EXHIBIT 4.3
CERTIFICATE OF CORRECTION OF ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
INTEGRATED MEDICAL SYSTEMS, INC.
Pursuant to the Colorado Business Corporation Act, Section 7-101-205, C.R.S.,
the undersigned hereby executes the following certificate of correction:
FIRST: The name of the corporation is Integrated Medical Systems, Inc.
organized under the laws of the State of Colorado.
SECOND: The Document being corrected is the Articles of Amendment to the
Articles of Incorporation, a copy of which is attached hereto.
THIRD: Date document was filed: May 23, 1994.
FOURTH: Statement of incorrect information:
Reference to "Paragraph A" was omitted in connection with the amendment to
Article V of the Articles of Incorporation. Insertion of a reference to
"Paragraph A" makes it clear that the other paragraphs of Article V of the
Articles of Incorporation were not intended to be deleted or otherwise
amended.
FIFTH: Statement of Corrected information:
The second paragraph of the Articles of Amendment to the Articles of
Incorporation of Integrated Medical Systems, Inc. should read in pertinent
part:
"SECOND: The following amendments to the Articles of Incorporation were
adopted by the shareholders of the corporation on April 22, 1994, in
the manner prescribed by the Colorado Corporation Code:
(1) ARTICLE V, PARAGRAPH A, CAPITAL STOCK, IS AMENDED TO READ AS
-------------
FOLLOWS:"
Dated: April 25, 1995.
--------
INTEGRATED MEDICAL SYSTEMS, INC.,
a Colorado Corporation
By: /s/ Charles I. Brown,
----------------------------
Charles I. Brown,
Sr. Vice President
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
INTEGRATED MEDICAL SYSTEMS, INC.
Pursuant to the provisions of the Colorado Corporation Code, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
FIRST: The name of the corporation is Integrated Medical Systems, Inc.
SECOND: The following amendments to the Articles of Incorporation were
adopted by the shareholders of the corporation on April 22, 1994, in the manner
prescribed by the Colorado Corporation Code:
(1) ARTICLE V, CAPITAL STOCK, IS AMENDED TO READ AS FOLLOWS:
-------------
A. Authorized Stock. The aggregate number of shares of capital
----------------
stock the corporation is authorized to issue is: Two Million
(2,000,000) shares of Series B Preferred Stock, par value One
Dollar ($1.00) per share (the "Series B Preferred"); Five Million
(5,000,000) shares of Series C Preferred Stock, par value One
Dollar ($1.00) per share (the "Series C Preferred"); and Twenty-
Five Million (25,000,000) shares of Common Stock, without par value
(the "Common Stock"); and the relative rights of the shares of each
class are as follows:
1. Series B Preferred Stock. The corporation may issue up to two
------------------------
million (2,000,000) shares of Series B Preferred Stock from time to
time upon such terms and conditions as the Board of Directors shall
determine. The Board of Directors is hereby expressly vested with
authority to fix and determine the relative rights and preferences
of the Series B Preferred Stock so issued to the full extent
permitted by these Articles of Incorporation and the laws of the
State of Colorado in respect of the following:
(a) The number of shares of Series B Preferred Stock to be
issued from time to time;
(b) The rate and preference of any dividends and the time of
payment of any dividends, whether dividends are cumulative
and the date from which any dividend will accrue;
(c) Whether the Series B Preferred Stock may be redeemed, and,
if so, the redemption price and the terms and conditions of
redemption;
(d) The par value and the amount payable upon the Series B
Preferred Stock in the event of voluntary or involuntary
liquidation;
(e) Sinking fund or other provisions, if any, for the redemption
or purchase of Series B Preferred Stock;
(f) The terms and conditions upon which the Series B Preferred
Stock may be converted, if the Series B Preferred Stock is
issued with the privilege of conversion;
(g) Voting rights, if any;
(h) Whether the holders of the Series B Preferred Stock shall be
entitled to elect any of the directors of the corporation;
and
(i) Any other relative rights and preferences of the Series B
Preferred Stock issued, including, but without limitation,
any restriction on an increase in the number of shares of
Series B Preferred Stock of any series theretofore
authorized and any limitation or restriction of rights or
powers to which any of the Series B Preferred Stock shall be
subject.
2. Series C Preferred Stock. The Corporation may issue up to
------------------------
Five Million (5,000,000) shares of Series C Preferred Stock from
time to time upon such terms and conditions as the Board of
Directors shall determine. The Board of Directors is hereby
expressly vested with authority to fix and determine the relative
rights and preferences of the Series C Preferred Stock so issued to
the full extent permitted by these Articles of Incorporation and
the laws of the State of Colorado in respect of the following:
(a) The number of shares of Series C Preferred Stock to be
issued from time to time;
(b) The rate and preference of any dividends and the time of
payment of any dividends, whether dividends are cumulative
and the date from which any dividend will accrue;
(c) Whether the Series C Preferred Stock may be redeemed, and,
if so, the redemption price and the terms and conditions of
redemption;
(d) The amount payable upon issuance of the Series C Preferred
Stock in the event of voluntary or involuntary liquidation,
provided that the rights of holders of the Series C
Preferred Stock shall be subject to the prior right of
holders of the Series B Preferred Stock;
(e) Sinking fund or other provisions, if any, for the redemption
or purchase of Series C Preferred Stock;
- 2 -
(f) The terms and conditions upon which the Series C Preferred
Stock may be converted, if the Series C Preferred Stock is
issued with the privilege of conversion;
(g) Voting rights, if any;
(h) Whether the holders of the Series C Preferred Stock shall be
entitled to elect any of the directors of the Corporation;
and
(i) Any other relative rights and preferences of the Series C
Preferred Stock issued, including but without limitation,
any restriction on an increase in the number of shares of
Series C Preferred Stock of any series theretofore
authorized and any limitation or restriction of rights or
powers to which any of the Series C Preferred Stock shall be
subject.
3. Common Stock.
------------
(a) The rights of the holders of Common Stock to receive
dividends, or to share in the distribution of assets in the
event of liquidation, dissolution or winding up of the
affairs of the Corporation shall be subject to the
preferences, limitations and rights given to the holders of
the Series B Preferred Stock and the Series C Preferred
Stock.
(b) The holders of the Common Stock shall be entitled to vote
for each common share held by them of record at the time of
determining the holders thereof entitled to vote.
(2) NEW ARTICLE XIV IS ADDED TO READ AS FOLLOWS:
ARTICLE XIV
-----------
DIRECTOR LIABILITY
------------------
A director of this corporation shall not be personally liable to the corporation
or its shareholders for monetary damages for breach of fiduciary duty as a
director except that this provision shall not limit the liability of a director
to the corporation or to its shareholders for monetary damages for: (i) any
breach of the director's duty of loyalty to the corporation or to its
shareholders; (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) acts specified in
Section 7-5-114 of the Colorado Corporation Code as the same may be amended from
time to time; (iv) any transaction from which the director derived an improper
personal benefit. If the Colorado Corporation Code as the same may be amended to
authorize corporation actions further limiting or eliminating the personal
liability of directors, then the liability of a director of the corporation
shall be limited or eliminated to the fullest extent permitted by the Colorado
Corporation Code, as so amended.
- 3 -
THIRD: The number of shares voted for the above amendment was sufficient for
approval.
FOURTH: The amendment does not provide for an exchange, reclassification or
cancellation of issued shares as the Series A Preferred Stock was converted to
Common Stock.
FIFTH: The amendment does not effect a change in the amount of stated capital
of the corporation.
DATED: MAY 18, 1994.
------
INTEGRATED MEDICAL SYSTEMS, INC.
a Colorado corporation
By: /s/ Charles I. Brown
--------------------------
Charles I. Brown
Sr. Vice President
By: /s/ James A. Larson
--------------------------
James A. Larson
Sercretary
- 4 -
STATE OF COLORADO )
) ss:
CITY AND COUNTY OF DENVER )
I, Sharon H. Lewis, a Notary Public, do hereby certify that on this 18th
day of May, 1994, personally appeared before me, Charles I. Brown and James A.
Larson, who being by me first duly sworn declare that they are the Sr. Vice
President and Secretary respectively, of Integrated Medical Systems, Inc. and
that they read the foregoing document and that the statements contained therein
are true.
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires: April 19, 1998
S E A L
/s/ Sharon H. Lewis
----------------------------------
Notary Public
- 5 -
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
INTEGRATED MEDICAL SYSTEMS, INC.
Pursuant to the provisions of the Colorado Corporation Code, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
FIRST: The name of the corporation is Integrated Medical Systems, Inc.
