EXHIBIT 3.3
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ADEZA BIOMEDICAL CORPORATION
a Delaware Corporation
The undersigned, Daniel O. Wilds and Emory V. Anderson, hereby certify as
follows:
ONE: They are the duly elected and acting President and Secretary,
respectively, of Adeza Biomedical Corporation, a Delaware corporation (the
"Corporation").
TWO: The Certificate of Incorporation of the Corporation was originally
filed with the Secretary of State of Delaware on May 7, 1996.
THREE: The Certificate of Incorporation of the Corporation shall be
amended and restated to read in full as follows:
ARTICLE I
The name of the Corporation is Adeza Biomedical Corporation.
ARTICLE II
The address of the registered office of the Corporation in the State of
Delaware is 15 East North Street, PO Box 899, in the City of Dover, County of
Kent. The name of its registered agent at such address is Incorporating
Services, Ltd.
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 the State of Delaware.
ARTICLE IV
A. Classes of Stock. The Corporation is authorized to issue two classes
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of stock to be designated, respectively, "Common Stock" and "Preferred Stock."
The total number of shares that the Corporation is authorized to issue is
Thirty-Seven Million Nine Hundred Thirty-Three Thousand Eight Hundred
Seventy-Nine (37,933,879) shares. Twenty-Two Million Four Hundred Sixty-Two
Thousand Two Hundred Twenty (22,462,220) shares shall be Common Stock, par
value $0.001 per share, and Fifteen Million Four Hundred Seventy-One Thousand
Six Hundred Fifty-Nine (15,471,659) shares shall be Preferred Stock, par value
$0.001 per share, of which One Million Eight Hundred Eighty Thousand Five
Hundred
Seventy-Two (1,880,572) shares shall be designated Series 1 Preferred Stock and
Three Million Five Hundred Ninety-One Thousand Eighty-Seven (3,591,087) shares
shall be designated Series 2 Preferred Stock.
B. Rights, Preferences and Restrictions of Preferred Stock. The
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Preferred Stock authorized by this Amended and Restated Certificate of
Incorporation may be issued from time to time in one or more series. The
rights, preferences, privileges, and restrictions granted to and imposed on the
Series 1 and Series 2 Preferred Stock, are as set forth below in this Article
IV(B).
The Board of Directors is hereby authorized to fix or alter the
rights, preferences, privileges and restrictions granted to or imposed upon
additional series of Preferred Stock, and the number of shares constituting any
such series and the designation thereof, or of any of them. Subject to
compliance with applicable protective voting rights which have been or may be
granted to the Preferred Stock or series thereof in Certificates of
Determination or the Corporation's Certificate of Incorporation ("Protective
Provisions"), but notwithstanding any other rights of the Preferred Stock or any
series thereof, the rights, privileges, preferences and restrictions of any such
additional series may be subordinated to, pari passu with (including, without
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limitation, inclusion in provisions with respect to liquidation and acquisition
preferences, redemption and/or approval of matters by vote or written consent),
or senior to any of those of any present or future class or series of Preferred
or Common Stock. Subject to compliance with applicable Protective Provisions,
the Board of Directors is also authorized to increase the number of shares of
any series (other than the Series 1 and Series 2 Preferred Stock) or decrease
the number of shares of any series prior or subsequent to the issue 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.
1. Dividends.
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(a) Dividend Rights of Series 1 and Series 2 Preferred Stock. The
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holders of the Series 1 and Series 2 Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors, out of funds legally
available therefor, dividends at an annual rate of $.24 per share of Series 1
Preferred Stock (the "Series 1 Dividend Rate") and $.24 per share of Series 2
Preferred Stock (the "Series 2 Dividend Rate"), payable in preference and
priority to any payment of any dividend on Common Stock of the Corporation.
Such dividends shall not be cumulative and no right to such dividends shall
accrue to holders of Series 1 or Series 2 Preferred Stock unless declared by the
Board of Directors.
Each share of Series 1 and Series 2 Preferred Stock shall rank on
parity with every other share of such Preferred Stock, irrespective of series,
with regard to dividends, and no dividends shall be declared or paid or set
apart for payment on the shares of any series of Preferred Stock unless at the
same time a dividend for the same percentage of the respective
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dividend rates shall also be declared or paid or set apart for payment, as the
case may be, on the shares of Preferred Stock of each other series then
outstanding.
No dividends or other distributions shall be made with respect to the
Common Stock in any fiscal year (other than dividends payable in Common Stock on
shares of Common Stock) until a dividend in the amount of at least the Series 1
Dividend Rate and Series 2 Dividend Rate per share of Series 1 Preferred and
Series 2 Preferred has been declared and paid or set apart during that fiscal
year. The holders of Series 1 and Series 2 Preferred Stock shall participate
with holders of Common Stock in the payment of dividends and other distributions
in excess of the dividends to be first paid on Series 1 Preferred and Series 2
Preferred ratably on an as-if-converted to Common Stock basis.
