CERTIFICATE OF INCORPORATION
OF
INNOVIR LABORATORIES, INC.
The undersigned incorporator, in order to form a corporation under the
General Corporation Law of the State of Delaware, certifies as follows:
1. NAME. The name of the corporation is Innovir Laboratories, Inc.
(hereinafter called the "Corporation").
2. ADDRESS; REGISTERED AGENT. The address of the Corporation's
registered office is 229 South State Street, City of Dover, County of Kent,
State of Delaware; and its registered agent at such address is The Prentice-Hall
Corporation System, Inc.
3. PURPOSES. The nature of the business and purposes to be conducted or
promoted by the Corporation are to engage in, carry on and conduct any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
4. NUMBER OF SHARES. The total number of shares of stock which the
Corporation shall have authority to issue is one thousand (1000), all of which
shall be shares of Common Stock of the par value of one cent (0.01(cent)) each.
5. NAME AND ADDRESS OF INCORPORATOR. The name and mailing address of
the incorporator are: Jay Itzkowitz, c/o Paul, Weiss, Rifkind, Wharton &
Garrison, 1285 Avenue of the Americas, New York, New York 10019.
6. ELECTION OF DIRECTORS. Members of the Board of Directors may be
elected either by written ballot or by voice vote.
7. LIMITATION OF LIABILITY. No director of the Corporation shall be
personally liable to the Corporation or its stockholders for monetary damages
for 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 any improper personal benefits.
Any repeal or modification of the foregoing paragraph 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.
8. INDEMNIFICATION.
8.1 The Corporation shall, to the extent not prohibited by law,
indemnify any person who is or was made, or threatened to be made, a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation to procure a judgment in its favor (hereinafter a
"Proceeding"), by reason of the fact that such person, or a person of whom such
person is the legal representative, is or was a director or officer of the
Corporation, or is or was serving in any capacity at the request of the
Corporation for any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against judgments, fines, penalties,
excise taxes, amounts paid in
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settlement and costs, charges and expenses (including attorneys' fees and
disbursements). Persons who are not directors or officers of the Corporation may
be similarly indemnified in respect of service to the Corporation to the extent
the Board of Directors at any time denominates such persons entitled to the
benefits of this Section 8.
8.2 The Corporation shall, from time to time, reimburse or advance
to any director or officer or other person entitled to indemnification hereunder
the funds necessary for payment of expenses, including attorneys' fees and
disbursements, incurred in connection with any Proceeding, in advance of the
final disposition of such Proceeding, PROVIDED, HOWEVER, that, if required by
the Delaware General Corporation Law, such expenses incurred by or on behalf of
any director or officer or other person may be paid in advance of the final
disposition of a Proceeding only upon receipt by the Corporation of an
undertaking, by or on behalf of such director or officer (or other person
indemnified hereunder), to repay any such amount so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right of appeal that such director, officer or other person is not
entitled to be indemnified for such expenses.
8.3 The right to indemnification and reimbursement or advancement
of expenses provided by, or granted pursuant to, this Section 8 shall not be
deemed exclusive of any other rights to which those seeking indemnification or
reimbursement or advancement of expenses may have or hereafter be entitled under
any law, by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office.
-3-
8.4 The right to indemnification and reimbursement or advancement
of expenses provided by, or granted pursuant to, this Section 8 shall continue
as to a person who has ceased to be a director or officer (or other person
indemnified hereunder) and shall inure to the benefit of the heirs, executors
and administrators of such person.
8.5 The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not the
Corporation would have the power to indemnify such person against such liability
under the provisions of this Section 8, the By-laws of the Corporation or under
Section 145 of the Delaware General Corporation Law or any other provision of
law.
8.6 The provisions of this Section 8 shall be a contract between
the Corporation, on the one hand, and each director and officer who serves in
such capacity at any time while this Section 8 is in effect and any other person
indemnified hereunder, on the other hand, pursuant to which the Corporation and
each such director, officer or other person intend to be legally bound. No
repeal or modification of this Section 8 shall affect any rights or obligations
then existing or thereafter arising with respect to any state of facts then or
theretofore existing or thereafter arising or any proceeding theretofore or
thereafter brought or threatened based in whole or in part upon any such state
of facts.
-4-
8.7 The right to indemnification and reimbursement or advancement
of expenses provided by, or granted pursuant to, this Section 8 shall be
enforceable by any person entitled to such indemnification or reimbursement or
advancement of expenses in any court of competent jurisdiction. The burden of
proving that such indemnification or reimbursement or advancement of expenses
are not appropriate shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that such indemnification or reimbursement or advancement of expenses is
proper in the circumstances nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that such person is not entitled to such indemnification or
reimbursement or advancement of expenses, shall constitute a defense to the
action or create a presumption that such person is not so entitled. Such a
person shall also be indemnified for any expenses incurred in connection with
successfully establishing his or her right to such indemnification or
reimbursement or advancement of expenses, in whole or in part, in any such
proceeding.
8.8 Any director or officer of the Corporation serving (1) another
corporation of which a majority of the shares entitled to vote in the election
of its directors is held by the Corporation, or (2) any employee benefit plan of
the Corporation or any corporation referred to in clause (1), in any capacity,
shall be deemed to be doing so at the request of the Corporation.
8.9 Any person entitled to be indemnified or to the reimbursement
or advancement of expenses as a matter of right pursuant to this Section 8 may
elect to have
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the right to indemnification or reimbursement or advancement of expenses
interpreted on the basis of the applicable law in effect at the time of the
occurrence of the event or events giving rise to the applicable Proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time such indemnification or reimbursement or advancement of expenses is
sought. Such election shall be made, by a notice in writing to the Corporation,
at the time indemnification or reimbursement or advancement of expenses is
sought; PROVIDED that if no such notice is given, the right to indemnification
or reimbursement or advancement of expenses shall be determined by the law in
effect at the time indemnification or reimbursement or advancement of expenses
is sought.
