EXHIBIT 3.1
RESTATED ARTICLES OF INCORPORATION
OF
PIONEER SEMICONDUCTOR CORPORATION,
A CALIFORNIA CORPORATION
The undersigned, Alex C. Hui and Chi-Hung Hui, do hereby certify that:
ONE: They are the duly elected and acting President and Secretary, respectively,
of Pioneer Semiconductor Corporation, a California corporation.
TWO: The Articles of Incorporation of said corporation are amended and restated
in full to read as follows:
ARTICLE I
The name of this Corporation is Pioneer Semiconductor Corporation.
ARTICLE 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
Corporation Code.
ARTICLE III
A. Classes of Stock. This Corporation is authorized to issue two classes
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of shares, designated "Preferred Stock" and "Common Stock." The total number of
shares which the Corporation is authorized to issue is fifty million
(50,000,000) shares. Thirty million (30,000,000) shares shall be Common Stock,
without par value (the "Common Stock"), and twenty million (20,000,000) shares
shall be Preferred Stock, without par value (the "Preferred Stock").
B. Rights, Preferences and Privileges of Preferred Stock. The Preferred
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Stock may be issued from time to time in one or more series. The Board of
Directors is hereby authorized, within the limitations and restrictions stated
in these Articles of Incorporation, to fix or alter the individual rights,
dividend rate, conversion rights, voting rights, rights and terms of redemption
(including sinking fund provisions), the redemption price or prices, the
liquidation preference of any wholly unissued series of Preferred Stock, and the
number of shares constituting any such series and the designation thereof, or
any of them, and to increase or decrease the number of shares of any series
subsequent to the issue of shares of that series, but not below the number of
shares of such series then outstanding. In case the number of shares of any
series shall be so
decreased, the shares constituting such decrease shall resume the status which
they had prior to the adoption of the resolution originally fixing the number of
shares of such series.
ARTICLE IV
The rights, preferences, privileges, restrictions and other matters
relating to the shares of Series A Preferred Stock and Series B Preferred Stock
are as follows:
A. Designation. Five million two hundred thousand (5,200,00) shares of
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Preferred Stock are hereby designated "Series A Preferred Stock" (hereinafter
referred to as the "Series A Stock") with the rights, preferences and privileges
specified herein. Four million (4,000,000) shares are hereby designated and
known as "Series B Preferred Stock" (hereinafter referred to as the "Series B
Stock") with the rights, preferences and privileges specified herein. One
million eight hundred seventy-five thousand (1,875,000) shares of Preferred
Stock are hereby designated "Series C Preferred Stock" (hereinafter referred to
as the "Series C Stock"). As described further herein, all of the rights,
privileges, preferences and restrictions of the Series C Stock shall be and
hereby are deemed pari passu (on an equal basis) with (including, without
limitation, inclusion in provisions with respect to liquidation and acquisition
preferences, redemption and/or approval of matters by vote or written consent)
any of those of the Series A Stock and Series B Stock.
B. Dividends. The holders of outstanding Series A Stock, Series B Stock
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and Series C Stock shall be entitled, to receive in any fiscal year, when and as
declared by the Board of Directors of the corporation, out of any assets at the
time legally available therefor, dividends at the rate of $.04 per share of
Series A Stock per annum, $.08 per share of Series B Stock per annum and $.13
per share of Series C Stock per annum, before any dividend is paid on Common
Stock. The Series A Stock, Series B Stock and Series C Stock shall rank on a
parity basis as to the declaration and payment of dividends thereon, and no
dividend shall be paid on or declared and set apart for the shares of a series
of the Preferred Stock unless at the same time a like proportion to the relative
annual dividend, ratably in proportion to the respective annual dividend rate
fixed therefor, shall be paid on or declared and set apart for the other series
of the Preferred Stock. Such dividends may be payable quarterly or otherwise as
the Board of Directors may from time to time determine.
Dividends may be declared and paid upon Common Stock in any fiscal year of
the corporation only if dividends shall have been paid to or declared and set
apart upon all shares of Series A Stock, Series B Stock and Series C Stock at
such annual rate for each quarter of such fiscal year of the corporation
including the quarter in which such dividends upon Common Stock are declared.
To the extent dividends are paid on the Common Stock, the holders of Series A
Stock, Series B Stock and Series C Stock shall be entitled to dividends at least
as large per share (as determined on an as-converted basis) as those declared or
paid with respect to the Common Stock. The right to such dividends on Series A
Stock, Series B Stock and Series C Stock shall not be cumulative and no right
shall accrue to holders of Series A Stock, Series B Stock and Series C Stock by
reason of the fact that dividends on said shares are not declared in any prior
year, nor shall any undeclared or unpaid dividend bear or accrue interest.
