EXHIBIT 3.1
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
MONOLITHIC SYSTEM TECHNOLOGY, INC.
The undersigned, Fu-Chieh Hsu and Wing-Yu Leung, hereby certify that:
1. They are the duly elected and acting President and Secretary,
respectively, of Monolithic System Technology, Inc., a California corporation.
2. The Articles of Incorporation of this corporation are amended and
restated to read in full as follows:
I.
The name of this corporation is Monolithic System Technology, Inc.
II.
The purpose of this corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
California other than the banking business, the trust company business or the
practice of a profession permitted to be incorporated by the California
Corporations Code.
III.
This corporation is authorized to issue two classes of stock, designated
"Common Stock" and "Preferred Stock." The total number of shares which this
corporation is authorized to issue is 39,500,000 shares. The number of shares of
Common Stock which this corporation is authorized to issue is 30,000,000 shares.
The number of shares of Preferred Stock which this corporation is authorized to
issue is 9,500,000 shares. The Preferred Stock may be issued from time to time
in one or more series. Of the Preferred Stock, 500,000 shares shall be
designated Series A Preferred Stock ("Series A Preferred"), 1,000,000 shares
shall be designated Series B Preferred Stock ("Series B Preferred"), 1,010,000
shares shall be designated Series C Preferred Stock ("Series C Preferred"),
300,000 shares shall be designated Series D Preferred Stock ("Series D
Preferred"), 264,487 shares
shall be designated Series E Preferred Stock ("Series E Preferred"), 1,224,552
shares shall be designated Series F Preferred Stock ("Series F Preferred"),
290,000 shares shall be designated Series F-1 Preferred Stock ("Series F-1
Preferred"), 1,343,433 shares shall be designated Series G Preferred Stock
("Series G Preferred") and 1,200,000 shares shall be designated Series H
Preferred ("Series H Preferred). The Board of Directors of this corporation 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 within the limitations or restrictions stated in any resolution or
resolutions of the Board of Directors originally fixing the number of shares
constituting any series, to increase or decrease (but not below the number of
shares of any such series then outstanding) the number of shares of any such
series subsequent to the issue of shares of that series, to determine the
designation and par value of any series and to fix the number of shares of any
series.
The Series A Preferred, the Series B Preferred, the Series C Preferred, the
Series D Preferred, the Series E Preferred, the Series F Preferred, the Series
F-1 Preferred, the Series G Preferred and the Series H Preferred shall have the
rights, preferences, privileges and restrictions set forth below.
SECTION 1. DIVIDEND RIGHTS OF PREFERRED STOCK. The holder of each share of
`Series A Preferred, Series B Preferred, Series C Preferred, Series D
Preferred, Series E Preferred, Series F Preferred, Series F-1, Series G and
Series H Preferred shall be entitled to receive, prior and in preference to any
declaration and payment of any dividend (payable other than in stock of the
corporation) on the Common Stock, non-cumulative dividends at an annual rate
equal to $0.1 0, $0.20, $0.50, $0.75, $1.60, $0.55, $0.55, $0.60 and $.80 per
share, respectively, when and as declared by the Board of Directors. Dividends,
if paid, or if declared and set apart for payment, must be paid on, or declared
and set apart for payment on, all series of Preferred Stock contemporaneously,
and if less than full dividends are paid or declared and set apart for payment,
the same percentage of the dividend rate will be paid on or declared and set
apart for payment on each series of Preferred Stock.
In the event that the corporation shall declare a distribution payable in
securities of other persons, evidences of indebtedness issued by the corporation
or other persons, assets (excluding cash dividends) or options or rights to
purchase any such securities or evidences of indebtedness, then, in each such
case the holders of the Preferred Stock shall be entitled to a proportionate
share of any such distribution as though the holders of Preferred Stock were the
holders of the number of shares of Common Stock of the corporation into which
their respective shares of Preferred Stock are convertible at the Conversion
Prices (as defined in paragraph 3(a) below) in effect as of the record date
fixed for the determination of the holders of Common Stock of the corporation
entitled to receive such distribution.