9. ADOPTION, AMENDMENT AND/OR REPEAL OF BY-LAWS. The Board of
Directors may from time to time (after adoption by the undersigned of the
original by-laws of the Corporation) make, alter or repeal the by-laws of the
Corporation; provided, that any by-laws made, amended or repealed by the Board
of Directors may be amended or repealed, and any by-laws may be made, by the
stockholders of the Corporation.
IN WITNESS WHEREOF, this Certificate has been signed on this 14th day
of September, 1989.
/S/ JAY ITZKOWITZ
-----------------
Jay Itzkowitz
Incorporator
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CERTIFICATE OF AMENDMENT OF CERTIFICATE
OF INCORPORATION BEFORE PAYMENT OF
ANY PART OF THE CAPITAL
OF
INNOVIR LABORATORIES, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "corporation")
is Innovir Laboratories, Inc.
2. The corporation has not received any payment for any of its stock.
3. The certificate of incorporation of the corporation is hereby
amended by striking out Article Four thereof and by substituting in lieu of said
Article the following new Article Four:
"NUMBER OF SHARES. The total number of
shares of stock which the Corporation shall have
authority to issue is ten thousand (10,000), all of
which shall be shares of Common Stock of the
par value of one cent ($0.01) each."
4. The amendment of the certificate of incorporation of the corporation
herein certified was duly adopted, pursuant to the provisions of Section 241 of
the General Corporation Law of the State of Delaware, by the sole incorporator,
no directors having been named in the certificate of incorporation and no
directors having been elected.
/S/ JAY ITZKOWITZ
-----------------
Jay Itzkowitz
Incorporator
Dated: September 22, 1989.
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
INNOVIR LABORATORIES, INC.
Pursuant to Section 242 of the General Corporation
Law of the State of Delaware
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation")
is Innovir Laboratories, Inc.
2. The Certificate of Incorporation of the Corporation is hereby
amended by striking out Article 4 thereof and substituting in lieu of said
Article 4 the following new Article 4:
Article 4. NUMBER OF SHARES. The total number of shares
of stock which the Corporation shall have authority to issue
is fifty thousand (50,000), all of which shall be shares of
Common Stock of the par value of one cent ($.01) each.
3. The amendment of the Certification of Incorporation herein certified
has been duly adopted in accordance with the provisions of Sections 228 and 242
of the General Corporation Law of the State of Delaware.
4. The effective time of the amendment herein certified shall be upon
its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by its President and attested to by its Assistant
Secretary this 10th day of January, 1991.
/S/ ALLAN R. GOLDBERG
---------------------
Allan R. Goldberg
President
/S/ JAY ITZKOWITZ
-----------------
Jay Itzkowitz
Assistant Secretary
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
INNOVIR LABORATORIES, INC.
Pursuant to Section 242 of the General Corporation Law
of the State of Delaware
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation")
is Innovir Laboratories, Inc.
2. The Certificate of Incorporation of the Corporation is hereby
amended by striking out Article 4 thereof and substituting in lieu of said
Article 4 the following new Article 4:
4. (A) NUMBER OF SHARES. The aggregate number of shares of all classes
of stock which the Corporation shall have authority to issue eighty million
shares, consisting of (i) 60,000,000 shares of common stock, $.002 par value
(the "Common Stock") and (ii) 20,000,000 shares of preferred stock, $.01 par
value (the "preferred stock"), of which 300,000 shares of Series A Convertible
Preferred Stock, $.01 par value (the "Series A Convertible Preferred Stock") are
hereby authorized and designated.
-1-
The preferred stock authorized by this Certificate of Incorporation may
be issued from time to time in one or more classes or series. The Board of
Directors is authorized to determine or alter any or all of the rights,
preferences, privileges and restrictions granted to or imposed upon any wholly
unissued class of preferred stock other than the Series A Convertible Preferred
Stock, and to fix, alter or reduce (but not below the number then outstanding)
the number of shares comprising any such class and the designation thereof, or
any of them, and to provide for the rights and terms of conversion of the shares
of any such class.
The Board of Directors is hereby expressly authorized, by resolution or
resolutions, to provide, out of the unissued and undesignated shares of
preferred stock, for one or more series of preferred stock, in addition to the
Series A Convertible Preferred Stock, $.01 par value, described in this Article
4. Before any shares of any such series are issued, the Board of Directors shall
fix, and hereby is expressly empowered to fix, by resolution or resolutions, the
following provisions of the shares thereof:
(i) the designation of such series, the number of shares to
constitute such series, and the stated value thereof if different from the par
value thereof;
(ii) whether the shares of such series shall have voting rights,
in addition to any voting rights provided by law, and, if so, the terms of such
voting rights, which may be general or limited;
(iii) the dividends, if any, payable on such series,whether any
such dividends shall be cumulative, and, if so, from what dates, the conditions
and dates upon which such
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dividends shall be payable, the preference or relation which such dividends
shall bear to the dividends payable on any shares of stock of any other class or
any other series of this class;
(iv) the amount or amounts payable upon shares of such series upon
and the rights of the holders of such series in, the voluntary or involuntary
liquidation, dissolution or winding up, or upon any distribution of the assets,
of the Corporation, and whether such rights shall be in preference to, or in
another relation to, the comparable rights of any other class or classes or
series of stock;
(v) whether the shares of such series shall be convertible into,
or exchangeable for, shares of stock of any other series of this class or any
other securities and, if so, the price or prices or the rate or rates of
conversion or exchange and the method if any of adjusting the same, and any
other terms and conditions of conversion or exchange;
(vi) the limitations and restrictions, if any, to be effective
while any shares of such series are outstanding upon the payments of dividends
or the making of other distributions on the Common Stock or shares of stock of
any other class or any other series of this class;
(vii) the conditions or restrictions, if any, upon the creation of
indebtedness of the Corporation or upon the issue of any additional stock,
including additional shares of such series or of any other series of this class
or of any other class; and
(viii) any other powers, preferences and relative, participating,
optional and other special rights, and any qualifications, limitations and
restrictions thereof. The powers, preferences and relative, participating,
optional and other special rights, of each series of preferred stock, and the
qualifications, limitations of restrictions thereof, if any, may differ
-3-
from those of any and all other series at any time outstanding. All shares of
any one series of preferred stock shall be identical in all respects with all
other shares of such series, except that shares of any one series issued at
different times may differ as to the dates from which dividends thereon shall
accrue and/or be cumulative.