C. Liquidation Preference.
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(1) In the event of any liquidation, dissolution, or winding up of the
corporation, either voluntary or involuntary, the holders of the Series A Stock,
Series B Stock and Series C Stock shall be entitled to receive, prior and in
preference to any distribution of any of the assets or surplus funds of the
corporation to the holders of the Common Stock by reason of their ownership of
such stock, an amount per share of Series A Stock equal to the sum of $.50 plus
all declared but unpaid dividends (the "Series A Liquidation Preference"), an
amount per share of Series B Stock equal to the sum of $1.00 plus all declared
but unpaid dividends (the "Series B Liquidation Preference") and an amount per
share of Series C Stock equal to the sum of $1.60 plus all declared but unpaid
dividends (the "Series C Liquidation Preference"), for each share of Series A
Stock, Series B Stock and Series C Stock, respectively, then held by them. If
upon the occurrence of such event, the assets and funds thus distributed among
the holders of the Series A Stock, Series B Stock and Series C Stock shall be
insufficient to permit the payment to such holders of the full aforesaid
preferential amounts, then the entire assets and funds of the corporation
legally available for distribution shall be distributed pari passu among the
holders of the Series A Stock, Series B Stock and Series C Stock in proportion
to the full preferential amount each such holder is otherwise entitled to
receive. After the payment or setting apart of payment to the holders of Series
A Stock, Series B Stock and Series C Stock of the full amounts to which they
shall be entitled as aforesaid, the holders of Common Stock shall be entitled to
receive ratably on a per share basis all the remaining assets of the
corporation.
(2) A consolidation or merger of the corporation with or into any other
corporation or corporations, or a sale of all or substantially all of the assets
of the corporation, shall be deemed to be a liquidation, dissolution, or winding
up within the meaning of this Section C.
D. Voting Rights.
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(1) The holder of each share of the Series A Stock, Series B Stock and
Series C Stock shall be entitled to the number of votes equal to the number of
shares of Common Stock into which such shares of Series A Stock, Series B Stock
and Series C Stock could be converted on the record date for the vote or consent
of shareholders and, subject to the provisions of subsections (2) and (3) below,
shall have voting rights and powers equal to the voting rights and powers of the
Common Stock and shall be entitled to notice of any shareholders' meeting in
accordance with the Bylaws of the corporation. Fractional votes shall not,
however, be permitted and any fractional voting rights resulting from the above
formula (after aggregating all shares into which shares of Series A Stock,
Series B Stock and Series C Stock held by each holder could be converted) shall
be rounded to the nearest whole number (with one-half being rounded upward).
(2) At each annual election of directors of the corporation, the holders
of Series A Stock shall be entitled, voting as a single class, to elect one (1)
director of the corporation. In the case of any vacancy in the office of a
director elected by the holders of Series A Stock, a successor shall be elected
to hold office for the unexpired term of such director by the affirmative vote
of
the holders of the Series A Stock, voting as a single class, given at a special
meeting of such shareholders duly called for that purpose or by the unanimous
written consent of such shareholders. Except for a vacancy created by the
removal of a director as provided below and prior to an annual or special
meeting of the holders of the Series A Stock convened for the purpose of
electing a director to fill a vacancy on the Board of Directors as provided
above, the acting and incumbent director previously elected pursuant to this
subparagraph (2) may appoint a director to serve until the holders of the Series
A Stock duly elect a successor director. Any director who shall have been
elected by the holders of Series A Stock may appoint a director to serve as such
until the holders of the Series A Stock duly elect a successor director. Any
director who shall have been elected by the holders of the Series A Stock may be
removed during the aforesaid term of office, either for or without cause, by,
and only by, the affirmative vote of the holders of that percentage of the
Series A Stock required by Section 303(a) of the California General Corporations
Law, given at a special meeting of such shareholders duly called for that
purpose or by the unanimous written consent of such shareholders, and any such
vacancy thereby created may be filled by the holders of the Series A Stock
represented at such meeting or by such unanimous written consent.
(3) At each annual election of directors of the corporation, the holders
of Series B Stock and Series C Stock, voting together as a single class, shall
be entitled, voting separately as a single class, to elect one (1) director of
the corporation. In the case of any vacancy in the office of a director elected
by the holders of Series B Stock and Series C Stock, a successor shall be
elected to hold office for the unexpired term of such director by the
affirmative vote of the holders of the Series B Stock and Series C Stock, voting
together as a single class, given at a special meeting of such shareholders duly
called for that purpose or by the unanimous written consent of such
shareholders. Except for a vacancy created by the removal of a director as
provided below and prior to an annual or special meeting of the holders of the
Series B Stock and Series C Stock convened for the purpose of electing a
director to fill a vacancy on the Board of Directors as provided above, the
acting and incumbent director previously elected by the holders of Series B
Stock and Series C Stock may appoint a director to serve as such until the
holders of the Series B Stock and Series C Stock duly elect a successor
director. Any director who shall have been elected by the holders of the Series
B Stock and Series C Stock may be removed during the aforesaid term of office,
either for or without cause, by, and only by, the affirmative vote of the
holders of that percentage of the Series B Stock and Series C Stock required by
Section 303(a) of the California General Corporations Law, given at a special
meeting of such shareholders duly called for that purpose or by the unanimous
written consent of such shareholders, and any such vacancy thereby created may
be filled by the holders of the Series B Stock and Series C Stock represented at
such meeting or by such unanimous written consent.
(4) At each annual election of directors of the corporation, the holders
of Common Stock shall be entitled, voting as a separate class, to elect all
remaining directors not elected pursuant to subparagraphs (2) and (3) above. In
the case of any vacancy in the office of a director elected by the holders of
Common Stock, a successor shall be elected to hold office for the unexpired term
of such director by the affirmative vote of the holders of a majority of the
Common Stock given at a special meeting of such shareholders duly called for
that purpose or by the unanimous written consent of such shareholders. Except
for a vacancy created by the removal of a director as provided below and prior
to an annual or special meeting of the holders of the Common Stock
convened for the purpose of electing a director to fill a vacancy on the Board
of Directors as provided above, the acting and incumbent director previously
elected pursuant to this subparagraph (4) may appoint a director to serve as
such until the holders of the Common Stock duly elect a successor director. Any
director who shall have been elected by the holders of the Common Stock may be
removed during the aforesaid term of office, either for or without cause, by,
and only by, the affirmative vote of the holders of that percentage of the
Common Stock required by Section 303(a) of the California General Corporations
Law, given at a special meeting of such shareholders duly called for that
purpose or by the unanimous written consent of such shareholders, and any such
vacancy thereby created may be filled by the holders of the Common Stock
represented at such meeting or by such unanimous written consent.