SECTION 2. LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or winding up of the
corporation, either voluntarily or involuntarily, the holders of the Preferred
Stock shall be entitled to receive, prior and in preference to any distribution
of any of the assets of the corporation to the holders of the Common Stock, an
amount per share equal to $1.00 plus any declared but unpaid dividends for each
share of Series A Preferred then held by them, an amount per share equal to
$2.00 plus any declared but unpaid dividends for each share of Series B
Preferred then held by them, an amount per share equal to $5.00 plus any
declared but unpaid dividends for each share of Series C Preferred then held by
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them, an amount per share equal to $7.50 plus any declared but unpaid dividends
for each share of Series D Preferred then held by them, an amount per share
equal to $16.00 plus any declared but unpaid dividends for each share of Series
E Preferred then held by them, an amount per share equal to $5.50 plus any
declared but unpaid dividends for each share of Series F Preferred then held by
them, an amount per share equal to $5.50 plus any declared but unpaid dividends
for each share of Series F-1 Preferred then held by them and an amount per share
equal to $6.00 plus any declared but unpaid dividends for each share of Series G
Preferred then held by them and an amount per share equal to $8.00 plus any
declared but unpaid dividends for each share of Series H Preferred then held by
them. If, upon the occurrence of such event, the assets thus distributed among
the holders of the Series A Preferred, Series B Preferred, Series C Preferred,
Series D Preferred, Series E Preferred, Series F Preferred, Series F-1
Preferred, Series G Preferred and Series H Preferred then held by them shall be
insufficient to permit the payment to such holders of the full aforesaid
preferential amount, then the entire assets and funds of the corporation legally
available for distribution shall be distributed among the holders of all series
of the Preferred Stock in proportion to the aggregate preferential amounts owed
the holders of the then outstanding shares of each series of Preferred Stock
upon a liquidation, dissolution or winding up of the corporation; and no amount
shall be paid or set apart for payment on any series of the Preferred Stock
unless, at the same time, amounts in like proportion to the respective
preferential amounts to which the other outstanding series of the Preferred
Stock are entitled shall be paid or set apart for payment on the outstanding
other series.
(b) Upon the completion of the distribution required by subparagraph (a) of
this Section 2, any remaining assets of this corporation shall be distributed
ratably among the holders of Common Stock and Preferred Stock based on the
number of shares of Common Stock held by each assuming conversion of all
outstanding Preferred Stock into Common Stock at the then applicable Conversion
Price (as defined in paragraph 3(a) below).
(c)
(i) For purposes of this Section 2, a liquidation, dissolution or
winding up of the corporation shall be deemed to be occasioned by and to include
(A) the corporation's sale of all or substantially all of its assets or (B) any
transaction or series of related transactions (including, without limitation,
any reorganization, merger or consolidation) which will result in the holders of
the outstanding voting equity securities of the corporation immediately prior to
such transaction or series of related transactions holding securities
representing less than 50% of the voting power of the surviving entity
immediately following such transaction or series of related transactions.
(ii) In any such events, if the consideration received by the
corporation is other than cash or indebtedness, its value will be deemed to be
its fair market value. In the case of publicly traded securities, fair market
value shall mean the closing market price of such securities on the date such
consolidation, merger or sale is consummated. If a consideration is in a form
other than publicly traded securities, its value shall be determined by the
Board.
SECTION 3. CONVERSION.
The holders of the Series A Preferred, Series B Preferred, Series C
Preferred, Series D Preferred, Series E Preferred, Series F Preferred and Series
F-1 Preferred, Series G Preferred and Series H Preferred shall have conversion
rights as follows (the "Conversion Rights"):
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(a) RIGHT TO CONVERT. Each share of Series A Preferred, each share of
Series B Preferred, each share of Series C Preferred, each share of Series D
Preferred, each share of Series E Preferred, each share of Series F Preferred,
each share of Series F-1 Preferred, each share of Series G Preferred and each
share of Series H shall be convertible, at the option of the holder thereof, at
any time after the date of issuance of such share, at the office of the
corporation or any transfer agent for the Preferred Stock, into such number of
fully paid and nonassessable shares of Common Stock as is determined, in the
case of the Series A Preferred, by dividing One Dollar ($ 1.00) by the Series A
Conversion Price, in the case of the Series B Preferred, by dividing Two Dollars
($2.00) by the Series B Conversion Price, in the case of the Series C Preferred,
by dividing Five Dollars ($5.00) by the Series C Conversion Price, in the case
