1
EXHIBIT 4.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
CERUS CORPORATION, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, hereby certifies
as follows:
1. The name of the corporation is Cerus Corporation.
2. The corporation's original Certificate of Incorporation was filed
with the Secretary of State on July 31, 1996.
3. The Amended and Restated Certificate of Incorporation of this
corporation, in the form attached hereto as Exhibit A, has been duly adopted in
accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware by the Board of Directors and by the
stockholders of the corporation, and prompt written notice was duly given
pursuant to Section 228 of the General Corporation Law of the State of Delaware
to those stockholders who did not approve the Amended and Restated Certificate
of Incorporation by written consent.
4. The Amended and Restated Certificate of Incorporation so adopted
reads in full as set forth in Exhibit A attached hereto and hereby incorporated
by reference.
IN WITNESS WHEREOF, Cerus Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed by its President and Chief
Executive Officer and attested to by its Secretary this 6th day of February,
1997.
/s/ Stephen T. Isaacs
-------------------------------------
STEPHEN T. ISAACS
President and Chief Executive Officer
ATTEST:
/s/ Lori Roll
- -------------------------------
LORI ROLL
Secretary
1.
2
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CERUS CORPORATION
I.
The name of this corporation is Cerus Corporation.
II.
The address of the registered office of the corporation in the State of
Delaware is 9 East Loockerman Street, City of Dover, County of Kent, and the
name of the registered agent of the corporation in the State of Delaware at such
address is the National Registered Agents, Inc.
III.
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 the State of Delaware.
IV.
A. This 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 fifty-five million
(55,000,000) shares. Fifty million (50,000,000) shares shall be Common Stock,
each having a par value of one-tenth of one cent ($.001). Five million
(5,000,000) shares shall be Preferred Stock, each having a par value of
one-tenth of one cent ($.001).
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 (a
"Preferred Stock Designation") pursuant to the Delaware General Corporation Law,
to fix or alter from time to time the designation, powers, preferences and
rights of the shares of each such series and the qualifications, limitations or
restrictions of any wholly unissued series of Preferred Stock, and to establish
from time to time the number of shares constituting any such series 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 decreased in accordance with the foregoing sentence, the shares constituting
such decrease shall resume the status that they had prior to the adoption of the
resolution originally fixing the number of shares of such series.
1.
3
V.
For the management of the business and for the conduct of the affairs of
the Corporation, and in further definition, limitation and regulation of the
powers of the Corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
A.
1. The management of the business and the conduct of the affairs
of the Corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be fixed
exclusively by one or more resolutions adopted by the Board of Directors.
2. Subject to the rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances,
following the closing of the initial public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended (the "1933
Act"), covering the offer and sale of Common Stock to the public (the "Initial
Public Offering"), the directors shall be divided into three classes designated
as 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 following the closing
of the Initial Public Offering, the term of office 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 following the closing of the
Initial Public Offering, the term of office 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 following the closing of the Initial
Public Offering, the term of office of the Class III directors shall expire and
Class III directors shall be entered for a full-term of three years. At each
succeeding annual meeting of stockholders, directors shall be elected for a full
term of three years to succeed the directors of the class whose terms expire at
such annual meeting.
Notwithstanding the foregoing provisions of this Article, each
director shall serve until his successor is duly elected and qualified or until
his death, resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
3. Subject to the rights of the holders of any series of
Preferred Stock, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes and any newly created
directorships resulting from any increase in the number of directors, shall,
unless the Board of Directors determines by resolution that any such vacancies
or newly created directorships shall be filled by the stockholders, except as
otherwise provided by law, be filled only by the affirmative vote of a majority
of the directors then in office, even though less than a quorum of the Board of
Directors, and not by the stockholders. Any director elected in accordance with
the preceding sentence shall hold office for the remainder of the full term of
the director for which the vacancy was created or occurred and until such
director's successor shall have been elected and qualified.
2.
4
B.
1. Subject to paragraph (h) of Section 43 of the Bylaws, the
Bylaws may be altered or amended or new Bylaws adopted by the affirmative vote
of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of
all of the then-outstanding shares of voting stock of the Corporation entitled
to vote at an election of directors (the "Voting Stock"). The Board of Directors
shall also have the power to adopt, amend, or repeal Bylaws.
2. The directors of the Corporation need not be elected by
written ballot unless the Bylaws so provide.
3. No action shall be taken by the stockholders of the
Corporation except at an annual or special meeting of stockholders called in
accordance with the Bylaws and following the closing of the Initial Public
Offering no action shall be taken by the stockholders by written consent.
4. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
Bylaws of the Corporation.
VI.
A. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this Article to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
B. Any repeal or modification of this Article VI shall be prospective
and shall not affect the rights under this Article VI in effect at the time of
the alleged occurrence of any act or omission to act giving rise to liability or
indemnification.
VII.
A. 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, except as provided in paragraph B of this
Article VII, and all rights conferred upon the stockholders herein are granted
subject to this reservation.
B. Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the Voting Stock required by law, this Certificate
of Incorporation or any Preferred Stock Designation, the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting
power of all of the
3.
5
then-outstanding shares of the Voting Stock, voting together
as a single class, shall be required to alter, amend or repeal Articles V, VI
and VII.
4.
6
CERTIFICATE OF DESIGNATION
OF SERIES A PREFERRED STOCK
OF CERUS CORPORATION
The undersigned, Stephen T. Isaacs, hereby certifies that:
1. He is the duly elected and acting President and Secretary,
respectively, of CERUS CORPORATION, a Delaware corporation (the "Company"). The
date of filing of the Amended and Restated Certificate of Incorporation (the
"Certificate") was February 7, 1997.