E. Conversion. The holders of the Series A Stock, Series B Stock and
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Series C Stock shall have conversion rights as follows (the "Conversion
Rights"):
(1) Right to Convert. Each share of Series A Stock shall be convertible,
at the option of the holder thereof, at any time after the date of issuance of
such share, at the office of the corporation or any transfer agent for the
Preferred Stock, into such number of fully paid and nonassessable shares of
Common Stock as is determined by dividing fifty cents ($.50) by the Series A
Conversion Price (as hereinafter defined). Each share of Series B Stock shall be
convertible, at the option of the holder thereof, at any time after the date of
issuance of such share, at the office of the corporation or any transfer agent
for the Preferred Stock, into such number of fully paid and nonassessable shares
of Common Stock as is determined by dividing one dollar ($1.00) by the Series B
Conversion Price (as hereinafter defined) in effect at the time of conversion.
Each share of Series C Stock shall be convertible, at the option of the holder
thereof, at any time after the date of issuance of such share, at the office of
the corporation or any transfer agent for the Preferred Stock, into such number
of fully paid and nonassessable shares of Common Stock as is determined by
dividing one dollar and sixty cents ($1.60) by the Series C Conversion Price (as
hereinafter defined) in effect at the time of conversion. The initial conversion
price per share of Series A Stock (the "Series A Conversion Price"), Series B
Stock (the "Series B Conversion Price") and Series C Stock (the "Series C
Conversion Price") shall be fifty cents ($0.50), one dollar ($1.00) and one
dollar and sixty cents ($1.60), respectively. The Series A Conversion Price,
Series B Conversion Price and Series C Conversion Price are sometimes
collectively referred to herein as the "Conversion Prices"). The initial
Conversion Prices shall be subject to adjustment as hereinafter provided.
(2) Automatic Conversion. Each share of Series A Stock, Series B Stock
and Series C Stock shall automatically be converted into shares of Common Stock
at the then effective Conversion Price upon the earlier of (i) the closing of a
firm commitment underwritten public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended, covering
the offer and sale of Common Stock for the account of the corporation to the
public at a price per share of Common Stock of not less than $3.00 (as adjusted
for stock splits, stock dividends and the like) from which the aggregate gross
proceeds to the corporation (prior to underwriting commissions and expenses) is
not less than $10,000,000 or (ii) the voluntary conversion into Common Stock of
seventy percent (70%) or more of the originally issued shares of Series A Stock,
Series B Stock and Series C Stock treated for such purpose as one class.
(3) Mechanics of Conversion. No fractional shares of Common Stock shall
be issued upon conversion of the Series A Stock, Series B Stock and Series C
Stock. In lieu of any fractional shares to which the holder would otherwise be
entitled, the corporation shall pay cash equal to such fraction multiplied by
the effective Series A Conversion Price, Series B Conversion Price and Series C
Conversion Price. Before any holder of Series A Stock, Series B Stock or Series
C Stock shall be entitled to convert the same into full shares of Common Stock,
such holder shall surrender the certificate or certificates therefor, duly
endorsed, at the office of the corporation or of any transfer agent for the
Series A Stock, Series B Stock or Series C Stock, and shall give written notice
to the corporation at such office that such holder elects to convert the same.
The corporation shall, as soon as practicable thereafter, issue and deliver at
such office to such holder of Series A Stock, Series B Stock or Series C Stock,
a certificate or certificates for the number of shares of Common Stock to which
such holder shall be entitled as aforesaid and a check payable to such holder in
the amount of any cash amounts payable as the result of a conversion into
fractional shares of Common Stock. Such conversion shall be deemed to have been
made immediately prior to the close of business on the date of such surrender of
the shares of Series A Stock, Series B Stock or Series C 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. If the conversion
is in connection with an underwritten offer of securities registered pursuant to
the Securities Act of 1933, the conversion may, at the option of any holder
tendering Series A Stock, Series B Stock or Series C Stock for conversion, be
conditioned upon the closing with the underwriter of the sale of securities
pursuant to such offering, in which event the person(s) entitled to receive the
Common Stock issuable upon such conversion of the Series A Stock, Series B Stock
or Series C Stock shall not be deemed to have converted such Series A Stock,
Series B Stock or Series C Stock until immediately prior to the closing of such
sale of securities.
(4) Adjustments to Conversion Price for Diluting Issues.
(a) Special Definitions. For purposes of this paragraph (4), the
following definitions shall apply:
(i) 'Options' shall mean rights, options or warrants
to subscribe for, purchase or otherwise acquire either Common Stock or
Convertible Securities.
(ii) 'Original Issue Date' shall mean the date on
which a share of Series C Stock was first issued.
(iii) 'Convertible Securities' shall mean any evidence
of indebtedness, shares (other than Common Stock, Series A Stock, Series B Stock
and Series C Stock) or other securities convertible into or exchangeable for
Common Stock.
