of any distribution by purchase or redemption
of shares shall be the date on which cash or property is transferred by the
Corporation, whether or not pursuant to a contract of an earlier date; provided
that where a debt security or instrument is issued in exchange for shares the
time of the distribution shall be the date on which the Corporation acquires the
shares in such exchange.
When full cumulative dividends are not paid upon both series of
shares of Preferred Stock, all dividends declared upon such shares shall be
declared pro rata so that the amount of dividends declared per share of Series A
Redeemable Preferred Stock and Series B Convertible Preferred Stock shall in all
cases bear to each other the same ratio that accrued and unpaid accumulated
dividends per share on the shares of Series A Redeemable Preferred Stock and
Series B Convertible Preferred Stock bear to each other.
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4. Liquidation Preference. In the event of a voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, the
holders of shares of Preferred Stock shall be entitled to receive out of the
assets of the Corporation, whether such assets are capital or surplus of any
nature, an amount equal to $100 per share of Preferred Stock and a further
amount equal to any accumulated dividends accrued and unpaid thereon, as
provided in Section 3, to the date that payment is made available to the holders
of shares of Preferred Stock, whether earned or declared or not, and no more,
before any payment shall be made or any assets distributed to the holders of
Common Shares or any shares of the Corporation ranking upon liquidation,
dissolution, winding up or otherwise junior or pari passu in right of payment to
the shares of Preferred Stock.
If upon such liquidation, dissolution or winding up, the assets
thus distributed among the holders of shares of Series A Redeemable Preferred
Stock and Series B Convertible Preferred Stock shall be insufficient to permit
the payment to such stockholders of the full preferential amounts set forth in
the immediately preceding paragraph, then the entire assets of the Corporation
to be distributed shall be distributed ratably among the holders of shares of
Series A Redeemable Preferred Stock and Series B Convertible Preferred Stock in
proportion to the full amounts to which they otherwise would be entitled.
In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, subject to all of the preferential
rights of the holders of shares of Preferred Stock on distribution or otherwise,
the holders of Common Shares and any shares of the Corporation ranking upon
liquidation, dissolution, winding-up or otherwise junior or pari passu in right
of payment to the shares of Preferred Stock shall be entitled to receive all
remaining assets of the Corporation.
A consolidation or merger of the Corporation with or into any
other corporation or corporations, or a sale of all or substantially all of the
assets of the Corporation which does not involve the distribution by the
Corporation of cash or other property to holders of the Common shares, shall not
be deemed to be a liquidation, dissolution or winding up within the meaning of
this Section 4.
Each holder of an outstanding share of Preferred Stock shall be
deemed to have consented, for purposes of Section 170 of the Delaware General
Corporation Law, to the distributions made by the Corporation in connection with
the repurchase of up to 1,262,904 Common Shares issued to employees of the
Corporation, which the Corporation has the right or obligation to repurchase
under certain circumstances.
5. Redemption of Series A Redeemable Preferred Stock.
(a) General. The Corporation, at the option of the
Board of Directors with the consent of the holders of a majority of the Common
Shares, may at any time or from time to time redeem the whole or any part of the
outstanding shares of Series A Redeemable Preferred Stock by paying therefor in
cash one hundred dollars ($100) per share plus an amount in cash equal to all
accumulated dividends accrued and unpaid thereon, as provided in Section 3,
whether earned or declared or not, to and including the date fixed for
redemption, such sum being hereinafter sometimes referred to as the "Redemption
Price." In case of the redemption of
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a part only of the outstanding shares of Series A Redeemable Preferred Stock,
the Corporation shall designate pro rata the shares to be redeemed. Less than
all of the shares of Series A Redeemable Preferred Stock at any time outstanding
may not be redeemed until all accumulated dividends accrued and unpaid upon all
shares of Series A Redeemable Preferred Stock outstanding shall have been paid
for all past dividend periods, and until full dividends for the then current
dividend period on all shares of Series A Redeemable Preferred Stock then
outstanding, other than the shares to be redeemed, shall have been paid or
declared and the full amount thereof set apart for payment.
(b) Notice of Redemption. At least ten (10) days' previous notice
by mail, postage prepaid, shall be given to the holders of record of shares of
Series A Redeemable Preferred Stock to be redeemed pursuant to subparagraph (a)
above, such notice shall be addressed to each such holder at the address of such
holder appearing on the books of the Corporation or given by such holder to the
Corporation for the purpose of notice, or if no such address appears or is so
given, at the place where the principal office of the Corporation is located.
Such notice shall state the date fixed for redemption and the Redemption Price,
and shall call upon such holder to surrender to the Corporation on said date at
the place designated in the notice such holder's certificate or certificates
representing shares of Series A Redeemable Preferred Stock to be redeemed on or
after the date fixed for redemption and stated in such notice, each holder of
shares of Series A Redeemable Preferred Stock called for redemption shall
surrender the certificate evidencing such shares to the Corporation at the place
designated in such notice and shall thereupon be entitled to receive payment of
the Redemption Price. If less than all of the shares represented by any such
surrendered certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares. If such notice of redemption shall have been
duly given, and if on the date fixed for redemption funds necessary for the
redemption shall be available therefor, then, notwithstanding that any
certificate for shares of Series A Redeemable Preferred Stock so called for
redemption shall not have been surrendered for cancellation, shares so called
shall no longer be outstanding, shall not be transferred on the books of the
Corporation and the holders thereof shall cease to be stockholders with respect
to such shares, and shall have no rights with respect thereto (including,
without limitation, the right to receive dividends thereon after the redemption
date), except the right to receive payment of the Redemption Price without
interest, upon surrender of their certificate therefor.
