PIXSYS, INC.
RESTATED AND AMENDED ARTICLES OF INCORPORATION
FIRST: That the name of the Corporation is Pixsys, Inc.
SECOND: That the text of the Restated and Amended Articles of
Incorporation of the Corporation is set forth on Exhibit A attached hereto and
is incorporated herein by reference.
THIRD: That the Restated and Amended Articles of Incorporation were
adopted by the shareholders of the Corporation on November 30, 1994.
FOURTH: That the number of votes cast for the Restated and Amended
Articles of Incorporation by each voting group entitled to vote separately on
the amendments and on the restatement was sufficient for approval by that voting
group.
IN WITNESS WHEREOF, said Pixsys, Inc. has caused these Restated and
Amended Articles of Incorporation to be duly executed this 30th day of November,
1994.
Pixsys, Inc.
By:/S/ PAUL L. RAY
--------------------------------
Paul L. Ray, President
EXHIBIT A
RESTATED AND AMENDED ARTICLES OF INCORPORATION
ARTICLE I
NAME
The name of the Corporation is Pixsys, Inc.
ARTICLE II
CAPITAL; SHAREHOLDERS
2.1 The aggregate number of shares of all classes of capital stock
which the Corporation shall have the authority to issue is Twelve Million Five
Hundred Thousand (12,500,000) shares, consisting of (i) Ten Million (10,000,000)
shares of Common Stock, no par value per share, and (ii) Two Million Five
Hundred Thousand (2,500,000) shares of Series Preferred Stock, no par value per
share. The Board of Directors of the Corporation shall have the authority (i)
to create from time to time series of Series Preferred Stock, (ii) to determine
the preferences, limitations and relative rights, within the limits provided by
the Colorado Business Corporation Act, as the same exists or may hereafter be
amended, of each such series of Series Preferred Stock before the issuance of
any shares of that series, including, but not limited to, dividend rights,
dividend rates, conversion rights, redemption rights, voting rights, and
liquidation preferences, (iii) to fix the number of shares constituting each
such series and the designations thereof, and (iv) to increase or decrease the
number of shares of each such series (but not below the number of shares of each
such series then outstanding).
2.2 Each shareholder of record of Common Stock shall have one vote
for each share of stock standing in his/her name on the books of the
Corporation, except that in the election of directors, he/she shall have the
right to vote such number of shares for as many persons as there are directors
to be elected. Cumulative voting shall not be allowed in the election of
directors or for any other purpose.
2.3 Any action to be taken by the shareholders of the Corporation for
which Section 7-117-101, C.R.S. requires approval by each voting group entitled
to vote separately thereon by two-
thirds of all the votes entitled to be cast thereon by that voting group (I.E.,
amendments to the Articles of Incorporation, plans of merger or share exchange,
transactions involving a sale, lease, exchange or other disposition of all, or
substantially all, of the Corporation's property and proposals to dissolve or
revoke dissolution), shall only require the approval by each voting group
entitled to vote separately thereon by a majority of all the votes entitled to
be cast thereon by that voting group.
2.4 Pursuant to the power granted in Article 2.1 above, the Board of
Directors of the Corporation has created the Series A Preferred Stock with
115,380 shares authorized for issuance. A statement of the preferences,
limitations and relative rights of the Series A Preferred Stock is as follows:
1. DIVIDENDS
The holders of the outstanding Series A Preferred Stock shall not be
entitled to receive any preferential dividends vis-a-vis the holders of the
outstanding Common Stock but instead shall have the same rights to dividends as
the holders of the outstanding Common Stock. When, as and if a dividend is
declared on the Common Stock, then each holder of Series A Preferred Stock shall
be entitled to receive a dividend equal to that dividend that would be received
by a holder of the number of shares of Common Stock into which such holder's
shares of Series A Preferred Stock would be convertible, pursuant to Sections 3
and 4 below, immediately after the close of business on the record date fixed
for such dividend. This Section 1 shall not apply to, and the holders of Series
A Preferred Stock shall have no rights under this Section 1 to, dividends in
Common Stock, Options (as hereafter defined) or Convertible Securities (as
hereafter defined) of the Corporation.
2. LIQUIDATION PREFERENCE
(a) BASIC PREFERENCE RIGHTS. In the event of any voluntary or
involuntary liquidation, dissolution, or winding up of the Corporation (a
"Liquidation"):
(1) PAYMENTS TO HOLDERS OF SERIES A PREFERRED STOCK. Each
holder of shares of Series A Preferred Stock then outstanding shall be entitled
to receive an amount equal to $12.00 for each share of Series A Preferred Stock,
before any payment shall be made in respect of the Corporation's Common Stock.