(iv) 'Additional Shares of Common Stock, shall mean
all shares of Common Stock issued (or, pursuant to subparagraph (4)(c), deemed
to be issued) by the corporation after the original issue date, other than
Common Stock issued or issuable:
(w) upon conversion of shares of Series A Stock, Series B
Stock and Series C Stock;
(x) to officers, directors or employees of, or consultants
to, the corporation pursuant to a stock grant, option plan or purchase plan or
other employee stock incentive program (collectively, the "Plans") approved by
the Board of Directors;
(y) as a dividend or distribution on Series A Stock, Series
B Stock and Series C Stock; and
(z) by way of dividend or other distribution on Common
Stock excluded from the definition of Additional Shares of Common Stock by the
foregoing clauses (w), (y) or this clause (z) or Common Stock so excluded.
(b) No Adjustment of Conversion Price. No adjustment in
the Conversion Price of a particular share of Series A Stock, Series B Stock or
Series C Stock shall be made in respect of the issuance of Additional Shares of
Common Stock unless the consideration per share for an Additional Share of
Common Stock issued or deemed to be issued by the corporation is less than the
Series A Conversion Price, Series B Conversion Price or Series C Conversion
Price in effect on the date of, and immediately prior to such issue, for such
share of Series A Stock, Series B Stock or Series C Stock, respectively.
(c) Deemed Issuance of Additional Shares of Common Stock.
(i) Options and Convertible Securities. In the event the
corporation at any time or from time to time after the Original Issue Date shall
issue any Options or Convertible Securities or shall fix a record date for the
determination of holders of any class of securities entitled to receive any such
Options or Convertible Securities, then the maximum number of shares (as set
forth in the instrument relating thereto without regard to any provisions
contained therein for a subsequent adjustment of such number) of Common Stock
issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the conversion or exchange of such convertible
securities, shall be deemed to be Additional Shares of Common Stock issued as of
the time of such issue or, in case such a record date shall have been fixed, as
of the close of business on such record date, provided that Additional Shares of
Common Stock shall not be deemed to have been issued unless the consideration
per share (determined pursuant to subparagraph E(4)(e) hereof) of such
Additional Shares of Common Stock would be less than the Series A Conversion
Price, Series B Conversion Price and Series C Conversion Price in effect on the
date of and immediately prior to such issue, or such record date, as the case
may be, and provided further that in any such case in which Additional Shares of
Common Stock are deemed to be issued:
(x) no further adjustment in the Series A Conversion Price,
Series B Conversion Price and Series C Conversion Price shall be made upon the
subsequent issue of Convertible Securities or shares of Common Stock upon the
exercise of such Options or conversion or exchange of such Convertible
Securities;
(y) if such Options or Convertible Securities by
their terms provide, with the passage of time or otherwise, for any increase in
the consideration payable to the corporation, or decrease in the number of
shares of Common Stock issuable, upon the exercise, conversion or exchange
thereof, the Series A Conversion Price, Series B Conversion Price or Series C
Conversion Price computed upon the original issue thereof (or upon the
occurrence of a record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon any such increase or decrease becoming
effective, be recomputed to reflect such increase or decrease insofar as it
affects such Options or the rights of conversion or exchange under such
Convertible Securities; and
(z) no readjustment pursuant to clause (y) above
shall have the effect of increasing the Series A Conversion Price, Series B
Conversion Price or Series C Conversion Price to an amount which exceeds the
lower of (i) the Series A Conversion Price, Series B Conversion Price or Series
C Conversion Price on the original adjustment date, or (ii) the Series A
Conversion Price, Series B Conversion Price or Series C Conversion Price that
would have resulted from any issuance of Additional Shares of Common Stock
between the original adjustment date and such readjustment date.
(ii) Stock Dividends and Subdivisions. In the event the
corporation at any time or from time to time after the Original Issue Date shall
declare or pay any dividend on the Common Stock payable in Common Stock, or
effect a split or subdivision of the outstanding shares of Common Stock into a
greater number of shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in Common), then and in any such event, Additional
Shares of Common Stock shall be deemed to have been issued:
(x) in the case of any such dividend, immediately
after the close of business on the record date for the determination of holders
of any class of securities entitled to receive such dividend, or
(y) in the case of any such subdivision, at the
close of business on the date immediately prior to the date upon which such
corporate action becomes effective.
(d) Adjustment of Conversion Price Upon Issuance of Additional Shares
of Common Stock. In the event this corporation shall issue Additional Shares of
Common Stock (including Additional Shares of Common Stock deemed to be issued
pursuant to subparagraph (4)(c) of this Section E) without consideration or for
a consideration per share less than the applicable Series A Conversion Price,
Series B Conversion Price and/or Series C Conversion Price in effect immediately
prior to such event, such Series A Conversion Price, Series B Conversion Price
and/or Series C Conversion Price, as applicable, shall be reduced, concurrently
with such issue, to a price (calculated to the nearest tenth of a cent)
determined by multiplying such Conversion Price by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such issue plus the number of shares of Common Stock which the
aggregate consideration received by the corporation for the total number of
Additional Shares of Common Stock so issued would purchase at such Conversion
Price; and the denominator of which shall be the number of shares of Common
Stock outstanding immediately prior to such issue plus the number of such
Additional Shares of
Common Stock so issued; provided that, for the purposes of this paragraph (d),
all shares of Common Stock issuable upon exercise of outstanding Options and
conversion of outstanding Convertible Securities shall be deemed to be
outstanding, and immediately after any Additional Shares of Common Stock are
deemed issued pursuant to paragraph (iii), such Additional Shares of Common
Stock shall be deemed to be outstanding.
