EXHIBIT 3.1(i)
RESTATED
ARTICLES OF INCORPORATION
OF
GRIP TECHNOLOGIES, INC.
Sam G. Lindsay and James E. McCormick III certify that:
1. They are the President and Secretary, respectively, of Grip
Technologies, Inc., a California corporation (the "Company").
2. The Articles of Incorporation of the Company are restated in their
entirety to read as follows:
First: The name of this corporation is Grip Technologies, Inc.
Second: The purpose of this corporation is to engage in any lawful act
or activity for which a corporation may be organized under the General
Corporation Law of California other than the banking business, the trust
company business or the practice of a profession permitted to be
incorporated by the California Corporations Code.
Third: The number and class of shares the corporation is authorized to
issue is as follows:
Number of
Authorized Shares Class
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25,000,000 Common (without par value)
3,000,000 Preferred (without par value)
The Preferred Stock may be divided into such number of series as the
Board of Directors may determine. The Board of Directors is authorized to
determine and alter the rights, preferences, privileges and restrictions
granted to or imposed upon any wholly unissued series of Preferred Stock,
and to fix the number of shares of any series of Preferred Stock and the
designation of any such series of Preferred Stock. The Board of Directors,
within the limits and restrictions stated in any resolution or resolutions
of the Board of Directors originally fixing the number of shares
constituting any series, may increase or decrease (but not below the number
of shares of such series then outstanding) the number of shares of any
series subsequent to the issue of that series.
Fourth: The Board of Directors does hereby establish a series of
Preferred Stock as follows:
(a) Designation and Number. The designation of such series of
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Preferred Stock is Series A Convertible Preferred Stock. The number of
shares of such series is 1,350,000. The Board of Directors is authorized to
change the number of shares of such series not only before, but also after
any shares of such series have been issued, but it may not reduce the
authorized number of shares of such series below the number of shares of
such series already issued and still outstanding.
(b) Dividends. The Series A Convertible Preferred Stock is entitled
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to receive, out of funds legally available therefor, dividends at the
annual rate of $0.10 per share, when and as declared by the Board of
Directors. No dividends or other distributions shall be made with respect
to the Common Stock and no Common Stock shall be purchased during any
fiscal year of the corporation until dividends in the total amount of $0.10
per share on the Series A Convertible Preferred Stock shall have been
declared and paid or set apart during that fiscal year. Dividends on the
Series A Convertible Preferred Stock shall not be cumulative and no right
shall accrue to the Series A Convertible Preferred Stock by reason of the
fact that the corporation may fail to declare or pay dividends on the
Series A Convertible Preferred Stock in the amount of $0.10 per share or in
any amount in any previous fiscal year of the corporation, whether or not
the earnings of the corporation in that previous fiscal year were
sufficient to pay such dividends in whole or in part. After dividends in
the total amount of $0.10 per share on the Series A Convertible Preferred
Stock shall have been declared and paid or set apart in any one fiscal year
of the corporation, if the Board of Directors shall elect to declare
additional dividends in that fiscal year, out of funds legally available
therefor, such additional dividends shall be declared solely on the Common
Stock.
(c) Liquidation.
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(1) Upon the voluntary or involuntary liquidation, winding up or
dissolution of the corporation, out of the assets available for
distribution to shareholders the Series A Convertible Preferred Stock shall
be entitled to receive, in preference to any payment on the Common Stock,
an amount equal to $1.00 per share plus (i) any dividends previously
declared and unpaid, and (ii) a premium of $0.10 per share per annum from
the date of the original issuance of the Series A Convertible Preferred
Stock to the date of the notice of liquidation, and no more. After the
full preferential liquidation
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amount has been paid to, or determined and set apart for, the Series A
Convertible Preferred Stock, the remaining assets shall be paid to the
Common Stock. In the event the assets of the corporation are insufficient
to pay the full preferential liquidation amount required to be paid to the
Series A Convertible Preferred Stock, the entire remaining assets shall be
paid to the Series A Convertible Preferred Stock and the Common Stock shall
receive nothing. Any "reorganization," as that term is defined in Section
181 of the California General Corporation Law, shall not be considered to
be a liquidation, winding up or dissolution within the meaning of this
subdivision (c) and, in such event, the holders of the Series A Convertible
Preferred Stock shall be entitled only to the rights provided in the
agreement and plan of reorganization and Chapters 12 and 13 of the
California General Corporation Law.
(2) Sections 502 and 503 of the Corporations Code do not apply
to the corporation's purchase of shares of Common Stock from an employee or
consultant of the corporation pursuant to any right of purchase granted to
the corporation under a contract for the services of the employee or
consultant or pursuant to the terms of the corporation's Stock Option Plan
or any stock option agreements issued pursuant thereto.