(c) Redemption by Deposit. If, on or prior to any date fixed for
redemption of shares of Series A Redeemable Preferred Stock, the Corporation
deposits, with any bank or trust company in the State of California, as a trust
fund, a sum sufficient to redeem, on the date fixed for redemption thereof, the
shares called for redemption, with irrevocable instructions and authority to the
bank or trust company to give the notice of redemption thereof (or to complete
the giving of such notice if theretofore commenced) and to pay, on or after the
date fixed for redemption or prior thereto, the Redemption Price to their
respective holders upon the surrender of their share certificates, then from and
after the date of the deposit (although prior to the date fixed for redemption),
notwithstanding that any certificate for shares of Series A Redeemable Preferred
Stock so called for redemption shall not have been surrendered for cancellation,
the shares so called shall no longer be outstanding, and the holders thereof
shall cease to be stockholders with respect to such shares, and shall have no
rights with respect thereto (including, without limitation, the right to receive
dividends thereon after the redemption date), except the right to receive from
the bank or trust company payment of the Redemption Price
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without interest, upon the surrender of their certificates therefor. Any
interest accrued on any funds so deposited shall be the property of, and paid
to, the Corporation. If the holders of shares of Series A Redeemable Preferred
Stock so called for redemption shall not, at the end of two years (or any longer
period required by law) from the date fixed for redemption thereof have claimed
any funds so deposited, such bank or trust company shall thereupon pay over to
the Corporation such unclaimed funds, and such bank or trust company shall
thereafter be relieved of all responsibility in respect thereof to such holders
and such holders shall look only to the Corporation for payment of the
Redemption Price without interest.
(d) Priority on Redemption. The Corporation shall not, directly
or indirectly, redeem or purchase or otherwise acquire for value any Common
Shares or any shares of the Corporation ranking on liquidation, dissolution,
winding up or otherwise, junior or pari passu in right of payment to the shares
of Series A Redeemable Preferred Stock (other than not more than 1,262,904
Common Shares issued to employees of the Corporation which the Corporation has
the right or obligation to repurchase under certain circumstances) unless the
Corporation shall contemporaneously redeem all of the then outstanding shares of
Series A Redeemable Preferred Stock at the applicable Redemption Price
(including accrued and unpaid accumulated dividends thereon to the redemption
date) set forth in subparagraph (a) of this Section 5.
6. Conversion Rights of Series B Convertible Preferred Stock. The holders
of shares of Series B Convertible Preferred Stock shall have conversion rights
as follows:
(a) Right to Convert. Each share of Series B Convertible
Preferred Stock shall be convertible, at the option of the holder thereof, at
any time at the office of the Corporation or any transfer agent for such shares
of Series B Convertible Preferred Stock, into such number of fully paid and
nonassessable Common Shares (calculated to the nearest 1/100th of a share,
fractions of less than 1/100th of a share being disregarded) as is determined by
dividing $100 by the Conversion Price (as hereinafter defined) in effect at the
time of conversion determined as hereinafter provided. The price at which Common
Shares shall be deliverable upon conversion (herein called the "Conversion
Price") shall be initially $0.38445 per Common Share. Such initial Conversion
Price shall be subject to adjustment from time to time in certain instances, as
hereinafter provided. Upon surrender of any share of Series B Redeemable
Preferred Stock for conversion, the Corporation shall pay the holder thereof any
accumulated dividends accrued and unpaid thereon; provided, however, that such
accumulated dividends shall not be paid in cash if, at the time of such payment,
an Event of Default (as defined in those certain Credit Agreements, dated as of
September 24, 1997 and May 14, 1997, between the Corporation and Southern
California Bank, as they may be amended from time to time (collectively, the
"Credit Agreements")), has occurred and is continuing or if payment would cause
such an Event of Default.
(b) Automatic Conversion.
(i) Each share of Series B Convertible Preferred Stock
shall automatically be converted into Common Shares at the then effective
Conversion Price immediately upon the closing of a firm commitment underwritten
public offering pursuant to an
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effective registration statement under the Securities Act of 1933, as amended,
covering the offer and sale of Common Shares for the account of the Corporation
to the public.
(ii) In the event of such an offering, the person(s)
entitled to receive the Common Shares issuable upon such automatic conversion of
Series B Convertible Preferred Stock shall not be deemed to have converted such
shares of Series B Convertible Preferred Stock until immediately prior to the
closing of such sale of securities. Upon the occurrence of such an offering the
outstanding shares of Series B Convertible Preferred Stock shall be converted
automatically without further action by the holders of such shares of Series B
Convertible Preferred Stock and whether or not the certificates representing
such shares of Series B Convertible Preferred Stock are surrendered to the
Corporation or its transfer agent; provided, however, that the Corporation shall
not be obligated to issue certificates evidencing the Common Shares issuable
upon conversion of any shares of Series B Redeemable Preferred Stock unless
certificates evidencing such shares of Series B Redeemable Preferred Stock are
either delivered to the Corporation or any transfer agent as hereinafter
provided, or the holder notifies the Corporation that said certificates have
been lost, stolen or destroyed and executes an agreement satisfactory to the
Corporation to indemnify the Corporation against any loss incurred by it in
connection therewith. Upon the occurrence of the automatic conversion of the
shares of Series B Redeemable Preferred Stock, the holders of shares of Series B
Redeemable Preferred Stock shall surrender the certificates representing such
shares at the office of the Corporation or of any transfer agent for the Series
B Convertible Preferred Stock or the Common Shares. Thereupon, there shall be
issued and delivered to such holder of shares of Series B Convertible Preferred
Stock, promptly at such office and in his name as shown on such surrendered
certificate or certificates, a certificate or certificates for the number of
Common Shares into which the shares of Series B Convertible Preferred Stock
surrendered were convertible on the date on which the event effecting the
automatic conversion occurred.