(e) Determination of Consideration. For purposes of this paragraph
E(4), the consideration received by the corporation for the issue of any
Additional Shares of Common Stock shall be computed as follows:
(i) Cash and property: Such consideration shall:
(x) insofar as it consists of cash, be computed
at the aggregate amount of cash received by the corporation excluding amounts
paid or payable for accrued interest or accrued dividends;
(y) insofar as it consists of property other than
cash, be computed at the fair value thereof at the time of such issue, as
determined in good faith by the Board of Directors; and
(z) in the event Additional Shares of Common
Stock are issued together with other shares or securities or other assets of the
corporation for consideration which covers both, be the proportion of such
consideration so received, computed as provided in clauses (x) and (y) above, as
determined in good faith by the Board of Directors.
(ii) Options and Convertible Securities. The consideration
per share received by the corporation for Additional Shares of Common Stock
deemed to have been issued pursuant to subparagraph E(4)(C)(i), relating to
Options and Convertible Securities, shall be determined by dividing
(x) the total amount, if any, received or
receivable by the corporation as consideration for the issue of such Options or
Convertible Securities, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating thereto without regard
to any provision contained therein for a subsequent adjustment of such
consideration) payable to the corporation upon the exercise of such Options or
the conversion or exchange of such Convertible Securities, or in the case of
options for Convertible Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such Convertible Securities by
(y) the maximum number of shares of Common Stock
(as set forth in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of such number) issuable
upon the exercise of such Options or the conversion or exchange of such
Convertible Securities.
(iii) Stock Dividends and Stock Subdivisions. Any Additional
Shares of Common Stock deemed to have been issued, relating to stock dividends
and stock splits or subdivisions, shall be deemed to have been issued for no
consideration.
(f) Adjustment for Combinations or Consolidation of Common Stock. In
the event the outstanding shares of Common Stock shall be combined or
consolidated, by reclassification or otherwise, into a lesser number of shares
of Common Stock, the Series A Conversion Price, Series B Conversion Price and
Series C Conversion Price in effect immediately prior to such combination or
consolidation shall, concurrently with the effectiveness of such combination or
consolidation, be proportionately increased.
(5) Adjustments for Recapitalizations. If at any time or from time to
time there shall be a recapitalization of the Common Stock (other than a
subdivision or combination provided for elsewhere in paragraph (4) above,
provision shall be made so that the holders of the Series A Stock, Series B
Stock and Series C Stock shall thereafter be entitled to receive upon conversion
of the Series A Stock, Series B Stock and Series C Stock the number of shares of
stock or other securities or property of the Company or otherwise, to which a
holder of Common Stock deliverable upon conversion would have been entitled on
such recapitalization. In any such case, appropriate adjustment shall be made in
the application of the provisions of this paragraph (5) with respect to the
rights of the holders of the Series A Stock, Series B Stock and Series C Stock
after the recapitalization to the end that the provisions of this paragraph E
(including adjustment of the Series A Conversion Price, Series B Conversion
Price and Series C Conversion Price then in effect and the number of shares
issuable upon conversion of the Series A Stock, Series B Stock and Series C
Stock) shall be applicable after that event as nearly equivalent as may be
practicable.
(6) No Impairment. The corporation will not, by amendment of its Articles
of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the corporation but will at
all times in good faith assist in the carrying out of all the provisions of this
paragraph E and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the holders of the
Series A Stock, Series B Stock and Series C Stock against impairment.
(7) Certificate as to Adjustments. Upon the occurrence of each adjustment
or readjustment of the Series A Conversion Price, Series B Conversion Price and
Series C Conversion Price pursuant to this paragraph E, the corporation at its
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each holder of Series A Stock, Series B
Stock and Series C Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The corporation shall, upon the written request at any
time of any holder of Series A Stock, Series B Stock and Series C Stock, furnish
or cause to be furnished to such holder a like certificate setting forth (i)
such adjustments and readjustments, (ii) the Series A Conversion Price, Series B
Conversion Price and Series C Conversion Price at the time in effect, and (iii)
the number of shares of Common Stock and the amount, if any, of other property
which
at the time would be received upon the conversion of Series A Stock, Series B
Stock and Series C Stock.
(8) Notices of Record Date. In the event that this corporation shall
propose at any time:
(a) to declare any dividend or distribution upon its Common
Stock, whether in cash, property, stock or other securities, whether or not a
regular cash dividend and whether or not out of earnings or earned surplus;
(b) to offer for subscription pro rata to the holders of any
class or series of its stock any additional shares of stock of any class or
series or other rights;
(c) to effect any reclassification or recapitalization of the
shares of its Common Stock outstanding involving a change in the Common Stock;
or
(d) to merge or consolidate with or into any other corporation,
or sell, lease or convey all or substantially all its property or business or to
liquidate, dissolve or wind up;
then, in connection with each such event, this corporation shall
send to the holders of the Series A Stock and Series B Stock:
(i) at least 20 days' prior written notice of the date on
which a record shall be taken for such dividend, distribution or subscription
rights (and specifying the date on which the holders of Common Stock shall be
entitled thereto) or for determining rights to vote in respect of the matters
referred to in (c) and (d) above; and
(ii) in the case of the matters referred to in (c) and (d)
above, at least 20 days' prior written notice of the date when the same shall
take place (and specifying the date on which the holders of the Common Stock
shall be entitled to exchange their shares of Common Stock for securities or
other property deliverable upon the occurrence of such events).