(b) Definition of Distribution. For purposes of this Section 1,
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unless the context otherwise requires, a "distribution" shall mean the transfer
of cash or other property without consideration whether by way of dividend or
otherwise, payable other than in Common Stock, or the purchase or redemption of
shares of the Corporation (other than repurchases at cost of Common Stock issued
to or held by employees, officers, directors or consultants of the Corporation
or its subsidiaries upon termination of their employment or services pursuant to
agreements providing for the right of said repurchase) for cash or property.
2. Liquidation Preference.
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In the event of any liquidation, dissolution, or winding up of the
Corporation, either voluntary or involuntary ("Liquidation Event"),
distributions to the stockholders of the Corporation shall be made in the
following manner:
(a) Distribution to Holders of Series 1 and Series 2 Preferred Stock.
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(i) In the event of any Liquidation Event that takes place
prior to September 30, 1997, the holders of the Series 2 Preferred Stock shall
be entitled to receive, prior and in preference to any distribution of any
assets or surplus funds of the Corporation to the holders of Series 1 Preferred
Stock or the holders of the Common Stock by reason of their ownership of such
stock, the amount of $4.80 per share for each share of Series 2 Preferred then
held by them, plus any declared but unpaid dividends on the Series 2 Preferred,
adjusted for any stock splits, combinations, consolidations or stock
distributions or dividends with respect to such shares. If the assets and funds
available for distribution among the holders of the Series 2 Preferred Stock
shall be insufficient to permit the payment to such holders of the full
aforesaid preferential amount, then the entire assets and funds of the
Corporation legally available for distribution shall be distributed ratably
among the holders of the Series 2 Preferred. After payment has been made to the
holders of the Series 2 Preferred Stock of the full preferential amount to which
they shall be entitled, then the holders of Series 1 Preferred Stock shall be
entitled to receive, prior and in preference to any distribution of any assets
or surplus funds of the Corporation to the holders of the Common Stock by reason
of their ownership of such stock, the amount of $2.40 per share for each share
of Series 1 Preferred then held by them, plus any declared but unpaid dividends
on the Series 1 Preferred, adjusted for any stock splits, combinations,
consolidations, or stock distributions or dividends with respect to such shares.
If
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the assets and funds available for distribution among the holders of the Series
1 Preferred Stock shall be insufficient to permit the payment to such holders of
the full aforesaid preferential amount, then the entire assets and funds of the
Corporation legally available for distribution shall be distributed ratably
among the holders of the Series 1 Preferred.
(ii) In the event of any Liquidation Event that takes place on
or after September 30, 1997, the holders of the Series 1 and Series 2 Preferred
Stock shall be entitled to receive, prior and in preference to any distribution
of any assets or surplus funds of the Corporation to the holders of the Common
Stock by reason of their ownership of such stock, (i) the amount of $2.40 per
share for each share of Series 1 Preferred then held by them, plus any declared
but unpaid dividends on the Series 1 Preferred, adjusted for any stock splits,
combinations, consolidations, or stock distributions or dividends with respect
to such shares, and (ii) the amount of $2.40 per share for each share of Series
2 Preferred then held by them, plus any declared but unpaid dividends on the
Series 2 Preferred, adjusted for any stock splits, combinations, consolidations,
or stock distributions or dividends with respect to such shares. If the assets
and funds available for distribution among the holders of the Series 1 and
Series 2 Preferred Stock shall be insufficient to permit the payment to such
holders of the full aforesaid preferential amount, then the entire assets and
funds of the Corporation legally available for distribution shall be distributed
ratably among the holders of the Series 1 Preferred and Series 2 Preferred in
proportion to the respective amounts which would be payable on the shares held
by them if the respective preferential amounts were paid in full.
(b) Distribution to Holders of Common Stock. After payment has been made
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to the holders of the Series 1 and Series 2 Preferred Stock of the full amounts
to which they shall be entitled as set forth in Section 2(a) above, then the
holders of Common Stock shall be entitled to receive the amount of $.24 per
share for each share of Common Stock then held by them, adjusted for any
combinations, consolidations, or stock distributions or dividends with respect
to such shares. If the assets and funds available for distribution among the
holders of the Common Stock shall be insufficient to permit the payment to such
holders of the full aforesaid preferential amount, then the entire assets and
funds of the Corporation legally available for distribution shall be distributed
ratably among the holders of the Common Stock.