2. The Board of Directors of the Company adopted the following recitals
and resolutions as required by Section 151 of the General Company Law of the
State of Delaware at a meeting held on June 30, 1998:
WHEREAS, the Certificate provides for a class of shares known as
Preferred Stock, issuable from time to time in one or more series; and
WHEREAS, the Board of Directors of the Company is authorized by
Section A of Article IV of the Certificate and, pursuant to its
authority as aforesaid, desires to fix the terms of the first series of
said Preferred Stock, the number of shares constituting said series and
the designation of said series.
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors
deems it advisable to adopt, and hereby adopts, the following
Certificate of Designation of Preferences of Series A Preferred Stock of
the Company:
SECTION 1. DESIGNATION. Five Thousand (5,000) shares of Preferred
Stock, $0.001 par value, are designated "Series A Preferred Stock" with the
powers, preferences, rights, qualifications, limitations and restrictions
specified herein (the "Series A Preferred").
SECTION 2. VOTING RIGHTS. The holders of shares of Series A
Preferred shall not have any voting rights, except as provided in this Section 2
and as required under the General Corporation Law of Delaware. Without first
obtaining the affirmative vote or written consent of the holders of at least a
majority of the outstanding shares of Series A Preferred, voting as a separate
class, the Company shall not effect any merger or consolidation in which the
Company is not the surviving entity, or any merger, consolidation or other
transaction in which the Company's Common Stock becomes no longer publicly
traded (a "Covered Transaction"), unless the surviving entity in the Covered
Transaction shall have provided for the benefit of the holders of Series A
Preferred contractual rights (the "Contractual Rights") to receive (i) on the
15th day following the Approval Payment Date (as hereinafter defined) or the
Termination Payment Date (as hereinafter defined), as the case may be, the
consideration that the holders of Series A Preferred would have received in the
Covered Transaction had the Series A Preferred been converted into Company
Common Stock immediately prior to the effectuation or consummation of the
Covered Transaction in accordance with the method of conversion used in Section
5(a)(1) or 5(a)(2), as the case may be, at one hundred twenty percent (120%) (in
the case of an Approval Event (as hereinafter defined)), or at one hundred
percent (100%) (in the case of
1.
7
a Termination Event (as hereinafter defined)) of the closing price of the
Company's Common Stock immediately prior to the Covered Transaction, (with any
securities that would have been received as part of such consideration being
adjusted for any stock splits, stock combinations and the like from the date of
the Covered Transaction to the date of the Approval Event or the Termination
Event, as the case may be) and (ii) any dividends or other distributions, or
shares issued in any reclassification, exchange or substitution of securities or
in any reorganization, merger or consolidation, that the Series A Preferred
holders would have received from the date of the Covered Transaction to the date
of the Approval Event or Termination Event, as the case may be, in respect of
the securities, if any, that holders of the Series A Preferred would have
received in the Covered Transaction as set forth in (i) above; provided that the
Contractual Rights shall be subject to a right by the surviving entity to
repurchase, and upon a Termination Event, a right of the holders of a majority
of the outstanding shares of the Series A Preferred to require the repurchase
of, the Contractual Rights in the same manner, at the same times and at the same
price as the Company's right to redeem the Series A Preferred pursuant to
Section 4 below.
SECTION 3. LIQUIDATION RIGHTS.
(a) Upon any liquidation, dissolution, or winding up of
the Company, whether voluntary or involuntary, the holders of Series A Preferred
shall be entitled to be paid out of the assets of the Company, before any
payment or distribution of assets of the Company (whether capital or surplus)
shall be made to or set aside for the holders of Common Stock and after and
subordinate to any other class or series of Preferred Stock, an amount per share
of Series A Preferred equal to the "Original Issue Price." The Original Issue
Price of the Series A Preferred shall be One Thousand Dollars ($1,000.00). If,
upon any liquidation, distribution, or winding up, the assets of the Company
shall be insufficient to make payment in full under this Section 3(a) to all
holders of Series A Preferred, then such assets shall be distributed among the
holders of Series A Preferred at the time outstanding, ratably in proportion to
the full stated amounts to which they would otherwise be respectively entitled
under this Section 3(a).
(b) The following events shall not be considered a
liquidation, dissolution or winding up under this Section 3:
(1) any consolidation or merger of the Company with
or into any other corporation or other entity or person, or any other corporate
reorganization or other transaction or series of transactions resulting in a
change in ownership of the outstanding securities of the Company; or
(2) a sale, lease or other disposition of all or any
part of the assets of the Company.
SECTION 4. REDEMPTION.
(a) Upon (i) the approval of a new drug application (NDA)
or pre-market approval (PMA) or equivalent by the United States Food and Drug
Administration under the Development, Manufacturing and Marketing Agreement
dated as of December 10, 1993 between the Company and Baxter Healthcare
Corporation, as amended from time to time (the "Platelet Agreement") or (ii) CE
Mark approval in Europe under the Platelet Agreement (either,
2.
8
an "Approval Event"), the Company shall have the right to redeem all or any
portion of the Series A Preferred at the Original Issue Price.
(b) Upon the termination for any reason of the Platelet
Agreement or upon cessation for any reason of the Cooperative Development Work
(as such term is defined in the Platelet Agreement) (either, a "Termination
Event"), the Company shall have the right, and the holders of a majority of the
outstanding shares of Series A Preferred shall have the right to require the
Company, to redeem all, but not less than all, the Series A Preferred at the
Original Issue Price.
(c) Immediately prior to consummation of a Covered
Transaction, the Company shall have the right to redeem all, but not less than
all, shares of Series A Preferred Stock then outstanding at the Original Issue
Price.