(9) Issue Taxes. The corporation shall pay any and all issue and other
taxes that may be payable in respect of any issue or delivery of shares of
Common Stock on conversion of shares of Series A Stock, Series B Stock and
Series C Stock.
(10) Reservation of Common Stock Issuable Upon Conversion. The corporation
shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock solely for the purpose of effecting the conversion of the
shares of the Series A Stock, Series B Stock and Series C 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 A Stock, Series B Stock
and Series C Stock. If at 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 A Stock, Series B Stock and Series C Stock, the
corporation will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such purpose.
(11) Notices. Any notice required by the provisions of paragraph (8) to be
given to the holders of shares of Series A Stock, Series B Stock and Series C
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 corporation.
F. Rights and Preferences of Other Series of Preferred Stock. The Board
--------------------------------------------------------------
of Directors of the corporation shall be authorized, in designating additional
series of Preferred Stock of the corporation and fixing the rights, privileges
and preferences relating thereto, to fix such rights, privileges and preferences
of such additional series of Preferred Stock as to be of equal seniority and
grade as the Series A Stock, Series B Stock and Series C Stock herein
designated. Without limitation of the foregoing, the board may fix the dividend
and liquidation preferences of any such additional series of preferred stock so
that such additional series of preferred stock are entitled to participate pari
passu with the Series A Stock, Series B Stock and Series C Stock as to dividends
and liquidating distributions in such amounts as the board shall designate as
the dividend and liquidation preferences for any such additional series of
Preferred Stock.
G. Repurchase of Common Stock. Each holder of an outstanding share of
-------------------------------
Series A Stock, Series B Stock and Series C Stock shall be deemed to have
consented, for purposes of Sections 502, 503, and 506 of the California General
Corporation Law to distributions made by the corporation in connection with the
repurchase, at cost, of shares of Common Stock issued to or held by employees
upon termination of their employment pursuant to agreements providing for the
right of such repurchase between the corporation and such employees.
H. Protective Provisions.
---------------------------
(1) So long as any shares of Series A Stock are outstanding, the
Corporation shall not, without first obtaining the approval by vote or written
consent, in the manner provided by law, of the holders of a majority of the then
outstanding shares of Series A Stock, voting separately as a class;
(a) materially and adversely alter or change any of the powers,
preferences, privileges or rights of the Series A Stock; or
(b) increase the authorized number of shares of Series A Stock;
or
(c) amend the provisions of this paragraph (H)(1); or
(d) designate or issue any new class or series of shares having
preferences superior to the Series A Stock as to dividends, conversion rights or
liquidation.
(2) So long as any shares of Series B Stock are outstanding, the
Corporation shall not, without first obtaining the approval by vote or written
consent, in the manner provided by law, of the holders of a majority of the then
outstanding shares of Series B Stock, voting separately as a class;
(a) materially and adversely alter or change any of the powers,
preferences, privileges or rights of the Series B Stock; or
(b) increase the authorized number of shares of Series B Stock;
or
(c) amend the provisions of this paragraph (H)(2); or
(d) designate or issue any new class or series of shares having
preferences superior to the Series B Stock as to dividends, conversion rights or
liquidation.
(3) So long as any shares of Series C Stock are outstanding, the
Corporation shall not, without first obtaining the approval by vote or written
consent, in the manner provided by law, of the holders of a majority of the then
outstanding shares of Series C Stock, voting separately as a class;
(a) materially and adversely alter or change any of the powers,
preferences, privileges or rights of the Series C Stock; or
(b) increase the authorized number of shares of Series C Stock;
or
(c) amend the provisions of this paragraph (H)(3); or
(d) designate or issue any new class or series of shares having
preferences superior to the Series C Stock as to dividends, conversion rights or
liquidation.
(4) So long as any shares of Series A Stock, Series B Stock and Series C
Stock are outstanding, the corporation shall not, without first obtaining the
approval by vote or written consent, in the manner provided by law, of the
holders of a majority of the then outstanding shares of Series A Stock, Series B
Stock and Series C Stock, voting together as a single class, sell, convey or
otherwise dispose of all or substantially all of its property or business, or
merge into or consolidate with any other corporation (other than a wholly-owned
subsidiary corporation), or effect any transaction or series of related
transactions pursuant to which shares of the corporation representing more than
fifty percent (50%) of the voting power of the corporation are disposed of.
ARTICLE V
A. Limitation of Directors' Liability. The liability of the directors of
---------------------------------------
this corporation for monetary damages shall be eliminated to the fullest extent
permissible under California law.
B. Indemnification of Corporate Agents. This corporation is authorized
----------------------------------------
to provide indemnification of its agents (as defined in Section 317 of the
California Corporations Code) for breach of their duty to this corporation and
its shareholders through bylaw provisions or through agreements with the agents,
or both, in excess of the indemnification otherwise permitted by such Section
317, subject to the limits on such excess indemnification set forth in Section
204 of the California Corporations Code.
C. Repeal or Modification. Any repeal or modification of the foregoing
---------------------------
provisions of this Article V shall be prospective only and shall not adversely
affect any right of indemnification or limitation of liability of an agent of
this Corporation relating to acts or omissions occurring prior to such repeal or
modification.
THREE: The foregoing amendment and restatement of the Articles of
Incorporation has been duly approved by the Board of Directors of said
corporation.