of the Series D Preferred, by dividing Seven Dollars and Fifty Cents ($7.50) by
the Series D Conversion Price, in the case of the Series E Preferred by dividing
Sixteen Dollars ($16.00) by the Series E Conversion Price, in the case of the
Series F Preferred by dividing Five Dollars and Fifty Cents ($5.50) by the
Series F Conversion Price, in the case of the Series F-1 Preferred by dividing
Five Dollars and Fifty Cents ($5.50) by the Series F-I Conversion Price, in the
case of the Series G Preferred by dividing Six Dollars ($6.00) by the Series G
Conversion Price, and in the case of the Series H Preferred by dividing Eight
Dollars ($8.00) by the Series H Conversion Price, each determined as hereinafter
provided and as in effect at the time of conversion. The price at which shares
of Common Stock shall be deliverable upon conversion of shares of Series A
Preferred (the "Series A Conversion Price") shall initially be Thirty-three and
One-third Cents ($.333) per share of Common Stock, the price at which shares of
Common Stock shall be deliverable upon conversion of shares of Series B
Preferred (the "Series B Conversion Price") shall initially be Sixty-six and
Two-third Cents ($.667) per share of Common Stock, the price at which shares of
Common Stock shall be deliverable upon conversion of shares of Series C
Preferred (the "Series C Conversion Price") shall initially be One Dollar and
Sixty-six and Two-third cents ($1.667) per share of Common Stock, the price at
which shares of Common Stock shall be deliverable upon conversion of shares of
Series D Preferred (the "Series D Conversion Price") shall initially be Two
Dollars and Fifty Cents ($2.50) per share of Common Stock, the price at which
shares of Common Stock shall be delivered upon conversion of shares of Series E
Preferred shall initially be Five Dollars and Thirty-three and One-third Cents
($5.333), the price at which shares of Common Stock shall be delivered upon
conversion of shares of Series F Preferred shall initially be Five Dollars and
Fifty Cents ($5.50), the price at which shares of Common Stock shall be
delivered upon conversion of shares of Series F-1 Preferred shall initially be
Five Dollars and Fifty Cents ($5.50), the price at which shares of Common Stock
shall be delivered upon conversion of shares of Series G Preferred shall
initially be Six Dollars ($6.00) and the price at which shares of Common Stock
shall be delivered upon conversion of shares of Series H Preferred shall
initially be Eight Dollars ($8.00). The term "Conversion Price" as used herein
shall refer to the respective Conversion Price for each series of Preferred
Stock as the context so requires. The initial Conversion Price shall be subject
to adjustment as hereinafter provided.
Upon conversion, all declared and unpaid dividends on the Preferred Stock
shall be paid either in cash or in shares of Common Stock of the corporation, at
the election of the corporation, wherein the shares of Common Stock shall be
valued at the fair market value at the time of such conversion, as determined by
the Board of Directors of the corporation.
(b) AUTOMATIC CONVERSION. Each share of Preferred Stock shall automatically
be converted into shares of Common Stock at the then effective Conversion Price
upon the earlier to occur of (i) the closing of an underwritten public offering
pursuant to an effective registration
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statement under the Securities Act of 1933, as amended, covering the offer and
sale of Common Stock for the account of the corporation to the public at a price
per share (prior to underwriter commissions and offering expenses) of not less
than $8.00, appropriately adjusted for any recapitalization, and an aggregate
offering price to the public of not less than $7,500,000, or (ii) the written
consent of the holders of at least a majority of the then outstanding shares of
Preferred (on an as converted to Common basis). In the event of the automatic
conversion of the Preferred under subsection (1) above, the person(s) entitled
to receive Common upon such conversion of Preferred shall not be deemed to have
converted such Preferred until immediately prior to the closing of such sale of
securities.
(c) MECHANICS OF CONVERSION. No fractional shares of Common Stock shall be
issued upon conversion of Preferred Stock. In lieu of any fractional shares to
which the holder would otherwise be entitled, the corporation shall pay cash
equal to such fraction multiplied by the then effective Conversion Price. Before
any holder of Preferred Stock shall be entitled to convert the same into full
shares of Common Stock and to receive certificates therefor, he shall surrender
the certificate or certificates therefor, duly endorsed, at the office of the
corporation or of any transfer agent for the Preferred Stock, and shall give
written notice to the corporation at such office that he elects to convert the
same; PROVIDED, HOWEVER, that in the event of an automatic conversion pursuant
to Section 3(b), the outstanding shares of Preferred 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, and provided further that the corporation
shall not be obligated to issue certificates evidencing the shares of Common
Stock issuable upon such automatic conversion unless the certificates evidencing
such shares of Preferred Stock are either delivered to the corporation or its
transfer agent as provided above, 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 such certificates.
