Exhibit 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
IMPAC MEDICAL SYSTEMS, INC.
The undersigned, Joseph K. Jachinowski and David A. Auerbach, hereby
certify that:
1. They are the duly elected and acting President and Secretary,
respectively, of IMPAC Medical Systems, Inc., a Delaware corporation.
2. The Certificate of Incorporation of this corporation was
originally filed with the Secretary of State of Delaware on May 29, 2002.
3. The Certificate of Incorporation of this corporation shall be
amended and restated to read in full as follows:
"ARTICLE I
The name of this corporation is IMPAC Medical Systems, Inc.
(the "Corporation").
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ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 30 Old Rudnick Lane, Suite 100, Dover, Delaware, County of Kent,
19901. The name of its registered agent as such address is LexisNexis Document
Solutions Inc.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
ARTICLE IV
(A) The Corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares which the Corporation is authorized to issue is sixty-five million
(65,000,000) shares, each with a par value of $0.001 per share. Sixty million
(60,000,000) shares shall be Common Stock and five million (5,000,000) shares
shall be Preferred Stock.
(B) The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized, by filing a certificate
pursuant to the applicable law of the state of Delaware and within the
limitations and restrictions stated in this Certificate of Incorporation, to
determine or alter the rights, preferences, privileges and restrictions granted
to or imposed upon 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 issuance 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 V
The number of directors of the Corporation shall be fixed from time to
time by a bylaw or amendment thereof duly adopted by the Board of Directors.
ARTICLE VI
This Article VI shall become effective only when the Corporation
qualifies for an exemption from Section 2115 of the California Corporations Code
(the "Effective Time").
On or prior to the date on which the Corporation first provides notice
of an annual meeting of the stockholders following the Effective Time, the Board
of Directors of the Corporation shall divide the directors into three classes,
as nearly equal in number as reasonably possible, designated Class I, Class II
and Class III, respectively. Directors shall be assigned to each class in
accordance with a resolution or resolutions adopted by the Board of Directors.
At the first annual meeting of stockholders or any special meeting in lieu
thereof following the Effective Time, the terms of the Class I directors shall
expire and Class I directors shall be elected for a full term of three years. At
the second annual meeting of stockholders or any special meeting in lieu thereof
following the Effective Time, the terms of the Class II directors shall expire
and Class II directors shall be elected for a full term of three years. At the
third annual meeting of stockholders or any special meeting in lieu thereof
following the Effective Time, the terms of the Class III directors shall expire
and Class III directors shall be elected for a full term of three years. At each
succeeding annual meeting of stockholders or special meeting in lieu thereof,
directors elected to succeed the directors of the class whose terms expire at
such meeting shall be elected for a full term of three years.
Prior to the Effective Time, the provisions of the preceding paragraph
shall not apply, and all directors shall be elected at each annual meeting of
stockholders or any special meeting in lieu thereof to hold office until the
next annual meeting or special meeting in lieu thereof.
Notwithstanding the foregoing provisions of this Article VI, each
director shall serve until his or her successor is duly elected and qualified or
until his or her death, resignation, or removal. Stockholders may remove a
director from office only for cause and only upon the affirmative vote of the
holders of at least 66-2/3% of the voting power of the then-outstanding stock.
No decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
Subject to the rights of any series of Preferred Stock then
outstanding, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal, newly created directorships or other
causes shall be filled only by the affirmative vote of the directors then in
office, even though less than a quorum of the Board of Directors, or by a sole
remaining director. Any director elected in accordance with the preceding
sentence shall hold office for the
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remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until such director's
successor shall have been elected and qualified.
In addition to the requirements of law and any other provisions hereof
(and notwithstanding the fact that approval by a lesser vote may be permitted by
law or any other provision thereof), the affirmative vote of the holders of at
least 66-2/3% of the voting power of the then-outstanding stock shall be
required to amend, alter, repeal or adopt any provision inconsistent with this
Article VI.
ARTICLE VII
In the election of directors, each holder of shares of any class or
series of capital stock of the Corporation shall be entitled to one vote for
each share held. No stockholder will be permitted to cumulate votes at any
election of directors.
ARTICLE VIII
If at any time this Corporation shall have a class of stock registered
pursuant to the provisions of the Securities Exchange Act of 1934, as amended,
for so long as such class is so registered, any action by the stockholders of
such class must be taken at an annual or special meeting of stockholders, upon
due notice and in accordance with the provisions of the Bylaws of this
Corporation, and may not be taken by written consent.
ARTICLE IX
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation. Notwithstanding the foregoing,
the provisions set forth in Articles VI, X, XIII and XIV of this Certificate of
Incorporation may not be repealed or amended in any respect without the
affirmative vote of holders of at least 66-2/3% of the voting power of the
then-outstanding shares of the voting stock of the Corporation entitled to vote.
ARTICLE X
(A) Except as otherwise provided in the Bylaws, the Bylaws may be
altered or amended or new Bylaws adopted by the affirmative vote of at least
66-2/3% of the voting power of all of the then-outstanding shares of the voting
stock of the Corporation entitled to vote. The Board of Directors of the
Corporation is expressly authorized to adopt, amend or repeal Bylaws.
(B) The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
(C) Advance notice of stockholder nominations for the election of
directors or of business to be brought by the stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
Bylaws.
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ARTICLE XI
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the bylaws of the Corporation.
ARTICLE XII
The Corporation shall have perpetual existence.
ARTICLE XIII
(A) To the fullest extent permitted by the General Corporation Law of
Delaware, as the same may be amended from time to time, a director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director. If
the General Corporation Law of Delaware is hereafter amended to authorize, with
the approval of a corporation's stockholders, further reductions in the
liability of a corporation's directors for breach of fiduciary duty, then a
director of the Corporation shall not be liable for any such breach to the
fullest extent permitted by the General Corporation Law of Delaware, as so
amended.
(B) Any repeal or modification of the foregoing provisions of this
Article XIII shall not adversely affect any right or protection of a director of
the Corporation with respect to any acts or omissions of such director occurring
prior to such repeal or modification.
ARTICLE XIV
(A) To the fullest extent permitted by applicable law, the Corporation
is also authorized to provide indemnification of (and advancement of expenses
to) such agents (and any other persons to which Delaware law permits the
Corporation to provide indemnification) through Bylaw provisions, agreements
with such agents or other persons, vote of stockholders or disinterested
directors or otherwise, in excess of the indemnification and advancement
otherwise permitted by Section 145 of the General Corporation Law of Delaware,
subject only to limits created by applicable Delaware law (statutory or
non-statutory), with respect to actions for breach of duty to a corporation, its
stockholders, and others.
(B) Any repeal or modification of any of the foregoing provisions of
this Article XIV shall not adversely affect any right or protection of a
director, officer, agent or other person existing at the time of, or increase
the liability of any director of the Corporation with respect to any acts or
omissions of such director, officer or agent occurring prior to such repeal or
modification."
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