(c) Manner of Conversion. Except as otherwise provided in
subparagraph (b) of this Section 6, before any holder of shares of Series B
Convertible Preferred Stock shall be entitled to convert the same into Common
Shares, such holder shall surrender the certificate or certificates therefor,
duly endorsed in blank or accompanied by proper instruments of transfer, at the
office of the Corporation or of any transfer agent for shares of Series B
Convertible Preferred Stock, and shall give written notice to the Corporation at
such office that such holder elects to convert the same and shall state in
writing therein the name or names in which such holder wishes the certificate or
certificates for Common Shares to be issued. The Corporation shall, as soon as
practicable thereafter, issue and deliver at such office to such holder, or to
such holder's nominee or nominees, certificates for the number of full Common
Shares to which such holder shall be entitled, as aforesaid, together with cash
in lieu of any fraction of a share. Such conversion shall be deemed to have been
made as of the date of such surrender of the shares of Series B Convertible
Preferred Stock to be converted, and the person or persons entitled to receive
the Common Shares issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such Common Shares on such date.
(d) Adjustment of Conversion Price. The Conversion Price shall be
subject to adjustment from time to time as follows:
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(i) Subdivision or Combination of Common Shares. In case
the Corporation shall at any time subdivide its outstanding Common Shares into a
greater number of shares, the Conversion Price shall forthwith be reduced
proportionately. Conversely, in case the outstanding Common Shares shall at any
time be combined into a smaller number of shares, the Conversion Price shall
forthwith be increased proportionately.
(ii) Dividends in Common Shares, Other Stock or Property.
If at any time or from time to time the holders of Common Shares (or any shares
of stock or other securities at the time receivable upon the conversion of
shares of Series B Convertible Preferred Stock) shall have received or become
entitled to receive, without payment therefor,
(x) Common Shares or any shares of stock or other
securities which are at any time directly or indirectly convertible into or
exchangeable for Common Shares, or any rights or options to subscribe for,
purchase or otherwise acquire any of the foregoing by way of dividend or other
distribution,
(y) any cash paid or payable otherwise than as a
cash dividend, or
(z) Common Shares or additional stock or other
securities or property (including cash) by way of spin-off, split-up,
reclassification or similar corporate rearrangement (other than Common Shares
issued as a stock split or combination, adjustments in respect of which shall be
covered by the terms of subparagraph (d)(i) of this Section 6) then
(1) in the case of holders of Common Shares
receiving or becoming entitled to receive Common Shares as provided in clause
(x) of this subparagraph (d)(ii) of Section 6, the Conversion Price then in
effect shall be decreased at the time of issuance of such Common Shares, or in
case a record date for the distribution of such Common Shares is set, on such
record date, as provided in subparagraph (d)(i) of this Section 6 as though such
distribution or proposed distribution were a stock split, and
(2) in all other cases, the holders of shares
of Series B Convertible Preferred Stock shall, upon conversion thereof, be
entitled to receive, in addition to the number of Common Shares receivable
thereupon, and without payment of any additional consideration therefor, the
amount of stock and other securities and property (including cash in the cases
referred to in clauses (y) and (z) of this subparagraph (d)(ii) of Section 6)
which such holders would hold on the date of such conversion had such holders
been holders of record of such Common Shares as of the date on which holders of
Common Shares received or became entitled to receive such shares and all other
additional stock and other securities and property.
(iii) Reorganization, Reclassification, Consolidation,
Merger or Sale. If any reorganization of the capital stock of the Corporation,
or any consolidation or merger of the Corporation with another corporation, or
the sale of all or substantially all of its assets to another corporation shall
be effected in such a way that holders of Common Shares shall be entitled to
receive stock, securities or assets of the Corporation or another corporation,
as
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the case may be, then, as a condition of such reorganization, reclassification,
consolidation, merger or sale, lawful and adequate provisions shall be made and
duly executed documents evidencing the same from the Corporation, or its
successor, shall be delivered to each holder of shares of Series B Convertible
Preferred Stock whereby such holder shall have the right, at a price not to
exceed the Conversion Price, to receive (in lieu of the Common Shares
immediately theretofore receivable upon conversion) such shares of stock,
securities or assets as may be issued by the Corporation or another corporation,
as the case may be, with respect to or in exchange for a number of outstanding
Common Shares equal to the number of Common Shares immediately theretofore
receivable upon conversion. In any reorganization described above, appropriate
provision shall be made with respect to the rights and interests of the holders
of shares of Series B Convertible Preferred Stock to the end that the provisions
of the Series B Convertible Preferred Stock (including, without limitation,
provisions for adjustments of the Conversion Price) shall thereafter be
applicable, as nearly as may be practicable, in relation to any shares of stock,
securities or assets thereafter deliverable upon conversion. The Corporation
will not effect any such consolidation, merger or sale unless, prior to the
consummation thereof, the successor corporation (if other than the Corporation)
resulting from such consolidation or merger or the corporation purchasing such
assets shall assume by written instrument, executed and mailed or delivered to
each holder of shares of Series B Redeemable Preferred Stock at the last address
of such holder appearing on the books of the Corporation, the obligation to
deliver to such holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such holder may be entitled to
purchase.
(iv) Adjustment Upon Issuance of Additional Shares
of Common.
(x) Special Definitions. For purposes of this
subparagraph (d)(iv) of Section 6, the following definitions shall apply:
(1) `Option' shall mean rights,
options or warrants to subscribe for, purchase or otherwise acquire either
Common Shares, Convertible Securities or other options.
(2) `Original Issue Date' shall mean
December 12, 1988.
(3) `Convertible Securities' shall
mean any evidences of indebtedness, shares or other securities directly or
indirectly convertible into or exchangeable for Common Shares.
(4) `Additional Shares of Common'
shall mean all Common Shares issued (or, pursuant to subparagraph (d)(iv)(y)(2)
of this Section 6, deemed to be issued) by the Corporation after the Original
Issue Date, other than:
a. Common Shares issued or
issuable upon conversion of shares of Series B Convertible Preferred Stock;
b. Common Shares issued or
issuable upon exercise of the Warrant, dated December 12, 1988, issued by the
Corporation in favor
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of Security Pacific National Bank or the Option granted to Donald W. Jones, M.D.
and Ms. Julie E. Jones (the "Joneses") pursuant to that certain option
Agreement, dated as of December 12, 1988, between the Corporation and the
Joneses;
c. Common Shares issued or
issuable to officers or employees of, or consultants to, the Corporation,
pursuant to a stock grant or option plan or other employee stock incentive
program (collectively, the "Plans") approved by the Board of Directors, and
Common Shares repurchased by the Corporation pursuant to the terms of those
certain Management Subscription Agreements, dated as of December 12, 1988, and
reissued by the Corporation to its officers, employees or consultants, subject,
in each case, to adjustment for all subdivisions and combinations of Common
Shares after the Original Issue Date; and
d. Common Shares issued or
issuable by way of dividend or other distribution on Common Shares excluded from
the definition of Additional Shares of Common by the foregoing clauses a., b.
and c. of this subparagraph (d)(iv)(x)(4) of Section 6 or on Common Shares so
excluded.