The corporation shall, as soon as practicable after such delivery, or such
agreement and indemnification in the case of a lost certificate, issue and
deliver at such office to such holder of Preferred Stock, a certificate or
certificates for the number of shares of Common Stock to which he shall be
entitled as aforesaid and a check payable to the holder in the amount of any
cash amounts payable as the result of a conversion into fractional shares of
Common Stock. Such conversion shall be deemed to have been made immediately
prior to the close of business on the date of such surrender of the shares of
Preferred Stock to be converted, or in the case of automatic conversion on the
date of closing of the offering, and the person or persons entitled to receive
the shares of Common Stock issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such shares of Common Stock on
such date.
(d) ADJUSTMENTS TO CONVERSION PRICE FOR DILUTING ISSUES.
(i) SPECIAL DEFINITIONS. For purposes of this Section 3(d), the
following definitions shall apply:
(A) `Options' shall mean rights, options or warrants to subscribe
for, purchase or otherwise acquire either Common Stock or Convertible
Securities.
(B) `Original Issue Date' shall mean, for each series, the date on
which a share of that series of the Preferred Stock was first issued.
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(C) `Convertible Securities' shall mean any evidences of
indebtedness, Preferred Stock, or other securities convertible into or
exchangeable for Common Stock.
(D) `Additional Shares of Common' shall mean all shares of Common
Stock issued (or, pursuant to Section 3(d)(iii), deemed to be issued) by the
corporation after the Original Issue Date, other than shares of Common Stock
issued, issuable or, pursuant to Section 3(d)(Iii), deemed to be issued:
(a) upon conversion of shares of Preferred Stock;
(b) to officers, directors or employees of, or consultants to,
the corporation pursuant to a stock grant, option plan or purchase plan or other
employee stock incentive program or arrangement approved by the Board of
Directors;
(c) as a dividend or distribution on Preferred Stock; and
(d) in connection with any transaction for which adjustment is
made pursuant to Section 3(d)(vi) hereof
(ii) NO ADJUSTMENT OF CONVERSION PRICE. No adjustment in the Conversion
Price of a particular share of Preferred Stock shall be made in respect of the
issuance of Additional Shares of Common 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 issue, for such share of Preferred Stock.
(iii) OPTIONS AND CONVERTIBLE SECURITIES. 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 shares of Common
issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the conversion or exchange of such Convertible
Securities, shall be deemed to be Additional Shares of Common issued as of the
time of such issue or, in case such a record date shall have been fixed, as of
the close of business on such record date, provided that Additional Shares of
Common shall not be deemed to have been issued unless the consideration per
share (determined pursuant to Section 3(d)(v) hereof) 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 such 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 shares of Common Stock
upon the exercise of such Options or conversion or exchange of such Convertible
Securities, in each case, pursuant to their respective terms;
(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 shares of
Common Stock issuable, upon the exercise, conversion or exchange thereof, the
Conversion Price computed upon the original issue thereof (or upon the
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occurrence of a record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon any such increase or decrease becoming
effective, be recomputed to reflect such increase or decrease insofar as it
affects such Options or the rights of conversion or exchange under such
Convertible Securities;
(C) upon the expiration 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, be recomputed
as if-.
(a) in the case of Convertible Securities or Options for
Common Stock, the only Additional Shares of Common issued were shares of Common
Stock, 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 upon the issue of the Convertible
Securities with respect to which such Options were actually exercised;
(D) no readjustment pursuant to clauses (B) or (C) above 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 an Option which expires by its terms not more
than 30 days after the date of issue thereof, no adjustment of the Conversion
Price shall be made until the expiration or exercise of such Option, whereupon
such adjustment shall be made in the same manner provided in clause (C) above.
(iv) ADJUSTMENT OF CONVERSION PRICE UPON ISSUANCE OF ADDITIONAL SHARES
OF COMMON. In the event this corporation shall issue Additional Shares of Common
(including Additional Shares of Common deemed to be issued pursuant to Section
3(d)(iii)) 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 theretofore in effect by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to such issue plus the number of shares of
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Common Stock 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 the denominator of which shall be the number of shares of
Common Stock outstanding immediately prior to such issue plus the number of such
Additional Shares of Common so issued; provided further that, for the purposes
of this Section 3(d)(iv), all shares of Common Stock issuable upon exercise,
conversion or exchange of outstanding Options or Convertible Securities, as the
case may be, shall be deemed to be outstanding, and immediately after any
Additional Shares of Common are deemed issued pursuant to Section 3(d)(iii),
such Additional Shares of Common shall be deemed to be outstanding.
(v) DETERMINATION OF CONSIDERATION. For purposes of this Section 3(d),
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; 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) above, as determined in
good faith by the Board.
