Exhibit 3.2
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CIPHERGEN BIOSYSTEMS, INC.
Ciphergen Biosystems, Inc., a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
A. The name of the corporation is Ciphergen Biosystems, Inc. The
corporation was originally incorporated under the same name, and the original
Certificate of Incorporation was filed with the Secretary of State of the
State of Delaware on May 23, 2000.
B. Pursuant to Sections 242 and 245 of the General Corporation Law
of the State of Delaware, this Restated Certificate of Incorporation restates
and amends the provisions of the Certificate of Incorporation of the
corporation.
C. The text of the Certificate of Incorporation is hereby amended
and restated in its entirety to read as follows:
ARTICLE I
The name of this corporation is Ciphergen Biosystems, Inc.
ARTICLE II
The address of the corporation's registered office in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New Castle,
Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.
ARTICLE III
The purpose of the corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of Delaware.
ARTICLE IV
The corporation is authorized to issue two classes of shares of
stock to be designated, respectively, Common Stock, $0.001 par value, and
Preferred Stock, $0.001 par value. The total number of shares that the
corporation is authorized to issue is 85,000,000 shares. The number of shares
of Common Stock authorized is 80,000,000. The number of shares of Preferred
authorized is 5,000,000. Effective on the date of the filing of this Amended
and Restated Certificate of Incorporation, each one (1) share of Common Stock
of this Corporation outstanding on such date shall be reverse split into
forty-three one hundredths (0.43) shares of Common Stock of this Corporation
rounded down to the nearest whole share, with the value of any fractional
shares paid in cash to the stockholder.
The Preferred Stock may be issued from time to time in one or more
series pursuant to a resolution or resolutions providing for such issue duly
adopted by the board of directors (authority to do so being hereby expressly
vested in the board). The board of directors is further authorized to
determine or alter the rights, including voting 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 any such series then outstanding) the number of
shares of any series subsequent to the issue of shares of that series.
The authority of the board of directors with respect to each such class
or series shall include, without limitation of the foregoing, the right to
determine and fix:
(a) the distinctive designation of such class or series and the
number of shares to constitute such class or series;
(b) the rate at which dividends on the shares of such class or
series shall be declared and paid, or set aside for payment, whether
dividends at the rate so determined shall be cumulative or accruing, and
whether the shares of such class or series shall be entitled to any
participating or other dividends in addition to dividends at the rate so
determined, and if so, on what terms;
(c) the right or obligation, if any, of the corporation to redeem
shares of the particular class or series of Preferred Stock and, if
redeemable, the price, terms and manner of such redemption;
(d) the special and relative rights and preferences, if any, and
the amount or amounts per share that the shares of such class or series of
Preferred Stock shall be entitled to receive upon any voluntary or
involuntary liquidation, dissolution or winding up of the corporation;
(e) the terms and conditions, if any, upon which shares of such
class or series shall be convertible into, or exchangeable for, shares of
capital stock of any other class or series, including the price or prices or
the rate or rates of conversion or exchange and the terms of adjustment, if
any;
(f) the obligation, if any, of the corporation to retire, redeem
or purchase shares of such class or series pursuant to a sinking fund or fund
of a similar nature or otherwise, and the terms and conditions of such
obligation;
(g) voting rights, if any, on the issuance of additional shares of
such class or series or any shares of any other class or series of Preferred
Stock;
(h) limitations, if any, on the issuance of additional shares of
such class or series or any shares of any other class or series of Preferred
Stock; and
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(i) such other preferences, powers, qualifications, special or
relative rights, including voting rights, and privileges thereof as the board
of directors of the corporation, acting in accordance with this Restated
Certificate of Incorporation, may deem advisable and are not inconsistent
with law and the provisions of this Restated Certificate of Incorporation.
ARTICLE V
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 the
stockholders herein are granted subject to this right.
ARTICLE VI
The corporation is to have perpetual existence.
ARTICLE VII
1. LIMITATION OF LIABILITY. To the fullest extent permitted by the
General Corporation Law of the State of Delaware as the same exists or as may
hereafter be amended, 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.