(c) Distribution of Remaining Assets. After payment has been made to
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the holders of the Common Stock of the full amounts to which they shall be
entitled as set forth in Section 2(b) above, then the entire remaining assets
and funds of the Corporation legally available for distribution, if any, shall
be distributed ratably among the holders of the Common Stock and Series 1 and
Series 2 Preferred Stock based upon the number of shares of Common Stock then
held by each holder of Common Stock or issuable upon conversion of the shares of
Series 1 and Series 2 Preferred Stock held by a holder of such Preferred Stock.
(d) Deemed Liquidations. For purposes of this Section 2, a merger or
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consolidation of the Corporation with or into any other corporation or
corporations, or the merger of any other corporation or corporations into the
Corporation, in which consolidation or merger the stockholders of the
Corporation receive distributions in cash or securities of another corporation
or corporations as a result of such consolidation or merger (unless the
stockholders of the Corporation will hold at least sixty-five percent (65%) of
the voting equity securities of the
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surviving corporation and in substantially the same pro rata portions as each
held of the voting equity securities of the Corporation immediately prior to the
consolidation or merger), or a sale of all or substantially all of the assets of
the Corporation, shall be treated as a liquidation, dissolution or winding up of
the Corporation.
(e) Non-Cash Assets. In the event the Corporation shall propose to
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take any action regarding the liquidation, dissolution or winding up of the
Corporation which will involve the distribution of assets other than cash, the
value of the assets to be distributed to the holders of shares of the Series 1
and Series 2 Preferred Stock shall be the fair market value of such assets as
determined in good faith by the unanimous written consent or majority vote of
the Board of Directors and such determination shall be binding upon the holders
of the Series 1 and Series 2 Preferred Stock, except that any securities
distributed shall be valued as follows:
(i) Securities not subject to investment letter or other similar
restrictions on free marketability:
(A) if traded on a securities exchange or the Nasdaq National
Market, the value shall be deemed to be the average of the security's closing
sales prices on such exchange over the thirty (30) day period ending three (3)
days prior to the closing; and
(B) if actively traded over-the-counter other than on the
Nasdaq National Market, the value shall be deemed to be the average of the
closing bid prices over the thirty (30) day period ending three (3) days prior
to the closing; and
(C) if there is no active public market, the value shall be the
fair market value thereof, as determined by the unanimous written consent or
majority vote of the Board of Directors and such determination shall be binding
upon the holders of the Series 1 and Series 2 Preferred Stock; and
(ii) 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 subparagraphs
(i) (A), (B) or (C) to reflect the approximate fair market value thereof, as
determined by the unanimous written consent or majority vote of the Board of
Directors and such determination shall be binding upon the holders of the Series
1 and Series 2 Preferred Stock.
3. Redemption of Preferred Stock. The Series 1 and Series 2 Preferred
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Stock shall not be redeemable.
4. Conversion.
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The holders of the Series 1 and Series 2 Preferred Stock shall have
conversion rights as follows: (the "Conversion Rights"):
(a) Right to Convert. Each share of Series 1 and Series 2 Preferred
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Stock shall be convertible, at the option of the holder thereof, at any time
after the date of issuance of such share at the office of the Corporation or any
transfer agent for such Preferred Stock, into
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such number of fully paid and nonassessable shares of Common Stock as is
determined (i) in the case of the Series 1 Preferred by dividing $2.40 by the
Series 1 Conversion Price, as determined as hereinafter provided, and (ii) in
the case of the Series 2 Preferred by dividing $2.40 by the Series 2 Conversion
Price, as determined as hereinafter provided. The price at which shares of
Common Stock shall be deliverable upon conversion of Preferred Stock shall
initially be (A) in the case of the Series 1 Preferred, $2.40 per share of
Common Stock (the "Series 1 Conversion Price"), and (B) in the case of the
Series 2 Preferred, $2.40 per share of Common Stock (the "Series 2 Conversion
Price"). The term "Conversion Price", as used herein, shall refer to the
respective conversion prices for each series of Preferred Stock. Such initial
Conversion Prices shall be subject to adjustment as provided herein.
(b) Automatic Conversion.
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(i) Each share of Series 1 and Series 2 Preferred Stock shall
automatically be converted into shares of Common Stock at the Conversion Price
then in effect upon the earlier of (A) the closing of a firmly underwritten
public offering pursuant to an effective registration statement under the
Securities Act of 1933, as amended, covering the offer and sale of Common Stock
for the account of the Corporation to the public at a price per share (before
deduction of underwriter discounts and commissions and offering expenses) of not
less than $6.00 (appropriately adjusted for any stock splits, combinations,
consolidations, or stock distributions or dividends with respect to such shares)
and an aggregate offering price to the public of not less than $10,000,000 or
(B) the affirmative vote or written consent of the holders of at least sixty-six
and two thirds percent (66 2/3%) of the Series 1 and Series 2 Preferred Stock
then outstanding, voting or consenting as a single class on an as-if-converted
basis.