(d) Voting Rights. Without the approval of at least a majority of
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the outstanding shares of Series A Convertible Preferred Stock, the
corporation shall not
(1) Amend its Articles of Incorporation to alter or change any
rights, preferences or privileges of the Preferred Stock so as materially
and adversely affect the Series A Preferred Stock;
(2) Increase the authorized number of shares of Preferred Stock;
(3) Authorize another class of shares senior to the Series A
Convertible Preferred Stock with respect to dividends or distributions of
assets on liquidation;
(4) Purchase any Common Stock except as described on
subparagraph (c)(2) above;
(5) Enter into a "reorganization," as that term is defined in
Section 181 of the California General Corporation Law, or sell all or
substantially all of its assets to any other corporation, if, and only to
the extent that, a vote of the outstanding shares is required by the
California General Corporation Law;
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(6) Restrict the transfer or hypothecation of shares of Series A
Convertible Preferred Stock other than as required by federal or state
securities laws or regulations or as otherwise provided in the Subscription
Agreement to be executed by persons acquiring any Series A Convertible
Preferred Stock; or
(7) Voluntarily elect to wind up and dissolve.
(e) Conversion.
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(1) The Series A Convertible Preferred Stock shall be
convertible into Common Stock at any time not later than the close of
business on the fifth day prior to the date fixed for redemption in any
notice of redemption at the option of the respective holders of the Series
A Convertible Preferred Stock. Each share of Series A Convertible Preferred
Stock shall be converted into such number of fully paid and nonassessable
shares of Common Stock as is determined by dividing $1.00 by the conversion
price in effect at the date of conversion. The conversion price per share
shall be $1.00 (the "basic conversion price"), which shall be subject to
adjustment from time to time as provided in paragraphs (3), (4) and (5) of
this subdivision (e). In effecting the conversion, accrued unpaid dividends
on the Series A Convertible Preferred Stock shall be disregarded. Upon
conversion, no fractional shares shall be issued and the corporation shall
in lieu thereof pay in cash the fair value of the fraction. The corporation
shall reserve and keep reserved out of its authorized but unissued shares
of Common Stock sufficient shares to effect the conversion of all shares of
Series A Convertible Preferred Stock outstanding from time to time.
(2) A holder of Series A Convertible Preferred Stock desiring to
convert shall deliver the share certificate to the corporation at its
principal executive office, accompanied by a written request to convert,
specifying the number of shares to be converted. The indorsement of the
share certificate and the request to convert shall be in form satisfactory
to the corporation. Upon the date of such delivery the conversion is deemed
to have occurred and the person entitled to receive share certificates for
Common Stock shall be regarded for all corporate purposes from and after
such date as the holder of the number of shares of Common Stock to which he
is entitled upon the conversion.
(3) In case, at any time or from time to time after the issuance
of the first share of Series A Convertible Preferred Stock, the corporation
shall issue and sell any shares of Common Stock for a consideration per
share less than the conversion price in effect immediately
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prior to such issue or sale, then forthwith upon such issue or sale the
conversion price shall be reduced to a price (calculated to the nearest
cent) determined by dividing (A) an amount equal to the sum of (i) the
number of shares of Common Stock outstanding immediately prior to such
issue or sale multiplied by the then existing conversion price, and (ii)
the consideration, if any, received by the corporation upon such issuance
and sale, by (B) the total number of shares of Common Stock outstanding
immediately after such issue or sale. No adjustment of the conversion
price, however, shall be made in an amount less than five cents per share,
but any lesser adjustment shall be carried forward and shall be made at the
time of and together with the next subsequent adjustment which, together
with any adjustments so carried forward, shall amount to ten cents per
share or more.
(4) For purposes of paragraph (3) above, the following
subparagraphs (A) to (D), inclusive, shall also be applicable:
(A) In case at any time the corporation shall grant any
rights to subscribe for, or any rights or options to purchase, Common Stock
or any stock or other securities convertible into or exchangeable for
Common Stock (such convertible or exchangeable stock or securities being
herein called "Convertible Securities"), whether or not such rights or
options or the right to convert or exchange any such Convertible Securities
are immediately exercisable, and the price per share for which Common Stock
is issuable upon the exercise of such rights or options or upon conversion
or exchange of such Convertible Securities (determined by dividing (aa) the
total amount, if any, received or receivable by the corporation as
consideration for the granting of such rights or options, plus the minimum
aggregate amount of additional consideration payable to the corporation
upon the exercise of such rights or options, plus, in the case of any such
rights or options which relate to such Convertible Securities, the minimum
aggregate amount of additional consideration, if any, payable upon the
issue or sale of such Convertible Securities and upon the conversion or
exchange thereof, by (bb) the total maximum number of shares of Common
Stock issuable upon the exercise of such rights or options or upon the
conversion or exchange of all such Convertible Securities issuable upon the
exercise of such rights or options) shall be less than the conversion price
in effect immediately prior to the time of the granting of such rights or
options, then the total maximum number of shares of Common Stock issuable
upon the exercise of such rights or options or upon conversion or exchange
of the total maximum number of shares of such Convertible Securities
issuable upon the exercise of such rights or options shall
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(as of the date of granting of such rights or options) be deemed to be
outstanding and to have been issued for such price per share. No further
adjustments of the conversion price shall be made upon the actual issue of
such Common Stock or of such Convertible Securities upon exercise of such
rights or option or upon the actual issue of such Common Stock upon
conversion or exchange of such Convertible Securities.