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(2) PAYMENTS TO HOLDERS OF COMMON STOCK. After payment has been
made to the holders of the Series A Preferred Stock of the full amounts to which
they are entitled under Section 2(a)(1) above, the holders of Common Stock then
outstanding shall be entitled to receive, distributed on a pro rata basis, an
amount equal to $12.00 per share.
(3) SHOULD ASSETS EXCEED PAYMENTS. After payment has been made
to the holders of Series A Preferred Stock and of Common Stock of the full
amounts to which they are entitled under Section 2(a)(1) and (2) above, the
remaining assets of the Corporation available for distribution to shareholders
shall be distributed pro rata among all of the Corporation's shareholders. For
purposes of this Section 2(a)(3), holders of Series A Preferred Stock shall
share in this distribution in proportion to the number of shares of Common Stock
they would hold had full conversion of their Series A Preferred Stock occurred
immediately prior to Liquidation, according to the provisions of Sections 3 and
4 below.
(4) SHOULD ASSETS BE INSUFFICIENT. If upon a Liquidation the
assets of the Corporation available for distribution to its shareholders shall
be insufficient to make full payments due under Section 2(a)(1) above, then the
holders of the Series A Preferred Stock then outstanding shall share ratably in
any distribution according to the respective amounts which would be payable in
respect of the shares held by them if all amounts payable on their shares
pursuant to Section 2(a)(1) above were paid in full. If upon a Liquidation the
assets of the Corporation available for distribution are adequate to make full
payment due under Section 2(a)(1) but insufficient to make full payment due
under Section 2(a)(2), then the holders of Common Stock shall share ratably
according to the respective amounts which would be payable in respect of the
shares held by them if all amounts payable on their shares pursuant to Section
2(a)(2) above were paid in full.
(5) SOURCE OF LIQUIDATION PAYMENT. The holders of stock shall
be paid under this Section 2(a) out of the assets of the Corporation available
for distribution to its shareholders, whether from capital, surplus or earnings.
(6) MERGER OR ACQUISITION. The Corporation shall not effect a
merger, reorganization, or consolidation of the Corporation into or with another
corporation or the sale or transfer of all or substantially all of the assets of
the Corporation until the Corporation shall have provided notice to all holders
of Series A Preferred Stock pursuant to Section 2(b), below. Unless otherwise
agreed to by the holders of a majority of the Series A Preferred Stock which is
then outstanding, a merger, consolidation, reorganization or sale of all or
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substantially all of the Corporation's assets shall be deemed to be a
Liquidation.
(b) NOTICE. In the event of any Liquidation of the Corporation, or
in the event of any merger, reorganization, or consolidation of the Corporation
into or with another corporation, or the sale or transfer of all or
substantially all of the assets of the Corporation, the Corporation shall give
each holder of Series A Preferred Stock initial written notice of the proposed
action within twenty (20) days after the date the Board of Directors approves
such action, or twenty (20) days prior to any shareholders' meeting called to
approve such action, or twenty (20) days after the commencement of any
involuntary proceeding, whichever is earliest.
(1) CONTENT OF NOTICE. Such initial written notice shall
describe the material terms and conditions of the proposed action, including a
description of the stock, cash, and property to be received by the holders of
Series A Preferred Stock upon consummation of the proposed action. If any
material change in the facts set forth in the initial notice shall occur, the
Corporation shall promptly give written notice to each holder of Series A
Preferred Stock of that material change.
(2) NOTICE PRECEDES CONSUMMATION. The Corporation shall not
consummate any Liquidation of the Corporation before the expiration of twenty
(20) days after the mailing of the initial notice or ten (10) days after the
mailing of any subsequent written notice, whichever is later. But any such
20-day or 10-day period may be shortened upon the written consent of the holders
of a majority of the Series A Preferred Stock then outstanding.
(c) NON-CASH DISTRIBUTIONS ON LIQUIDATION. In the event of any
Liquidation of the Corporation which will involve the distribution of assets
other than cash, the Corporation shall promptly engage a competent independent
appraiser to determine the value of the assets to be distributed. With respect
to the valuation of securities, the Corporation shall engage such appraiser as
shall be approved by the holders of a majority of the Series A Preferred Stock
then outstanding. The Corporation shall, upon receipt of such appraiser's
valuation, give prompt written notice to each holder of shares of Series A
Preferred Stock of the appraiser's valuation.
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3. CONVERSION
(a) CONVERSION RIGHTS.
(1) OPTIONAL CONVERSION. Each share of Series A Preferred Stock
shall be convertible, at the option of the holder thereof, at any time after the
date of issuance of such share, into fully paid and non-assessable shares of
Common Stock of the Corporation at the then applicable Conversion Formula (as
described below).