(d) In the event the Company desires to redeem the Series
A Preferred pursuant to Section 4(a), the Company shall, within ten (10) days
after the Approval Payment Date (as defined below), send a notice to the Series
A Preferred holders notifying the holders of redemption and setting forth the
number of shares of Series A Preferred to be redeemed and the total amount to be
paid for the shares of Series A Preferred being redeemed (the "Redemption
Price"). If, at the time of any redemption pursuant to Section 4(a) for less
than all of the Series A Preferred, there shall be more than one holder of the
Series A Preferred, such redemption shall be made pro rata among the holders of
the Series A Preferred in proportion to the number of shares of Series A
Preferred held by each such holder. The "Approval Payment Date" means the date
on which the Company receives payment of the amount payable to it under Section
4.3 of the Platelet Agreement
(e) In the event the Company or the holders of a majority
of the outstanding shares of the Series A Preferred desires to have the Series A
Preferred redeemed pursuant to Section 4(b) above, the Company or the Series A
Preferred holders shall, within ten (10) days after the Termination Payment Date
(as defined below), send a notice to the Company or the Series A Preferred
holders, as the case may be, stating that the Series A Preferred shall be
redeemed pursuant to this subsection (e). The amount to be paid for the Series A
Preferred being redeemed shall also be referred to as the "Redemption Price."
The "Termination Payment Date" means the date on which the Company receives
payment of the amount payable to it under Section 13.4 of the Platelet
Agreement.
(f) In the event the Company desires to have the Series A
Preferred redeemed pursuant to Section 4(c) above, the Company shall, not less
than ten (10) days before the date of consummation of the Covered Transaction,
send a notice to the Series A Preferred holders indicating that the Series A
Preferred shall be redeemed pursuant to this subsection (f). The amount to be
paid for the Series A Preferred being redeemed shall also be referred to as the
"Redemption Price."
(g) Within five (5) days after receipt of a redemption
notice from the Company or within five (5) days after the sending of a
redemption notice to the Company pursuant to Section 4(d), Section 4(e) or
Section 4(f) above, as the case may be, the Series A Preferred holders shall
surrender that number of Series A Preferred share certificates set forth in a
redemption notice by the Company, in the case of redemption pursuant to Section
4(a) above,
3.
9
or all Series A Preferred share certificates, in the case of redemption pursuant
to Section 4(b) or Section 4(c) above, at the principal executive office of the
Company, and thereupon the Redemption Price shall be payable, in cash by wire
transfer or certified check, to the order of the person whose name appears on
such certificate or certificates as the owner thereof and each surrendered
certificate shall be canceled. Notwithstanding the foregoing, the Redemption
Price payable upon a redemption in connection with a Covered Transaction will be
payable, and the share certificates for the Series A Preferred shall be
canceled, only upon consummation of the Covered Transaction. If the Company does
not have sufficient funds legally available to redeem all shares to be redeemed
pursuant to this Section 4, then it shall use those funds which are legally
available to redeem the maximum possible number of such shares pro rata among
the holders of the Series A Preferred Stock. At any time thereafter when funds
of the Company are legally available for the redemption of shares of Series A
Preferred, such funds will immediately be used to redeem the balance of the
shares which the Company has become obligated to redeem pursuant to this Section
4 but which it has not redeemed. In the event that a redemption notice is given
pursuant to Section 4(f) above in connection with an impending Covered
Transaction, and the Covered Transaction is later terminated without being
consummated, the Company will so notify the holders of the Series A Preferred
Stock, and the redemption notice and redemption will be deemed rescinded and any
tendered share certificates will be returned to the holders of the Series A
Preferred, with the same effect as if such redemption notice had not been given.
SECTION 5. CONVERSION RIGHTS. The following provisions shall
apply with respect to the conversion of the Series A Preferred into shares of
Common Stock:
(a) CONVERSION.
(1) Subject to Section 5(a)(3) below, upon the
occurrence of an Approval Event, if a notice of redemption of the Series A
Preferred has not been sent by the Company pursuant to Section 4(d) above, each
share of Series A Preferred shall automatically be converted into that number of
fully paid and nonassessable shares of Common Stock equal to the Original Issue
Price divided by one hundred twenty percent (120%) of the average closing price
of the Common Stock, as reported in The Wall Street Journal, for the thirty (30)
trading days prior to and including the trading day immediately prior to the
Approval Event. The date on which such conversion shall occur shall be the 15th
day following the Approval Payment Date.
(2) Subject to Section 5(a)(3) below, upon the
occurrence of a Termination Event, if a redemption notice has not been sent by
the Company or the holder of the Series A Preferred pursuant to Section 4(e)
above, each share of Series A Preferred shall automatically be converted into
that number of fully paid and nonassessable shares of Common Stock equal to the
Original Issue Price divided by the average closing price of the Common Stock,
as reported in The Wall Street Journal, for the thirty (30) trading days
commencing with the fifteenth (15th) trading day prior to the Termination Event.
The date on which such conversion shall occur shall be the 15th day following
the Termination Payment Date.
(3) Notwithstanding anything contained in this
Section 5 to the contrary, the Series A Preferred shall not convert, and no
shares of Common Stock shall be issued by the Company thereby, unless and until
the pre-merger notification requirements of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), have been complied with,
and any waiting period under the HSR Act applicable to the conversion of the
4.
10
Series A Preferred has expired or been terminated and any approvals required
thereunder have been obtained.
(4) Upon the conversion of the Series A Preferred
pursuant to this Section 5, the outstanding shares of Series A Preferred shall
be converted automatically without any further action by the holders of such
shares and whether or not the certificates representing such shares are
surrendered to the Company or its transfer agent; provided, however, that the
Company shall not be obligated to issue certificates evidencing the shares of
Common Stock issuable upon such conversion unless the certificates evidencing
such shares of Series A Preferred are either delivered to the Company or its
transfer agent as provided below, or the holder notifies the Company or its
transfer agent that such certificates have been lost, stolen or destroyed and
executes an agreement satisfactory to the Company to indemnify the Company from
any loss incurred by it in connection with such certificates. Upon the
occurrence of such automatic conversion of the Series A Preferred, the holders
of Series A Preferred shall surrender the certificates representing such shares
at the office of the Company or any transfer agent for the Series A Preferred.