(B) SERIES A CONVERTIBLE PREFERRED STOCK. The designations, powers,
preferences and relative participating, optional or other special rights, and
the qualifications, limitations and restrictions thereof in respect of the
Series A Convertible Preferred Stock are as follows:
(i) DIVIDENDS. The holder of each share of Series A Convertible
Preferred Stock shall be entitled to receive, before any dividends shall be
declared and paid upon or set aside for any shares of the Common Stock, when and
as declared by the Board of Directors of the Corporation, out of funds legally
available for that purpose, dividends in cash, stock or otherwise, provided that
the amount of any such dividend shall not be less than the amount per share, if
any, of any dividend declared on the Common Stock, provided further that for
such purpose, each share of Series A Convertible Preferred Stock shall be deemed
to represent that number of shares of Common Stock into which such share of
Series A Convertible Preferred Stock is then convertible, rounded to the nearest
tenth of a share. All dividends declared upon the Series A Convertible Preferred
Stock shall be declared PRO RATA per share. All payments due under this Section
(i) to any holder of shares of Series A Convertible Preferred Stock shall be
made to the nearest cent.
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(ii) RIGHTS ON LIQUIDATION, DISSOLUTION OR WINDING UP.
(1) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the assets of the Corporation
available for distribution to its stockholders, whether from capital,
surplus or earnings, shall be distributed as follows:
(a)(i) The holders of Series A Convertible Preferred Stock
shall be entitled to receive, prior and in preference to any distribution to the
holders of Common Stock, an amount equal to $2.00 (the "Original Series A
Purchase Price") for each share of Series A Convertible Preferred Stock then
outstanding, and, in addition, an amount equal to declared but unpaid dividends,
if any, on the Series A Convertible Preferred Stock. If upon liquidation,
dissolution or winding up of the Corporation the assets of the Corporation
available for distribution to its stockholders shall be insufficient to pay the
holders of the Series A Convertible Preferred Stock the full amount to which
they shall be entitled under this Section B(ii)(1)(a)(i), each of the holders of
the Series A Convertible Preferred Stock shall share ratably in any distribution
of assets based on the ratio of the amount which would have been payable in
respect of the shares held by such holder upon such distribution to the total
amount which would have been payable to all such holders if all amounts payable
on or with respect to said shares were paid in full.
(ii) After setting apart or paying in full the preferential
amounts due the holders of the Series A Convertible Preferred Stock in
accordance with Section B(ii)(1)(a)(i), the remaining assets of the
Corporation available for distribution to stockholders shall be distributed
to each holder of the Common Stock the Series A
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Convertible Preferred Stock, PRO RATA based on the ratio which the number
of shares of Common Stock such holder holds (or is deemed to hold) bears to
the number of shares of Common Stock held (or deemed to be held) by all
such holders. In connection therewith each holder of Series A Convertible
Preferred Stock shall be deemed to hold that number of shares of Common
Stock into which the shares of Series A Convertible Preferred Stock held by
such holder is then convertible rounded to the nearest tenth of a share.
(2) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the Corporation shall, within ten
(10) days after the date the Board of Directors approves such action, or twenty
(20) days prior to any shareholders' meeting called to approve such action, or
twenty (20) days after the commencement of any involuntary proceeding, whichever
is earlier, give each holder of shares of Series A Convertible Preferred Stock
initial written notice of the proposed action. Such initial written notice shall
describe the material terms and conditions of such proposed action, including a
description of the stock, cash and property to be received by the holders of
shares of Series A Convertible Preferred Stock upon consummation of the proposed
action and the date of delivery thereof. If any material change in the facts set
forth in the initial notice shall occur, the Corporation shall promptly give
written notice to each holder of shares of Series A Convertible Preferred Stock
of such material change.
(3) The Corporation shall not consummate any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation before the expiration
of thirty (30) days after the mailing of the initial notice or ten (10) days
after the mailing of any
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subsequent written notice, whichever is later; provided that any such thirty
(30) day or ten (10) day period may be shortened upon the written consent of the
holders of all of the outstanding shares of Series A Convertible Preferred
Stock.
(4) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation which will involve the distribution
of assets other than cash, the Corporation shall promptly engage competent
independent appraisers to determine the value of the assets to be distributed
(it being understood that with respect to the valuation of securities pursuant
to this Section, the independence and competence of any appraiser engaged by the
Corporation shall be reasonably and promptly approved by the holders of shares
representing 51%, by voting power, of the Corporation's outstanding Series A
Convertible Preferred Stock). The corporation shall, upon receipt of such
appraiser's valuation give prompt written notice to each holder of shares of
Series A Convertible Preferred Stock of the appraiser's valuation. The
appraiser's valuation shall be applied on a consistent basis for Series A
Convertible Preferred Stock.