(2) AUTOMATIC CONVERSION. All outstanding shares of Series A
Preferred Stock shall automatically be converted into fully paid and
non-assessable shares of Common Stock of the Corporation, at the then applicable
Conversion Formula, immediately, upon the occurrence of either of the following:
a. prior to the closing of an underwritten public offering of
the shares of Common Stock of the Corporation pursuant to a registration
statement filed under the Securities Act of 1933, as amended, with aggregate
offering proceeds from the public of not less than Five Million Dollars
($5,000,000), I.E., without deduction therefrom of any expenses incurred or any
underwriting commissions, discounts or concessions paid or allowed by the
Corporation in connection therewith (a "Qualified Public Offering"); or
b. upon the conversion into Common Stock of at least 75% of all
Series A Preferred Stock ever issued.
(3) CONVERSION FORMULA. Each share of Series A Preferred Stock shall
be valued at $12.00 (the "Original Purchase Price") for purposes of such
optional or automatic conversion. The number of shares of Common Stock into
which each share of the Series A Preferred Stock may be converted (the
"Conversion Formula") shall be determined by dividing the Original Purchase
Price by the Conversion Price (as determined as provided below) in effect at the
time of the conversion.
(b) INITIAL CONVERSION PRICE. The conversion price per share at which
shares of Common Stock shall be issuable uponconversion of any shares of Series
A Preferred Stock (the "Conversion Price") shall be equal to the Original
Purchase Price, subject to adjustment as provided in Section 4 below.
(c) MECHANICS OF CONVERSION.
(1) OPTIONAL CONVERSION. Before any holder of Series A Preferred
Stock will be entitled to convert the same into shares of Common Stock pursuant
to Section 3(a)(1) hereof, such
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holder shall surrender the certificate or certificates therefor, duly endorsed,
at the office of the Corporation or of any transfer agent for the Series A
Preferred Stock, and shall give written notice to the Corporation at such office
that such holder elects to convert the same and will state therein the name or
names in which the certificate or certificates for shares of Common Stock should
be issued. The Corporation, as soon as practicable thereafter, will issue and
deliver at such office to such holder of Series A Preferred Stock or to the
holder's nominee or nominees, a certificate or certificates for the number of
shares of Common Stock to which such holder will be entitled as aforesaid. Such
conversion shall be deemed to have been made immediately prior to the close of
business on the date of such surrender of the shares of Series A Preferred Stock
to be converted (the "Conversion Date"), 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 holder of such shares of Common
Stock on such Conversion Date.
(2) AUTOMATIC CONVERSION. Conversion of all the outstanding shares
of Series A Preferred Stock into shares of Common stock pursuant to Section
3(a)(2) hereof shall be deemed to have been made automatically and immediately
prior to the closing of a Qualified Public Offering or immediately following the
prior conversion of at least 75% of all Series A Preferred Stock ever issued as
set forth in Section 3(a)(2)b. hereof (collectively an "Automatic Conversion
Date"). Upon such automatic conversion, the person or persons entitled to
receive the shares of Common Stock issuable upon such conversion will be treated
for all purposes as the record holder or holders of such Common Stock on the
Automatic Conversion Date whether or not such holder or holders shall have
surrendered certificates for such holder's shares of Series A Preferred Stock to
the Corporation. Upon the Automatic Conversion Date, the certificates
representing all the shares of Series A Preferred Stock shall be deemed void; as
soon as practicable after the surrender by any holder of Series A Preferred
Stock certificates, accompanied by a statement from the holder as to the name or
names in which the certificate or certificates for shares of Common Stock should
be issued, the Corporation shall then issue and deliver, at the office of the
Corporation to such holder or his nominee or nominees, a certificate or
certificates for the number of shares of Common Stock to which the holder shall
be entitled.
(3) NEW CERTIFICATES. Upon conversion of only a portion of the
number of shares of Series A Preferred Stock represented by a certificate
surrendered for conversion, the Corporation shall issue and deliver upon the
written order of the holder at the expense of the Corporation, a new certificate
covering the number of shares of Series A Preferred Stock
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representing the unconverted portion of the certificate so surrendered.
(d) NO FRACTIONAL SHARES. The Corporation shall not issue fractional
shares of Common Stock or scrip upon conversion of shares of Series A Preferred
Stock. If more than one share of Series A Preferred Stock shall be surrendered
for conversion at any one time by the same holder, the number of full shares of
Common Stock issuable upon their conversion shall be computed on the basis of
the aggregate number of shares of Series A Preferred Stock so surrendered.
Instead of any fractional shares of Common Stock which would otherwise be
issuable upon conversion of any shares of Series A Preferred Stock, the
Corporation shall pay a cash adjustment in respect of such fractional interest
in an amount equal to the same fraction of the Conversion Price in effect on the
business day next preceding the day of conversion.