SECOND: The following amendments to the Articles of Incorporation were
adopted by the shareholders of the corporation on October 22, 1993, in the
manner prescribed by the Colorado Corporation Code:
(1) Article V, Section A, Authorized Stock, is amended to read as follows:
----------------
"Authorized Stock. The aggregate number of shares of capital stock the
-----------------
corporation is authorized to issue is: Five Hundred Thousand (500,000)
shares of Series A Preferred Stock, par value One Dollar ($1.00) per share
(the "Series A Preferred"); Two Million (2,000,000) shares of Series B
Preferred Stock, par value One Dollar ($1.00) per share (the "Series B
Preferred"); Five Million (5,000,000) shares of Series C Preferred Stock,
par value One Dollar ($1.00) per share (the "Series C Preferred"); and
Twenty-Five Million (25,000,000) shares of Common Stock, without par value
(the "Common Stock"); and the relative rights of the shares of each class
are as follows:"
(2) A new Subparagraph 3. to Article V, Section A, is adopted as follows:
"3. Series C Preferred Stock. The Corporation may issue up to Five Million
(5,000,000) shares of Series C Preferred Stock from time to time upon such
terms and conditions as the Board of Directors shall determine. The Board
of Directors is hereby expressly vested with authority to fix and determine
the relative rights and preferences of the Series C Preferred Stock so
issue to the full extent permitted by these Articles of Incorporation and
the laws of the State of Colorado in respect of the following:
(a) The number of shares of Series C Preferred Stock to be issued from
time to time;
(b) The rate and preference of any dividends and the time of payment of
any dividends, whether dividends are cumulative and the date from
which any dividend will accrue;
(c) Whether the Series C Preferred Stock may be redeemed, and, if so,
the redemption price and the terms and conditions of redemption;
(d) The amount payable upon issuance of the Series C Preferred Stock in
the event of voluntary or involuntary liquidation, provided that
the rights of holders of the Series C Preferred Stock shall be
subject to the prior right of holders of the Series B Preferred
Stock;
(e) Sinking fund or other provisions, if any, for the redemption or
purchase of Series C Preferred Stock;
(f) The terms and conditions upon which the Series C Preferred Stock
may be converted, if the Series C Preferred Stock is issued with
the privilege of conversion;
(g) Voting rights, if any;
(h) Whether the holders of the Series C Preferred Stock shall be
entitled to elect any of the directors of the Corporation; and
(i) Any other relative rights and preferences of the Series C Preferred
Stock issued, including but without limitation, any restriction on
an increase in the number of shares of Series C Preferred Stock of
any series theretofore authorized and any limitation or restriction
of rights or powers to which any of the Series C Preferred Stock
shall be subject."
(3) A new Subparagraph 4. to Article V, Section A, is adopted as follows:
"4. Common Stock.
------------
(a) The rights of the holders of Common Stock to receive dividends, or
to share in the distribution of assets in the event of liquidation,
dissolution or winding up of the affairs of the Corporation shall
be subject to the preferences, limitations and rights given to the
holders of the Series A Preferred Stock, the Series B Preferred
Stock and the Series C Preferred stock.
(b) The holders of the Common Stock shall be entitled to vote for each
common share held by them of record at the time of determining the
holders thereof entitled to vote."
- 2 -
THIRD: The number of shares voted for the above amendment was sufficient
for approval.
FOURTH: The amendment does not provide for an exchange, reclassification or
cancellation of issued shares.
FIFTH: The amendment does not effect a change in the amount of stated
capital of the corporation.
Dated: November 30, 1993.
---------------
INTEGRATED MEDICAL SYSTEMS, INC.,
a Colorado corporation
By: /s/ Charles Brown
------------------------------
Charles Brown,
Senior Vice President
By: /s/ Donald S. Chenoweth
------------------------------
Donald S. Chenoweth,
Assistant Secretary
STATE OF COLORADO )
CITY AND ) ss.
COUNTY OF DENVER )
I, Geraldine A. Kenney, a Notary Public, do hereby certify that on this 30th
------------------- ----
day of November , 1993, personally appeared before me Charles Brown and Donald
---------
S. Chenoweth, who being by me first duly sworn declare that they are the Senior
Vice President and Assistant Secretary, respectively, of Integrated Medical
Systems, Inc. and that they read the foregoing document and that the statements
contained therein are true.
Witness my hand and official seal.
My commission expires: October 4, 1995
--------------------
S E A L /s/ Geraldine A. Kenney
-----------------------------------
Notary Public
- 3 -
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
OF
INTEGRATED MEDICAL SYSTEMS, INC.
Pursuant to the provisions of the Colorado Corporation Code, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
I. The name of the corporation is Integrated Medical Systems, Inc.
II. The following amendment to the Articles of Incorporation was adopted by the
shareholders of the corporation effective June 2, 1986, in the manner
prescribed by the Colorado Corporation Code:
Paragraph A of Article V to the Articles of Incorporation shall be amended
to read in its entirety as follows:
ARTICLE V
---------
CAPITAL STOCK
-------------
A. Authorized Stock. The aggregate number of shares of capital stock the
----------------
corporation is authorized to issue is: five hundred thousand (500,000)
shares of Series A Preferred Stock, par value One Dollar ($1.00) per
share (the "Series A Preferred"); two million (2,000,000) shares of Series
B Preferred Stock, (the "Series B Preferred"); and ten million (10,000,000)
shares of Common Stock, without par value (the "Common Stock"); and the
relative rights of the shares of each class are as follows:
1. Series A Preferred Stock
------------------------
(a) Convertibility. The five hundred thousand (500,000) shares of
--------------
Series A Preferred Stock, shall be convertible, on a share-for-
share basis, into five hundred thousand (500,000) shares of
Common Stock, at the option of the holder and in whole or in
part, at any time on or before December 31, 1992.
(b) Liquidation Value. The Series A Preferred Stock shall have a
-----------------
value on liquidation of One Dollar ($1.00) per share plus
accrued and unpaid dividends (the "Liquidation Value").
1
(c) Dividends. The Series A Preferred Stock will earn cumulative
---------
dividends at a rate of twelve per cent (12%) per annum on
Liquidation Value. The dividends shall be paid quarterly on the
dates of October 31, January 31, April 30 and July 31 during
each year that the Series A Preferred Stock remains
outstanding.
(d) Voting Rights. Each share of the Series A Preferred Stock
-------------
shall have the same voting rights as each share of Common
Stock.
(e) Liquidation. Upon any liquidation, dissolution or winding up of
-----------
the corporation, the holders of the Series A Preferred Stock
will be entitled to be paid, before any distribution or payment
is made to the holders of the Common Stock, an amount in cash
equal to the aggregate Liquidation Value of all the Series A
Preferred Stock then outstanding and the holders of the Series
A Preferred Stock will not be entitled to any further or
additional payment.
(f) Dilution and Other Provisions. The corporation may enter into
-----------------------------
appropriate agreements with the purchasers and holders of the
Series A Preferred Stock so as to protect the holders of the
Series A Preferred Stock from dilution and to provide for such
other conditions as may be agreed to between such purchasers
and holders and the corporation.
2. Series B Preferred Stock
------------------------
The corporation may issue up to two million (2,000,000) shares of
Series B Preferred Stock from time to time upon such terms and
conditions as the Board of Directors shall determine. The Board of
Directors is hereby expressly vested with authority to fix and
determine the relative rights and preferences of the Series B
Preferred Stock so issued to the full extent permitted by these
Articles of Incorporation and the laws of the State of Colorado in
respect of the following:
a) The number of shares of Series B Preferred Stock to be issued
from time to time;
b) The rate and preference of any dividends and the time of
payment of any dividends, whether dividends are cumulative and
the date from which any dividend will accrue;
2
c) Whether the Series B Preferred Stock may be redeemed, and, if
so, the redemption price and the terms and conditions of
redemption;
d) The par value and the amount payable upon the Series B
Preferred Stock in the event of voluntary or involuntary
liquidation;
e) Sinking fund or other provisions, if any, for the redemption or
purchase of Series B Preferred Stock;
f) The terms and conditions upon which the Series B Preferred
Stock may be converted, if the Series B Preferred Stock is
issued with the privilege of conversion;
g) Voting rights, if any;
h) Whether the holders of the Series B Preferred Stock shall be
entitled to elect any of the directors of the corporation; and
i) Any other relative rights and preferences of the Series B
Preferred Stock issued, including, but without limitation, any
restriction on an increase in the number of shares of Series B
Preferred Stock of any series theretofore authorized and any
limitation or restriction of rights or powers to which any of
the Series B Preferred Stock shall be subject.
3. Common Stock
------------
a) The rights of the holders of Common Stock to receive dividends,
or to share in the distribution of assets in the event of
liquidation, dissolution or winding up of the affairs of the
corporation shall be subject to the preferences, limitations
and rights given to the holders of the Series A Preferred Stock
and the Series B Preferred Stock.
b) The holders of the Common Stock shall be entitled to one vote
for each common share held by them of record at the time of
determining the holders thereof entitled to vote.
III. The date upon which the above Articles of Amendment were unanimously
adopted by the shareholders of the corporation and by its Board of
Directors was effective June 2, 1986. The number of shares of the
corporation outstanding at the time such amendment was adopted was five
hundred thousand (500,000) shares of preferred stock and two million twenty
nine thousand and forty six (2,029,046) shares of Common
3
Stock and the number of shares entitled to vote thereon was five hundred
thousand (500,000) shares of preferred stock and two million twenty nine
thousand and forty six (2,029,046) shares of Common Stock. Such vote was
sufficient to approve and adopt the Amendment.
IV. Prior to the foregoing Amendment to Paragraph A of Article V of the
corporation's Articles of Incorporation, the corporation had only two
classes of capital stock outstanding, consisting of the Common Stock, as
above defined, and preferred stock, all outstanding shares of which were
entitled to and did vote on the Amendment.
V. The Amendment of the Articles of Incorporation was adopted by the unanimous
consent of the Directors and the unanimous consent of all of the holders of
the Common and preferred shares of the corporation effective June 2, 1986,
in accordance with Section 7-4-122 (2) of the Colorado Corporation Code.