FOUR: The foregoing amendment and restatement of the Articles of
Incorporation was duly approved by the holder of the requisite number of shares
of said corporation in accordance with Sections 902 and 903 of the California
Corporations Code. The total number of outstanding shares of each class
entitled to vote with respect to the foregoing amendment and restatement is
3,885,513 shares of Common Stock, 5,200,000 Series A Preferred Stock and
2,150,000 shares of Series B Preferred Stock. The number of shares voting in
favor of the foregoing amendment and restatement equaled or exceeded the vote
required. The percentage vote required was more than 50% of the outstanding
shares of Common Stock, voting separately as a class, more than 50% of the
outstanding shares of Series A Preferred Stock, voting separately as a class,
more than 50% of the outstanding shares of Series B Preferred Stock, voting
separately as a class, and more than 50% of the outstanding shares of Common
Stock, Series A Preferred Stock and Series B Preferred Stock, voting together as
a class.
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: July 8, 1993.
/s/ Alex C. Hui
----------------------------------
Alex C. Hui
President
/s/ Chi-Hung Hui
----------------------------------
Chi-Hung Hui
Secretary
CERTIFICATE OF AMENDMENT
OF THE RESTATED
ARTICLES OF INCORPORATION
OF
PIONEER SEMICONDUCTOR CORPORATION
Alex C. Hui and Chi-Hung Hui hereby certify that:
1. They are the President and the Secretary, respectively, of Pioneer
Semiconductor Corporation, a California corporation (the "Corporation").
2. Article I of the Restated Articles of Incorporation of said Corporation
shall be amended to read in full as follows:
"The name of this corporation is Pericom Semiconductor Corporation."
3. The foregoing Amendment has been approved by the Board of Directors of said
Corporation.
4. The foregoing Amendment has been approved by the required vote of the
shareholders of said Corporation in accordance with Section 902 of the
California Corporations Code. The total number of outstanding shares entitled to
vote with respect to the foregoing Amendment was 3,885,513 shares of Common
Stock, 5,200,000 shares of Series A Preferred Stock, 2,150,000 shares of Series
B Preferred Stock, and 1,875,000 shares of Series C Preferred Stock; and the
number of shares voting in favor of the foregoing
Amendment equaled or exceeded the vote required, such required vote being more
than 50% of the outstanding shares.
We further declare under penalty of perjury under the laws of the State of
California that the matters set forth in the foregoing Certificate are true and
correct of our own knowledge.
Executed at San Jose, California, on October 31, 1993.
/s/ Alex C. Hui
-------------------------------------
Alex C. Hui
/s/ Chi-Hung Hui
-------------------------------------
Chi-Hung Hui
CERTIFICATE OF AMENDMENT
OF ARTICLES OF INCORPORATION
OF
PERICOM SEMICONDUCTOR CORPORATION,
a California Corporation
________________________________
The undersigned Alex C. Hui and Chi-Hung Hui hereby certify that:
ONE: They are the duly elected and acting President and Secretary,
respectively, of Pericom Semiconductor Corporation, a California corporation
(the "Corporation").
TWO: The Articles of Incorporation of said Corporation are amended as
follows:
Article III shall be amended in its entirety to read as follows:
"ARTICLE III
A. Classes of Stock. This Corporation is authorized to issue two classes
----------------
of shares, designated "Preferred Stock" and "Common Stock." The total
number of shares which the Corporation is authorized to issue is
forty-four million two hundred and twenty-five thousand (44,225,000)
shares. Thirty million (30,000,000) shares shall be Common Stock,
without par value, (the "Common Stock") and fourteen million two
hundred and twenty-five thousand (14,225,000) shares shall be
Preferred Stock, without par value (the "Preferred Stock"). Five
million two hundred thousand (5,200,000) shares or Preferred Stock are
hereby designated "Series A Preferred Stock," two million one hundred
and fifty thousand (2,150,000) shares are hereby designated "Series B
Preferred Stock," one million eight hundred and seventy-five thousand
(1,875,000) shares are designated "Series C Preferred Stock" and five
million (5,000,000) shares shall remain undesignated.
Effective upon the amendment of the Articles of Incorporation as set
forth herein, each outstanding share of Common Stock of the
Corporation shall be reverse split into one-third (1/3rd) of a share
of Common Stock.
B. Preferred Stock. The undesignated shares of Preferred Stock shall be
---------------
issued from time to time in one or more series. The Board of
Directors is hereby authorized, within the limitations and
restrictions stated in these Articles of Incorporation, to fix or
alter the individual rights, dividend rate, conversion rights, voting
rights, rights and terms of redemption (including sinking fund
provisions), the redemption price or prices, the liquidation
preference of any wholly unissued series of Preferred Stock, and the
number of shares constituting any such series and the designation
thereof, or any of them, and to increase or decrease the number of
shares of any series subsequent to the issue of shares of that series,
but
not below the number of shares of such series then outstanding. In
case the number of shares of any series shall be so decreased, the
shares constituting such decrease shall resume the status which they
had prior to the adoption of the resolution originally fixing the
number of shares of such series."
The second sentence of Article IV(A) shall be amended in its entirety to read
as follows:
"Two million one hundred and fifty thousand (2,150,000) shares are
hereby designated and known as "Series B Preferred Stock" hereinafter
referred to as the "Series B Stock") with the rights, preferences and
privileges specified herein."