(ii) In the event of the automatic conversion of the Series 1
and Series 2 Preferred Stock as set forth in Section 4(b)(i)(A) hereof, the
person(s) entitled to receive the Common Stock issuable upon such conversion
shall not be deemed to have converted such shares until immediately prior to the
closing of such sale of securities.
(c) Mechanics of Conversion. No fractional shares of Common Stock
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shall be issued upon conversion of Series 1 and Series 2 Preferred Stock. In
lieu of any fractional shares to which the holder would otherwise be entitled,
the Corporation shall pay cash equal to such fraction multiplied by the then
current fair value of the Common Stock, as determined in good faith by the Board
of Directors. Before any holder of Series 1 or Series 2 Preferred Stock shall
be entitled to convert the same into full shares of Common Stock and to receive
certificates therefor, he shall surrender the certificate or certificates for
such shares of Preferred Stock, duly endorsed, at the office of the Corporation
or of any transfer agent for the Preferred Stock, and shall give written notice
to the Corporation at such office that he elects to convert the same; provided,
however, that in the event of an automatic conversion pursuant to Section 4(b),
the outstanding shares of Series 1 and Series 2 Preferred Stock 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 Corporation or its transfer agent, and provided further that the Corporation
shall not be obligated to issue certificates evidencing the shares of Common
Stock issuable upon such automatic conversion unless the certificates evidencing
such shares of Preferred Stock are either delivered to the Corporation or its
transfer agent as provided above, or
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the holder notifies the Corporation or its transfer agent that such certificates
have been lost, stolen or destroyed and executes an agreement satisfactory to
the Corporation to indemnify the Corporation from any loss incurred by it in
connection with such certificates. The Corporation shall, as soon as practicable
after such delivery, or such agreement and indemnification in the case of a lost
certificate, issue and deliver at such office to such holder of Preferred Stock,
a certificate or certificates for the number of shares of Common Stock to which
such holder shall be entitled as aforesaid and a check payable to the holder in
the amount of any cash amounts payable as the result of a conversion into
fractional shares of Common Stock. Such conversion shall be deemed to have been
made immediately prior to the close of business on the date of such surrender of
the shares of Preferred Stock to be converted, or in the case of automatic
conversion pursuant to Section 4(b)(i)(A), on the date of closing of the
offering, 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.
(d) Adjustments to Conversion Price for Diluting Issues.
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(i) Special Definitions. For purposes of this Section 4(d), the
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following definitions shall apply:
(A) "Options" shall mean rights, options or warrants to
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subscribe for, purchase or otherwise acquire either Common Stock or Convertible
Securities.
(B) "Original Issue Date" shall mean, with respect to each
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series of Preferred Stock, the date on which a share of such series of Preferred
Stock was first issued.
(C) "Convertible Securities" shall mean any evidences of
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indebtedness, Stock or other securities convertible into or exchangeable for
Common Stock.
(D) "Additional Shares of Common" shall mean all shares of
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Common Stock issued (or, pursuant to Section 4(d)(iii), deemed to be issued) by
the Corporation after the Original Issue Date, other than shares of Common Stock
issued or issuable:
(1) upon conversion of shares of Series 1 Preferred or
Series 2 Preferred;
(2) to officers, directors or employees of, or
consultants to, the Corporation pursuant to a stock grant, stock option plan or
stock purchase plan or other stock incentive agreement or arrangement approved
by the vote or written consent of not less than sixty-six and two-thirds percent
(66-2/3%) of the directors then in office, up to an aggregate of 1,244,083
shares, including options outstanding on the date hereof;
(3) as a dividend or distribution on Series 1 Preferred
or Series 2 Preferred;
(4) upon exercise of warrants to purchase shares of
Common Stock or Series 2 Preferred;
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(5) in connection with any transaction for which
adjustment is made pursuant to Sections 4(d)(vi), (vii) or (viii) hereof;
(6) any shares of Common Stock issued, issuable or,
pursuant to Section 4(d)(iii), deemed to be issued, if the holders of sixty-six
and two-thirds percent (66 2/3%) of the Series 1 and Series 2 Preferred Stock,
voting or consenting as a single class on an as-if-converted basis agree in
writing that such shares shall not constitute Additional Shares of Common; and
(7) by way of dividend or distribution on shares of
Common Stock excluded from the definition of Additional Shares of Common Stock
by the foregoing clauses (1) through (6) or this clause (7).