(y) Adjustment to Conversion Price.
(1) No Adjustment of Conversion
Price. No adjustments to the Conversion Price shall be made in respect of the
issuance of Additional Shares of Common under this subparagraph (d)(iv)(y) of
Section 6 unless the consideration per share for an Additional Share of Common
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 issuance or
deemed issuance.
(2) Issue of Securities Deemed Issue
of Additional Shares of Common. In the event the Corporation at any time or from
time to time after the Original Issue Date 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 Common Shares (as set forth
in the instrument relating thereto without regard to any provisions contained
therein for a subsequent adjustment of such numbers) issuable upon the exercise
of such options or, in the case of Convertible Securities or options therefor,
upon the conversion or exchange of such Convertible Securities, shall be deemed
to be Additional Shares of Common issued as of the time of the issuance of such
Options or Convertible Securities 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 shall not be deemed to have been issued unless the
consideration per share (determined pursuant to subparagraph (d)(iv)(y)(4) of
Section 6) of such Additional Shares of Common would be less than the 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 case in which
Additional Shares of Common are deemed to be issued:
a. no further adjustment in
the Conversion Price shall be made upon the subsequent issue of Convertible
Securities or Common
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Shares upon the exercise of such Options or conversion or exchange of such
Convertible Securities;
b. if such options or
Convertible Securities by their terms provide, with the passage of time or
otherwise, for any increase in the consideration payable to the Corporation, or
decrease in the number of Common Shares issuable upon the exercise, conversion
or exchange thereof, the Conversion Price computed upon the original issue
thereof (or upon the occurrence of a record date with respect thereto), and any
adjustments subsequent to the date thereof 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;
c. upon the expiration or
cancellation of any such options or any rights of conversion or exchange under
such Convertible Securities which shall not have been exercised, the 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 such expiration or cancellation, be recomputed as if:
A) in the case of
Convertible Securities or Options for Common Shares, the only Additional Shares
of Common issued were the Common Shares, if any, actually issued upon the
exercise of such Options or the conversion or exchange of such Convertible
Securities and the consideration received therefor was the consideration
actually received by the Corporation for the issue of all such Options, whether
or not exercised, plus the consideration actually received by the Corporation
upon such exercise, or for the issue of all such Convertible Securities which
were actually converted or exchanged, plus the additional consideration, if any,
actually received by the Corporation upon such conversion or exchange; and
B) in the case of
options for Convertible Securities, only the Convertible Securities, if any,
actually issued upon the exercise thereof were issued at the time of issue of
such options, and the consideration received by the Corporation for the
Additional Shares of Common deemed to have been then issued was the
consideration actually received by the Corporation for the issue of all such
Options, whether or not exercised, plus the consideration deemed to have been
received by the Corporation (determined pursuant to subparagraph
(d)(iv)(y)(4)(2) of this Section 6) upon the issue of the Convertible Securities
with respect to which such Options were actually exercised;
d. no readjustment pursuant to
clauses b. and c. of this subparagraph (d)(iv)(y)(2) of Section 6 shall have the
effect of increasing the 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 between the original adjustment date and such readjustment date; and
e. in the case of any Options
which expire by their terms not more than thirty (30) days after the date of
issue thereof, no adjustment of the Conversion Price shall be made until the
expiration or exercise of all such Options,
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whereupon such adjustment shall be made in the same manner provided in clause c.
of this subparagraph (d)(iv)(y)(2) of Section 6.
(3) Adjustment Upon Issuance of
Additional Shares of Common. In the event the Corporation at any time or from
time to time after the Original Issue Date shall issue Additional Shares of
Common (including Additional Shares Common deemed to be issued pursuant to
subparagraph (d)(iv)(y)(2) of this Section 6, but excluding Additional Shares of
Common issued pursuant to subparagraphs (d)(i) or (d)(ii) of this Section 6,
respectively) without consideration or for a consideration per share less than
the Conversion Price in effect on the date of and immediately prior to such
issue, 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 (x) the numerator
of which shall be the number of Common Shares outstanding immediately prior to
such issue (excluding Common Shares if such shares or securities on account of
which such shares were issued would have been excluded from the definition of
"Additional Shares of Common" by virtue of clauses b., c. and d. of subparagraph
(d)(iv)(x)(4) of this Section 6) plus the number of Common Shares which the
aggregate consideration received by the Corporation for the total number of
Additional Shares of Common so issued would purchase at such Conversion Price,
and (y) the denominator of which shall be the number of Common Shares
outstanding immediately prior to such issue (excluding Common Shares if such
shares or securities on account of which such shares were issued would have been
excluded from the definition of "Additional Shares of Common" by virtue of
clauses b., c. and d. of' subparagraph (d)(iv)(x)(4) of this Section 6) plus the
number of such Additional Shares of Common so issued.
(4) Determination of Consideration.
For purposes of this subparagraph (d)(iv)(y) of Section 6, the consideration
received by the Corporation for the issue of any Additional Shares of Common
shall be computed as follows:
a. Cash and Property. Such
consideration shall:
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 in good faith by the Board of Directors of
the Corporation; and
C) In the event
Additional Shares of Common 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) of this subparagraph (d)(iv)(y)(4) of Section 6, as determined in good
faith by the Board.
b. Options and Convertible
Securities. The consideration per share received by the Corporation for
Additional Shares of Common
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deemed to have been issued pursuant to subparagraph (d)(iv)(y)(2) of this
Section 6, relating to options and Convertible Securities, shall be determined
by dividing:
A) the total amount, if any,
received or receivable by the Company 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
B) the maximum number of
Common Shares (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 6r exchange of such
Convertible Securities.