(e) TAXES INCIDENT TO CONVERSION. The Corporation shall pay any and all
issue taxes and other taxes (excluding income taxes) that may be payable in
respect to any issue or delivery of shares of Common Stock on conversion of
Series A Preferred Stock. The Corporation shall not be required to pay any tax
which may be payable in respect of any transfer involved in the issue and
delivery of shares of Common Stock in a name other than that in which the Series
A Preferred Stock so converted was 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.
(f) SUFFICIENT RESERVES OF STOCK. The Corporation shall at all times
reserve and keep available, out of its authorized but unissued Common Stock,
solely for the purpose of effecting the conversion of the Series A Preferred
Stock, the full number of shares of Common Stock deliverable upon the conversion
of all Series A Preferred Stock from time to time outstanding.
(g) VALID ISSUE FOR CONVERSION. All shares of Common Stock which may be
issued upon conversion of the shares of Series A Preferred Stock shall, upon
issuance by the Corporation, be validly issued, fully paid, non-assessable and
free from all taxes, liens and charges with respect to their issuance.
(h) CANCELLATION OF SERIES A PREFERRED STOCK ON CONVERSION. All
certificates of the Series A Preferred Stock surrendered for conversion shall be
appropriately cancelled on the books of the Corporation, and the shares so
converted represented by such certificate shall be deemed to be cancelled and no
longer authorized or available for issuance by the Corporation.
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4. ADJUSTMENT OF CONVERSION PRICE
(a) ANTI-DILUTION ADJUSTMENT. The Conversion Price in effect at any time
shall be adjusted from time to time as provided in this Section 4.
(b) ADJUSTMENT OF PRICE UPON ISSUANCE OF COMMON STOCK. Except as provided
in paragraph 4(d) hereof, if and whenever the Corporation shall issue or sell,
or is in accordance with subparagraphs 4(b)(i) through 4(b)(vii) deemed to have
issued or sold, any shares of its Common stock for a consideration per share
less than the Conversion Price in effect immediately prior to the time of such
issue or sale, then, forthwith upon such issue or sale, the Conversion Price
shall be reduced to the price (calculated to the nearest cent) determined by
dividing (i) an amount equal to the sum of (A) the number of shares of Common
Stock outstanding immediately prior to such issue or sale (including as
outstanding all shares of Common Stock issuable upon conversion of outstanding
Series A Preferred Stock) multiplied by the then existing Conversion Price, and
(B) the consideration, if any, received by the Corporation upon such issue or
sale, by (ii) the total number of shares of Common Stock outstanding immediately
after such issue or sale (including as outstanding all shares of Common Stock
issuable upon conversion of outstanding Series A Preferred Stock).
No adjustment of the Conversion Price, however, shall be made in an amount
less than $.01 per share, and any such lesser adjustment shall be carried
forward and shall be made at the time and together with the next subsequent
adjustment which together with any adjustments so carried forward shall amount
to $.01 per share or more.
For purposes of this paragraph 4(b), the following subparagraphs 4(b)(i) to
4(b)(vii) shall also be applicable:
(i) ISSUANCE OF RIGHTS OR OPTIONS. In case the Corporation shall in
any manner grant (whether directly or by assumption in a merger or
otherwise) any rights to subscribe for or to purchase, or any options
for the purchase of, Common Stock or any stock or securities
convertible into or exchangeable for Common Stock (such rights or
options being herein called "Options" and such convertible or
exchangeable stock or securities being herein called "Convertible
Securities") whether or not such Options, or the right to convert or
exchange any such Convertible Securities, are immediately
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exercisable, and the price per share for which Common Stock is
issuable upon the exercise of such Options or upon conversion or
exchange of such Convertible Securities (determined by dividing (A)
the total amount, if any, received or receivable by the Corporation as
consideration for the granting of such Options, plus the minimum
aggregate amount of additional consideration payable to the
Corporation upon the exercise of all such Options, plus, in the case
of such Options which relate to Convertible Securities, the minimum
aggregate amount of additional consideration, if any, payable upon the
issue or sale of such Convertible Securities and upon the conversion
or exchange thereof, by (B) the total maximum number of shares of
Common Stock issuable upon the exercise of such Options or upon the
conversion or exchange of all such Convertible Securities issuable
upon the exercise of such Options) shall be less than the Conversion
Price in effect immediately prior to the time of the granting of such
Options, then the total maximum number of shares of Common Stock
issuable upon the exercise of such Options or upon conversion or
exchange of the total maximum amount of such Convertible Securities
issuable upon the exercise of such Options shall be deemed to have
been issued for such price per share as of the date of granting of
such Options and thereafter shall be deemed to be outstanding. Except
as otherwise provided in subparagraph 4(b)(iii) below, no adjustment
of the Conversion Price shall be made upon the actual issue of such
Common Stock or of such Convertible Securities upon exercise of such
Options or upon the actual issue of such Common Stock upon conversion
or exchange of such Convertible Securities.