Article IV(I) shall be added to read as follows:
ARTICLE IV
"I. Status of Converted Stock. In case any shares of any series of
-------------------------
Preferred Stock shall be repurchased or converted pursuant to Article
IV hereof, the shares so converted shall be canceled and shall not be
issued by this Corporation and upon such conversion, the number of
authorized shares of class and series, if any, to which such shares of
Preferred Stock belonged shall be reduced by the number of shares so
converted. Upon the conversion pursuant to Article IV(E) hereof of
all the then outstanding shares of Preferred Stock, Sections (A)
through (H) of this Article IV shall become void and shares of such
classes of Preferred Stock shall not be deemed outstanding for any
purpose whatsoever."
Article VI shall be added to read as follows:
"ARTICLE VI
A. Date Effective. This Article shall become effective only when the
--------------
Corporation shall become a "listed corporation" within the meaning of
Section 301.5(d) of the California Corporations Code.
B. No cumulative Voting. The election of directors by the shareholders
--------------------
shall not be by cumulative voting. At each election of directors by
the shareholders, each shareholder entitled to vote may vote all the
shares held by that shareholder for each of several nominees for
director up to the number of directors to be elected. The shareholder
may not cast more votes for any single nominee than the number of
shares held by that shareholder."
THREE: The foregoing amendments of Articles of Incorporation has been duly
approved by the Board of Directors of the Corporation.
FOUR: The foregoing amendments of Articles of Incorporation was duly
approved by the holders of the requisite number of shares of the Corporation in
accordance with Sections 902 and 903 of the California General Corporation Law;
the total number of outstanding shares entitled to vote with respect to the
foregoing amendment was 4,278,147 shares of Common Stock, 5,200,000 shares of
Series A Preferred Stock, 2,150,000 shares of Series B Preferred Stock and
1,875,000 shares of Series C Preferred Stock. The number of shares voting in
favor of the foregoing amendments equaled or exceeded the vote required, such
required voting being a majority of the outstanding shares of Common Stock and
Preferred Stock, voting together as a single class and a majority of the
outstanding shares of Preferred Stock, voting as a separate class.
The undersigned declare under penalty of perjury that he has read the
foregoing Certificate of Amendment of Articles of Incorporation and knows the
contents thereof, and that the statements therein are true and correct of his
own knowledge.
Executed at San Jose, California
on November 14, 1995.
/s/ Alex C. Hui
----------------------------
Alex C. Hui
President
/s/ Chi-Hung Hui
----------------------------
Chi-Hung Hui
Secretary
CERTIFICATE OF AMENDMENT OF THE
RESTATED ARTICLES OF INCORPORATION
OF
PERICOM SEMICONDUCTOR CORPORATION,
a California Corporation
________________________________
The undersigned Alex C. Hui and Chi-Hung Hui hereby certify that:
ONE: They are the Chief Executive Officer and Secretary, respectively, of
Pericom Semiconductor Corporation, a California corporation (the "Corporation").
TWO: The first two paragraphs of Article III of the Restated Articles of
Incorporation of the Corporation are amended to read as follows:
"ARTICLE III
A. Classes of Stock. This Corporation is authorized to issue two classes
----------------
of shares, designated "Preferred Stock" and "Common Stock." The total
number of shares which the Corporation is authorized to issue is
seventy-four million two hundred and twenty-five thousand (74,225,000)
shares. Sixty million (60,000,000) shares shall be Common Stock,
without par value, (the "Common Stock") and fourteen million two
hundred and twenty-five thousand (14,225,000) shares shall be
Preferred Stock, without par value (the "Preferred Stock"). Five
million two hundred thousand (5,200,000) shares or Preferred Stock are
hereby designated "Series A Preferred Stock," two million one hundred
and fifty thousand (2,150,000) shares are hereby designated "Series B
Preferred Stock," one million eight hundred and seventy-five thousand
(1,875,000) shares are designated "Series C Preferred Stock" and five
million (5,000,000) shares shall remain undesignated.
Effective upon the amendment of this Article III as herein set forth,
each outstanding share of Common Stock of this corporation is split up
and converted into two (2) shares of Common Stock."
THREE: The foregoing amendment of the Restated Articles of Incorporation was
duly approved by the Board of Directors on August 11, 2000.
FOUR: The foregoing amendment of Restated Articles of Incorporation is to
effect a two-for-one stock split and a proportionate increase is authorized in
the authorized number of shares of Common Stock. The Corporation has only one
class of shares outstanding, Common Stock, there are no shares of Series A
Preferred, Series B Preferred or Series C Preferred Stock outstanding. Pursuant
to Section 902 (c) of the California Corporations Code shareholder approval is
not required for this action.
FIVE: The foregoing amendment of the Restated Articles of Incorporation of the
Corporation shall become effective at the close of business on August 24, 2000.
IN WITNESS WHEREOF, the undersigned have executed this certificate on August 22,
2000.
/s/ Alex C. Hui
---------------------------------
Alex C. Hui
Chairman of the Board,
Chief Executive Officer and President
/s/ Chi-Hung Hui
---------------------------------
Chi-Hung Hui
Vice President, Technology and Secretary
Each of the undersigned further declare under penalty of perjury under the laws
of the State of California that the matters set forth in this certificate are
true and correct of our own knowledge. Executed on this 22nd day of August 2000,
at San Jose, California.
/s/ Alex C. Hui
---------------------------------
Alex C. Hui
Chairman of the Board,
Chief Executive Officer and President
/s/ Chi-Hung Hui
---------------------------------
Chi-Hung Hui
Vice President, Technology and Secretary