Thereupon, there shall be issued and delivered to such holder promptly at such
office and in its name as shown on such surrendered certificate or certificates,
a certificate or certificates for the number of shares of Common Stock into
which the shares of Series A Preferred surrendered were convertible on the date
on which such automatic conversion occurred.
(5) Notwithstanding anything contained in this
Section 5 to the contrary, in the event that the approval of the Company's
stockholders is required pursuant to Rule 4460(i) of the Nasdaq Stock Market
("Rule 4460(i)") prior to the issuance of any of the shares of Common Stock
issuable upon conversion of the Series A Preferred, the Company shall obtain
such approval by the applicable conversion date under Section 5(a)(i) or 5(a)(2)
hereof. In the event such approval is not obtained by the applicable conversion
date, the Company shall, in accordance with Section 4 hereof, redeem any shares
of Series A Preferred that would be convertible into shares of Common Stock in
excess of the limitation specified in Rule 4460(i).
(b) FRACTIONAL SHARES. No fractional shares of Common
Stock shall be issued upon conversion of Series A Preferred and the number of
shares of Common Stock to be issued shall be rounded down to the nearest whole
share. The Company shall, in lieu of issuing any fractional share, pay the
holder otherwise entitled to such fraction a sum in cash equal to the fair
market value of such fraction on the date of conversion (as determined in good
faith by the Board of Directors).
(c) 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 or its treasury shares, solely for the purpose
of effecting the conversion of the shares of the Series A Preferred, 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 Preferred. 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 Preferred, the Company 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.
5.
11
(d) NOTICES. Any notice required by the provisions of this
Section 5 to be given to the holders of shares of the Series A Preferred shall
be deemed given upon the earlier of actual receipt or seventy-two (72) hours
after the same has been deposited in the United States mail, by certified or
registered mail, return receipt requested, and addressed to each holder of
record at the address of such holder appearing on the books of the Company.
(e) PAYMENT OF TAXES. The Company will pay all taxes
(other than taxes based upon income) and other governmental charges that may be
imposed with respect to the issue or delivery of shares of Common Stock upon
conversion of shares of Series A Preferred, excluding any tax or other charge
imposed in connection with any transfer involved in the issue and delivery of
shares of Common Stock in a name other than that in which the shares of Series A
Preferred so converted were registered.
SECTION 6. NOTICES OF RECORD. Upon 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 or other
distribution, or upon any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company, any
merger or consolidation of the Company with or into any other corporation, or
any transfer of all or substantially all the assets of the Company to any other
person, or any voluntary or involuntary dissolution, liquidation or winding up
of the Company, or any shareholders' meeting to approve the terms thereof, the
Company shall mail to each holder of Series A Preferred at least twenty (20)
days prior to the record date specified therein a notice specifying (i) the date
on which any such record is to be taken for the purpose of such dividend or
distribution and a description of such dividend or distribution, (ii) the date
on which any such reorganization, reclassification, transfer, consolidation,
merger, dissolution, liquidation or winding up is expected to become effective,
and the date of the shareholders meeting to approve the terms thereof, if
applicable, (iii) the date, if any, that is to be fixed as to when the holders
of record of Common Stock (or other securities) shall be entitled to exchange
their shares of Common Stock (or other securities) for securities or other
property deliverable upon such reorganization, reclassification, transfer,
consolidation, merger, dissolution, liquidation or winding up, and (iv) the
material terms thereof.
SECTION 7. NO REISSUANCE OF PREFERRED STOCK. No share or shares
of Series A Preferred acquired by the Company by reason of redemption, purchase,
conversion or otherwise shall be reissued.
SECTION 8. RESTRICTION ON TRANSFER. Neither the shares of Series
A Preferred nor any right to receive redemption payments, nor any Contractual
Rights, shall be assigned, transferred, hypothecated or otherwise alienated by
the holder thereof without the prior written consent of the Company, except (i)
in connection with, and to the transferee of, all or substantially all of the
business and assets of such holder, or (ii) to a direct or indirect wholly owned
subsidiary of Baxter International, Inc. Any such attempted action shall be null
and void. The foregoing restriction shall not apply to any Common Stock issued
on conversion of the Preferred Stock.
SECTION 9. CANCELLATION OF PREFERRED STOCK. Upon the effectuation
or consummation of any Covered Transaction pursuant to which the holders of the
Series A Preferred receive the Contractual Rights, the Series A Preferred shall
be canceled.
6.
12
3. The authorized number of shares of Preferred Stock of this Company is
five million (5,000,000), none of which has been issued.
IN WITNESS WHEREOF, this Company has caused this Certificate to be signed by its
duly authorized officer this 6th day of July, 1998.
CERUS CORPORATION
By: /s/ Stephen T. Isaacs
-------------------------------
Stephen T. Isaacs
President
CERTIFICATES OF DESIGNATION
SERIES A PREFERRED
13
CERTIFICATE OF DESIGNATION
OF SERIES B PREFERRED STOCK
OF CERUS CORPORATION
The undersigned, Robert E. Miller, hereby certifies that:
1. He is the duly elected and acting Chief Financial Officer of CERUS
CORPORATION, a Delaware corporation (the "Company"). The date of filing of the
Amended and Restated Certificate of Incorporation (the "Certificate") was
February 7, 1997.
2. The Board of Directors of the Company adopted the following recitals
and resolutions as required by Section 151 of the General Company Law of the
State of Delaware by unanimous written consent dated June 30, 1998:
WHEREAS, the Certificate provides for a class of shares known as
Preferred Stock, issuable from time to time in one or more series; and
WHEREAS, the Board of Directors of the Company is authorized by
Section A of Article IV of the Certificate and, pursuant to its
authority as aforesaid, desires to fix the terms of the second series of
said Preferred Stock, the number of shares constituting said series and
the designation of said series.