(ii) ISSUANCE OF CONVERTIBLE SECURITIES. In case the Corporation
shall in any manner issue (whether directly or by assumption in a
merger or otherwise) or sell any Convertible Securities, whether or
not the rights to exchange or convert thereunder are immediately
exercisable, and the price per share for which Common Stock is
issuable upon such conversion or exchange (determined by dividing (A)
the total amount received or
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receivable by the Corporation as consideration for the issue or sale
of such Convertible Securities, plus the minimum aggregate amount of
additional consideration, if any, payable to the Corporation upon the
conversion or exchange thereof, by (B) the total maximum number of
shares of Common Stock issuable upon the conversion or exchange of all
such Convertible Securities) shall be less than the Conversion Price
in effect immediately prior to the time of such issue or sale, then
the total maximum number of shares of Common Stock issuable upon
conversion or exchange of all such Convertible Securities shall be
deemed to have been issued for such price per share as of the date of
the issue or sale of such Convertible Securities and thereafter shall
be deemed to be outstanding, provided that (A) except as otherwise
provided in subparagraph 4(b)(iii) below, no adjustment of the
Conversion Price shall be made upon the actual issue of such Common
Stock upon conversion or exchange of such Convertible Securities and
(B) if any such issue or sale of such Convertible Securities is made
upon exercise of any Option to purchase any such Convertible
Securities for which adjustments of the Conversion Price have been or
are to be made pursuant to other provisions of this paragraph 4(b), no
further adjustment of the Conversion Price shall be made by reason of
such issue or sale.
(iii) CHANGE IN OPTION PRICE OR CONVERSION RATE. Upon the
happening of any of the following events, namely, if the purchase
price provided for in any Option referred to in subparagraph 4(b)(i),
the additional consideration, if any, payable upon the conversion or
exchange of any Convertible Securities referred to in subparagraph
4(b)(i) or 4(b)(ii), or the rate at which any Convertible Securities
referred to in subparagraph 4(b)(i) or 4(b)(ii) are convertible into
or exchangeable for Common Stock shall change at any time (other than
under or by reason of provisions designed to protect against
dilution), the Conversion Price in effect at the time of such event
shall forthwith be readjusted to the
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Conversion Price which would have been in effect at such time had such
Options or Convertible Securities still outstanding provided for such
changed purchase price, additional consideration or conversion rate,
as the case may be, at the time initially granted, issued or sold; and
on the expiration of any such Option or termination of any such right
to convert or exchange such Convertible Securities, the Conversion
Price then in effect hereunder shall forthwith be increased to the
Conversion Price which would have been in effect at the time of such
expiration or termination had such Option or Convertible Securities,
to the extent outstanding immediately prior to such expiration or
termination, never been issued, and the Common Stock issuable
thereunder shall no longer be deemed to be outstanding. If the
purchase price provided for in any such Option referred to in
subparagraph 4(b)(i) or the rate at which any Convertible Securities
referred to in subparagraph 4(b)(i) or 4(b)(ii) are convertible into
or exchangeable for Common Stock shall be reduced at any time under or
by reason of provisions with respect thereto designed to protect
against dilution, then, in case of the delivery of Common Stock upon
the exercise of any such Option or upon conversion or exchange of any
such Convertible Securities, the Conversion Price then in effect
hereunder shall forthwith be adjusted to such respective amount as
would have been obtained had such Option or Convertible Securities
never been issued as to such Common Stock and had adjustments been
made upon the issuance of the shares of Common Stock delivered as
aforesaid, but only if as a result of such adjustment the Conversion
Price then in effect hereunder is thereby reduced.
(iv) STOCK DIVIDENDS. In case the Corporation shall declare a
dividend or make any other distribution upon any stock of the
Corporation payable in Common Stock, Options or Convertible
Securities, any Common Stock, Options or Convertible Securities, as
the case may be, issuable in payment of such dividend or distribution
shall be deemed to
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have been issued or sold without consideration.
(v) CONSIDERATION FOR STOCK. In case any shares of Common Stock,
Options or Convertible Securities shall be issued or sold for cash,
the consideration received therefor shall be deemed to be the amount
received by the Corporation therefor, without deduction therefrom of
any expenses incurred or any underwriting commissions, discounts or
concessions paid or allowed by the Corporation in connection
therewith. In case any shares of Common Stock, Options or Convertible
Securities shall be issued or sold for a consideration other than
cash, the amount of the consideration other than cash received by the
Corporation shall be deemed to be the fair value of such consideration
as determined in good faith by the Board of Directors of the
Corporation, without deduction of any expenses incurred or any
underwriting commissions, discounts or concessions paid or allowed by
the Corporation in connection therewith. In case any Options shall be
issued in connection with the issue and sale of other securities of
the Corporation, together compromising one integral transaction in
which no specific consideration is allocated to such Options by the
parties thereto, such Options shall be deemed to have been issued
without consideration.