(v) De Minimis Adjustments. No adjustment or
readjustment in the Conversion Price pursuant to this subparagraph (d) of
Section 6 shall be required unless such adjustment or readjustment would require
an increase or decrease of at least 1% in the Conversion Price, as adjusted from
time to time; provided, however, that any adjustments which by reason of this
subparagraph (d)(v) of Section 6 are not required to be, and are not, made shall
be carried forward and taken into account in any subsequent adjustment.
(vi) Notice of Adjustment. Upon any adjustment of
the conversion Price, the Corporation shall give written notice thereof, by
first class mail, postage prepaid, addressed to each holder of Series B
Convertible Preferred Stock at the address of such holders as shown on the books
of the Corporation. The notice shall be signed by the Corporation's chief
financial officer and shall state the Conversion Price resulting from such
adjustment setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
(vii) Other Notices. If at any time:
(x) the Corporation shall declare any cash
dividend upon its capital stock;
(y) the Corporation shall declare any
dividend upon its Common Shares payable in stock or make any special dividend or
other distribution to the holders of its Common Shares;
(z) the Corporation shall offer for
subscription pro rata to the holders of its Common Shares any additional shares
of stock of any class or other rights;
(xx) there shall be any capital
reorganization or reclassification of the capital stock of the Corporation; or
consolidation or merger of the Corporation with, or sale of all or substantially
all of its assets to, another corporation;
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(yy) there shall be voluntary or involuntary
dissolution, liquidation or winding-up of the Corporation; or
(zz) there shall be an initial public
offering of the Corporation's securities;
then, in any one or more of such cases, the Corporation shall give, by first
class mail, postage prepaid, addressed to each holder of Series B Convertible
Preferred Stock at the address of such holder appearing on the books of the
Corporation (a) at least thirty (30) days' prior written notice of the date on
which the books of the Corporation shall close or a record shall be taken for
such dividend, distribution or subscription rights or for determining rights to
vote in respect of any such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation, winding-up and (b) in the case of any
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, winding-up or public offering, at least thirty (30) days' prior
written notice of the date when the same shall take place. Any notice given in
accordance with the foregoing clause (a) of this subparagraph (d)(vii) of
Section 6 shall also specify, in the case of any such dividend, distribution or
subscription rights, the date on which the holders of Common Shares shall be
entitled thereto. Any notice given in accordance with the foregoing clause (b)
of this subparagraph (d)(vii) of Section 6 shall also specify the date on which
the holders of Common Shares shall be entitled to exchange their Common Shares
for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation,
winding-up, conversion or public offering, as the case may be.
(viii) Certain Events. If any change in the
outstanding Common Shares of the Corporation or any other event occurs as to
which the other provisions of this subparagraph (d) of Section 6 are not
strictly applicable or if strictly applicable would not fairly protect the
rights of the holders of Series B Convertible Preferred Stock in accordance with
the essential intent and principles of such provisions, then the Board of
Directors of the Corporation shall make an adjustment in the Conversion Price or
the application of such provisions, in accordance with such essential intent and
principles so as to protect such rights as aforesaid. The adjustment shall be
such as will give each holder of shares of Series B Convertible Preferred Stock
upon conversion for the same aggregate Conversion Price the total number, class
and kind of shares as such holder would have owned had such holder converted
prior to the event and had such holder continued to hold the Common Shares
received upon such conversion until after the event requiring adjustment.
(e) Reservation of Common Shares. The Corporation shall at
all times reserve and keep available, out of its authorized but unissued Common
Shares, solely for the purpose of effecting the conversion of shares of Series B
Convertible Preferred Stock, the full number of Common Shares deliverable upon
the conversion of all shares of Series B Convertible Preferred Stock from time
to time outstanding. The Corporation shall from time to time, in accordance with
the laws of the State of Delaware, increase the authorized amount of its Common
Shares if at any time the authorized number of Common Shares remaining unissued
shall not be sufficient to permit the conversion of all of the shares of Series
B Convertible Preferred Stock at the time outstanding.
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(f) Payment of Taxes. The Corporation shall pay any and
all issue and other taxes that may be payable in respect of any issue or
delivery of Common Shares on conversion of shares of Series B Convertible
Preferred Stock pursuant hereto. The Corporation shall not, however, be required
to pay any tax which may be payable in respect of any transfer involved in the
issue and delivery of Common Shares in a name other than that in which the
shares of Series B Convertible Preferred Stock so converted were registered, and
no such issue or delivery shall be made unless and until the person requesting
such issue has paid to the Corporation the amount of any such tax, or has
established to the satisfaction of the Corporation that such tax has been paid.
7. Voting Rights of Series A Redeemable Preferred Stock.
(a) No General Voting Rights. Except as provided in this
Section 7 or as otherwise provided by law, the holders of the Common Shares and
shares of Series B Convertible Preferred Stock issued and outstanding shall have
and possess the exclusive right to notice of stockholders' meetings, and the
exclusive voting rights and powers, and the holders of shares of Series A
Redeemable Preferred Stock shall not be entitled to notice of any stockholders'
meetings or to vote upon the election of directors or upon any other matter. On
such matters set forth below, upon which the holders of shares of Series A
Redeemable Preferred Stock are entitled to vote, each such holder shall have
twelve (12) votes per share.