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors
deems it advisable to adopt, and hereby adopts, the following
Certificate of Designation of Preferences of Series B Preferred Stock of
the Company:
SECTION 1. DESIGNATION. Three thousand three hundred twenty-seven
(3,327) shares of Preferred Stock, $0.001 par value, are designated "Series B
Preferred Stock" with the powers, preferences, rights, qualifications,
limitations and restrictions specified herein (the "Series B Preferred").
SECTION 2. VOTING RIGHTS. The holders of shares of Series B
Preferred shall not have any voting rights, except as provided in Section 2,
Section 3(c)(1)(C), Section 3(c)(2) hereof, and as required under the General
Corporation Law of Delaware. Without first obtaining the affirmative vote or
written consent of the holders of at least a majority of the outstanding shares
of Series B Preferred Stock, voting together as a separate class, the Company
shall not authorize or issue shares of any class or series of stock, or
reclassify any class or series of stock, including without limitation, the
Company's Common Stock, into shares having preference or priority over the
Series B Preferred as to voting, liquidation preference or conversion rights.
SECTION 3. LIQUIDATION RIGHTS.
(a) Upon any liquidation, dissolution, or winding up of
the Company, whether voluntary or involuntary, before any payment or
distribution of assets of the Company (whether capital or surplus) shall be made
to or set aside for the holders of Common Stock, Series A Preferred Stock, or
any other class or series of stock ranking junior to the Series B Preferred with
respect to liquidation preference, the holders of Series B Preferred shall be
14
entitled to be paid out of the assets of the Company an amount per share of
Series B Preferred equal to the "Original Issue Price." The Original Issue Price
of the Series B Preferred shall be Two Thousand Eight Hundred Fifty-Four Dollars
Seventy-Nine and Three Tenths Cents ($2,854.793). If, upon any liquidation,
distribution, or winding up, the assets of the Company shall be insufficient to
make payment in full under this Section 3(a) to all holders of Series B
Preferred, then such assets shall be distributed among the holders of Series B
Preferred at the time outstanding, ratably in proportion to the full stated
amounts to which they would otherwise be respectively entitled under this
Section 3(a).
(b) The following events shall be considered a
liquidation, dissolution or winding up under this Section 3:
(1) any consolidation or merger of the Company with
or into any other corporation or other entity or person in which the Company is
not the surviving entity, or any other consolidation, merger, corporate
reorganization or other transaction or series of transactions pursuant to which
the holders of the outstanding voting securities of the Company immediately
prior to such consolidation, merger, reorganization or other transaction or
series of transactions fail to hold equity securities representing a majority of
the voting power of the surviving entity immediately following such
consolidation, merger or reorganization or any transaction or series of related
transactions; or
(2) a sale, lease or other disposition of all or
substantially all of the assets of the Company.
(c) Any securities to be delivered to the holders of the
Series B Preferred pursuant to a transaction treated as a liquidation shall be
valued as follows:
(1) Securities not subject to investment letter or
other similar restrictions on free marketability:
(A) If traded on a national securities exchange
or the National Market System of the National Association of Securities Dealers,
Inc. (the "NMS"), the value shall be deemed to be the average of the security's
closing prices on such exchange or the NMS over the thirty (30) day period
ending three (3) days prior to the closing;
(B) If traded over-the-counter (but not on the
NMS), the value shall be deemed to be the average of the mean of the closing bid
and ask prices over the thirty (30) day period ending three (3) days prior to
the closing; or
(C) If there is no active public market, the
value shall be the fair market value thereof, as mutually determined by the
Board of Directors of the Company and the holders of a majority of the
outstanding Series B Preferred, voting together as a single class.
(2) The method of valuation of securities subject to
investment letter or other restrictions on free marketability shall be to make
an appropriate discount from the market value determined as above in Sections
3(c)(1)(A), (B) or (C) to reflect the approximate fair market value thereof, as
mutually determined by the Board of Directors of the Company and
2.
15
the holders of not less than a majority of the outstanding Series B Preferred,
voting together as a single class.
SECTION 4. REDEMPTION.
(a) The Company may elect to redeem all, but not less than
all, of the outstanding Series B Preferred at the Original Issue Price at any
time, from funds legally available for redemption. Without limiting the
foregoing, the Company shall have the right to redeem the outstanding Series B
Preferred within thirty (30) days after receipt of a Conversion Notice (as
defined below). Any redemption pursuant to this Section 4(b) shall be for all
shares of Series B Preferred then outstanding. In the event the Company desires
to redeem the Series B Preferred pursuant to this subsection (b), the Company
shall send a notice to the Series B Preferred holder stating that the Series B
Preferred shall be redeemed pursuant to this subsection (b); provided that, if
such notice is in response to a Conversion Notice, the notice must be sent
within thirty (30) days of receipt of the Conversion Notice. The amount to be
paid for the Series B Preferred being redeemed shall be referred to as the
"Redemption Price."
(b) Within five (5) days after receipt of a redemption
notice from the Company pursuant to Section 4(a) above, the Series B Preferred
holders shall surrender all Series B Preferred share certificates at the
principal executive office of the Company, and thereupon the Redemption Price
shall be payable, in cash to the order of the person whose name appears on such
certificate or certificates as the owner thereof and each surrendered
certificate shall be canceled. If the Company does not have sufficient funds
legally available to redeem all shares to be redeemed pursuant to this Section
4, then it shall use those funds which are legally available to redeem the
maximum possible number of such shares pro rata among the holders of the Series
B Preferred Stock. At any time thereafter when funds of the Company are legally
available for the redemption of shares of Series B Preferred, such funds will
immediately be used to redeem the balance of the shares which the Company has
become obligated to redeem pursuant to this Section 4 but which it has not
redeemed.
SECTION 5. CONVERSION RIGHTS. The following provisions shall
apply with respect to the conversion of the Series B Preferred into shares of
Common Stock:
(a) OPTIONAL CONVERSION.