(vi) RECORD DATE. In case the Corporation shall take a record of
the holders of its Common Stock for the purpose of entitling them (A)
to receive a dividend or other distribution payable in Common Stock,
Options or Convertible Securities, or (B) to subscribe for or purchase
Common Stock, Options or Convertible Securities, then such record date
shall be deemed to be the date of the issue or sale of the shares of
Common Stock deemed to have been issued or sold upon the declaration
of such dividend or the making of such other distribution or the date
of the granting of such right of subscription or purchase, as the case
may be.
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(vii) TREASURY SHARES. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held
by or for the account of the Corporation, and the disposition of any
such shares shall be considered an issue or sale of Common Stock for
the purposes of this paragraph 4(b).
(c) SUBDIVISION OR COMBINATION OF STOCK. In case the Corporation
shall at any time subdivide its outstanding shares of Common Stock into a
greater number of shares, the Conversion Price in effect immediately prior to
such subdivision shall be proportionately reduced, and conversely, in case the
outstanding shares of Common Stock of the Corporation shall be combined into a
smaller number of shares, the Conversion Price in effect immediately prior to
such combination shall be proportionately increased.
(d) CERTAIN ISSUES OF COMMON STOCK EXCEPTED. Anything herein to the
contrary notwithstanding, the Corporation shall not be required to make any
adjustment of the Conversion Price in the case of (i) the issuance by the
Corporation of shares of Common Stock upon conversion of the Series A Preferred
Stock, (ii) the issuance by the Corporation of shares of Common Stock upon
exercise of any options or warrants that were outstanding prior to the date of
issuance of the Series A Preferred Stock, (iii) the grant of options to purchase
Common Stock, and the issuance by the Corporation of Common Stock on exercise of
such options, to officers, employees, directors and consultants of the
Corporation or any subsidiary pursuant to any stock option plans of the
Corporation, whether now existing or hereafter arising, or (iv) any Common Stock
of the Corporation issued in conjunction with the Series A Preferred Stock.
5. REORGANIZATION, RECLASSIFICATION, AND SALE OF ASSETS
If any capital reorganization or reclassification of the capital stock of
the Corporation, including any such reorganization or reclassification in
connection with any merger, consolidation, or transfer of substantially all of
the assets of the Corporation, shall not be deemed to be a Liquidation pursuant
to Section 2 hereof, and if it shall be effected in such a way that holders of
Common Stock shall be entitled to receive stock, securities, or assets with
respect to or in exchange for Common Stock, then the following shall be an
express condition of such reorganization or reclassification.
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(a) Lawful and adequate provisions in a form satisfactory to the
holders of a majority of the Series A Preferred Stock, shall be made, whereby
each holder of shares of Series A Preferred Stock shall thereafter have the
right to receive, upon the terms and conditions specified herein and in lieu of
the shares of Common Stock of the Corporation immediately theretofore receivable
upon the conversion of such shares of Series A Preferred Stock, such shares of
stock, securities, or assets as may be issued or payable with respect to or in
exchange for a number of outstanding shares of such Common Stock equal to the
number of shares of such stock immediately theretofore so receivable had such
reorganization or reclassification not taken place.
(b) Moreover, in any such case, appropriate provision shall be made
with respect to the rights and interests of each such holder of Series A
Preferred Stock to the end that the provisions hereof (including without
limitation provisions for adjustments of the Conversion Price) shall thereafter
be applicable, as nearly as may be, in relation to any shares of stock,
securities, or assets thereafter deliverable upon the exercise of such
conversion rights. In the event of a merger or consolidation of the Corporation
as a result of which a greater or lesser number of shares of common stock of the
surviving Corporation are issuable to holders of the Common Stock of the
Corporation outstanding immediately prior to such merger or consolidation, the
Conversion Price in effect immediately prior to such merger or consolidation
shall be adjusted in the same manner as though there were a subdivision or
combination of the outstanding shares of Common Stock of the Corporation.
(c) The Corporation shall not effect any such reorganization,
reclassification, consolidation, merger, or sale unless, prior to the
consummation thereof: (i) the Corporation shall have obtained the consent of
the holders of a majority of the Series A Preferred Stock then outstanding, and
(ii) 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, in a form satisfactory to the holders of a
majority of the Series A Preferred Stock then outstanding 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
receive. Such written instrument shall be promptly mailed or delivered to each
holder of shares of Series A Preferred Stock at the last address of such holder
appearing on the books of the Corporation.