VI. The Amendment does not effect a change in the amount of stated capital of
the corporation.
Dated: June 2, 1986
INTEGRATED MEDICAL SYSTEMS, INC.,
a Colorado corporation
By: /s/ John A. McChesney
------------------------------
John A. McChesney, President
S E A L
ATTEST:
/s/ James A. Larson
-----------------------------------
James A. Larson, Secretary
4
STATE OF COLORADO )
CITY AND COUNTY OF JEFFERSON )
Before me, Ruth Hanna, a Notary Public in and for such County and State
----------
personally appeared John A. McChesney and James A. Larson, who acknowledged
before me that they are the President and Secretary, respectively, of Integrated
Medical Systems, Inc., and that they signed the foregoing Articles of Amendment
to the Articles of Incorporation as their free and voluntary act and deed for
the use and purpose therein stated and that the facts therein contained are
true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 7th day of
-------
July , 1986.
------
/s/ Ruth Hanna
---------------------------
Notary Public
S E A L
My commission expires: February 21, 1989
------------------
5
ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
OF
INTEGRATED MEDICAL SYSTEMS, INC.
Pursuant to the provisions of the Colorado Corporation Code the undersigned
corporation adopts the following Articles of Amendment to its Articles of
Incorporation:
I. The name of the corporation is Integrated Medical Systems, Inc.
II. The following amendment to the Articles of Incorporation was adopted
by the shareholders of the corporation effective July 29, 1985, in the manner
prescribed by the Colorado Corporation Code:
Paragraph A of Article V to the Articles of Incorporation shall be
amended to read in its entirety as follows:
ARTICLE V
---------
CAPITAL STOCK
-------------
A. Authorized Stock. The aggregate number of shares of stock the
----------------
corporation is authorized to issue is five hundred thousand (500,000) shares of
preferred stock, par value One Dollar ($1.00) per share, and ten million
(10,000,000) shares of common stock, without par value, and the relative rights
of the shares of each class are as follows:
1. Preferred Stock:
---------------
(a) Convertibility. The 500,000 shares of preferred stock, par
--------------
value $1.00 per share, shall be convertible, on a share-for-share
basis, into 500,000 shares of common stock, without par value, at the
option of the holder and at any time before the redemptions specified
in Subparagraph V-A-1(c) below.
(b) Dividends. The preferred stock shall have a value on
---------
liquidation of One Dollar ($1.00) per share plus accrued and unpaid
dividends (the "Liquidation Value") and such preferred stock will earn
cumulative dividends at a rate of twelve percent (12%) per annum of
Liquidation Value. The dividends shall be paid quarterly on the dates
of October 31, January 31, April 30 and July 31 during each year that
the preferred stock remains outstanding.
(c) Redemption. Unless previously converted, the corporation
----------
must redeem all 500,000 shares of the preferred stock at the
Liquidation Value and
the number of shares of preferred stock to be so redeemed and the
dates for each such redemption shall be as follows:
Number of Shares
Date of Redemption to be Redeemed
------------------ ----------------
December 31, 1990 166,666
December 31, 1991 166,667
December 31, 1992 166,667
(d) Sinking Fund. The corporation shall have no obligation to
------------
establish a sinking fund for the redemption of the preferred stock.
(e) Voting Rights. Each share of preferred stock shall have the
-------------
same voting rights as each share of common stock.
(f) Liquidation. Upon any liquidation, dissolution or winding
-----------
up of the corporation, the holders of the preferred stock will be
entitled to be paid, before any distribution or payment is made to the
holders of common stock, an amount in cash equal to the aggregate
Liquidation Value of all preferred stock then outstanding and the
holders of the preferred stock will not be entitled to any further or
additional payment.
(g) Dilution. The corporation will protect the holders of the
--------
preferred stock from dilution. The conversion price will be reduced
and the number of shares increased in the event the corporation sells
or issues common stock, warrants, options or other rights to purchase
common stock at a price of less than One Dollar ($1.00) per share;
provided however, that this provision shall not apply to shares
reserved for issuance to key employees of the corporation who receive
or purchase shares of common stock pursuant to stock bonus, stock
option or other incentive-type stock purchase programs approved by the
corporation's Board of Directors.
2. Common Stock:
------------
(a) The rights of the holders of common stock to receive
dividends, or to share in the distribution of assets in the event of
liquidation, dissolution or winding up of the affairs of the
corporation shall be subject to the preferences, limitations and
rights given to the holders of the preferred stock.
(b) The holders of the common stock shall be entitled to one
vote for each common share held by them of record at the time of
determining the holders thereof entitled to vote.
- 2 -
III. The date upon which the above Articles of Amendment were adopted
unanimously by the shareholders of the corporation and by its Board of Directors
was effective July 29, 1985. The number of shares of the corporation outstanding
at the time such amendment was adopted was 2,256,000 and the number of shares
entitled to vote thereon was 2,256,000.
IV. Prior to the foregoing Amendment to Paragraph A of Article V, the
corporation had only one class of stock outstanding, it being no par value
common stock, all outstanding shares of which were entitled to vote on the
amendment.
V. The Amendment to the Articles of Incorporation was adopted by the
Unanimous Consent of the Directors and Shareholders of the corporation effective
July 29, 1985, in accordance with Section 7-4-122(2) of the Colorado Corporation
Code.
VI. The amendment does not effect a change in the amount of stated capital
of the corporation.
Dated: August 28, 1985.
--
INTEGRATED MEDICAL SYSTEMS, INC.,
a Colorado corporation
By: /s/ John A. McChesney
---------------------------------------
John A. McChesney, President
S E A L
ATTEST:
/s/ James A. Larson
----------------------------------
James A. Larson, Secretary
- 3 -
STATE OF COLORADO ) ss.
CITY AND COUNTY OF DENVER )
Before me, Nancy J. Morrison , a Notary Public in and for
-------------------------------
such County and State personally appeared John A. McChesney and James A. Larson,
who acknowledged before me that they are the President and Secretary,
respectively, of Integrated Medical Systems, Inc., and that they signed the
foregoing Articles of Amendment to the Articles of Incorporation as their free
and voluntary act and deed for the use and purpose therein stated and that the
facts therein contained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 28th day of
----
August, 1985.
------
/s/ Nancy J. Morrison
-----------------------------------------
Notary Public
S E A L
My Commission Expires: August 16, 1988
-------------------------
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ARTICLES OF INCORPORATION
-------------------------
OF
--
INTEGRATED MEDICAL SYSTEMS, INC.
--------------------------------
I, the undersigned natural person of the age of eighteen years or more,
acting as incorporator in order to organize and establish a corporation under
and pursuant to the Colorado Corporation Code, hereby adopt the following
Articles of Incorporation for said corporation:
ARTICLE I
---------
NAME
----
The name of the corporation is INTEGRATED MEDICAL SYSTEMS, INC.
ARTICLE II
----------
TERM OF EXISTENCE
-----------------
The period of duration of the corporation shall be perpetual.
ARTICLE III
-----------
PURPOSE
-------
This corporation is organized for the purpose of transacting any and all
lawful business for which corporations may be incorporated pursuant to the
Colorado Corporation Code, including, but not limited to, the following:
A. To create, develop, design, manufacture, assemble, distribute, sell and
market products, systems and services of whatever kind and character; to assess,
rate, appraise and evaluate corporations, partnerships, joint ventures and
business ventures and organizations of whatever kind and character; to arrange
for and participate in the acquisition, sale, consolidation, merger, financing,
management and development of such business ventures and organizations or the
assets of such ventures or organizations; and to otherwise own, hold, operate,
manage, finance, develop, sell, acquire and deal in and with business ventures
of all types, including the assets of such ventures or organizations;
B. To acquire by purchase, exchange, lease or otherwise, and to own, hold,
use, manage, develop, repair, demolish, operate, sell, assign, lease, transfer,
convey, exchange, mortgage, grant security interests in, pledge or otherwise
encumber, dispose of or deal in and with, real and personal property, tangible
and intangible, of every
class or description whatsoever and all rights and privileges therein
wheresoever situate, and including, but not limited to, stock, stock rights,
options or warrants, debentures, bonds and other obligations and securities of
corporations or other entities, whether in connection with or incident or
related to the foregoing purposes or otherwise;
C. To invest, on behalf of itself or others, in any form, any part of its
capital and such additional funds as it may obtain, in any corporation,
association, partnership, organization, venture or entity of any kind or
character and otherwise acquire such interests therein as the Board of Directors
may from time to time deem convenient or proper and actively engage in, promote,
manage and otherwise protect and develop any investment or interest so acquired,
whether in connection with or incident or related to the foregoing purposes or
otherwise;
D. To provide services and to act as agent, factor or employee for any
entity or individual, whether in connection with or incident to the foregoing
purposes or otherwise;
E. In general, to do any and all things herein set forth, together with
any act or thing reasonably to be implied from or connected in any way
therewith, and
F. In general, to carry on any other lawful business or activity
whatsoever, whether or not connected with any of the foregoing purposes, which
is calculated directly or indirectly to promote the interests of the corporation
and to enhance the value of its property.