(2) OPTIONS AND CONVERTIBLE SECURITIES. The consideration per
share received by the corporation for Additional Shares of Common deemed to have
been issued pursuant to Section 3(d)(iii), relating to Options and Convertible
Securities, shall be determined by dividing
(x) the total amount, if any, received or receivable by the
corporation as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration
payable to the corporation upon the exercise of such Options or the conversion
or exchange of such Convertible Securities, or in the case of Options for
Convertible Securities, the exercise of such Options for Convertible Securities
and the conversion or exchange of such Convertible Securities by
(y) the maximum number of shares of Common Stock issuable upon
the exercise of such Options or the conversion or exchange of such Convertible
Securities, as determined in Section 3(d)(iii) hereof.
(vi) ADJUSTMENTS FOR SUBDIVISIONS, STOCK DIVIDENDS, COMBINATIONS OR
CONSOLIDATIONS OF COMMON STOCK. In the event the corporation effects a
subdivision or combination of its outstanding shares of Common Stock into a
greater or smaller number of shares without a proportionate and corresponding
subdivision or combination of its outstanding shares of Preferred
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Stock, then and in each such event the Conversion Price shall be increased or
decreased proportionally.
(vii) ADJUSTMENTS FOR OTHER DIVIDENDS AND DISTRIBUTIONS. In the event
the corporation at any time or from time to time makes, or fixes a record date
for the determination of holders of Common Stock entitled to receive, any
distribution payable in securities of the corporation other than shares of
Common Stock and other than as otherwise adjusted in this Section 3, then and in
each such event provision shall be made so that the holders of Preferred Stock
shall receive upon conversion thereof, in addition to the number of shares of
Common Stock receivable thereupon, the amount of securities of the corporation
which they would have received had their shares of Preferred 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 date of
conversion, retained such securities receivable by them as aforesaid during such
period, subject to all other adjustments called for during such period under
this Section 3 with respect to the rights of the holders of the Preferred Stock.
(viii) ADJUSTMENTS FOR RECLASSIFICATION, EXCHANGE AND SUBSTITUTION. If
the Common Stock issuable upon conversion of the Preferred Stock shall be
changed into the same or a different number of shares of any other class or
classes of stock, whether by capital reorganization, reclassification or
otherwise (other than in an event provided for in Section 3(d) above), the
Conversion Price then in effect shall, concurrently with the effectiveness of
such reorganization or reclassification, be proportionately adjusted such that
the Preferred Stock shall be convertible into, in lieu of the number of shares
of Common Stock which the holders would otherwise have been entitled to
receive, a number of shares of such other class or classes of stock equivalent
to the number of shares of Common Stock that would have been subject to receipt
by the holders upon conversion of the Preferred Stock immediately before that
change.
(e) NO IMPAIRMENT. The corporation will not, by amendment of its Articles
of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the corporation but will at
all times in good faith assist in the carrying out of all the provisions of this
Section 3 and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the holders of the
Preferred Stock against impairment.
(f) CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of each adjustment
or readjustment of the Conversion Price pursuant to this Section 3, the
corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
Preferred Stock a certificate setting forth such adjustment or readjustment and
showing in detail the facts upon which such adjustment or readjustment is based.
The corporation shall, upon the written request at any time of any holder of
Preferred Stock, furnish or cause to be furnished to such holder a like
certificate setting forth (i) such adjustments and readjustments, (ii) the
Conversion Price at the time in effect, and (iii) the number of shares of Common
Stock and the amount, if any, of other property which at the time would be
received upon the conversion of Preferred Stock.
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(g) NOTICES OF RECORD DATE. In the event of any taking by the corporation
of the record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend (other
than a cash dividend) or other distribution, the corporation shall mail to each
holder of Preferred Stock, at least twenty (20) days prior to the date specified
herein, a notice specifying the date on which any such record is to be taken for
the purpose of such dividend or distribution.
(h) RESERVATION OF 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 Preferred 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 Preferred
Stock; and if at any time the number of authorized but unissued shares of Common
Stock shall not be sufficient to effect the conversion of all the then
outstanding shares of the Preferred Stock, the corporation will take such
corporate action as may, in the opinion of its counsel, be necessary to increase
its authorized but unissued shares of Common Stock to such number of shares as
shall be sufficient for such purpose. Any reserve of its authorized but unissued
shares of Common Stock established by the corporation in accordance with this
paragraph may not be diminished without the consent of the holders of a majority
of the outstanding Preferred Stock.