(1) At any time after the one-year anniversary of the
date of issuance of the Series B Preferred, each share of Series B Preferred
may, at the option of the holder, be converted at any time into that number of
fully paid and nonassessable shares of Common Stock equal to the Original Issue
Price divided by the Conversion Price (as defined below), subject to the
Company's right to redeem the Series B Preferred pursuant to Section 4(a) above.
The conversion price for the Series B Preferred shall initially be equal to the
Original Issue Price divided by 100 (the "Conversion Price"). Such initial
Conversion Price shall be adjusted from time to time in accordance with this
Section 5. All references to the Conversion Price herein shall mean the
Conversion Price as so adjusted.
(2) Notwithstanding anything contained in this
Section 5 to the contrary, the Series B Preferred shall not convert, and no
shares of Common Stock shall be issued by the Company thereby, unless and until
the pre-merger notification requirements of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), have been
3.
16
complied with, and any waiting period under the HSR Act applicable to the
conversion of the Series B Preferred has expired or been terminated and any
approvals required thereunder have been obtained.
(3) Before any holder of Series B Preferred 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
principal executive office of the Company or its transfer agent for such stock,
and shall give written notice to the corporation at such office that such holder
elects to convert the Series B Preferred and shall state therein the name or
names in which the holder wishes the certificate or certificates for shares of
Common Stock to be issued (the "Conversion Notice"). The Company shall, as soon
as practicable thereafter, issue and deliver at such office to such holder of
Series B Preferred at the holder's address as set forth on the Company's
records, or such other address as the holder shall have furnished to the Company
in writing, 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 surrender of the shares of Series B Preferred 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.
(4) Notwithstanding anything contained in this
Section 5 to the contrary, in the event that the approval of the Company's
stockholders is required pursuant to Rule 4460(i) of the Nasdaq Stock Market
prior to the issuance of any of the shares of Common Stock issuable upon
conversion of the Series B Preferred, the Company shall obtain such approval by
the conversion date under Section 5(a)(1) hereof. In the event such approval is
not obtained, the Company shall, in accordance with Section 4 hereof, redeem any
shares of Series B Preferred that would be convertible into shares of Common
Stock in excess of the limitation specified in Rule 4460(i).
(b) ADJUSTMENT FOR STOCK SPLITS AND COMBINATIONS. If the
Company shall at any time or from time to time after the date that the first
share of Series B Preferred is issued (the "Original Issue Date") fix a record
date for the effectuation of a split or subdivision of the outstanding Common
Stock, the Conversion Price for the Series B Preferred in effect immediately
before that subdivision shall be proportionately decreased. Conversely, if the
Company shall at any time or from time to time after the Original Issue Date
combine the outstanding shares of Common Stock into a smaller number of shares,
the Conversion Price for the Series B Preferred in effect immediately before the
combination shall be proportionately increased. Any adjustment under this
Section 5(b) shall become effective at the close of business on the date the
split, subdivision or combination becomes effective.
(c) ADJUSTMENT FOR COMMON STOCK DIVIDENDS AND
DISTRIBUTIONS. If the Company at any time or from time to time after the
Original Issue Date makes, or fixes a record date for the determination of
holders of Common Stock entitled to receive, a dividend or other distribution
payable in additional shares of Common Stock, in each such event the Conversion
Price for the Series B Preferred that is then in effect shall be decreased as of
the time of such issuance or, in the event such record date is fixed, as of the
close of business on such
4.
17
record date, by multiplying the Conversion Price then in effect by a fraction
(i) the numerator of which is the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date, and (ii) the denominator of which is the total
number of shares of Common Stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record date plus the
number of shares of Common Stock issuable in payment of such dividend or
distribution; provided, however, that if such record date is fixed and such
dividend is not fully paid or if such distribution is not fully made on the date
fixed therefor, the Conversion Price shall be recomputed accordingly as of the
close of business on such record date and thereafter the Conversion Price shall
be adjusted pursuant to this Section 5(c) to reflect the actual payment of such
dividend or distribution or other securities or rights convertible into, or
entitling the holder thereof to receive directly or indirectly, additional
shares of Common Stock.
(d) ADJUSTMENTS FOR OTHER DIVIDENDS AND DISTRIBUTIONS. If
the Company at any time or from time to time after the Original Issue Date makes
or fixes a record date for the determination of holders of Common Stock entitled
to receive a dividend or other distribution payable in securities of the Company
other than shares of Common Stock, in each such event for purposes of this
subsection 5(d), provision shall be made so that the holders of the Series B
Preferred shall receive upon conversion thereof, in addition to the number of
shares of Common Stock receivable thereupon, the amount of other securities of
the Company which they would have received had their Series B Preferred been
converted into Common Stock as of the record date fixed for the determination of
the holders of Common Stock of the Company entitled to receive such distribution
and had they thereafter, during the period from the date of such event to and
including the conversion date, retained such securities receivable by them as
aforesaid during such period, subject to all other adjustments called for during
such period under this Section 5 with respect to the rights of the holders of
the Series B Preferred or with respect to such other securities by their terms.
(e) ADJUSTMENT FOR RECLASSIFICATION, EXCHANGE AND
SUBSTITUTION. If at any time or from time to time after the Original Issue Date,
the Common Stock issuable upon the conversion of the Series B Preferred is
changed into the same or a different number of shares of any class or classes of
stock, whether by recapitalization, reclassification or otherwise (other than a
subdivision or combination of shares or stock dividend or a reorganization,
merger, consolidation or sale of assets provided for elsewhere in this Section 5
or in Section 3), in any such event each holder of Series B Preferred shall have
the right thereafter to convert such stock into the kind and amount of stock and
other securities and property receivable upon such recapitalization,
reclassification or other change by holders of the maximum number of shares of
Common Stock into which such shares of Series B Preferred could have been
converted immediately prior to or as of such recapitalization, reclassification
or change, all subject to further adjustment as provided herein or with respect
to such other securities or property by the terms thereof. In any such case,
appropriate adjustment shall be made in the application of the provisions of
this Section 5 with respect to the rights of the holders of Series B Preferred
after such recapitalization, reclassification or change to the end that the
provisions of this Section 5 (including adjustment of the Conversion Price then
in effect and the number of shares issuable upon conversion of the Series B
Preferred) shall be applicable after that event and be as nearly equivalent as
practicable.