ARTICLE IV
----------
POWERS
------
The corporation shall have and may exercise, either as principal or agent
and either alone or in connection with other corporations, partnerships, firms,
businesses, associations or individuals, any and all of the powers, rights and
privileges now or hereafter permitted, given or granted by the laws of the State
of Colorado. In addition, the corporation may do everything necessary, suitable
or proper for the accomplishment of any of its corporate purposes. The
corporation may conduct its business in any part of the United States or of the
world and it may hold, purchase, mortgage, lease, convey and otherwise deal in
any way with real and personal property in such places. With-
- 2 -
out in any manner limiting the generality of the foregoing, the corporation
shall have the following additional powers:
A. To borrow money for any and all corporate purposes from corporate
officers or directors, or from shareholders of the corporation;
B. To lend money to, to guarantee the obligations of and to otherwise
assist its employees (other than employees who are also directors of the
corporation) and, upon the affirmative vote of the holders of two-thirds (2/3)
of the outstanding shares of the corporation which are entitled to vote for
directors, to lend money to, to guarantee the obligations of and to otherwise
assist the directors of the corporation or of any other corporation, the
majority of whose voting capital stock is owned by the corporation; and
C. To aid in any manner any corporation, partnership, firm, business,
association, individual or issuer of which any stocks, bonds, debentures or
other securities or evidences of indebtedness are held by the corporation; and
to do all acts or things designed to protect, improve or enhance the value of
any such stocks, bonds, debentures or other securities or evidences of
indebtedness.
ARTICLE V
---------
CAPITAL STOCK
-------------
A. Authorized Stock. The aggregate number of shares of stock the
----------------
corporation is authorized to issue is ten million (10,000,000) shares of common
stock without par value.
B. Issuance and Disposition. The corporation, in the discretion and upon
------------------------
resolution of the Board of Directors, may at any time and from time to time
issue and dispose of any of the unissued stock or treasury stock of the
corporation and may create optional rights to purchase or subscribe for shares
of stock of the corporation. Such stock may be issued and disposed of for such
kind and amount of consideration and to such persons, firms and corporations,
and such optional rights may be created, and warrants or other evidence of such
rights issued, on such terms, at such prices and in such manner as may be
determined by resolution adopted by the Board of Directors, subject to any
provisions of law then applicable and subject to any other provisions of these
Articles of Incorporation and any provisions of the Bylaws of the corporation.
- 3 -
C. Voting Rights and Cumulative Voting. Each shareholder of record shall
-----------------------------------
have one vote for each share of stock standing in his/her name on the books of
the corporation. Cumulative voting shall not be allowed in the election of
directors or for any other purpose.
D. Dividends. Dividends may be paid upon the common stock as and when
---------
declared by the Board of Directors out of funds of the corporation legally
available therefor.
E. Transfer Restrictions. The corporation shall have the right by
---------------------
appropriate action to impose restrictions upon the transfer of any shares of its
common stock, or any interest therein, from time to time issued, provided that
such restrictions as may from time to time be so imposed or notice of the
substance thereof shall be set forth upon the face or back of the certificate
representing such shares of common stock.
F. Preemptive Rights. No shareholder of this corporation shall, because
-----------------
of his/her ownership of stock, have a preemptive right to purchase, subscribe
for or take any part of any stock or any part of the notes, debentures, bonds or
other securities convertible into, or carrying options or warrants to purchase
stock of this corporation issued, optioned or sold by it after its
incorporation. Any part of the common stock and any part of the notes,
debentures, bonds or other securities convertible into, or carrying options or
warrants to purchase stock of this corporation authorized by these Articles of
Incorporation or any amendment thereto duly filed, may at any time be issued,
optioned for sale and sold or disposed of by this corporation pursuant to
resolution of its Board of Directors to such persons and upon such terms as may
to such Board of Directors seem proper without first offering such stock or
security or any part thereof to existing shareholders.
G. Registered Shareholders. Prior to due presentment for registration or
-----------------------
transfer of shares of stock, the corporation may treat the person registered on
its books as the absolute owner of such shares of stock for all purposes, and
accordingly, shall not be bound to recognize any legal, equitable or other claim
or interest in such shares on the part of any other person, whether or not it
shall have
- 4 -
express or other notice thereof, except as otherwise expressly provided by
statute; provided however, that whenever any transfer of shares shall be made
for collateral security and not absolute, it shall be so expressed in the entry
of the transfer if, when the certificates are presented to the corporation for
transfer, both the transferor and transferee request the corporation to do so.
ARTICLE VI
----------
RIGHTS OF DIRECTORS AND OFFICERS
--------------------------------
TO CONTRACT WITH THE CORPORATION
--------------------------------
AND CONFLICTS OF INTEREST
-------------------------
No contract or other transaction between this corporation and one or more
of its directors or officers or any corporation, firm, association or entity in
which one or more of its directors or officers is a director or officer or is
financially interested shall be either void or voidable solely because of such
relationship or interest or solely because any such director or officer is
present at the meeting of the Board of Directors or a committee thereof which
authorizes, approves or ratifies such contract or transaction or solely because
their votes are counted for such purpose if:
A. The fact of such relationship or interest is disclosed or known to the
Board of Directors or committee which authorizes, approves or ratifies the
contract or transaction by a vote or consent sufficient for the purpose without
counting the votes or consents of any interested director or officer;
B. The fact of such relationship or interest is disclosed or known to the
shareholders entitled to vote and they authorize, approve or ratify such
contract or transaction by vote or written consent; or
C. The contract or transaction is fair and reasonable to the corporation.
ARTICLE VII
-----------
PARTIAL LIQUIDATION
-------------------
In addition to the other powers now or hereafter conferred upon the Board
of Directors by these Articles of Incorporation, the Bylaws of the corporation
or by the laws of the State of Colorado, the Board of Directors may from time to
time distribute to the shareholders in
- 5 -
partial liquidation, out of the stated capital or the capital surplus of the
corporation, a portion of the corporate assets, in cash or in kind; subject,
however, to the limitations contained in the Colorado Corporation Code.
ARTICLE VIII
------------
INDEMNIFICATION - DIRECTORS,
----------------------------
OFFICERS AND EMPLOYEES
----------------------
In addition to and in no way limiting the powers or authority now or
hereafter conferred upon the corporation by these Articles of Incorporation, the
Bylaws of the corporation or by the laws of the State of Colorado, the
corporation shall possess and may exercise all powers of indemnification of
directors, officers, employees, agents and other persons and all powers and
authority incidental thereto (including without limitation the power and
authority to advance expenses and to purchase and maintain insurance with
respect thereto), without regard to whether or not such powers and authority are
provided for by the Colorado Corporation Code. The Board of Directors of the
corporation is hereby authorized and empowered on behalf of the corporation and
without shareholder action to exercise all of the corporation's authority and
powers of indemnification.
ARTICLE IX
----------
REGISTERED OFFICE
-----------------
The address of the initial registered office of the corporation is Suite
820, 165 South Union Boulevard, Lakewood, Colorado 80228, and the name of the
initial registered agent of the corporation at such address is John A.
McChesney.
ARTICLE X
---------
BOARD OF DIRECTORS
------------------
The initial Board of Directors of the corporation shall consist of three
(3) members who need not be shareholders of the corporation or residents of the
State of Colorado.
The names and addresses of the persons who are to serve as directors of the
corporation until the first annual meeting of shareholders, and until their
successors shall be elected and shall qualify, are as follows:
- 6 -
Name Address
---- -------
James A. Larson 10 Vista Road
Englewood, CO 80110
John A. McChesney 1334 Lupine Way
Golden, CO 80401
Jens H. Mueller 10700 E. Dartmouth, #AA-101
Aurora, CO 80014
ARTICLE XI
----------
INCORPORATOR
------------
The name and address of the incorporator of the corporation is as follows:
Name Address
---- -------
Nancy J. Morrison 9272 East Mansfield Avenue
Denver, Colorado 80237
ARTICLE XII
-----------
BYLAWS
------
The Board of Directors of this corporation shall have the power to adopt
such prudential Bylaws as may be deemed necessary or convenient for the proper
government and management of the business and affairs of this corporation, and
to amend, alter or repeal the same at any regular meeting or at any special
meeting called for that purpose.
ARTICLE XIII
------------
AMENDMENTS
----------
The corporation reserves the right to amend, alter, change or repeal any
provision contained in, or to add any provision to, its Articles of
Incorporation from time to time, in any manner now or hereafter prescribed or
permitted by the Colorado Corporation Code, and all rights and powers conferred
upon directors and shareholders hereby are granted subject to this reservation.
IN WITNESS WHEREOF, I, the undersigned, being the incorporator designated
in Article XI of the annexed and foregoing Articles of Incorporation, have
executed said Articles of Incorporation as of this 14th day of January, 1985.
/s/ Nancy J. Morrison
----------------------------
Nancy J. Morrison
- 7 -
STATE OF COLORADO ) ss
CITY AND COUNTY OF DENVER )
I, Ann M. Bedard , a Notary Public, hereby certify that Nancy
----------------------------
J. Morrison known to me to be the person whose name is subscribed to the annexed
and foregoing Articles of Incorporation, appeared before me this day in person
and being by me first duly sworn, acknowledged and declared that she signed said
Articles of Incorporation as her free and voluntary act and deed for the uses
and purposes therein set forth and that the statements therein contained are
true.
My Commission Expires: June 16, 1987 .