(iii) VOTING. Except as otherwise required by law or as set forth
herein, the shares of Series A Convertible Preferred Stock shall be voted
equally with the shares of the Corporation's Common Stock at an annual or
special meeting of stockholders of the Corporation, or may act by written
consent in the same manner as the Corporation's Common Stock, upon the following
basis: each holder of shares of Series A Convertible Preferred Stock shall be
entitled to (1) two (2) times such number of votes deriving from the Series A
Convertible Preferred Stock held by him on the record date fixed for such
meeting, or on the effective date of such written consents as shall be equal to
the largest number of
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whole shares of the Corporation's Common Stock into which all of his share of
Series A Convertible Preferred Stock are convertible immediately after the close
of business on the record date fixed for such meeting or the effective date of
such written consent until (2) the issuance and sale of another series of
convertible preferred stock of the Corporation with proceeds to the Corporation
of at least Four Million Dollars ($4,000,000), automatically and immediately
from and after which event such holder shall be entitled to such number of votes
deriving from the Series A Convertible Preferred Stock held by him on the record
date fixed for such meeting, or on the effective date of such written consent,
as shall be equal to the largest number of whole shares of Corporation's Common
Stock into which all of his shares of Series A Convertible Preferred Stock are
convertible immediately after the close of business on the record date fixed for
such meeting or the effective date of such written consent.
(iv) CONVERSION RIGHTS. (1) Each share of Series A Convertible
Preferred Stock shall be convertible, at the option of the holder thereof, at
any time after the issuance of such share into fully paid and non-assessable
shares of Common Stock of the Corporation; provided, however, each share of
Series A Convertible Preferred Stock shall automatically be converted into fully
paid and non-assessable shares of Common Stock of the Corporation immediately
upon the earlier to occur of (a) the closing of a sale of the Corporation's
Common Stock in any private placement transaction with proceeds to the
Corporation of at least Twenty Million Dollars ($20,000,000) or (b) the closing
of a sale of the Corporation's Common Stock in an underwritten registered public
offering with proceeds to the Corporation of at least Twenty Million Dollars
($20,000,000). The number of shares
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of Common Stock into which each share of the Series A Convertible Preferred
Stock may be converted shall be determined by dividing $2.00 by the Series A
Conversion Price (determined as hereinafter provided) in effect at the time of
the conversion.
(2) The conversion price per share of Series A Convertible
Preferred Stock (the "Series A Conversion Price") at which shares of Common
Stock shall be initially issuable upon conversion of any shares of Series A
Convertible Preferred Stock shall be $2.00, subject to adjustment as provided in
Section (v) hereof.
(3) The holder of any shares of Series A Convertible Preferred
Stock may exercise the conversion rights as to such shares or any part thereof
by delivering to the Corporation during regular business hours, at the office of
any transfer agent of the Corporation for the Series A Convertible Preferred
Stock, or at the principal office of the Corporation or at such other place as
may be designated by the Corporation, the certificate or certificates for the
shares to be converted, duly endorsed for transfer to the Corporation (if
required by it), accompanied by written notice stating that the holder elects to
convert such shares. Conversion shall be deemed to have been effected on the
date when such delivery is made, and such date is referred to herein as the
"Conversion Date". As promptly as practicable thereafter the Corporation shall
issue and deliver to or upon the written order of such holder, at such office or
other place designated by the Corporation, a certificate or certificates for the
number of full shares of Common Stock to each such holder is entitled and a
check for cash with respect to any fractional interest in a share of Common
Stock as provided in subparagraph (4) of this Section B(iv). The holder shall be
deemed to have become a stockholder of record on the applicable Conversion Date
unless the transfer books
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of the Corporation are closed on the date, in which event he shall be deemed to
have become a stockholder of record on the next succeeding date on which the
transfer books are open, but the Conversion Price shall be that in effect on the
Conversion Date. Upon conversion of only a portion of the number of shares of
Series A Convertible Preferred Stock represented by a certificate surrendered
for conversion, the Corporation shall issue and deliver to or upon the written
order of the holder of the certificate so surrendered for conversion, at the
expense of the Corporation, a new certificate covering the number of shares of
Series A Convertible Preferred Stock representing the unconverted portion of the
certificate so surrendered.
(4) No fractional shares of Common Stock or script shall be issued
upon conversion of shares of Series A Convertible Preferred Stock. If more than
one share of Series A Convertible Preferred Stock shall be surrendered for
conversion at any one time by the same holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be computed on the basis of
the aggregate number of shares of Series A Convertible Preferred Stock so
surrendered. Instead of any fractional shares of Common Stock which would
otherwise be issuable upon conversion of any shares of Series A Convertible
Preferred Stock, the Corporation shall pay a cash adjustment in respect of such
fractional interest equal to the then Current Market Price (as hereinafter
defined) of a share of Common Stock multiplied by such fractional interest.
For the purpose hereof, the Current Market Price at any date of
one share of Common Stock shall be deemed to be the daily closing price on the
day before the day in question. The closing price shall be the last reported
sales price [regular way] or, in case no such reported sales took place on such
day, the average of the last reported bid and
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asked prices [regular way], in either case on the principal national securities
exchange on which the Common Stock is listed or admitted to trading (or if the
Common Stock is not at the time listed or admitted for trading on any such
exchange, then such price shall be equal to the average of the last reported bid
and asked prices, as reported by the National Association of Securities Dealers
Automated Quotations System ("NASDAQ") on such day, or if, on any day in
question, the security shall not be quoted on the NASDAQ, then such price shall
be equal to the last reported bid and asked prices on such day as reported by
the National Quotation Bureau, Inc. or any similar reputable quotation and
reporting service, if such quotation is not reported by the National Quotation
Bureau, Inc.); provided, however, that if the Common Stock is not traded in such
manner that the quotations referred to in this Section B(iv)(4) are available
for the period required hereunder, the Current Market Price shall be determined
in good faith by the Board of Directors of the Corporation, or if such
determination cannot be made, by a nationally recognized independent investment
banking firm selected mutually by the holder of a majority in the voting power
of the Series A Convertible Preferred Stock then outstanding and the Corporation
(or, if such selection cannot be made, by a nationally recognized independent
investment banking firm selected by the American Arbitration Association in
accordance with its rules).