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6. CERTIFICATE AS TO ADJUSTMENTS
(a) Upon the occurrence of each adjustment of the Conversion Price
pursuant to Section 4, the Corporation at its expense shall promptly compute
such adjustment and prepare and furnish to each holder of Series A Preferred
Stock a certificate setting forth such adjustment and showing in detail the
facts upon which such adjustment is based, and
(b) Upon the written request at any time of any holder of Series A
Preferred Stock, the Corporation shall furnish to such holder a like certificate
setting forth (i) such adjustment, (ii) the Conversion Price at the time in
effect, and (iii) the number of shares of Common Stock which at the time would
be received upon the conversion of the Series A Preferred Stock.
7. NOTICE OF RECORD DATES
In the event:
(a) that the Corporation shall take a record of the holders of its Common
Stock for the purpose of entitling them to receive a dividend, or any other
distribution, payable otherwise than in cash; or
(b) that the Corporation shall take a record of the holders of its Common
Stock for the purpose of entitling them to subscribe for or purchase any shares
of stock of any class or to receive any other rights; or
(c) of any capital reorganization of the Corporation, reclassification of
the capital stock of the Corporation (other than a subdivision or combination of
its outstanding shares of Common Stock), consolidation, or merger of the
Corporation with or into another corporation or conveyance of all or
substantially all of the assets of the Corporation to another corporation; or
(d) of the voluntary or involuntary dissolution, liquidation, or winding
up of the Corporation;
then, the Corporation shall cause to be mailed to the holders of record of the
outstanding Series A Preferred Stock, at least twenty (20) days prior to the
date specified therein, a notice stating the date on which that record is to be
taken or that event is to take place. The notice shall also specify the date,
if any is to be fixed, as of which holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such
-15-
reclassification, reorganization, consolidation, merger, conveyance,
dissolution, liquidation, or winding up.
8. FORM OF NOTICES
Any notice required to be given pursuant to the terms hereof to the holders
of shares of Series A Preferred Stock shall be deemed given if hand delivered,
delivered by courier, or deposited in the United States mail, postage prepaid,
addressed to each holder of record at such holder's address appearing on the
books of the Corporation.
9. VOTING
The shares of Series A Preferred Stock shall be voted equally with the
shares of the Corporation's Common stock at any annual or special meeting of
shareholders of the Corporation, or may act by written consent on the same
basis, with respect to all matters which come before the shareholders. Each
holder of shares of Series A Preferred Stock shall be entitled to the number of
votes equal to the number of whole shares of the Corporation's Common Stock into
which such holder's shares of Series A Preferred Stock are convertible, pursuant
to Sections 3 and 4 above, immediately after the close of business on the record
date fixed for such meeting or the effective date of such written consent.
10. AMENDMENTS AND CHANGES
As long as any of the Series A Preferred Stock shall be issued and
outstanding, the Corporation shall not, without first obtaining the approval (by
vote or written consent, as provided by law) of the holders of a majority of the
Series A Preferred Stock then outstanding:
(a) Amend or repeal any provision of, or add any provision to, the
Corporation's Articles of Incorporation (including the terms of the Series A
Preferred Stock set forth herein) which would increase the authorized number of
shares of Series A Preferred Stock or which would alter or change the
preferences, limitations or relative rights of the Series A Preferred Stock;
(b) Authorize or issue shares of any class of stock or any bonds,
debentures, notes, or other obligations convertible
-16-
into or exchangeable for or having options or rights to purchase any shares of
stock of the Corporation having any preference or priority, as to dividends,
assets or otherwise, on a parity with or superior to any preferences or priority
of the Series A Preferred Stock;
(c) Reclassify any outstanding shares into shares having any
preference or priority as to dividends, assets or otherwise superior to or on a
parity with any such preference or priority of Series A Preferred Stock; or
(d) Amend this Section 10.
Nothing in this Section 10 shall require the approval of the holders of the
Series A Preferred Stock to increase the authorized shares of Common Stock, to
issue additional shares of Common Stock, to issue any bonds, debentures, notes,
other obligations convertible into or exchangeable for or having options or
rights to purchase any shares of Common Stock, to issue any options or rights to
purchase any shares of Common Stock, to reclassify any outstanding shares into
shares of Common Stock, or to issue the 115,380 shares of Series A Preferred
Stock. The terms of the Series A Preferred Stock set forth herein can be
amended, subject to the terms of this Section 10, in accordance with the
procedures and requirements for amendments set forth in the Colorado Business
Corporation Act.
ARTICLE III
PREEMPTIVE RIGHTS
No shareholder of the Corporation shall have any preemptive or similar
right to acquire or subscribe for any additional unissued or treasury shares of
stock, or other securities of any class, or rights, warrants or options to
purchase stock or scrip, or securities of any kind convertible into stock or
carrying stock purchase warrants or privileges.