-----------------------
Witness my hand and official seal this 14th day of January, 1985.
/s/ Ann M. Bedard
-----------------------------------
Notary Public
- 8 -
CERTIFICATION OF DESIGNATION, VOTING POWERS,
PREFERENCES AND RIGHTS
OF THE 1993 SERIES C CONVERTIBLE PREFERRED STOCK
OF
INTEGRATED MEDICAL SYSTEMS, INC.
Integrated Medical Systems, Inc., a Colorado corporation (the "Corporation"),
pursuant to Article V of its Articles of Incorporation as amended effective
October 22, 1993, and Section 74-102 of the Colorado Corporation Act, certifies
that on December 21, 1993, the Board of Directors of the Corporation duly
adopted the following resolutions providing for the issuance of up to a maximum
of 3,500,000 shares of Series C Convertible Preferred Stock to be designated as
1993 Series C Convertible Preferred Stock (the "1993 Series C Preferred Stock"):
RESOLVED, that a series of the Series C Preferred Stock, par value $0.01
per share, of the Corporation be hereby created, and that the designation and
amount thereof and the voting powers, preferences and relative, participating,
optional and other special rights of the shares of such series, and the
qualifications, limitations or restrictions thereof shall be as follows:
Page 1
1. DESIGNATION AND AMOUNTS
-----------------------
The shares of such series shall be designated as the 1993 Series C Convertible
Preferred Stock (the "1993 Series C Preferred Stock") and the number of shares
initially constituting such series shall be 3,500,000 which number may be
decreased (but not increased) by the Board of Directors without a vote of the
stockholders; provided, however, that such number may not be decreased below the
number of then currently outstanding shares of 1993 Series C Preferred Stock.
2. DIVIDENDS AND DISTRIBUTIONS
---------------------------
2.1. Dividends on Common Stock. If the Corporation shall at any time or
-------------------------
from time to time declare, order, pay or make a dividend or other distribution
(including, without limitation, any distribution of capital stock or other
securities or property of the Corporation on its Common Stock, then, and in each
such case (a "Triggering Distribution"), the holders of shares of 1993 Series C
Preferred Stock shall be entitled to receive from the Corporation, with respect
to each shares of 1993 Series C Preferred Stock held, the same dividend or
distribution received by a holder of the number of shares of Common Stock into
which such shares of 1993 Series C Preferred Stock is convertible on the record
date for such dividend or distribution. Any such dividend or distribution shall
be declared, ordered, paid or made on the 1993 Series C Preferred Stock at the
same time such
Page 2
dividend or distribution is declared, ordered, paid or made on the Common Stock.
2.2. Rights Distributed on Common Stock. In the event that (i) the
----------------------------------
Corporation shall issue rights or warrants to holders of Common Stock entitling
them to subscribe for shares of capital stock or (ii) the Corporation shall
distribute to all holders of Common Stock evidence of indebtedness or other
assets (other than pursuant to Section 2.1) the Corporation shall issue or
distribute to the holders of 1993 Series C Preferred Stock the same such rights,
warrants, evidence of indebtedness or assets received by a holder of the number
of shares of Common Stock into which such holder's shares of 1993 Series C
Preferred Stock is convertible on the record date for such issuance or
distribution.
2.3. Limitations on Dividends. The holders of shares of 1993 Series C
------------------------
Preferred Stock shall not be entitled to receive any dividends or other
distributions except as provided in Sections 2.1 and 2.2 of this Certificate of
Designation of 1993 Series C Convertible Preferred Stock. No dividend shall be
paid on the Common Stock or any other Junior Stock unless all dividends payable
with respect to the 1993 Series C Preferred Stock have been paid in full.
Page 3
3. VOTING RIGHT
------------
In addition to any voting rights provided elsewhere herein and in the
Corporation's Articles of Incorporation, as it may be amended or restated from
time to time (the "Articles of Incorporation"), and any voting rights provided
by law, the holders of shares of 1993 Series C Preferred Stock shall have the
following voting rights:
3.1. General. Each share of 1993 Series C Preferred Stock shall entitle the
-------
holder thereof to one vote for each share of Common Stock into which such share
of 1993 Series C Preferred Stock is convertible as of the date of such vote (or
the record date, if any, for such vote) on all matters submitted to a vote of
the stockholders of the Corporation, with fractional votes cumulated for any
holder of more than one share of 1993 Series C Preferred Stock. Except as
otherwise provided herein, or by the Articles of Incorporation or by law, the
shares of 1993 Series C Preferred Stock and the shares of Common Stock (and any
other shares of capital stock of the Corporation at the time entitled thereto)
shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
3.2. Series Vote. So long as any shares of 1993 Series C Preferred Stock
-----------
shall be outstanding and unless the consent or approval of a greater number of
shares shall then be required by law, without first obtaining the consent or
approval of the
Page 4
holders of a majority of the then-outstanding shares of 1993 Series C Preferred
Stock, voting as a single class, given in person or by proxy at a meeting at
which the holders of such shares shall be entitled to vote separately as a
class, or by written consent, the Corporation shall not: (i) authorize or create
any class or series, or any shares of any class or series, of stock having any
preference or priority as to dividends or upon redemption, liquidation,
dissolution or winding up over the 1993 Series C Preferred Stock ("Senior
Stock"); (ii) authorize or create any class or series, or any shares of any
class or series, of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the 1993 Series C Preferred Stock
("Parity Stock"); (iii) reclassify any shares of stock of the corporation into
shares of Senior Stock or Parity Stock; (iv) authorize any security exchangeable
for, convertible into, or evidencing the right to purchase any shares of Senior
Stock or Parity Stock; or (v) amend, alter or repeals the Articles of
Incorporation to alter or change the preferences, rights or powers of the 1993
Series C Preferred Stock or to increase the authorized number of shares 1993
Series C Preferred Stock.
4. REDEMPTION
----------
4.1. No Redemption Obligations or Rights. The Corporation shall have
-----------------------------------
neither the right nor obligation at any time to redeem all or any portion of the
1993 Series c Preferred Stock and any
Page 5
redemption shall be only with the written consent of both the Corporation and
the holder of the 1993 Series C Preferred Stock to be redeemed.
5. REACQUIRED SHARES
-----------------
Any shares of 1993 Series C Preferred Stock converted, redeemed, purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired
and canceled promptly after the acquisition thereof, and, if necessary to
provide for the lawful redemption or purchase of such shares, the capital
represented by such shares shall be reduced in accordance with the law of the
state of Colorado. All such shares shall upon their cancellation become
authorized but unissued shares of 1993 Series C Preferred Stock, $0.01 par
value, of the Corporation and may be reissued as part of another series of
preferred stock of the Corporation subject to the conditions or restrictions on
authorizing or creating any class or series, or any shares of any class or
series, set forth herein.
6. LIQUIDATION, DISSOLUTION OR WINDING.
-----------------------------------
6.1. General. The liquidation, dissolution and winding up preference of
-------
each share of 1993 Series C Preferred Stock shall be $4.00 per share for the
first 1,250,000 shares of 1993 Series C Preferred Stock issued and $5.00 per
share for each additional share of 1993 Series C Preferred Stock issued
thereafter to be paid in full prior to any distribution on IMS' Common Stock or
Page 6
other classes or series of preferred stock except the Series B Preferred Stock
of the Corporation which shall have a preference upon liquidation to the 1993
Series C Preferred Stock equal to $1.00 per share of Series B Preferred Stock
plus all accrued unpaid dividends due to holds of Series B Preferred Stock.
6.2 Mergers, Etc. Not Liquidations. Neither the consolidation, merger or
-------------------------------
other business combination of the Corporation with or into any other Person or
Persons nor the sale, lease, exchange or conveyance of all or any part of the
property assets or business of the Corporation shall be deemed to be a
liquidation, dissolution or winding up of the Corporation for purposes of this
Section 6.
7. CONVERSION
----------
7.1 Conversion Rights. Each share of 1993 Series C Preferred Stock, including
-----------------
any shares issued pursuant to warrants granted to McKesson Corporation, is
convertible into one share of Common Stock for each share of 1993 Series C
Preferred Stock upon the occurrence of the first to occur of the conditions
described in Section 7.2, 7.3 and 7.4 below.
7.2 Achievement of Profits. The 1993 Series C Preferred Stock shall be
----------------------
deemed to have been converted automatically as of the beginning of any fiscal
year of the Corporation following the first year during which the Corporation
shall have achieved a
Page 7
pre-tax profit margin of 5.00% of gross revenues, or greater, determined in
accordance with Generally Accepted Accounting Principles, consistently applied,
which shall be established by an audit by the Corporation's regular independent
outside auditors.
7.3 Completion of Public Offering by Corporation. Each share of 1993 Series
--------------------------------------------
C Preferred Stock shall automatically convert into Common Stock at the effective
date of a Registration Statement filed under the Securities Act of 1933, as
amended, pursuant to which the Corporation makes its initial public offering of
equity securities.
7.4 Optional Conversion. Each share of 1993 Series C Preferred Stock shall
-------------------
be converted into Common Stock on the second business day following receipt by
the Corporation of written notice from any holder of the 1993 Series C Preferred
Stock then outstanding and compliance with Section 7.7 below.