(ii) No Adjustment of Conversion Price. No adjustment in the
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Conversion Price of a particular share of Series 1 or Series 2 Preferred Stock
shall be made in respect of the issuance of Additional Shares of Common unless
the consideration per share for an Additional Share of Common issued or deemed
to be issued by the Corporation is less than the Conversion Price in effect on
the date of, and immediately prior to, such issue for such share of Preferred
Stock.
(iii) Options and Convertible Securities. In the event the
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Corporation at any time or from time to time after the Original Issue Date shall
issue any Options or Convertible Securities or shall fix a record date for the
determination of holders of any class of securities entitled to receive any such
Options or Convertible Securities, then the maximum number of shares (as set
forth in the instrument relating thereto without regard to any provisions
contained therein for a subsequent adjustment of such number, including
provisions designed to protect against dilution) of Common Stock issuable upon
the exercise of such Options or, in the case of Convertible Securities and
Options therefor, the conversion or exchange of such Convertible Securities,
shall be deemed to be Additional Shares of Common issued as of the time of such
issue or, in case such a record date shall have been fixed, as of the close of
business on such record date, provided that Additional Shares of Common shall
not be deemed to have been issued unless the consideration per share (determined
pursuant to Section 4(d)(v) hereof) of such Additional Shares of Common would be
less than the Conversion Price in effect on the date of, and immediately prior
to, such issue, or such record date, as the case may be, and provided further
that in any such case in which Additional Shares of Common are deemed to be
issued:
(A) no further adjustment in the Conversion Price shall be
made upon the subsequent issue of Convertible Securities or shares of Common
Stock upon the exercise of such Options or conversion or exchange of such
Convertible Securities;
(B) if such Options or Convertible Securities by their
terms provide, with the passage of time, by reason of antidilution provisions or
otherwise, for any change in the consideration payable to the Corporation, or
change in the number of shares of Common Stock issuable, upon the exercise
conversion or exchange thereof, the Conversion Price computed upon the original
issue thereof (or upon the occurrence of a record date with respect thereto),
and any subsequent adjustments based thereon, shall, upon any such change
becoming
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effective, be recomputed to reflect an appropriate increase or decrease
reflecting such change insofar as it affects such Options or the rights of
conversion or exchange under such Convertible Securities; provided, however,
that no such adjustment of the Conversion Price shall affect Common Stock
previously issued upon conversion of the Series 1 and Series 2 Preferred Stock;
and
(C) upon the expiration or cancellation of any such Options
or any rights of conversion or exchange under such Convertible Securities which
shall not have been exercised, the Conversion Price computed upon the original
issue thereof (or upon the occurrence of a record date with respect thereto),
and any subsequent adjustments based thereon, shall, upon such expiration or
cancellation, be recomputed as if
(1) in the case of Convertible Securities or Options
for Common Stock, the only Additional Shares of Common issued were shares of
Common Stock, if any, actually issued upon the exercise of such Options or the
conversion or exchange of such Convertible Securities and the consideration
received therefor was the consideration actually received by the Corporation for
the issue of all such Options, whether or not exercised, plus the consideration
actually received by the Corporation upon such exercise, or for the issue of all
Convertible Securities which were actually converted or exchanged, plus the
additional consideration, if any, actually received by the Corporation upon such
conversion or exchange, and
(2) in the case of Options for Convertible Securities,
only the Convertible Securities, if any, actually issued upon the exercise
thereof were issued at the time of issue of such Options, and the consideration
received by the Corporation for the Additional Shares of Common deemed to have
been then issued was the consideration actually received by the Corporation for
the issue of all such Options, whether or not exercised, plus the consideration
deemed to have been received by the Corporation upon the issue of the
Convertible Securities with respect to which such Options were actually
exercised;
(D) no readjustment pursuant to clause (B) or (C) above
shall have the effect of increasing the Conversion Price to an amount which
exceeds the lower of (1) the Conversion Price on the original adjustment date,
or (2) the Conversion Price that would have resulted from any issuance of
Additional Shares of Common between the original adjustment date and such
readjustment date.
(iv) Adjustment of Conversion Price Upon Issuance of Additional
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Shares of Common. In the event this Corporation shall issue Additional Shares
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of Common (including Additional Shares of Common deemed to be issued pursuant to
Section 4(d)(iii)) without consideration or for a consideration per share less
than the Conversion Price in effect on the date of, and immediately prior to,
such issue, then and in such event, such Conversion Price shall be reduced,
concurrently with such issue, to a price (calculated to the nearest one-
hundredth of one cent) determined by multiplying such Conversion Price by a
fraction, the numerator of which shall be the sum of (A) the number of shares of
Common Stock outstanding and the number of shares of Common Stock which the
aggregate consideration received by the Corporation for the Additional Shares of
Common so issued would purchase at the then existing Conversion Price, and the
denominator of which shall be the sum of the number of shares of
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Common Stock and the number of Additional Shares of Common issued on such date.