(b) Voting Rights on Extraordinary Matters. So long as any
of the shares of Series A Redeemable Preferred Stock shall be outstanding the
Corporation shall not without first obtaining the approval of the holders of at
least a majority of the total number of shares of Series A Redeemable Preferred
Stock outstanding:
(i) amend or repeal any provision of, or add any
provision to, this Certificate of Incorporation, if such action would alter or
change in any manner the rights, preferences or privileges of the shares of
Series A Redeemable Preferred Stock or materially adversely affect the holders
of shares of Series A Redeemable Preferred Stock;
(ii) increase the authorized number of shares of
Series A Redeemable Preferred Stock;
(iii) create any new class of shares, or any other
securities convertible into equity securities, of the Corporation having
preferences over or being on a parity with the shares of Series A Redeemable
Preferred Stock as to dividends, upon liquidation, dissolution, winding-up or
otherwise, unless the purpose of creation of such class or other securities is,
and the proceeds to be derived from the sale and issuance thereof are to be used
for, the retirement of all shares of Series A Redeemable Preferred Stock then
outstanding;
(iv) purchase any shares of Series B Convertible
Preferred Stock or Common Shares except as expressly permitted herein;
(v) merge or consolidate with any other
corporation;
(vi) sell, convey or otherwise dispose of, or
create or incur any mortgage, lien, charge or encumbrance on or security
interest in or pledge of, or sell and
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leaseback, all or substantially all of the property or business of the
Corporation, except as contemplated by the terms of the Credit Agreements;
(vii) effect any transaction or series of related
transactions in which more than fifty percent (50%) of the voting power of the
Corporation is disposed of; or
(viii) incur, assume or guarantee any indebtedness
(other than such as may be represented by the obligation to pay rent under
leases) maturing more than eighteen (18) months after the date on which it is
incurred, assumed, or guaranteed by the corporation, except purchase money
obligations, obligations assumed as part of the price of property purchased, or
the extension, renewal or refunding of any thereof and except pursuant to the
Credit Agreements.
8. Voting Rights of Series B Convertible Preferred Stock.
(a) General. Except as provided in Section 7, the holders
of shares of Series B Convertible Preferred Stock, shall together with the
holders of Common Shares possess the exclusive right to notice of stockholders'
meetings, and the exclusive voting rights and powers, including without
limitation, the power to vote upon the election of directors; provided, however,
that the holders of shares of Series B Convertible Preferred Stock shall not be
entitled to vote on the redemption of the shares of Series A Redeemable
Preferred Stock. On all such matters upon which holders of shares of Series B
Convertible Preferred Stock shall be entitled to vote, each such holder shall
have 164.71 votes per share.
(b) Right to Elect Directors. If (i) an Event of Default
(as defined in the Credit Agreements) shall have occurred and be continuing and,
in the case of any non-payment default, the holders of 66 2/3% of the
outstanding shares of Series B Convertible Preferred Stock shall not have
consented to such Event of Default and such Event of Default shall continue for
a period of 90 days or, in the case of a payment default, the holders of 66 2/3%
of the outstanding shares of Series B Convertible Preferred Stock shall not have
consented to such Event of Default and such Event of Default shall continue for
a period of 45 days, or (ii) at such time as the Credit Agreements are no longer
in effect, two (2) or more quarterly dividends, whether or not consecutive, on
the shares of Series B Convertible Preferred Stock shall be in arrears, in whole
or in part, and the holders of 66 2/3% of the outstanding shares of Series B
Convertible Preferred Stock shall not have consented to such arrearage the
rights of holders of the Series B Convertible Preferred Stock with respect to
the election of directors provided in subparagraph (a) of this Section 8 shall
cease and the holders of shares of Series B Convertible Preferred Stock as a
class shall be entitled to elect the smallest number of directors which will
constitute a majority of the authorized number of directors, and the holders of
Common Shares voting as a single class shall be entitled to elect the remaining
members of the Board of Directors. At such time as such Event of Default shall
have been cured or consented to by the holders of 66 2/3% of the outstanding
shares of Series B Convertible Preferred Stock, the rights of the holders of
shares of Series B Convertible Preferred Stock to vote as provided in this
subparagraph (b) of Section 8 shall cease, subject to renewal from time to time
upon the same terms and conditions and the rights of the holders of Series B
Convertible Preferred Stock to vote for the election of directors as provided in
subparagraph (a) of this Section 8 shall be renewed.
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At any time after the voting power to elect a majority of the
Board of Directors shall have become vested in the holders of shares of Series B
Convertible Preferred Stock as provided in this subparagraph (b) of Section 8,
the Secretary of the Corporation may, and upon the request of the record holders
of at least fifty percent (50%) of the shares of Series B Convertible Preferred
Stock then outstanding addressed to the Secretary at the principal executive
office of the Corporation shall, call a special meeting of the holders of shares
of Series B Convertible Preferred Stock and Common Shares for the election of
directors, to be held at the place and upon the notice provided in the Bylaws of
the Corporation for the holding of annual meetings. If such meeting shall not be
so called within ten (10) days' after personal service of the request, or within
fifteen (15) days' after mailing of the same by registered mail within the
United States of America, then a person designated by the record holders of at
least fifty percent (50%) of the shares of Series B Convertible Preferred Stock
then outstanding may call such meeting at the place and upon the notice above
provided, and for that purpose shall have access to the stock books of the
Corporation. At any meeting so called or at any annual meeting held while the
holders of shares of Series B Convertible Preferred Stock have the voting power
to elect a majority of the Board of Directors, the holders of a majority of the
then outstanding shares of Series B Convertible Preferred Stock, present in
person or by proxy, shall be sufficient to constitute a quorum for the election
of the directors which the holders of shares of Series B Convertible Preferred
Stock are entitled to elect pursuant to this subparagraph (b) of Section 8 and
the vote of a majority of the shares of Series B Convertible Preferred Stock
counted towards such quorum shall be sufficient to elect any such director. For
purposes of this subparagraph (b) of Section 8 only, each holder of shares of
Series B Convertible Preferred Stock shall be entitled to one vote per share.