7.5 Adjustment of Conversion Rate. The conversion rate of one share of
-----------------------------
Common Stock for each share of 1993 Series C Preferred Stock upon conversion
described in Section 7.1 above (the "Conversion Rate") shall be subject to
adjustment from time to time as follows:
Page 8
7.5.1. Adjustment for Stock Dividends and Splits. If the Corporation:
-----------------------------------------
a) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock or any shares of its other capital stock;
(b) subdivides its outstanding shares of Common Stock into a
greater number of shares;
(c) combines its outstanding shares of Common Stock into a smaller
number of shares; or
d) issues by reclassification of its Common Stock any shares of
its capital stock;
then the Conversion Rate with respect to the 1993 Series C Preferred Stock in
effect immediately prior to such action shall be adjusted so that the holder of
1993 Series C Preferred Stock thereafter converted may receive the number of
shares of capital stock of the Corporation which such holder would have owned
immediately following such action if such holder had converted the 1993 Series C
Preferred Stock immediately prior to such action. For a dividend or
distribution, the adjustment shall become effective immediately on the record
date for the dividend or distribution. For a subdivision, combination or
reclassification, the adjustment shall become effective immediately after the
effective date of the subdivision,
Page 9
combination or reclassification. If after an adjustment a holder of 1993 Series
C Preferred Stock upon conversion may receive shares of two or more classes of
capital stock of the Corporation, the Board of Directors of the Corporation
shall determine the allocation of the adjusted Conversion Rate with respect to
the 1993 Series C Preferred Stock between or among the classes of capital stock.
After such allocation, the Conversion Rate of each class of capital stock shall
thereafter be subject to adjustment on terms comparable to those applicable to
Common Stock in this resolution.
7.5.2. Certificates as to Adjustments. Upon the occurrence of each
------------------------------
adjustment or readjustment of any Conversion Rate pursuant to this Section 7,
the Corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and prepare and furnish to
each holder of 1993 Series C Convertible Preferred Stock a certificate
executed by the Corporation's President or Chief Financial Officer 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 1993 Series C Convertible
Preferred Stock, furnish or cause to be furnished to such holder a like
certificate setting forth (i) such adjustments and readjustments, (ii) the
Conversion Rate for 1993 Series C Convertible Preferred Stock at the time in
effect, and (iii) the number of shares of Common Stock and the amount, if any,
of other property which at
Page 10
the time would be received upon the conversion of the 1993 Series C
Convertible Preferred Stock.
7.6. Adjustment for Mergers. In case the Corporation shall be a party to
----------------------
any transaction (including, without limitation, a merger, consolidation, sale or
all or substantially all of the Corporation's assets, liquidation or
recapitalization of the Common Stock in which the previously outstanding Common
Stock shall be changed into or, pursuant to the operation of law or the terms of
the transaction to which the Corporation is a party, exchanged for different
securities of the Corporation or common stock or other securities of another
corporation or interests in a combination of any of the foregoing) then, as a
condition of the consummation of such transaction, lawful and adequate
provisions shall be made so that each holder of shares of 1993 Series C
Preferred Stock shall be entitled, upon conversion, to an amount per share equal
to (A) the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged, multiplied by (B) the number of shares of
Common Stock into which a share of 1993 Series C Preferred Stock is convertible
immediately prior to the consummation of such transaction.
7.7. Conversion Procedures. The holder of any shares of 1993 Series C
---------------------
Preferred Stock may exercise such holder's optional right to convert such shares
into shares of common Stock by
Page 11
surrendering for such purpose to the Corporation, at its principal office or at
such other office or agency maintained by the Corporation for that purpose, a
certificate or certificates representing the shares of 1993 Series C Preferred
Stock to be converted accompanied by a written notice stating that such holder
elects to convert all or a specified whole number of such shares in accordance
with the provisions of this Section 7 and specifying the number or names in
which such holder wishes the certificate or certificates for shares of Common
Stock to be issued. In case such notice shall specify a name or names other
than that of such holder, such notice shall be accompanied by payment of all
transfer taxes payable upon the issuance of shares of Common Stock in such name
or names. Other than such taxes, the Corporation will pay any and all issue and
other taxes (other than taxes based on income) that may be payable in respect to
any issue or delivery of shares of Common Stock on conversion of 1993 Series C
Preferred Stock pursuant hereto. As promptly as practicable, and in any event
within five business days after the surrender of such certificate or
certificates and the receipt of such notice relating thereto and, if applicable,
payment of all transfer taxes (or the demonstration to the satisfaction of the
Corporation that such taxes have been paid), the Corporation shall deliver or
cause to be delivered (i) certificates representing the number of validly
issued, fully paid and nonassessable full shares of Common Stock to which the
holder of such shares of 1993 Series C Preferred Stock so converted shall be
entitled and (ii) if less than the full number of shares of
Page 12
1993 Series C Preferred Stock evidenced by the surrendered certificate or
certificates are being converted, a new certificate or certificates, of like
tenor, for the number of shares evidenced by such surrendered certificate or
certificates less the number of shares converted. Such conversion shall be
deemed to have been made at the close of business on the date of giving of such
notice and of such surrender of the certificate or certificates representing the
shares of 1993 Series C Preferred Stock to be converted so that the rights of
the holder thereof as to the shares being converted shall cease except for the
right to receive shares of Common Stock and accrued dividends in accordance
herewith, and the person entitled to receive the shares of Common Stock shall be
treated for all purposes as having become the record holder of such shares of
Common Stock at such time. The Corporation shall not be required to convert, and
no surrender of shares of 1993 Series C Preferred Stock shall be effective for
that purpose, while the transfer books of the Corporation for the Common stock
are closed or any purpose (but not for any period in excess of 15 calendar
days); but the surrender of shares of 1993 Series C Preferred Stock for
conversion during any period while such books are so closed shall become
effective for conversion immediately upon the reopening of such books, as if the
conversion had been made on the date such shares of 1993 Series C Preferred
Stock were surrendered, and at the conversion rate in effect at the date of such
surrender.
Page 13
7.8. Payment of Accrued Dividends Upon Conversion. Upon conversion of any
--------------------------------------------
shares of 1993 Series C Preferred Stock, the holder thereof shall be entitled to
receive any accrued but unpaid dividends in respect of the shares so converted
to the date of conversion.
7.9. No Fractional Shares. In connection with the conversion of any
--------------------
shares of 1993 Series C Preferred Stock, no fractional shares of Common stock
shall be issued, and the number of shares of Common Stock to be issued shall be
rounded to the nearest whole share.
8. RESERVATION OF COMMON STOCK
---------------------------
The Corporation shall take all corporate action necessary (including seeking
stockholder approval) to increase the authorized capital of the Corporation in
order to, and shall at all times thereafter, reserve and keep available out of
its authorized and unissued Common Stock, solely for the purpose of effecting
the conversion of the 1993 Series C Preferred Stock, such number of shares of
Common Stock as shall from time to time be sufficient to effect the conversion
of all then outstanding shares of 1993 Series C Preferred Stock. The
Corporation shall from time to time, subject to and in accordance with the law
of the state of Colorado, increase the authorized amount of Common Stock if at
any time the number of authorized shares of Common Stock remaining unissued
shall not be sufficient to permit the
Page 14
conversion at such time of all then outstanding shares of 1993 Series C
Preferred Stock.
9. CANCELLATION OF CONVERTED SHARES
--------------------------------
All shares of 1993 Series C Preferred Stock converted pursuant to Section 7
shall be canceled and shall not be issuable by the Corporation, and the Articles
of Incorporation shall be appropriately amended, if required, to effect the
corresponding reduction in the Corporation's authorized capital.
10. NOTICES OF RECORD DATE
----------------------
In the event of any taking by the Corporation of a record of the holders of
any class of securities for the purpose of determining the holders thereof who
are entitled to receive any dividend (other than a cash dividend) or other
distribution, the Corporation shall mail to each holder of 1993 Series C
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
purposes of such dividend or distribution.
11. PROTECTIVE PROVISIONS
---------------------
So long as any of the 1993 Series C Preferred Stock shall be outstanding, the
Corporation shall not, without first obtaining the approval (by vote or written
consent, as provided by law) of
Page 15
the holders of at least 51% of the outstanding shares o~ 1993 Series C Preferred
Stock, alter or change the rights, preferences or privileges of the 1993 Series
C Preferred Stock. Amendments, modifications or waivers of any of the terms
hereof will be binding and effective if the prior written consent of holders of
at least 51% of the 1993 Series C Preferred Stock outstanding at the time such
action is taken is obtained; provided that no such action will change (a) the
rate at which or the manner in which dividends on the 1993 Series C Preferred
Stock accrue or the times at which such dividends become payable, unless the
prior written consent of the holders of 1009~ of the 1993 Series C Preferred
Stock then outstanding is obtained, (b) the Conversion Rate of the 1993 Series C
Preferred Stock or the number of shares or class of stock into which the 1993
Series C Preferred Stock is convertible, unless the prior written consent of the
holders of 100% of the Series B Preferred Stock then outstanding is obtained or
(c) the percentage required to approve any change described in clauses (a) and
(b) above, unless the prior written consent of the holders of at least 100% of
the 1993 Series C Preferred Stock then outstanding is obtained.
Page 16
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designation
of Series C Convertible Preferred Stock to be duly executed by its Vice
President and attested to by its Secretary and has caused its corporate seal to
be affixed hereto, this 23rd day of December, 1993.