(5) The Corporation shall pay any and all issue and other taxes
that may be payable in respect of any issue or delivery of shares of Common
Stock on conversion of Series A Convertible Preferred Stock pursuant hereto. The
Corporation shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of shares of
Common Stock in a name other than that in
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which the Series A Convertible Preferred Stock so converted were registered and
no such issue or delivery shall be made unless and until the person requesting
such issue has paid to the Corporation the amount of any such tax, or has
established, to the satisfaction of the Corporation, that such tax has been
paid.
(6) The Corporation shall at all times reserve and keep available,
out of its authorized but unissued common stock, solely for the purpose of
effecting the conversion of the Series A Convertible Preferred Stock, the full
number of shares of Common Stock deliverable upon the conversion of all Series A
Convertible Preferred Stock from time to time outstanding. The Corporation shall
from time to time in accordance with the laws of the State of Delaware, increase
the authorized amount of its Common Stock if at any time the authorized number
of shares of its Common Stock remaining unissued shall not be sufficient to
permit the conversion of all of the shares of Series A Convertible Preferred
Stock at the time outstanding.
(7) If any shares of Common Stock to be reserved for the purpose
of conversion of shares of Series A Convertible Preferred Stock require
registration or listing with, or approval of, any governmental authority, stock
exchange or other regulatory body under any federal or state law or regulation
or otherwise, before such shares may be validly issued or delivered upon
conversion, the Corporation will in good faith and as expeditiously as possible
endeavor to secure such registration listing or approval, as the case may be.
(8) All shares of Common Stock which may be issued upon conversion
of the shares of Series A Convertible Preferred Stock will upon issuance by the
Corporation
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be validly issued, fully paid and non-assessable and free from all taxes, liens
and charges with respect to the issuance thereof.
(9) In case:
(a) the Corporation shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend,
or any other distribution, payable otherwise than in cash; or
(b) the Corporation shall take a record of the holders of its
Common Stock for the purpose of entitling them to subscribe for or
purchase any shares of stock of any class or to receive any other
rights; or
(c) of any capital reorganization of the Corporation,
reclassification of the capital stock of the Corporation (other than a
subdivision or combination of its outstanding shares of Common Stock),
consolidation or merger of the Corporation with or into another
corporation or conveyance of all or substantially all of the assets of
the Corporation to another corporation; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Corporation;
then, and in any such case, the Corporation shall cause to be mailed to the
transfer agent for the Series A Convertible Preferred Stock, and to the holders
of record of the outstanding Series A Preferred Stock, at least ten (10) days
prior to the date hereinafter specified, a notice stating the date on which (x)
are or is to be taken for the purpose of such dividend, distribution or rights,
or (y) such reclassification, reorganization consolidation, merger,
-13-
conveyance, dissolution, liquidation or winding up is to take place and the
date, if any is to be fixed, as of which holders of Common Stock of record shall
be entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such reclassification, reorganization, consolidation,
merger, conveyance, dissolution, liquidation or winding up.
(v) ADJUSTMENT OF CONVERSION PRICES. The Conversion Price from
time to time in effect shall be subject to adjustment from time to time
as follows:
(1) STOCK SPLITS DIVIDENDS AND COMBINATIONS. In case the
Corporation shall at any time subdivide the outstanding shares of Common Stock,
or shall issue a stock dividend on its outstanding Common Stock, the Conversion
Price in effect immediately prior to such subdivision or the issuance of such
dividend shall be proportionately decreased, and in case the Corporation shall
at any time combine the outstanding shares of Common Stock, the Conversion Price
in effect immediately prior to such combination shall be proportionately
increased, effective at the close of business on the date of such subdivision,
dividend or combination, as the case may be. The proportional increase or
decrease in the Conversion Price, as the case may be, shall be that amount such
that the Conversion Price in effect after such subdivision, dividend or
combination shall be an amount which would entitle the holder of Series A
Convertible Preferred Stock to obtain the number of shares of Common Stock which
he would have owned immediately following such event had he converted his Series
A Convertible Preferred Stock immediately prior to such event.
-14-
(2) 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 will at
all times in good faith assist in the carrying out of all the provisions of this
Section B(v) and in the taking of all such action ag may be necessary or
appropriate in order to protect the conversion rights of the holders of the
Series A Convertible Preferred Stock against impairment.
(3) Upon the occurrence of each adjustment or readjustment of
the Conversion Price pursuant to this Section B(v), the Corporation at its
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof, and prepare and furnish to each holder of Series A
Convertible Preferred Stock affected thereby 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 of Series A Convertible Preferred Stock,
furnish or cause to be furnished to such holder a like certificate setting forth
(a) such adjustment or readjustment, (b) the Conversion Price at the time in
effect, and (c) 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 his
shares.
(vi) STATUS OF CONVERTED STOCK. In case any shares of Series A
Convertible Preferred Stock shall be converted pursuant to Section B(iv) hereof,
the shares so
-15-
converted shall resume the status of authorized but unissued shares of Series A
Convertible Preferred Stock.