(i) NO REISSUANCE OF SERIES A, B, C, D, E, F, F-1, G OR H PREFERRED. No
share or shares of Series A Preferred, Series B Preferred, Series C Preferred,
Series D Preferred, Series E Preferred, Series F Preferred, Series F- 1
Preferred, Series G Preferred or Series H Preferred acquired by the corporation
by reason of purchase, conversion or otherwise shall be reissued, and all such
shares shall be cancelled, retired and eliminated from the shares which the
corporation shall be authorized to issue.
(j) NOTICES. Any notice required by the provisions of this Section 3 to be
given to the holders of shares of Preferred Stock shall be deemed given if
deposited in the United States mail, postage prepaid, and addressed to each
holder of record at his or her address appearing on the books of the
corporation.
SECTION 4. VOTING MATTERS. Except as otherwise required by law, each share
of Common Stock issued and outstanding shall have one vote. Each share of
Preferred Stock issued and outstanding shall have the number of votes equal to
the number of shares of Common Stock into which the Preferred Stock is
convertible as adjusted from time to time pursuant to Section 3 hereof. The
holder of each share of Preferred Stock shall be entitled to notice of any
shareholders' meeting in accordance with the by-laws of the corporation and
shall vote with the holders of the Common Stock and upon any matter submitted to
a vote of shareholders, except those matters required by law to be submitted to
a class vote (in which case, except as otherwise required by law, the Series A
Preferred, Series B Preferred, Series C Preferred, Series D Preferred, Series E
Preferred, Series F Preferred, Series F-1 Preferred, Series G Preferred and
Series H Preferred shall vote together as a class).
SECTION 5. RESIDUAL RIGHTS. All rights accruing to the outstanding shares
of this corporation not expressly provided for to the contrary herein shall be
vested in the Common Stock.
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SECTION 6. CONSENT FOR CERTAIN REPURCHASES OF COMMON STOCK DEEMED TO BE
DISTRIBUTIONS. Each holder of Preferred Stock shall be deemed to have consented,
for purposes of Section 502, 503 and 506 of the California Corporations Code, to
distributions made by the corporation in connection with the repurchase of
shares of Common Stock issued to or held by employees or consultants upon
termination of their employment or services or pursuant to agreements providing
for the right of said repurchase between the corporation and such persons.
IV.
Section 1. LIMITATION OF DIRECTORS' LIABILITY. The liability of the
directors of this corporation for monetary damages shall be eliminated to the
fullest extent permissible under California law.
SECTION 2. INDEMNIFICATION OF CORPORATE AGENTS. This corporation is
authorized to provide for, through bylaw provisions or through agreements with
the agents, or both, the indemnification of agents (as defined in Section 317 of
the California General Corporation Law) of the corporation in excess of that
expressly permitted by said Section 317 for said agents to the fullest extent
permissible under California law, subject to the limitations set forth in
Section 204 of the California General Corporation Law with respect to actions
for breach of duty to this corporation or its shareholders.
SECTION 3. REPEAL OR MODIFICATION. Any repeal or modification of the
foregoing provisions of this Article IV shall not adversely affect any right of
indemnification or limitation of liability of an agent of this corporation
relating to acts or omissions occurring prior to such repeal or modification."
The foregoing amendment and restatement has been duly approved by the Board
of Directors of this corporation.
The foregoing amendment has been duly approved by the holders of the
requisite number of shares of the corporation in accordance with Sections 902
and 903 of the California Corporations Code. The total number of outstanding
shares of each class entitled to vote with respect to the foregoing amendment
and restatement was 9,804,907 shares of Common Stock, 500,000 shares of the
Series A Preferred Stock, 1,000,000 shares of the Series B Preferred Stock,
1,010,000 shares of the Series C Preferred Stock, 300,000 shares of the Series D
Preferred Stock, 264,487 shares of Series E Preferred Stock, 1,224,552 shares of
the Series F Preferred Stock, 290,000 shares of the Series F-1 Preferred Stock
and 1,343,433 shares of Series G Preferred Stock. The number of shares voting in
favor of the foregoing amendment equaled or exceeded the vote required. The
required vote was a majority of the outstanding shares of Common Stock and a
majority of the outstanding shares of Series A, Series B, Series C, Series D,
Series E, Series F and Series F-1 and Series G each class of stock voting
separately.
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The undersigned further declare under penalty of perjury under the laws of
the State of California that the matters set forth in this Certificate are true
and correct of our own knowledge.
Executed at Sunnyvale, California this 4th day of April, 2000.
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Fu-Chieh Hsu, President
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Wing-Yu Leung, Secretary
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