5.
18
(f) REORGANIZATIONS. If at any time or from time to time
after the Original Issue Date, there is a capital reorganization of the Common
Stock (other than a recapitalization, subdivision, combination,
reclassification, exchange or substitution of shares provided for elsewhere in
this Section 5 or in Section 3), as a part of such capital reorganization,
provision shall be made so that the holders of the Series B Preferred shall
thereafter be entitled to receive upon conversion of the Series B Preferred the
number of shares of stock or other securities or property of the Company or
otherwise to which a holder of the number of shares of Common Stock deliverable
upon conversion would have been entitled on such capital reorganization, subject
to adjustment in respect of such stock or securities by the terms thereof. In
any such case, appropriate adjustment shall be made in the application of the
provisions of this Section 5 with respect to the rights of the holders of Series
B Preferred after the capital reorganization to the end that the provisions of
this Section 5 (including adjustment of the Conversion Price then in effect and
the number of shares issuable upon conversion of the Series B Preferred) shall
be applicable after that event and be as nearly equivalent as practicable.
(g) FRACTIONAL SHARES. No fractional shares of Common
Stock shall be issued upon conversion of Series B Preferred and the number of
shares of Common Stock to be issued shall be rounded down to the nearest whole
share. The Company shall, in lieu of issuing any fractional share, pay the
holder otherwise entitled to such fraction a sum in cash equal to the fair
market value of such fraction on the date of conversion (as determined in good
faith by the Board of Directors).
(h) 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 or its treasury shares, solely for the purpose
of effecting the conversion of the shares of the Series B Preferred, 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. 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
B Preferred, the Company 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.
(i) NOTICES. Any notice required by the provisions of this
Section 5 to be given to the holders of shares of the Series B Preferred shall
be deemed given upon the earlier of actual receipt or seventy-two (72) hours
after the same has been deposited in the United States mail, by certified or
registered mail, return receipt requested, and addressed to each holder of
record at the address of such holder appearing on the books of the Company.
(j) PAYMENT OF TAXES. The Company will pay all taxes
(other than taxes based upon income) and other governmental charges that may be
imposed with respect to the issue or delivery of shares of Common Stock upon
conversion of shares of Series B Preferred, excluding any tax or other charge
imposed in connection with any transfer involved in the issue and delivery of
shares of Common Stock in a name other than that in which the shares of Series B
Preferred so converted were registered.
(k) NO DILUTION OR IMPAIRMENT. The Company shall not amend
its Certificate of Incorporation or participate in any reorganization, transfer
of assets, consolidation,
6.
19
merger, dissolution, issue or sale of securities or any other voluntary action,
for the purpose of avoiding or seeking 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 carrying out all such action as may be
reasonably necessary or appropriate in order to protect the conversion rights of
the holders of the Series B Preferred against dilution or other impairment.
SECTION 6. NOTICES OF RECORD. Upon 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 or other
distribution, or upon any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company, any
merger or consolidation of the Company with or into any other corporation, or
any transfer of all or substantially all the assets of the Company to any other
person, or any voluntary or involuntary dissolution, liquidation or winding up
of the Company, or any shareholders' meeting to approve the terms thereof, the
Company shall mail to each holder of Series B Preferred at least twenty (20)
days prior to the record date specified therein a notice specifying (i) the date
on which any such record is to be taken for the purpose of such dividend or
distribution and a description of such dividend or distribution, (ii) the date
on which any such reorganization, reclassification, transfer, consolidation,
merger, dissolution, liquidation or winding up is expected to become effective,
and the date of the shareholders meeting to approve the terms thereof, if
applicable, (iii) the date, if any, that is to be fixed as to when the holders
of record of Common Stock (or other securities) shall be entitled to exchange
their shares of Common Stock (or other securities) for securities or other
property deliverable upon such reorganization, reclassification, transfer,
consolidation, merger, dissolution, liquidation or winding up, and (iv) the
material terms thereof.
SECTION 7. NO REISSUANCE OF SERIES B PREFERRED STOCK. No share or
shares of Series B Preferred acquired by the Company by reason of redemption,
purchase, conversion or otherwise shall be reissued.
SECTION 8. RESTRICTION ON TRANSFER. Neither the shares of Series
B Preferred nor any right to receive redemption payments shall be assigned,
transferred, hypothecated or otherwise alienated by the holder thereof without
the prior written consent of the Company, except (i) in connection with, and to
the transferee of, all or substantially all of the business and assets of such
holder, or (ii) to a direct or indirect wholly owned subsidiary of Baxter
International Inc. Any such attempted action shall be null and void. The
foregoing restriction shall not apply to any Common Stock issued on conversion
of the Series B Preferred.
The authorized number of shares of Preferred Stock of this Company is five
million (5,000,000), of which 5,000 shares designated as Series A Preferred
Stock are issued and outstanding.
7.
20
IN WITNESS WHEREOF, this Company has caused this Certificate to be
signed by its duly authorized officer this 2nd day of March, 1999.