(vii) CHANGES AFFECTING SERIES A CONVERTIBLE PREFERRED STOCK. So long
as any shares of Series A Convertible Preferred Stock are outstanding, the
Corporation shall not, without first obtaining the approval by vote or written
consent, in the manner provided by law, of the holders of at least two-thirds
(66-2/3%) of the total number of shares of Series A Convertible Preferred Stock
outstanding, voting separately as a class, (1) alter or change any or all of the
rights, preferences, privileges and restrictions granted to or imposed upon the
Series A Convertible Preferred Stock or increase or decrease the authorized
number of shares of Series A Convertible Preferred Stock; or (2) amend the
provisions of this Section B(vii); or (3) reclassify the shares of Common Stock
or any other shares of capital stock junior to the Series A Convertible
Preferred Stock into shares of capital stock, or create any new class or series
of shares of capital stock senior to or on a parity with the Series A
Convertible Preferred Stock as to voting rights, dividends or a distribution of
assets of the Corporation in liquidation; or (4) unless holders of shares
representing at least seventy percent (70%), by voting power, of the capital
stock of the Corporation entitled to vote thereon otherwise consent or approve,
sell, lease, convey, exchange, transfer or otherwise dispose of all or
substantially all of its assets (other than for the purposes of securing payment
of any contract); or (5) unless holders of shares representing at least seventy
percent (70%), by voting power, of the capital stock of the Corporation entitled
to vote thereon otherwise consent or approve, merge or consolidate with or into
any other corporation except into or with a wholly-owned subsidiary of the
Corporation; or (6) purchase or set aside any sums for
-16-
the purchase of, or pay any dividend or make any distribution on, any shares of
stock other than Series A Convertible Preferred Stock, except for dividends or
other distributions payable on the Common Stock solely in the form of additional
shares of Common Stock and except for the purchase of shares of Common Stock
from former employees of or consultants to the Corporation who acquired such
shares directly from the Corporation, if the purchase price does not exceed the
original issue price paid by such former employee or consultant to the
Corporation for such shares and such purchase is approved by the Board of
Directors of the Corporation; or (7) voluntarily dissolve, liquidate or wind-up
or carry out any partial liquidation or dissolution or transaction in the nature
of a partial liquidation or dissolution. The Corporation shall give the holders
of the Series A Convertible Preferred Stock reasonable notice of any such event.
C. COMMON STOCK.
(i) VOTING. Except as otherwise expressly provided by law, and
subject to the voting rights provided to the holders of Series A Convertible
Preferred Stock by this Certificate of Incorporation, the Common Stock has
exclusive voting rights on all matters requiring a vote of stockholders.
(ii) OTHER RIGHTS. Each share of Common Stock issued and
outstanding shall be identical in all respects one with the other, and no
dividends shall be paid on any shares of Common Stock unless the same is paid on
all shares of Common Stock outstanding at the time of such payment. Except for
and subject to those rights expressly granted to the holders of the Series A
Convertible Preferred Stock, or except as may be
-17-
provided by the laws of the State of New York, the holders of Common Stock shall
have exclusively all other rights of stockholders.
3. The amendment of the Certificate of Incorporation herein certified
has been duly adopted in accordance with the provisions of Sections 228 and 242
of the General Corporation of the State of Delaware.
4. The effective time of the amendment herein certified shall be upon
its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by its President and attested to by its Assistant
Secretary this 16th day of April, 1992.
/S/ STEPHEN R. STREBER
----------------------
Stephen R. Streber,
President
Attest: /S/ KATHLEEN E. PICKERING
-------------------------
Kathleen E. Pickering,
Assistant Secretary
-18-
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
INNOVIR LABORATORIES, INC.
Pursuant to Section 242 of the General Corporation Law
of the State of Delaware
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation")
is Innovir Laboratories, Inc.
2. The Certificate of Incorporation of the Corporation is hereby
amended by changing the Article thereof numbered 4(A) so that, as amended, the
first paragraph of said Article 4(A) shall be and read as follows:
4. (A) NUMBER OF SHARES. The aggregate number of shares of all classes
of stock which the Corporation shall have authority to issue is eighty million
shares, consisting of (i) 60,000,000 shares of common stock, $.000125 par value
(the "Common Stock") and (ii) 20,000,000 shares of preferred stock, $.01 par
value (the "preferred stock"), of which 400,000 shares of Series A Convertible
Preferred Stock, $.01 par value (the "Series A Convertible Preferred Stock") are
hereby authorized and designated.
-1-
3. The amendment of the Certificate of Incorporation herein certified
has been duly adopted in accordance with the provisions of Sections 228 and 242
of the General Corporation Law of the State of Delaware.
4. The effective time of the amendment herein certified shall be upon
its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by its President and attested to by its Assistant
Secretary this 10 day of June, 1992.
/S/ STEPHEN R. STREBER
----------------------
Stephen R. Streber,
President
Attest: /S/ KATHLEEN E. PICKERING
-------------------------
Kathleen E. Pickering,
Assistant Secretary
-2-
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
INNOVIR LABORATORIES, INC.
Pursuant to Section 242 of the General Corporation Law
of the State of Delaware
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation") is
Innovir Laboratories, Inc.
2. Article 4(B) of the Certificate of Incorporation of the Corporation is
hereby amended by (a) inserting, immediately before the final period of the
current text of Section 4(B)(iv)(9) of the Certificate of Incorporation and
immediately before the final period of the current text of Section 4(B)(vii) of
the Certificate of Incorporation, the following phrase:
"; PROVIDED, however, that in the event of any reverse stock
split and any related recapitalization or related amendment
to terms of preferred stock, such notice shall not be
required if such reverse stock split and any related
recapitalization or related amendment to terms of preferred
stock is approved by the holders of a majority of all of the
outstanding shares of the Corporation's capital stock class
for such purpose prior to February 15, 1993".
3. After giving effect to the amendment in the foregoing paragraph 2,
Article 4(A) of the Corporation's Certificate of Incorporation be amended, as
follows:
-1-
(a) to effect a plan of recapitalization by affecting a one hundred
nine and two hundred forty-five one thousandths (109.245) reverse stock
split with respect to the Corporation's Common Stock (the "Reverse Common
Stock Split"), without any change in the powers, preferences and rights and
qualifications, limitations or restrictions thereof, except as otherwise
provided herein, such that every one hundred nine and two hundred
forty-five one thousandths (109.245) shares of Common Stock outstanding or
held by the Corporation in its treasury or reserved for issuance on the
date of the filing of a Certificate of Amendment to the Corporation's
Certificate of Incorporation to effect the amendments recommended by this
Resolution (the "Effective Time"), and without further action of any kind
on the part of the Corporation or its stockholders, shall be changed and
reclassified into one share of Common Stock, $.013 par value per share,
which share shall be fully paid and nonassessable if and only if and only
to the extent such outstanding shares or shares held in treasury were fully
paid and nonassessable. Fractional shares which would otherwise result from
the foregoing amendment shall be converted upon the Effective Time into the
right to receive cash at a rate of seven cents ($.07 per share. Each stock
certificate outstanding at the Effective Time shall represent the whole
number of shares of Common Stock obtained by dividing the number of shares
of Common Stock represented by such certificate immediately prior to the
Effective Time by one hundred nine and two hundred fort-five one
thousandths (109.245) and a right to receive cash for any fractional shares
of Common Stock, if any, at the rate specified in the preceding sentence.