ARTICLE IV
BOARD OF DIRECTORS
The number of directors of the Corporation shall be fixed and may be
altered from time to time as provided in the bylaws of the Corporation.
-17-
ARTICLE V
LIMITATION ON LIABILITY
To the fullest extent permitted by the Colorado Corporation Code, as
the same exists or may hereafter be amended, a director of the Corporation shall
not be liable to the Corporation or its shareholders for monetary damages for
breach of fiduciary duty as a director. Any repeal or modification of this
Article by the shareholders of the Corporation shall be prospective only and
shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
-18-
MAIL TO: SECRETARY OF STATE FOR OFFICE USE ONLY
CORPORATIONS SECTION
1560 BROADWAY, SUITE 200
DENVER, CO 80202
(303) 894-2251
MUST BE TYPED FAX (303) 894-2242
FILING FEE: $25.00
MUST SUBMIT TWO COPIES
ARTICLES OF AMENDMENT
PLEASE INCLUDE A TYPED TO THE
SELF-ADDRESSED ENVELOPE ARTICLES OF INCORPORATION
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
FIRST: The name of the corporation is Pixsys, Inc.
SECOND: The following amendment to the Articles of Incorporation was
adopted on March 21, 1996, as prescribed by the Colorado Business
Corporation Act, in the manner marked with an X below:
No shares have been issued or Directors Elected - Action by
- ----- Incorporators
No shares have been issued but Directors Elected - Action by
- ----- Directors
Such amendment was adopted by the board of directors where shares
- ----- have been issued.
XX Such amendment was adopted by a vote of the shareholders. The
- ----- number of shares voted for the amendment was sufficient for
approval.
Article FIRST of the Articles of Incorporation of the Corporation
was amended to read in full as follows:
"FIRST: That the name of the Corporation is Image Guided
Technologies, Inc."
THIRD: The manner, if not set forth in such amendment, in which any
exchange, reclassification, or cancellation of issued shares
provided for in the amendment shall be effected, is as follows:
N/A
If these amendments are to have a delayed effective date, please
list that date: N/A
-------
(Not to exceed ninety (90) days from the date of filing)
Pixsys, Inc.
By/S/ JEFFREY J. HILLER
---------------------------------
Its Vice President
MAIL TO: SECRETARY OF STATE FOR OFFICE USE ONLY
CORPORATIONS SECTION
PLEASE INCLUDE A TYPED 1560 BROADWAY, SUITE 200
SELF-ADDRESSED ENVELOPE DENVER, CO 80202
(303) 894-2251
MUST BE TYPED FAX (303) 894-2242
FILING FEE: $10.00
MUST SUBMIT TWO COPIES
CERTIFICATE OF CORRECTION
Pursuant to the Colorado Business Corporation Act, the undersigned hereby
executes the following certificate of correction:
FIRST: The exact name of the corporation is IMAGE GUIDED TECHNOLOGIES,
--------------------------
INC. organized under the laws of COLORADO
------- -----------------------------
SECOND: Description of the documents being corrected (i.e. Articles of
Incorporation, Amendment, Merger or other) or an attached copy
of the document:
-----------------------------------------------
ARTICLES OF AMENDMENT
---------------------------------------------------------------
THIRD: Date document was filed APRIL 16 , 19 96 (FILING NO.
-------------- ---------------------
961052003)
---------------------------------------------------------------
FOURTH: Statement of incorrect information: Two references to "Article
First."
FIFTH: Statement of corrected information: All references in the
Articles of Amendment to "Article First" are hereby corrected to
say "Article I".
IMAGE GUIDED TECHNOLOGIES, INC., a
Colorado corporation
By/S/ JEFFREY J. HILLER
------------------------------------
Jeffrey J. Hiller
Vice President
IMAGE GUIDED TECHNOLOGIES, INC.
ARTICLES OF AMENDMENT
TO
RESTATED AND AMENDED ARTICLES OF INCORPORATION
FIRST: That the name of the Corporation is Image Guided
Technologies, Inc.
SECOND: That Section 2.4 of Article II of the Articles of
Incorporation of the Corporation is hereby amended to reduce the number of
shares of Series A Preferred Stock authorized for issuance from 115,380 shares
to 83,332 shares.
THIRD: That the Amendment was adopted on July 2, 1996.
FOURTH: That the Amendment was duly adopted by the Board of
Directors of the Corporation without shareholder action and that no shareholder
action was required.
IN WITNESS WHEREOF, said Image Guided Technologies, Inc. has
caused these Articles of Amendment to be duly executed this _____ day of July,
1996.
IMAGE GUIDED TECHNOLOGIES, INC.
By:/S/ JEFFREY J. HILLER
-----------------------------------
Jeffrey J. Hiller
Vice President