CERTIFICATE OF
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MYO DIAGNOSTICS, INC.
Gerald D. Appel and Scott Roecklein certify that:
1. They are the President and the Secretary, respectively, of Myo
Diagnostics, Inc., a California corporation.
2. The Articles of Incorporation of the Corporation are amended and
restated to read as follows:
I
The name of this Corporation is Myo Diagnostics, Inc.
II
The purpose of this Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
California other than the banking business, the trust company business, or the
practice of a profession permitted to be incorporated by the California
Corporations Code.
III
(a) The liability of the directors of this Corporation for monetary
damages shall be eliminated to the fullest extent permissible under California
law.
(b) This Corporation is authorized to provide for, whether by bylaw,
agreement or otherwise, the indemnification of agents (as defined in Section 317
of the California General Corporation Law) of this Corporation in excess of that
expressly permitted by such Section 317 for those agents, for breach of duty to
this Corporation and its shareholders to the extent permissible under California
law (as now or hereafter in effect). In furtherance and not in limitation of
the powers conferred by statute:
(i) this Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of this
Corporation, or is serving at the request of this Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not this Corporation would have the power to
indemnify against such liability under the provisions of law; and in furtherance
thereof, this Corporation is authorized to the fullest extent permissible under
California law (as now or hereafter in effect) to own all or any portion of the
shares of the company issuing any such policy of insurance; and
(ii) this Corporation may create a trust fund, grant a security
interest and/or use other means (including, without limitation, letters of
credit, surety bonds and/or other similar arrangements), as well as enter into
contracts providing indemnification to the fullest extent authorized or
permitted by law and including as part thereof provisions with respect to any or
all of the foregoing to ensure the payment of such amounts as may become
necessary to effect indemnification as provided therein, or elsewhere.
No such bylaw, agreement or other form of indemnification shall be
interpreted as limiting in any manner the rights which such agents would have to
indemnification in the absence of such bylaw, agreement or other form of
indemnification.
(c) Any repeal or modification of the foregoing provisions of this Article
III by the shareholders of this Corporation shall not adversely affect any right
or protection of a director of this Corporation existing at the time of such
repeal or modification.
IV
This Corporation is authorized to issue two classes of shares, designated,
respectively, "Preferred Stock" and "Common Stock." The number of shares of
Preferred Stock authorized to be issued is 10,000,000 and the number of shares
of Common Stock authorized to be issued is 50,000,000.
The Preferred Stock may be divided into such number of series as the Board
of Directors of this Corporation may determine. The Board of Directors of this
Corporation is authorized to determine and alter the rights, preferences,
privileges and restrictions granted to and imposed upon the Preferred Stock or
any series thereof with respect to any wholly unissued class or series of
Preferred Stock, and to fix the number of shares of any series of Preferred
Stock and the designation of any such series of Preferred Stock. The Board of
Directors of this Corporation, within the limits and restrictions stated in any
resolution or resolutions of the Board of Directors of this Corporation
originally fixing the number of shares constituting any series, may increase or
decrease (but not below the number of shares of such series then outstanding)
the number of shares of any series subsequent to the issue of that series.
3. The foregoing amendment and restatement of Articles of
Incorporation has been duly approved by the Board of Directors.
4. The foregoing amendment and restatement of Articles of
Incorporation has been duly approved by the required vote of shareholders in
accordance with Section 902 of the Corporations Code. The total number of
outstanding shares of the
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Corporation is 7,721,037. The number of shares voting in favor of the amendment
equaled or exceeded the vote required. The percentage vote required was more
than 50%.
We 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.
DATE: December 23, 1996 /s/ Gerald D. Appel
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Gerald D. Appel, President
/s/ Scott Roecklein
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Scott Roecklein, Secretary
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