For the purposes of this subsection (iv), all shares of Common Stock issuable
upon exercise, conversion or exchange of outstanding Convertible Securities and
Options shall be deemed to be outstanding, and all Additional Shares of Common
shall be deemed to be outstanding immediately after their issuance or deemed
issuance.
(v) Determination of Consideration. For purposes of this
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Section 4(d), the consideration received by the Corporation for the issue of any
Additional Shares of Common shall be computed as follows:
(A) Cash and Property. Such consideration shall:
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(1) insofar as it consists of cash, be computed at the
aggregate amount of cash received by the Corporation excluding amounts paid or
payable for accrued interest or accrued dividends;
(2) insofar as it consists of property other than
cash, be computed at the fair value thereof at the time of such issue, as
determined in good faith by the Board of Directors of the Corporation; and
(3) in the event Additional Shares of Common are
issued together with other shares or securities or other assets of the
Corporation for consideration which covers both, be the proportion of such
consideration so received, computed as provided in clauses (1) and (2) above, as
determined in good faith by the Board of Directors of the Corporation.
(B) Options and Convertible Securities.
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(1) The consideration per share received by the
Corporation for Additional Shares of Common deemed to have been issued pursuant
to Section 5(d)(iii) shall be determined by dividing: (i) the sum of (x) the
total amount, if any, received or receivable by the Corporation as consideration
for the issue of such Options or Convertible Securities plus (y) the minimum
aggregate amount of additional consideration (as set forth in the instruments
relating thereto, without regard to any provision contained therein for a
subsequent adjustment of such consideration, including any provisions designed
to protect against dilution) payable to the Corporation upon the exercise of
such Options or the conversion or exchange of such Convertible Securities, or in
the case of Options for Convertible Securities, the exercise of such Options for
Convertible Securities and the conversion or exchange of such Convertible
Securities, by (ii) the number of Additional Shares of Common deemed to have
been issued pursuant to Section 4(d)(iii).
(2) The number of Additional Shares of Common deemed
to have been issued pursuant to Section 4(d)(iii) shall be the maximum number of
shares of Common Stock (as set forth in the instruments relating thereto,
without regard to any provision contained therein for a subsequent adjustment of
such number, including any provisions
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designed to protect against dilution) issuable upon the exercise of such Options
or the conversion or exchange of such Convertible Securities.
(vi) Adjustments for Subdivision, Combination or Consolidation
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of Common Stock. In the event the outstanding shares of Common Stock shall be
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subdivided (by stock split, by stock dividend or otherwise), into a greater
number of shares of Common Stock, the Conversion Price in effect immediately
prior to such subdivision shall, concurrently with the effectiveness of such
subdivision, be proportionately decreased. In the event the outstanding shares
of Common Stock shall be combined or consolidated (by reclassification or
otherwise) into a lesser number of shares of Common Stock, the Conversion Price
in effect immediately prior to such combination or consolidation shall,
concurrently with the effectiveness of such combination or consolidation, be
proportionately increased.
(vii) Adjustments for Other Distributions. In the event the
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Corporation at any time or from time to time makes, or fixes a record date for
the determination of holders of Common Stock entitled to receive any
distribution payable in securities of the Corporation other than shares of
Common Stock and other than as otherwise adjusted in this Section 4 or as
otherwise provided in Section 1, then, and in each such event, provision shall
be made so that the holders of Series 1 and Series 2 Preferred Stock shall
receive upon conversion thereof, in, addition to the number of shares of Common
Stock receivable thereupon, the amount of securities of the Corporation which
they would have received had their Preferred Stock been converted into Common
Stock on the date of such event and had they thereafter, during the period from
the date of such event to and including the date of conversion, retained such
securities receivable by them as aforesaid during such period, subject to all
other adjustments called for during such period under this Section 4 with
respect to the rights of the holders of the Series 1 and Series 2 Preferred
Stock.
(viii) Adjustments for Reclassification, Exchange, and
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Substitution. If the Common Stock issuable upon conversion of the Series 1 and
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Series 2 Preferred Stock shall be changed into the same or a different number of
shares of any other class or classes of stock, whether by capital
reorganization, reclassification or otherwise (other than a subdivision or
combination of shares provided for above), the Conversion Price then in effect
for the Series 1 and Series 2 Preferred Stock shall, concurrently with the
effectiveness of such reorganization or reclassification, be proportionately
adjusted such that the Series 1 and Series 2 Preferred Stock shall be
convertible into, in lieu of the number of shares of Common Stock which the
holders would otherwise have been entitled to receive, a number of shares of
such other class or classes of stock equivalent to the number of shares of
Common Stock that would have been subject to receipt by the holders upon
conversion of the Series 1 and Series 2 Preferred Stock immediately before that
change.