INTEGRATED MEDICAL SYSTEMS, INC.
By
-----------------------
Senior Vice President
Attest:
-----------------------
Assistant Secretary
STATE OF COLORADO )
) ss.
City and County of Denver )
Before me Kathleen K. McCracken, a Notary Public in and for such County and
State personally appeared Charles I. Brown and Donald S. Chenowith, who
acknowledged before me that they are the Senior Vice President and Assistant
Secretary, respectively, of Integrated Medical Systems, Inc. and that they
signed the foregoing Statement of Designation, Voting Powers, Preferences and
Rights of the Series C Preferred Stock of Integrated Medical Systems, Inc. as
their free and voluntary act and deed and that the facts stated therein are true
and correct.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this
23rd day of December, 1993.
Witness my hand and official seal.
My Commission Expires: 11-16-96
[Seal of
NOTARY PUBLIC /s/ Kathleen K. McCracken
-------------------------
KATHLEEN K. McCRACKEN
Notary Public
STATE OF COLORADO]
1610 WYNKOOP St. No. 200
------------------------
Address
Denver, CO 80202
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Page 17
STATEMENT OF DESIGNATION, VOTING POWERS, PREFERENCES
AND RIGHTS OF THE SERIES B PREFERRED STOCK
OF INTEGRATED MEDICAL SYSTEMS, INC.
Integrated Medical Systems, Inc., a Colorado Corporation (the "Company"),
pursuant to Article V of its Articles of Incorporation and Section 7-4-102 of
the Colorado Corporation Act, certifies that on October 22, 1986, the Board of
Directors of the Company duly adopted the following resolutions by unanimous
written consent providing for the issuance of up to a maximum of 2,000,000
shares of Preferred Stock to be designated as Series B Preferred Stock (the
"Series B Preferred Stock"):
RESOLVED, that the Company is hereby authorized and empowered to issue
up to a maximum of 2,000,000 shares of Series B Preferred Stock; and
BE IT FURTHER RESOLVED, that the powers and designations, preferences
and rights, qualifi-cations, limitations, and restrictions on the
shares of Series B Preferred Stock shall be as follows:
1. Par Value and Liquidation Value. The Series B Preferred Stock shall
-------------------------------
have a par value of One Dollar ($ 00) pe,r share and a value on liquidation of
One Dollar, ($1.00) per share plus accrued and unpaid dividends (the
"Liquidation Value").
2. Dividends. The Series B Preferred Stock shall earn cumulative
---------
dividends at a rate of ten percent (10%) of the Liquidation Value (i.e., ten
cents ($.10) per share annually) beginning July 1, 1988, which shall be payable
quarterly each September 30, December 31, March 31 and June 30 thereafter until
and unless converted into the Company's no par value common stock (the "Common
Stock"). No interest shall be earned or paid on the Series B Preferred Stock
prior to July 1, 1988. Once dividends accrue on the Series B Preferred Stock,
all payments of dividends on the Series B Preferred Stock and the outstanding
Series A Preferred Stock (the "Series A Preferred Stock") shall be made in pari
-------
passu among the holders of the Series A Preferred Stock and the holders of the
-----
Series B Preferred Stock and no holder of Series A Preferred Stock or holder of
Series B Preferred Stock shall he preferred over the other.
3. Voting Rights. Each share of the outstanding Series B Preferred Stock
-------------
shall have identical and equal voting rights with each share of the Company's
outstanding Series A Preferred Stock and each share of its outstanding Common
Stock.
-1-
4. Preemptive or Purchase Rights. No holder of a share or shares of
-----------------------------
Series B Preferred Stock shall, because of his or her ownership of such Stock,
have a preemptive right to purchase, subscribe for or take any part of any
capital stock of the Company nor shall any such holder have a preemptive right
to purchase, subscribe for or take any part of notes, debentures, bonds or any
other securities of the Company, including, limited to, securities convertible
into or carrying options or warrants to purchase capital stock of the Company.
5. Rights on Liquidation, Dissolution and Winding-up of the Company.
----------------------------------------------------------------
Upon any liquidation, dissolution or winding-up of the Company, the holders of
the Series B Preferred Stock will be entitled to be paid, before any
distribution or payment is made to the holders of the Series A Preferred Stock
or the holders of the Common Stock, an amount in cash equal to the aggregate
Liquidation Value of all the Series B Preferred Stock then outstanding, and the
holders of the Series B Preferred Stock will not be entitled to any further or
additional payment.
6. Conversion of Series B Preferred Stock into Common Stock. The holders
--------------------------------------------------------
of the series s Preferred Stock shall have conversion rights as follows (the
"Conversion Rights"):
6.1 Right to Convert. Each share of Series B Preferred Stock shall
----------------
be convertible, at the option of the holder thereof, at any time after the
issuance of such shares, at the office of the Company or any transfer agent for
the Series B Preferred Stock, into such number of fully paid and nonassessable
shares of Common Stock as is determined by dividing one dollar ($1.00) by the
conversion price (as defined in Section 6.2 below) in effect at the time of the
conversion.
6.2 Series B Conversion Price. The price for converting each share
-------------------------
of Series B Preferred Stock into a share of Common Stock (the "Series B
Conversion Price") shall initially be one dollar and fifty cents ($1.50) and the
Series B Conversion Price shall be subject to adjustment as provided in Section
6.6 below.
6.3 Automatic Conversion. Each share of Series B Preferred Stock
--------------------
shall automatically be converted into shares of Common Stock at its then
effective Series B Conversion Price immediately upon the closing of a firm
commitment to underwrite a public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended, covering the offer and
sale of shares of Common Stock of the Company, in an aggregate amount of at
least Three Million Dollars ($3,000,000) at a price to the public of at least
200% of the Series B Conversion Price as adjusted only for stock splits,
dividends and combinations.
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6.4 Mechanics of Conversion. Before any holders of Series B
-----------------------
Preferred Stock shall be entitled to convert the same into shares of Common
Stock, such holder shall surrender the certificate or certificates therefor,
duly endorsed, at the office of the Company or of any transfer agent for the
Series B Preferred Stock, and shall give written notice to the Company at such
office that such elects to convert the same. The Company shall, as soon as
practicable thereafter, issue and deliver at such office to such holder of
Series B Preferred Stock a certificate or certificates for the number of shares
of Common Stock to which such holder shall 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 B Preferred Stock
to be converted, 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.
6.5 Fractional Shares. No fractional shares of Common Stock shall be
-----------------
issued upon conversion of the Series B Preferred Stock. Fractional shares shall
not be issued; and in lieu of fractional shares to which the holder would
otherwise be entitled, the Company shall pay cash equal to said fraction
multiplied by the then applicable Series B Conversion Price.
6.6 Adjustment of Series B Conversion Price. The Series B Conversion
---------------------------------------
Price for each share of Series B Preferred Stock, whether or not issued, shall
be subject to adjustment from time to time as follows:
6.6.1 If the Company shall issue any Common Stock (or other securities
referred to in Sections 6.6.1.3(i) and 6.6.1.3(ii) below) other than "Excluded
Stock" (as defined in Section 6.6.2 below) for a consideration per share less
than the Series B Conversion Price in effect immediately prior to the issuance
of such Common Stock or other securities, then the Series B Conversion Price in
effect immediately after such issuance shall be reduced to a price (calculated
to the nearest cent) determined by dividing (a) an amount equal to the sum of
(1) the number of shares of Common Stock or such other securities outstanding
immediately prior to such issue multiplied by the then existing Series B
Conversion Price, and (2) the consideration, if any, received by the Company
upon said issue, by (b) the total number of shares of Common Stock or such other
securities outstanding immediately after such issue.
For the purposes of any adjustment of the Series B Conversion Price
pursuant to this Section 6.6.1, the following provisions shall be applicable:
-3-
6.6.1.1 In the case of the issuance of Common Stock for
cash, the consideration shall be deemed to be the amount of cash paid therefor
without deducting any discounts or commissions paid or incurred by the Company
in connection with the issuance and sale thereof.
6.6.1.2 In the case of the issuance of Common Stock for a
consideration in whole or in part other than cash, the consideration other than
cash shall be deemed to be the fair value thereof. The fair value of any
consideration other than cash will be determined jointly by the Company and the
holders of a majority of the outstanding Series B Preferred Stock. If such
parties are unable to reach agreement within a reasonable period of time, the
fair value of such consideration will be determined by an appraiser jointly
selected by the Company and the holders of a majority of the outstanding Series
B Preferred Stock. The cost of such appraisers shall be borne by the Company.