The terms of office of all persons who are directors of the Corporation at the
time of such meeting shall terminate upon the election at such meeting by the
holders of shares of Series B Convertible Preferred Stock of the number of
directors they are entitled to elect, and the persons so elected as directors by
the holders of shares of Series B Convertible Preferred Stock, together with
such persons, if any, as may be elected as directors by the holders of Common
Shares, shall constitute the duly elected directors of the Corporation. In the
event the holders of Common Shares fail to elect the number of directors which
they are entitled to elect at such meeting, additional directors may be
appointed by the directors elected by the holders of shares of Series B
Convertible Preferred Stock.
Any director elected by holders of shares of Series B Convertible
Preferred Stock may be removed, and shall not be removed except by, the vote of
the holders of record of a majority of the outstanding shares of Series B
Convertible Preferred Stock who are at the time of such vote entitled to vote
for the election of such director, at a meeting of the stockholders called for
such purpose. Any vacancy in the office of a director entitled to be elected by
holders of shares of Series B Convertible Preferred Stock may be filled (i) by
any instrument in writing signed by the remaining directors elected by the
holders of shares of Series B Convertible Preferred Stock and filed with the
Corporation or (ii) in the case of the removal of any such director, by the vote
of the holders of a majority of the outstanding shares of Series B Convertible
Preferred Stock who are at that time entitled to vote for the election of such
director at the same meeting at which such removal shall be voted.
Whenever the voting rights of holders of the shares of Series B
Convertible Preferred Stock shall cease as provided in this subparagraph (2) of
paragraph (h), the term of office of all persons who are at the time directors
of the Corporation shall terminate upon the
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election of their successors by the holders of shares of Series B Convertible
Preferred Stock (pursuant to subparagraph (a) of this Section 8 and Common
Shares.
9. Status of Reacquired Shares. All shares of Preferred Stock of
the Corporation which have been redeemed or reacquired in any manner by the
Corporation after the original issuance thereof shall have the status of
authorized and unissued shares of the class of preferred stock issuable in
series, undesignated as to series, and may be redesignated and reissued, but may
not be reissued as shares of Series A Redeemable Preferred Stock or Series B
Convertible Preferred Stock. The Board of Directors is authorized to divide such
reacquired shares of preferred stock into such number of series as the Board of
Directors may determine. The Board of Directors is authorized to determine or
alter the rights, preferences, privileges and restrictions granted to or imposed
upon any wholly unissued series of preferred stock. and to fix the number of
shares of any series of preferred stock, and to determine the designation of any
series of preferred stock.
10. Reports to Stockholders. The Corporation shall distribute
copies of its annual reports and quarterly reports which it may be required to
file with the Securities and Exchange Commission ("SEC") to holders of shares of
Preferred Stock. In addition, so long as the Corporation is not required to file
copies of its annual reports and quarterly reports with the SEC, the Corporation
shall mail to each holder of shares of Preferred Stock, at the address of such
holder appearing on the books of the Corporation, its monthly, quarterly and
annual financial statements and management reports, within 10 days after such
statements and reports are completed, and any other financial statements or
reports which the Corporation is then providing to any of its lenders,
including, without limitation, Southern California Bank, at the same time as
such statements and reports are provided to such lenders.
V.
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend and rescind any or all of the Bylaws of the Corporation. In addition, the
Bylaws may be amended by the affirmative vote of holders of at least sixty-six
and two-thirds percent (66 2/3%) of the outstanding shares of voting stock of
the Corporation entitled to vote at an election of directors.
The number of directors of the Corporation shall be determined by
resolution of the Board of Directors.
Elections of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide. Advance notice of stockholder
nominations for the election of directors and of any other business to be
brought before any meeting of the stockholders shall be given in the manner
provided in the Bylaws of this Corporation.
At each annual meeting of stockholders, directors of the
Corporation shall be elected to hold office until the expiration of the term for
which they are elected, or until their successors have been duly elected and
qualified; except that if any such election shall not be so held, such election
shall take place at a stockholders' meeting called and held in accordance with
the GCL.
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Notwithstanding the provisions contained in Article 4, Section B,
Subsections 7 and 8, the directors of the Corporation shall be divided into
three (3) classes as nearly equal in size as is practicable, hereby designated
Class I, Class II and Class III. For the purposes hereof, the initial Class I,
Class II and Class III directors shall be those directors so designated by a
resolution of the Board of Directors. At the annual meeting of stockholders to
be held in 2000, the term of office of the Class I directors shall expire and
Class I directors shall be elected for a full term of three (3) years. At the
annual meeting of stockholders to be held in 2001, the term of office of the
Class II directors shall expire and Class II directors shall be elected for a
full term of three (3) years. At the annual meeting of stockholders to be held
in 2002, the term of office of the Class III directors shall expire and Class
III directors shall be elected for a full term of three (3) years. At each
succeeding annual meeting of stockholders, directors shall be elected for a full
term of three (3) years to succeed the directors of the class whose terms expire
at such annual meeting. If the number of directors is hereafter changed, each
director then serving as such shall nevertheless continue as a director of the
Class of which he is a member until the expiration of his current term and any
newly created directorships or decrease in directorships shall be so apportioned
among the classes as to make all classes as nearly equal in number as is
practicable.
Vacancies occurring on the Board of Directors for any reason may
be filled by vote of a majority of the remaining members of the Board of
Directors, even if less than a quorum, at any meeting of the Board of Directors.
A person so elected by the Board of Directors to fill a vacancy shall hold
office for the remainder of the full term of the director for which the vacancy
was created or occurred and until such director's successor shall have been duly
elected and qualified. A director may be removed from office by the affirmative
vote of the holders of 66 2/3% of the outstanding shares of voting stock of the
Corporation entitled to vote at an election of directors, provided that such
removal is for cause.
VI.
Stockholders of the Corporation shall take action by meetings
held pursuant to this Amended and Restated Certificate of Incorporation and the
Bylaws and shall have no right to take any action by written consent without a
meeting. Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. Special meetings of the stockholders, for
any purpose or purposes, may only be called by the Board of Directors of the
Corporation. The books of the Corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such place or places
as may be designated from time to time by the Board of Directors or in the
Bylaws of the Corporation.
VII.