In order to be entitled to receive cash payments for fractional shares as
hereinabove provided, stockholders shall deliver stock certificates to the
Corporation at its principal place of business duly endorsed for transfer,
and the Corporation is hereby authorized to issue and deliver new stock
certificates for the Common Stock representing the number of shares of
Common Stock held of record of the Corporation's stockholders following the
Reverse Common Stock Split, in each case in exchange for a stock
certificate or stock certificates for shares of Common Stock issued prior
to the Reverse Common Stock Split, the execution and delivery of such
certificates by said officers to be conclusive evidence that the same was
authorized, and
(b) to amend the number of authorized shares of the Corporation's
Common Stock to fifteen million (15,000,000) shares, having given effect to
the Reverse Common Stock Split.
4. After giving effect to the amendment in the foregoing paragraph 2,
Article 4(A) of the Corporation's Certificate of Incorporation be further
amended, as follows:
(a) to effect a plan of recapitalization by affecting a one-for-six and
seven hundred seventy-six one thousandths (6.778) reverse stock split with
respect
-2-
to the Corporation's Series A Preferred Stock (the "Reverse Preferred Stock
Split"), without any change in the powers, preferences and rights and
qualifications, limitations or restrictions thereof, except as otherwise
provided herein, such that every six and seven hundred seventy-six one
thousandths (6.774) shares of Series A Preferred Stock outstanding or held
by the Corporation in its treasury or reserved for issuance upon the
Effective Time, and without further action of any kind on the part of the
Corporation or its stockholders, shall be changed and reclassified into one
share of Series A Preferred Stock, $.06 par value per share, which share
shall be fully paid and nonassessable if and only if and only to the extent
such outstanding shares or shares held in treasury were fully paid and
nonassessable. Fractional shares which would otherwise result from the
foregoing amendment shall be converted upon the Effective Time into the
right to receive cash at a rate of one dollar and twenty-five cents ($1.25)
per share. Each stock certificate outstanding at the Effective Time shall
represent the whole number of shares of Series A Preferred Stock obtained
by dividing the number of shares of Series A Preferred Stock represented by
such certificate immediately prior to the Effective Time by six and seven
hundred seventy-six one thousandths (6.776) and a right to receive cash for
any fractional shares of Series A Preferred Stock, if any, at the rate
specified in the preceding sentence. In order to be entitled to receive
such cash payments for fractional shares as hereinabove provided,
stockholders shall deliver stock certificates to the Corporation at its
principal place of business duly endorsed for transfer, and the Corporation
is hereby authorized to issue and deliver new stock certificates for the
Series A Preferred Stock representing the number of shares of Series A
Preferred Stock held of record by the Corporation's stockholders following
the Reverse Preferred Stock Split, in each case in exchange for a stock
certificate or stock certificates for shares of Series A Preferred Stock
issued prior to the Reverse Preferred Stock Split, the execution and
delivery of such certificates by said officers to be conclusive evidence
that the same was authorized, and
(b) to increase the number of authorized shares of the Corporation's
Series A Preferred Stock to two million (2,000,000) shares, having given
effect to the Reverse Preferred Stock Split.
5. After giving effect to the amendment in the foregoing paragraph 2, in
accordance with the preceding paragraphs 3 and 4, the Certificate of
Incorporation of the Corporation is hereby amended changing the Article thereof
numbered 4(A) so that, as amended, the first paragraph of said Article 4(A)
shall be and read as follows:
-3-
"NUMBER OF SHARES. The aggregate number of shares of all classes of capital
stock which the Corporation has the authority to issue is thirty million
(30,000,000) shares, consisting of (i) fifteen million (15,000,000) shares
of Common Stock of the par value of $.013 per share and (ii) fifteen
million (15,000,000) shares of preferred stock of the par value of $.06 per
share, of which two million (2,000,000) shares of Series A Convertible
Preferred Stock, $.06 par value, are hereby authorized and designated."
6. After giving effect to the amendments in the foregoing paragraphs 2
through 5, the Certificate of Incorporation of the Corporation is hereby further
amended by deleting the Article thereof numbered 4(B) and substituting in lieu
thereof a new Article 4(B), as follows:
"4(B) SERIES A CONVERTIBLE PREFERRED STOCK.
The designations, powers, preferences, and relative participating,
optional or other rights of the Series A Convertible Preferred Stock are as
follows:
1. DESIGNATION AND AMOUNT
The shares of such class shall be designated as "Series A Convertible
Preferred Stock" (the "Series A Preferred Stock") and the number of shares
constituting the Series A Preferred Stock shall be two million (2,000,000).
Such number of shares may be increased or decreased by vote of the Board of
Directors; PROVIDED, that no decrease shall reduce the number of shares of
Series A Preferred Stock to a number less than the number of such 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 Corporation convertible into
Series A Preferred Stock.
2. DIVIDENDS.
The holders of the Series A Preferred Stock shall be entitled to
receive dividends as, if and when declared by the Board of Directors out of
funds legally available for the purpose, and only out of accumulated
earnings, at a rate per fiscal year of ten cents $.10 per share payable in
preference and priority to any payment of any dividend on the Corporation's
Common Stock, par value $.013 per share (the "Common Stock"). The right to
such dividends on the Series A Preferred Stock shall not be cumulative, and
no right shall accrue to the holders of the Series A Preferred Stock by
reason by the fact that dividends on such shares are not declared in any
fiscal year. Dividends and distributions (other than those payable solely
in Common Stock) may be paid, or declared and set aside
-4-
for payment, upon shares of Common Stock in any fiscal year only if
dividends shall have been paid, or declared and set apart for payment, on
account of all shares of Series A Preferred Stock then issued and
outstanding, at the aforesaid rate for such fiscal year.