(B) In case at any time the corporation shall issue or sell
any Convertible Securities, whether or not the rights to exchange or
convert thereunder are immediately exercisable, and the price per share for
which Common Stock is issuable upon such conversion or exchange (determined
by dividing (aa) the total amount received or receivable by the corporation
as consideration for the issue or sale of such Convertible Securities, plus
the minimum aggregate amount of additional consideration, if any, payable
to the corporation upon the conversion or exchange thereof, by (bb) the
total maximum number of shares of Common Stock issuable upon the conversion
or exchange of all such Convertible Securities) shall be less than the
conversion price in effect immediately prior to the time of such issue or
sale, then the total maximum number of shares of Common Stock issuable upon
conversion or exchange of all such Convertible Securities shall (as of the
date of the issue or sale of such Convertible Securities) be deemed to be
outstanding and to have been issued for such price per share, provided that
(i) no further adjustments of the conversion price shall be made upon the
actual issue of such Common Stock upon conversion or exchange of such
Convertible Securities, and (ii) if any such issue or sale of such
Convertible Securities is made upon exercise of any rights to subscribe for
or to purchase or any option to purchase any such Convertible Securities
for which adjustments of the conversion price have been or are to be made
pursuant to other provisions of this paragraph (4), no further adjustment
of the conversion price shall be made by reason of such issue or sale.
(C) In case at any time the corporation shall declare a
dividend or make any other distribution upon any stock of the corporation
payable in Common Stock or Convertible Securities, any Common Stock or
Convertible Securities, as the case may be, issuable in payment of such
dividend or distribution shall be deemed to have been issued or sold
without consideration.
(D) In case at any time any shares of Common Stock or
Convertible Securities or any rights or options to purchase any such Common
Stock or Convertible Securities shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the
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amount received by the corporation therefor, without deduction therefrom of
any expenses incurred or any underwriting commissions or concessions or
discounts paid or allowed by the corporation in connection therewith. In
case any shares of Common Stock or Convertible Securities or any rights or
options to purchase any such Common Stock or Convertible Securities shall
be issued or sold for a consideration other than cash, the amount of the
consideration other than cash received by the corporation shall be deemed
to be the fair value of such consideration as determined by the Board of
Directors, without deduction therefrom of any expenses incurred or any
underwriting commissions or concessions or discounts paid or allowed by the
corporation in connection therewith. In case any shares of Common Stock or
Convertible Securities or any rights or options to purchase any such Common
Stock or Convertible Securities shall be issued in connection with any
merger of another corporation into the corporation, the amount of
consideration therefor shall be deemed to be the fair value of the assets
of such merged corporation as determined by the Board of Directors after
deducting therefrom all cash and other consideration (if any) paid by the
corporation in connection with such merger.
(5) For the purpose of paragraph (3) above, none of the
following issuances shall be considered the issuance or sale of Common
Stock:
(A) The issuance of Common Stock upon conversion of any
Series A Convertible Preferred Stock; or
(B) The issuance of not more than 600,000 shares of Common
Stock (subject to antidilution adjustments) to officers, directors,
employees or consultants of the corporation pursuant to stock option or
stock purchase plans approved by the Board of Directors of the corporation
(including the reissuance of shares purchased by the corporation from
officers, directors, employees or consultants of the corporation as
specified in paragraph (2) of subdivision (c)).
(6) In case at any time the corporation shall subdivide its
outstanding shares of Common Stock into a greater number of shares, the
conversion price in effect immediately prior to such subdivision shall be
proportionately reduced and conversely, in case the outstanding shares of
Common Stock of the corporation shall be combined into a smaller number of
shares, the conversion price in effect immediately prior to such
combination shall be proportionately increased.
(7) Promptly after any change in the conversion price, the
corporation shall cause to be prepared a written
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statement setting forth in detail the facts and the revised conversion
ratio. The statement shall be signed by the president or a vice-president
and by the chief financial officer, the treasurer or an assistant treasurer
and filed with the secretary. A copy of the statement shall be mailed to
each holder of Series A Convertible Preferred Stock.