(e) Certificate as to Adjustments. Upon the occurrence of each
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adjustment or readjustment of the Conversion Price pursuant to this Section 4,
the Corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
Series 1 and Series 2 Preferred Stock a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Corporation shall, upon the written
request at any time of any holder
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of Series 1 or Series 2 Preferred Stock, furnish or cause to be furnished to
such holder a like certificate setting forth (i) such adjustments and
readjustments, (ii) the applicable Conversion Price at the time in effect and
(iii) the number of shares of Common Stock and the amount, if any, of other
property which at the time would be received upon the conversion of such
Preferred Stock.
(f) No Impairment. The Corporation will not, by amendment of its
-------------
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Corporation, but it will
at all times in good faith assist in the carrying out of all of the provisions
of this Section 4 and in the taking of all such actions as may be necessary or
appropriate in order to protect the Conversion Rights of the holders of the
Series 1 and Series 2 Preferred Stock against impairment.
(g) Notices of Record Date. In the event that this Corporation shall
----------------------
propose at any time:
(i) to declare any dividend or distribution upon its Common
Stock, whether in cash, property, stock or other securities, whether or not a
regular cash dividend and whether or not out of earnings or earned surplus;
(ii) to offer for subscription pro rata to the holders of any
class or series of its stock any additional shares of stock of any class or
series or other rights;
(iii) to effect any reclassification or recapitalization of its
Common Stock outstanding involving a change in the Common Stock; or
(iv) to merge or consolidate with or into any other
corporation, or sell, lease or convey all or substantially all its property or
business, or to liquidate, dissolve or wind up;
then, in connection with each such event, this Corporation shall send
to the holders of the Series 1 and Series 2 Preferred Stock:
(A) at least 20 days' prior written notice of the date on
which a record shall be taken for such dividend, distribution or subscription
rights (and specifying the date on which the holders of Common Stock shall be
entitled thereto) or for determining rights to vote in respect of the matters
referred to in (iii) and (iv) above; and
(B) in the case of the matters referred to in (iii) and
(iv) above, at least 20 days' prior written notice of the date when the same
shall take place (and specifying the date on which the holders of Common Stock
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon the occurrence of such event).
Each such written notice shall be given by first class mail, postage
prepaid, addressed to the holders of Series 1 and Series 2 Preferred Stock at
the address for each such holder as shown on the books of this Corporation.
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5. Board of Directors; Voting Rights.
---------------------------------
Until the closing of the Corporation's initial public offering of
securities pursuant to a registration statement filed under the Securities Act
of 1933, as amended, the Board of Directors shall consist of not less than four
(4) nor more than seven (7) members and the holders of Series 1 and Series 2
Preferred Stock, voting together as a single class, shall be entitled to elect
six (6) members of the Board of Directors. Subject to the foregoing and except
as otherwise required by law or by Section 6 hereof, the holders of Series 1 and
Series 2 Preferred Stock and the holders of Common Stock shall be entitled to
notice of any stockholders meeting and to vote together as a class upon any
matter submitted to stockholders for a vote. In any matter submitted to
stockholders for a vote, each share of Common Stock issued and outstanding shall
have one vote and each holder of shares of Series 1 and Series 2 Preferred Stock
shall be entitled to the number of votes equal to the number of shares of Common
Stock into which such holder's Preferred Stock is convertible, as adjusted from
time to time pursuant to Section 4 hereof, at the record date for determination
of the stockholders entitled to vote on such matters, or, if no such record date
is established, at the date such vote is taken or any written consent of
stockholders is solicited.