6.6.1.3 In the case of the issuance of (a) options to purchase
or rights to subscribe for Common Stock (other than Excluded Stock), (b)
securities by their terms convertible into or exchangeable for Common Stock
(other than Excluded Stock), or (c) options to purchase or rights to subscribe
for such convertible or exchangeable securities:
(i) The aggregate maximum number of shares of Common
Stock deliverable upon exercise of such options to purchase or rights to
subscribe upon exercise of such options to purchase or rights to subscribe for
Common Stock shall be deemed to have been issued at the time such options or
rights were issued and for a consideration equal to the consideration
(determined in the manner provided in Sections 6.6.1.1 and 6.6.1.2 above), if
any, received by the Company upon the issuance of such options, or rights plus
the minimum purchase price provided in such options or rights for the Common
Stock covered thereby;
(ii) The aggregate maximum number of shares of Common
Stock deliverable upon conversion of or in exchange for any such convertible or
exchangeable securities, or upon the exercise of options to purchase or rights
to subscribe for such convertible or exchangeable securities and subsequent
conversion or exchange thereof, shall be deemed to have been issued at the time
such securities were issued or such options or rights were issued and for a
consideration equal to the consideration received by the Company for any such
securities and related options of rights (excluding any cash received on account
of accrued interest, or accrued dividends), plus the additional consideration,
if any, to be received by the Company upon the conversion or exchange of such
securities or the exercise of any related options or rights (the consideration
in each case to be determined in the manner provided in Sections 6.6.1.1 and
6.6.1.2
-4-
6.6.2 "Excluded Stock" shall mean:
6.6.2.1 All shares of Common Stock issued and outstanding
as of the date hereof;
6.6.2.2 All shares of Common Stock that may be issued
pursuant to the conversion of three convertible notes dated April 30, 1986, in
the aggregate principal amount of One hundred Fifty Thousand Dollars ($150,000)
(the "Convertible Notes");
6.6.2.3 All shares of Common Stock into which the Series
A Preferred Stock and this Series s Preferred Stock are convertible;
6.6.2.4 All shares of Common Stock that may be issued
pursuant to the exercise of warrants held by the limited partners of IMS Rental
Partners, Ltd., a Colorado Limited Partnership;
6.6.2.5 An aggregate of 50,000 shares of Common Stock
that may be issued to Columbia Group, Ltd. pursuant to an agreement dated August
11, 1986; and
6.6.2.6 An aggregate of 450,000 shares of Common Stock
issued or to be issued under any employee, consultant or director incentive
arrangement or plan adopted by the Company's Board of Directors for an exercise
price of not less than $1.00 per share, including, without limitation, the
Company "1986 Incentive Stock Option Plan."
6.6.2.7 An aggregate of 240,000 shares of Common Stock
issued or to be issued to Welsh, Carson, Anderson & Stowe IV and affiliated
purchasers for consideration of $1.25 per share.
All shares of Excluded Stock specified in
paragraphs 6.6.2.1 through 6.6.2.3 inclusive, and 6.6.2.7 shall be deemed to be
outstanding for all purposes of the computations of Section 6.6.1 above.
6.6.3 If the number of shares of Common Stock outstanding at
any time after the date hereof is increased by a stock dividend payable in
shares of Common Stock or by a subdivision or split-up of shares of Common
Stock, then on the date such payment is made or such change is effective, the
Series B Conversion Price shall be appropriately decreased so that the number of
shares of Common Stock issuable upon conversion of any shares of Series B
Preferred Stock shall be increased in proportion to such increase of outstanding
shares.
-5-
6.6.4 It the number of shares of Common Stock outstanding at
any time after the date hereof is decreased by a combination of the outstanding
shares of Common Stock, then on the effective date of such combination, the
Series B Conversion Price shall be appropriately increased so that the number of
shares of Common Stock issuable upon conversion of any shares of Series B
Preferred Stock shall in decreased in proportion to such decrease of outstanding
shares.
6.6.5 The Company shall comply with the provisions of Section
6.6.1 above if the Company shall declare a cash dividend upon its Common Stock
payable otherwise than out of retained earnings or shall propose to distribute
to holders of its Common Stock shares of its capital stock (other than Common
Stock), stock or other securities of other persons, evidences of indebtedness
issued by the Company or other persons, assets (excluding cash dividends) or
options or rights (excluding options to purchase and rights to subscribe for
Common Stock or other securities of the Company convertible into or exchangeable
for Common Stock).
6.6.6 If at any time after the date hereof there occurs any
capital reorganization, or any reclassification of the capital stock of the
Company (other than a change in par value or as a result of a stock dividend or
subdivision, split-up or combination of shares), or the consolidation or merger
of the Company with or into another person (other than a consolidation or merger
in which the Company is the continuing entity and which does not result in any
change in the Common Stock), or the sale or other disposition of all or
substantially all of the properties and assets of the Company as an entity to
any other person, the shares of Series B Preferred Stock shall, after such
reorganization, reclassification, consolidation, merger, sale or other
disposition, be convertible into the kind and number of shares of stock or other
securities or property of the Company or of the entity resulting from such
consolidation or surviving such merger or to which such properties and assets
shall have been sold or otherwise disposed to which such holder would have been
entitled if, immediately prior to such reorganization, reclassification,
consolidation, merger, sale or other disposition, such holder had converted his
shares of Series B Preferred Stock into Common Stock. The provisions of this
Section 6.6.6 shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, sales or other dispositions.
6.6.7 All calculations under this Section 6 shall be made to
the nearest cent or to the nearest one hundredth (1/100) of a share, as the case
may be.
7. Minimal Adjustments. No adjustment in the Series B Conversion Price
-------------------
need be made if such adjustment would result in a change in the Series B
Conversion Price of less than $.0001 per
-6-
share. Any adjustment of less than $.001 that is not made shall be carried
forward and shall be made at the time of and together with any subsequent
adjustment which, on a cumulative basis, amounts to an adjustment of $.001 or
more in the Series B Conversion Price.
8. No Impairment. The Company shall 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 Company, but shall at all times in good
faith assist in the carrying out of all the provisions of this Section 8 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 Series B Preferred Stock against
impairment.
9. Certificate as to Adjustment. Upon the occurrence of each adjustment
----------------------------
or readjustment of the Series B Conversion Price pursuant to this Section 9, the
Company at its expense shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and prepare and furnish to each holder of
affected Series B Preferred Stock a certificate, which shall be certified by the
Company's accountants if requested by such holder, setting forth such adjustment
or readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Company shall, upon written request at any time of
any holder of Series B Preferred Stock, furnish or cause to be furnished to such
holder a like certificate setting forth (a) such adjustments and readjustments,
(b) the Series B Conversion Price at the time in effect, and (c) the number of
shares of Common Stock and the amount, if any, of other property that at the
time would be received upon the conversion of the Series B Preferred Stock.
10. Notices of Record Date. In the event of any taking by the Company of
----------------------
a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend (other
than a cash dividend) or other distribution, the Company shall mail to each
holder of Series B 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.
11. Reservation of Stock Issuable upon Conversion. The
---------------------------------------------
Company 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 Series B 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 the Series B Preferred Stock; and if
at
-7-
any time the number of authorized but unissued shares of Common Stock shall not
be sufficient to effect the conversion of all then outstanding shares of the
Series B Preferred Stock, the Company shall 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.
12. Notices. Any notice required to be given to the holder of shares of
-------
Series B Preferred Stock shall be deemed given if deposited in the United States
mail, postage prepaid, and addressed to each holder of record at his address
appearing on the books of the Company.
13. Protective Provisions. So long as any of the Series B Preferred Stock
---------------------
shall be outstanding, the Company shall not, without first obtaining the
approval (by vote or written consent, as provided by law) of the holders of at
least fifty one percent (51%) of the outstanding shares of Series B Preferred
Stock, alter or change the rights, preferences or privileges of the Series B
Preferred Stock.
14. No Reissuance of Preferred Stock. No share or shares of Series B
--------------------------------
Preferred Stock acquired by the Company by reason of redemption, purchase,
conversion or otherwise shall be reissued, and all such shares shall be
cancelled, retired and eliminated from the shares that the Company shall be
authorized to issue.
15. Amendment and Waiver. Amendments, modifications or waivers of any of
--------------------
the terms hereof will be binding and effective if the prior written consent of
holders of at least 51% of the Series B Preferred Stock outstanding at the time
such action is taken is obtained; provided that no such action will change (a)
the rate at which or the manner in which dividends on the Series B Preferred
Stock accrue or the times at which such dividends become payable, unless the
prior written consent of the holders of at least 91% of the Series B Preferred
Stock then outstanding is obtained, (b) the Conversion Price of the Series B
Preferred Stock or the number of shares or class of stock into which the Series
B Preferred Stock is convertible, unless the prior written consent of the
holders of at least 91% of the Series B Preferred Stock then outstanding is
obtained or (c) the percentage required to approve any change described in
clauses (a) and (b) above, unless the prior written consent of the holders of at
least 91% of the Series B Preferred Stock then outstanding is obtained.
-8-
Dated: October 22, 1986
INTEGRATED MEDICAL SYSTEMS, INC.,
a Colorado corporation
By: /s/ John A. McChesney
------------------------------
John A. McChesney
President
S E A L
ATTEST:
/s/ James A. Larson
-----------------------
James A. Larson
Secretary
STATE OF COLORADO )
CITY AND COUNTY OF JEFFERSON )
Before me, Ruth Hanna, a Notary Public in and for such County and State
personally appeared John A. McChesney and James A. Larson, who acknowledged
before me that they are the President and Secretary, respectively, of Integrated
Medical Systems, Inc., and that they signed the foregoing Statement of
Designation, Voting Powers, Preferences and Rights of the Series B Preferred
Stock of Integrated Medical Systems, Inc. as their free and voluntary act and
deed.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 22nd day of
October, 1986.
/s/ Ruth Hanna
---------------
Notary Public
S E A L
My commission expires: My Commission expires February 21, 1989
-9-