(f) Redemption.
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(1) The Series A Convertible Preferred Stock is subject to
redemption at any time on or after August 31, 1995, out of funds legally
available therefor, in whole, or from time to time in part, at the option
of the Board of Directors of the corporation. If only a part of the Series
A Convertible Preferred Stock is to be redeemed, the redemption shall be
carried out prorata. The redemption price shall be $1.00 per share plus
(i) any dividends previously declared and unpaid, and (ii) $0.10 per share
per annum from the date of original issuance to the date of the notice of
redemption (herein called the "Redemption Price").
(2) The corporation shall mail a notice of redemption to each
holder of record of shares to be redeemed addressed to the holder at the
address of such holder appearing on the books of the corporation or given
by the holder to the corporation for the purpose of notice, or if no such
address appears or is given at the place where the principal executive
office of the corporation is located, not earlier than 60 nor later than 20
days before the date fixed for redemption. The notice of redemption shall
include (i) the class of shares or the part of a class of shares to be
redeemed, (ii) the date fixed for redemption, (iii) the redemption price,
(iv) the place at which the shareholders may obtain payment of the
redemption price upon surrender of their share certificates, (v) the last
date prior to the date of redemption that the right of conversion may be
exercised. If funds are available on the date fixed for the redemption,
then whether or not the share certificates are surrendered for payment of
the redemption price, the shares shall no longer be outstanding and the
holders thereof shall cease to be shareholders of the corporation with
respect to the shares redeemed on and after the date fixed for redemption
and shall be entitled only to receive the redemption price without interest
upon surrender of the share certificate. If less than all the shares
represented by one share certificate are to be redeemed, the corporation
shall issue a new share certificate for the shares not redeemed.
(3) If, on or prior to any date fixed for redemption, the
corporation deposits with any bank or trust
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company in this state as a trust fund a sum sufficient to redeem, on the
date fixed for redemption thereof, the shares called for redemption, with
irrevocable instructions and authority to the bank or trust company to
publish the notice of redemption thereof (or to complete such publication
if theretofore commenced) and to pay, on and after the date fixed for
redemption or prior thereto, the redemption price of the shares to their
respective holders upon the surrender of their share certificates, then
from and after the date of the deposit (although prior to the date fixed
for redemption) the shares so called shall be redeemed and dividends on
those shares shall cease to accrue after the date fixed for redemption.
The deposit shall constitute full payment of the shares to their holders
and from and after the date of the deposit the shares shall no longer be
outstanding and the holders thereof shall cease to be shareholders with
respect to such shares and shall have no rights with respect thereto except
the right to receive from the bank or trust company payment of the
redemption price of the shares without interest, upon surrender of their
certificates therefor and the right to convert the shares in accordance
with subdivision (e) of this Article. The bank or trust company forthwith
shall return to the corporation funds deposited for shares converted.
After two years, the bank or trust company shall return to the corporation
funds deposited and not claimed and thereafter the holder of a share
certificate for share redeemed shall look to the corporation for payment.
Fifth: This corporation hereby elects to be governed by all of the
provisions of the General Corporation Law effective January 1, 1977, not
otherwise applicable to it under Chapter 23 thereof.
Sixth: The authorized number of directors of this corporation shall be
not less than four (4) nor more than seven (7). The exact number of
directors within these limits shall be fixed and may be changed from time
to time by a resolution adopted by the Board of Directors.
Seventh: (a) Elimination of Directors' Liability. The liability of
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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
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authorized to provide indemnification of agents (as defined in Section 317
of the California General Corporation Law) through bylaw provisions,
agreements with agents, vote of shareholders or disinterested directors or
otherwise, in excess of the indemnification otherwise permitted by Section
317 of the California General
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Corporation Law, subject only to the applicable limits set forth in Section
204 of the California General Corporation Law with respect to actions for
breach of duty to the corporation and its shareholders.
(c) Repeal or Modification. Any repeal or modification of the
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foregoing provisions of this Article by the shareholders of this
corporation shall not adversely affect any right or protection of an agent
of this corporation existing at the time of that repeal or modification.
3. The foregoing restatement of Articles of Incorporation have been duly
approved by the Board of Directors of the Company.
4. The foregoing restatement of Articles of Incorporation does not alter
or amend the Articles of Incorporation except for alterations and amendments
permitted by Sections 902(d) and 2302 of the California General Corporations
Code to be adopted by the Board of Directors alone. Accordingly, pursuant to
Section 910(b) of the California Corporations Code, no approval of the
outstanding shares was required.
We further declare under penalty under the laws of the State of California
that the matters set forth in this certificate are true and correct of our own
knowledge.
Executed at Irvine, California on July ____, 1996.
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Sam G. Lindsay
President
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James E. McCormick III
Secretary
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