6. Protective Provisions.
---------------------
(a) In addition to any other rights provided by law, so long as at least
333,334 shares of Series 1 and Series 2 Preferred Stock shall be outstanding,
this Corporation shall not, without first obtaining the affirmative vote or
written consent of the holders of a majority of the outstanding shares of the
Series 1 and Series 2 Preferred Stock, voting or consenting as a single class on
an as-if-converted basis:
(i) take any action involving the sale by the Corporation of
all or substantially all of its assets to, or involving any reorganization,
consolidation or merger of the Corporation with, any corporation (other than a
wholly owned subsidiary of the Corporation);
(ii) alter or change the rights, preferences or privileges of
the shares of the Series 1 or Series 2 Preferred Stock so as materially
adversely to affect the shares of Series 1 or Series 2 Preferred Stock;
(iii) increase the authorized number of shares of Series 1 or
Series 2 Preferred Stock;
(iv) create any new class or series of shares of, or reclassify
outstanding securities into, shares of convertible securities on parity with or
having preferences over shares of Series 1 or Series 2 Preferred Stock as to
dividends, liquidation preference, redemption, voting or antidilution
protection;
(v) amend or restate this Amended and Restated Certificate of
Incorporation;
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(vi) create a subsidiary corporation which is partially owned
(excluding directors' qualifying shares) by another entity or person other than
a wholly owned subsidiary of the Corporation; or
(vii) sell shares (other than directors' qualifying shares) of a
wholly owned subsidiary to a person or entity other than the Corporation or
another wholly owned subsidiary of the Corporation.
(b) In addition to any other rights provided by law, this Corporation
shall not, without first obtaining the affirmative vote or written consent of
the holders of at least seventy-five percent (75%) of the outstanding shares of
Series 2 Preferred Stock, alter or change the rights, preferences or privileges
of the Series 2 Preferred Stock so as materially adversely to affect the shares
of Series 2 Preferred Stock.
7. Residual Rights. All rights accruing to the outstanding shares of
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this Corporation not expressly provided for to the contrary herein shall be
vested in the Common Stock.
8. Status of Converted Stock. In the event any shares of Series 1 or
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Series 2 Preferred Stock shall be converted pursuant to Section 4 hereof, the
shares so converted shall be cancelled and shall not be issuable by this
Corporation. The Certificate of Incorporation of this Corporation shall be
appropriately amended to effect the corresponding reduction in the Corporation's
authorized capital stock.
C. Common Stock.
------------
1. Dividend Rights. Subject to the prior rights of holders of all
---------------
classes of stock at the time outstanding having prior rights as to dividends,
the holders of the Common Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of any assets of the Corporation legally
available therefor, such dividends as may be declared from time to time by the
Board of Directors.
2. Liquidation Rights. Upon the liquidation, dissolution or winding up
------------------
of the Corporation, the assets of the Corporation shall be distributed as
provided in Section 2 of Subsection B. of this Article IV hereof.
3. Redemption. The Common Stock is not redeemable.
----------
4. Voting Rights. The holder of each share of Common Stock shall have the
-------------
right to one vote, and shall be entitled to notice of any stockholders' meeting
in accordance with the bylaws of this Corporation, and shall be entitled to vote
upon such matters and in such manner as may be provided by law.
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ARTICLE V
Except as otherwise provided in this Certificate of Incorporation, in
furtherance and not in limitation of the powers conferred by statute, the Board
of Directors is expressly authorized to make, repeal, alter, amend and rescind
any or all of the Bylaws of the Corporation.
ARTICLE VI
The number of directors of the Corporation shall be fixed from time to
time by the Bylaws or a bylaw amendment thereof duly adopted by the Board of
Directors or by the stockholders.
ARTICLE VII
Elections of directors need not be by written ballot unless the Bylaws
of the Corporation shall so provide.
ARTICLE VIII
Effective upon the closing of the Corporation's initial public
offering of securities pursuant to a registration statement filed under the
Securities Act of 1933, as amended, the stockholders of the Corporation may not
take action by written consent without a meeting and must take any actions at a
duly called annual or special meeting. 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 IX
A director of the Corporation shall, to the full extent permitted by
the Delaware General Corporation Law as it now exists or as it may hereafter be
amended, not be liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director. Neither any amendment nor
repeal of this Article IX, nor the adoption of any provision of this Certificate
of Incorporation inconsistent with this Article IX, shall eliminate or reduce
the effect of this Article IX in respect of any matter occurring, or any cause
of action, suit or claim that, but for this Article IX, would accrue or arise,
prior to such amendment, repeal or adoption of an inconsistent provision. 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 of the Corporation shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law as so amended.
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Any repeal or modification of the foregoing provisions of this Article IX by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
ARTICLE X
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 this
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 the State
of Delaware, subject only to limits created by applicable Delaware law
(statutory or non-statutory), with respect to actions for breach of duty to the
Corporation, its stockholders, and others.
Any repeal or modification of any of the foregoing provisions of this
Article X 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.
ARTICLE XI
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.
* * *
The foregoing Amended and Restated Certificate of Incorporation has
been duly adopted by the Corporation's Board of Directors and stockholders in
accordance with the applicable provisions of Section 228, 242 and 245 of the
General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, the undersigned have executed this certificate on
May ____, 1996.
ADEZA BIOMEDICAL CORPORATION
By:___________________________________
Daniel O. Wilds,
President
By:____________________________________
Emory V. Anderson,
Secretary
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