CERUS CORPORATION
By: /s/ Robert E. Miller
-------------------------------
Robert E. Miller
Chief Financial Officer
CERTIFICATE OF DESIGNATION
SERIES B PREFERRED
21
CERTIFICATE OF DESIGNATION
OF
SERIES C JUNIOR PARTICIPATING PREFERRED STOCK
(PURSUANT TO SECTION 151 OF THE
DELAWARE GENERAL CORPORATION LAW)
CERUS CORPORATION, a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter called the
"Company"), hereby certifies that the following resolution was adopted by the
Board of Directors of the Corporation as required by Section 151 of the General
Corporation Law at a meeting duly called and held on November 3, 1999:
RESOLVED, that pursuant to the authority granted to and vested in
the Board of Directors of the Company in accordance with the provisions
of its Amended and Restated Certificate of Incorporation, the Board of
Directors hereby creates a series of Preferred Stock, par value $.001
per share, of the Company and hereby states the designation and number
of shares, and fixes the relative designations and the powers,
preferences and rights, and the qualifications, limitations and
restrictions thereof (in addition to the provisions set forth in the
Certificate of Incorporation of the Company, which are applicable to the
Preferred Stock of all classes and series), as follows:
Series C Junior Participating Preferred Stock:
SECTION 1. DESIGNATION AND AMOUNT. Two hundred fifty thousand (250,000)
shares of Preferred Stock, $.001 par value, are designated "Series C Junior
Participating Preferred Stock" with the designations and the powers, preferences
and rights, and the qualifications, limitations and restrictions specified
herein (the "Junior Preferred Stock"). Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Junior Preferred Stock to a number less
than the number of shares then outstanding plus the number of shares reserved
for issuance upon the exercise of outstanding options, rights or warrants or
upon the conversion of any outstanding securities issued by the Company
convertible into Junior Preferred Stock.
1.
22
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any similar stock) ranking prior and superior to
the Junior Preferred Stock with respect to dividends, the holders of shares of
Junior Preferred Stock, in preference to the holders of Common Stock, par value
$.001 per share (the "Common Stock"), of the Company, and of any other junior
stock, shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the first day of April, July, October and January in each
year (each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Junior Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a) $l.00
or (b) subject to the provision for adjustment hereinafter set forth, 100 times
the aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
Junior Preferred Stock. In the event the Company shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of Junior
Preferred Stock were entitled immediately prior to such event under clause (b)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) The Company shall declare a dividend or distribution on the
Junior Preferred Stock as provided in paragraph (A) of this Section immediately
after it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided, that in the event no
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Junior
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Junior Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issue of such shares, unless the date of issue
of such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue from
the date of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the determination
of holders of shares of Junior Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
2.
23
interest. Dividends paid on the shares of Junior Preferred Stock in an amount
less than the total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Junior Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be not more than 60 days prior to the date fixed for the payment
thereof.
SECTION 3. VOTING RIGHTS. The holders of shares of Junior Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Junior Preferred Stock shall entitle the holder thereof to
100 votes on all matters submitted to a vote of the stockholders of the Company.
In the event the Company shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the number of votes per share to which holders of shares of Junior
Preferred Stock were entitled immediately prior to such event shall be adjusted
by multiplying such number by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other
Certificate of Designation creating a series of Preferred Stock or any similar
stock, or by law, the holders of shares of Junior Preferred Stock and the
holders of shares of Common Stock and any other capital stock of the Company
having general voting rights shall vote together as one class on all matters
submitted to a vote of stockholders of the Company.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Junior Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any corporate
action.
SECTION 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Junior Preferred Stock as provided in Section 2 are
in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Junior Preferred Stock
outstanding shall have been paid in full, the Company shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Junior Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Junior
Preferred Stock, except dividends paid ratably on the Junior
3.
24
Preferred Stock and all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Junior Preferred Stock, provided
that the Company may at any time redeem, purchase or otherwise acquire shares of
any such junior stock in exchange for shares of any stock of the Company ranking
junior (either as to dividends or upon dissolution, liquidation or winding up)
to the Junior Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Junior Preferred Stock, or any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Junior Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Company shall not permit any subsidiary of the Company
to purchase or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
SECTION 5. REACQUIRED SHARES. Any shares of Junior Preferred Stock
purchased or otherwise acquired by the Company in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred Stock subject to
the conditions and restrictions on issuance set forth herein, in the Amended and
Restated Certificate of Incorporation, or in any other Certificate of
Designation creating a series of Preferred Stock or any similar stock or as
otherwise required by law.
SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any liquidation,
dissolution or winding up of the Company, no distribution shall be made (1) to
the holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Junior Preferred Stock unless,
prior thereto, the holders of shares of Junior Preferred Stock shall have
received $100 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such payment,
provided that the holders of shares of Junior Preferred Stock shall be entitled
to receive an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of shares of Common Stock, or (2) to the
holders of shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Junior Preferred Stock, except
distributions made ratably on the Junior Preferred Stock and all such parity
stock in proportion to the total amounts to which the holders of all such shares
are entitled upon such liquidation, dissolution or winding up. In the event the
Company shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of
4.
25
the outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to which
holders of shares of Junior Preferred Stock were entitled immediately prior to
such event under the proviso in clause (1) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
SECTION 7. CONSOLIDATION, MERGER, ETC. In case the Company shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Junior Preferred Stock shall at the same time be similarly exchanged or changed
into an amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 100 times 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. In the event the
Company shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the exchange or
change of shares of Junior Preferred Stock shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
SECTION 8. NO REDEMPTION. The shares of Junior Preferred Stock shall not
be redeemable.
SECTION 9. RANK. The Junior Preferred Stock shall rank, with respect to
the payment of dividends and the distribution of assets, junior to all series of
any other class of the Company's Preferred Stock (including the Company's Series
A Preferred Stock notwithstanding any provisions of the Certificate of
Designation of Series A Preferred Stock of the Company to the contrary).
SECTION 10. AMENDMENT. The Amended and Restated Certificate of
Incorporation of the Company shall not be amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Junior Preferred Stock so as to affect them adversely without the affirmative
vote of the holders of at least two-thirds of the outstanding shares of Junior
Preferred Stock, voting together as a single class.
5.
26
IN WITNESS WHEREOF, the undersigned have executed this certificate as of
November 3, 1999.
/s/ STEPHEN T. ISAACS
------------------------------------
STEPHEN T. ISAACS
PRESIDENT AND CEO
/s/ LORI ROLL
------------------------------------
LORI ROLL
SECRETARY
6.