2. INDEMNIFICATION. The corporation shall indemnify to the fullest
extent permitted by law any person made or threatened to be made a party to
an action or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that such person or his or her testator
or intestate is or was a director or officer of the corporation, or any
predecessor of the corporation, or serves or served at any other enterprise
as a director, officer or employee at the request of the corporation or any
predecessor to the corporation and may indemnify to the fullest extent
permitted by law any person made or threatened to be made a party to an
action or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that such person or his or her testator
or intestate is or was an employee of the corporation, or any predecessor of
the corporation, or serves or served at any other enterprise as a director,
officer or employee at the request of the corporation or any predecessor to
the corporation.
3. AMENDMENTS. Neither any amendment nor repeal of this Article
VII, nor the adoption of any provision of the corporation's Certificate of
Incorporation inconsistent with this Article VII, shall eliminate or reduce
the effect of this Article VII, in respect of any matter occurring, or any
action or proceeding accruing or arising or that, but for this Article VII,
would accrue or arise, prior to such amendment, repeal, or adoption of an
inconsistent provision.
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ARTICLE VIII
In the event any shares of Preferred Stock shall be redeemed or
converted pursuant to the terms hereof, the shares so converted or redeemed
shall not revert to the status of authorized but unissued shares, but instead
shall be canceled and shall not be re-issuable by the corporation.
ARTICLE IX
Holders of stock of any class or series of the corporation shall not be
entitled to cumulate their votes for the election of directors or any other
matter submitted to a vote of the stockholders, unless such cumulative voting is
required pursuant to Sections 214 of the Delaware General Corporation Law, in
which event each such holder shall be entitled to as many votes as shall equal
the number of votes which (except for this provision as to cumulative voting)
such holder would be entitled to cast for the election of directors with respect
to his shares of stock multiplied by the number of directors to be elected by
him, and the holder may cast all of such votes for a single director or may
distribute them among the number of directors to be voted for, or for any two or
more of them as such holder may see fit, so long as the name of the candidate
for director shall have been placed in nomination prior to the voting and the
stockholder, or any other holder of the same class or series of stock, has given
notice at the meeting prior to the voting of the intention to cumulate votes.
1. NUMBER OF DIRECTORS. The number of directors that constitutes
the whole Board of Directors of the corporation shall be designated in the
Amended and Restated Bylaws of the corporation. The directors shall be
divided into three classes with the term of office of the first class (Class
I) to expire at the annual meeting of stockholders held in 2001; the term of
office of the second class (Class II) to expire at the annual meeting of
stockholders held in 2002; the term of office of the third class (Class III)
to expire at the annual meeting of stockholders held in 2003; and thereafter
for each such term to expire at each third succeeding annual meeting of
stockholders after such election.
2. ELECTION OF DIRECTORS. Elections of directors need not be by
written ballot unless the Amended and Restated Bylaws of the corporation
shall so provide.
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ARTICLE X
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter, amend or
repeal the Amended and Restated Bylaws of the corporation.
ARTICLE XI
No action shall be taken by the stockholders of the corporation except
at an annual or special meeting of the stockholders called in accordance with
the Amended and Restated Bylaws, no special meetings of the stockholders shall
be called by stockholders without approval of the Board of Directors, and no
action, including the removal of directors without cause shall be taken by the
stockholders by written consent. The affirmative vote of sixty-six and
two-thirds percent (66 2/3%) of the then outstanding voting securities of the
corporation, voting together as a single class, shall be required for the
amendment, repeal or modification of the provisions of Article IX, Article X,
Article XI or Article XII of this Amended and Restated Certificate of
Incorporation or Sections 2.3 (Special Meeting), 2.4 (Notice of Stockholders'
Meeting), 2.8 (Voting), or 3.2 (Number of Directors) of the corporation's
Amended and Restated Bylaws.
ARTICLE XII
Meetings of stockholders may be held within or without the State of
Delaware, as the Amended and Restated Bylaws may provide. The books of the
corporation may be kept (subject to any provision contained in the statutes)
outside of 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 Amended and Restated
Bylaws of the corporation.
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IN WITNESS WHEREOF, Ciphergen Biosystems, Inc. has caused this
certificate to be signed by William E. Rich, its Chief Executive Officer, this
____ day of ________, 2000.
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William E. Rich, Chief Executive Officer