Special meetings of the stockholders of the Corporation for any
purpose or purposes may be called at any time by (1) the President or Secretary
pursuant to a request in writing of the President; (2) a majority of the entire
Board of Directors; or (3) stockholders owning not less than 50% of the entire
voting stock of ANSYS then issued and outstanding, but such special meetings may
not be called by any other person or persons; provided, however, that if and to
the extent that any special meeting of stockholders may be called by any other
person or persons specified in any provisions of the Certificate of
Incorporation or any amendment thereto or any certificate filed under Section
151(g) of the General Corporation Law of Delaware (or its
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successor statute as in effect from time to time hereunder), then such special
meeting may also be called by the person or person in the manner, at the times
and for the purposes so specified. A special meeting may not be held absent a
written request. The request shall state the purpose or purposes of the proposed
meeting.
VIII.
To the fullest extent permitted by applicable law, this
Corporation is authorized to provide indemnification of (and advancement of
expenses to) directors, officers, employees and agents (and any other persons to
which Delaware law permits this Corporation to provide indemnification) through
Bylaw provisions, agreements with such agents or other persons, vote of
stockholders or disinterested directors or otherwise, in excess of the
indemnification and advancement otherwise permitted by Section 145 of the GCL,
subject only to limits created by applicable Delaware law (statutory or
non-statutory), with respect to action for breach of duty to the Corporation,
its stockholders, and others.
No director of the Corporation shall be personally liable to the
Corporation or any stockholder for monetary damages for breach of fiduciary duty
as a director, except for any matter in respect of which such director shall be
liable under Section 174 of the GCL or any amendment thereto or shall be liable
by reason that, in addition to any and all other requirements for such
liability, such director (1) shall have breached the director's duty or loyalty
to the Corporation or its stockholders, (2) shall have acted in manner involving
intentional misconduct or a knowing violation of law or, in failing to act,
shall have acted in a manner involving intentional misconduct or a knowing
violation of law, or (3) shall have derived an improper personal benefit. If the
GCL is hereafter amended to authorize the further elimination or limitation of
the liability of a director, the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the GCL, as so
amended.
Each person who was or is made a party or is threatened to be
made a party to or is in any way involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), including any appeal therefrom, by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or a direct
or indirect subsidiary of the Corporation, or is or was serving at the request
of the Corporation as a director or officer of another entity or enterprise, or
was a director or officer of a foreign or domestic corporation which was
predecessor corporation of the Corporation or of another entity or enterprise at
the request of such predecessor corporation, shall be indemnified and held
harmless by the Corporation, and the Corporation shall advance all expenses
incurred by any such person in defense of any such proceeding prior to its final
determination, to the fullest extent authorized by the GCL. In any proceeding
against the Corporation to enforce these rights, such person shall be presumed
to be entitled to indemnification and the Corporation shall have the burden of
proving that such person has not met the standards of conduct for permissible
indemnification set forth in the GCL. The rights to indemnification and
advancement of expenses conferred by this Article VIII shall be presumed to have
been relied upon by the directors and officers of the Corporation in serving or
continuing to serve the Corporation and shall be enforceable as contract rights.
Said rights shall not be exclusive of any other rights to which those seeking
indemnification may otherwise be entitled. The Corporation may, upon written
demand
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presented by a director or officer of the Corporation or of a direct or
indirect subsidiary of the Corporation, or by a person serving at the request of
the Corporation as a director or officer of another entity or enterprise, enter
into contracts to provide such persons with specified rights to indemnification,
which contracts may confer rights and protections to the maximum extent
permitted by the GCL, as amended and in effect from time to time.
If a claim under this Article VIII is not paid in full by the
Corporation within sixty (60) days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expenses of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce the right to be advanced expenses incurred in
defending any proceeding prior to its final disposition where the required
undertaking, if any, has been tendered to the Corporation ) that the claimant
has not met the standards of conduct which make it permissible under the GCL for
the Corporation to indemnify the claimant for the amount claimed, but the
claimant shall be presumed to be entitled to indemnification and the Corporation
shall have the burden of proving that the claimant has not met the standards of
conduct for permissible indemnification set forth in the GCL.
If the GCL is hereafter amended to permit the Corporation to
provide broader indemnification rights than said law permitted the Corporation
to provide prior to such amendment, the indemnification rights conferred by this
Article VIII shall be broadened to the fullest extent permitted by the GCL, as
so amended.
IX.
The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation. Notwithstanding the foregoing, the provisions set forth in Articles
V, VI, VII, VIII and IX of this Amended and Restated Certificate of
Incorporation may not be repealed or amended in any respect without the
affirmative vote of holders at least 66 2/3% of the outstanding voting stock of
the Corporation entitled to vote at election of directors.
SIX: The foregoing amendment and restatement has been approved by
the Board of Directors of the Corporation.
SEVEN: The foregoing amendment and restatement has been approved
by the required vote of the sole stockholder of the Corporation in accordance
with Section 242 of the Delaware General Corporation Law; the total number of
outstanding shares of the corporation is 1,000 shares of Common Stock. The
number of shares voting in favor of the amendment equaled or exceeded the vote
required. The percentage vote required was more than 51% of the Common Stock.
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IN WITNESS WHEREOF, the undersigned have executed this
Certificate on May 21, 1999.
/s/ STEPHEN K. SCHULTHEIS
------------------------------------
Stephen K. Schultheis, President
/s/ SUZANNE M. DAVID
------------------------------------
Suzanne M. David, Secretary
The undersigned, Stephen K. Schultheis and Suzanne M. David, the
President and Secretary, respectively, of Ansys Diagnostics, Inc., each declares
under penalty of perjury that the matters set out in the foregoing Amended and
Restated Certificate of Incorporation are true of his/her own knowledge.
Executed at Lake Forest, California, on May 21, 1999.
/s/ STEPHEN K. SCHULTHEIS
------------------------------------
Stephen K. Schultheis, President
/s/ SUZANNE M. DAVID
------------------------------------
Suzanne M. David, Secretary
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