3. LIQUIDATION, DISSOLUTION OR WINDING UP.
In the event of the voluntary or involuntary liquidation, dissolution
or winding up of the Corporation (each such event herein referred to as a
"Liquidation"), the holders of Series A Preferred Stock shall be entitled
to have set apart for them, or to be paid out of assets of the Corporation,
before any distribution is made to or set apart for the holders of Common
Stock, an amount equal to one dollar twenty-five cents ($1.25) plus
declared but unpaid dividends, if any, per share (the "Series A Liquidation
Amount") of Series A Preferred Stock (which amount shall be subject to
equitable adjustment whenever there shall occur a stock dividend, stock
split, combination, reorganization, recapitalization, reclassification or
other similar event involving a change in the capital structure of the
Corporation), PROVIDED, however, that if the Board of Directors of the
Corporation in good faith determines that upon the occurrence of a
Liquidation the holders of the Series A Preferred Stock would be entitled
to receive an amount, determined as of the date of such Liquidation,
greater than the Series A Liquidation Amount if all of the outstanding
shares of Series A Preferred Stock were converted into shares of Common
stock as provided in Section 4 hereof, then the holders of Series A
Preferred Stock will be treated as if such shares had been converted into
shares of Common Stock upon the occurrence of such Liquidation. If, upon
any voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation available for distribution to
stockholders shall be insufficient to set aside for or to pay such amounts
to the holders of Series A Preferred Stock, the total amount of the
Corporation's assets which is available to be paid to stockholders of the
Corporation shall be distributed pro rata among the holders of the Series A
Preferred Stock and no distribution shall be made to or set apart for the
holders of Common Stock. If the assets of the Corporation available for
distribution to stockholders exceed such amounts, the balance of such
assets shall be paid to or set aside for payment ratably among the holders
of Common Stock.
In the event of a merger or consolidation of the Corporation with or
into another entity (whether or not the Corporation is the surviving
entity) in which the shareholders of the Corporation immediately prior to
such merger or consolidation do not have a majority voting interest
(directly or indirectly) in the surviving entity immediately after such
merger or consolidation, the consideration to be received in such merger or
consolidation by the holders of the Series A
-5-
Preferred Stock and the Common Stock in exchange for such holdings shall be
apportioned among them as if such merger or consolidation were a
Liquidation.
4. CONVERSION.
(i). OPTIONAL CONVERSION.
Subject to the terms and conditions of this Section 4, at any time
after the issuance of the Series A Preferred Stock, the holder of each
share of Series A Preferred Stock shall have the right, at its option, to
convert any such share of Series A Preferred Stock into one fully paid and
non-assessable share of Common Stock, subject to adjustment as provided in
Paragraph C below.
Such option to convert shares of Series A Preferred Stock into shares
of Common Stock may be exercised as to all or any portion of such shares of
Series A Preferred Stock by, and only by, giving written notice to the
Corporation that the holder elects to convert a stated number of shares of
Series A Preferred Stock into Common Stock and by surrendering for such
purpose to the Corporation at its principal office the certificate
representing such shares of Series A Preferred Stock, duly endorsed or
accompanied by proper instruments of transfer. At the time of such
surrender, the persons exercising such option to convert shall be deemed to
be the holders of the shares of Common Stock issuable upon such conversion,
notwithstanding that the stock transfer books of the Corporation may then
be closed or that certificates representing such shares of Common Stock
shall not then be actually delivered to such person.
Promptly after the receipt of the written notice referred to in the
preceding paragraph and surrender of the certificate or certificates for
the share or shares of Series A Preferred Stock to be converted, the
Corporation shall issue and deliver, or cause to be issued and delivered,
to the holder, registered in the holder's name, a certificate or
certificates for the number of whole shares of Common Stock issuable upon
the conversion of such share or shares of Series A Preferred Stock. In case
the number of shares of Series A Preferred Stock represented by the
certificate or certificates surrendered for conversion pursuant to this
Section 4 exceeds the number of shares converted, the Corporation shall,
upon such conversion, execute and deliver to the holder a new certificate
or certificates for the number of shares of Series A Preferred Stock
represented by the certificate or certificates surrendered which are not to
be converted.
(ii). MANDATORY CONVERSION UPON INITIAL PUBLIC OFFERING.
Immediately upon the effectiveness of a public offering pursuant to an
effective Registration Statement under the Securities Act of 1933, as
amended,
-6-
covering the offering and sale of common stock of the Corporation, all
outstanding shares of Series A Preferred Stock shall be converted
automatically into the number of shares of common stock into which such
shares of Series A Preferred Stock are then convertible pursuant to Section
4.A hereof as of the effectiveness of such public offering, 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 for the shares of common stock.
(iii). CERTAIN PROVISIONS REGARDING CONVERSION.
No fractional shares shall be issued, and no payment in lieu thereof,
shall be issued or made upon conversion of any shares of Series A Preferred
Stock, it being agreed that upon conversion, the number of shares of Common
Stock issuable upon conversion of shares of Preferred Stock shall be
rounded to the nearest whole number.
The number of shares of Common Stock into which each share of Series A
Preferred Stock may be converted shall be subject to adjustment if the
Corporation shall after the date of issuance of the Series A Preferred
Stock split or divide the outstanding shares of Common Stock into a greater
number of shares of Common Stock or affect a reverse-split or consolidation
of the outstanding shares of Common Stock into a lesser number of shares,
or issue by way of a stock dividend on its Common Stock or reclassification
of its shares of Common Stock any shares of the Corporation. The number of
shares of Common Stock into which each share of Series A Preferred Stock
may be converted immediately prior thereto shall be adjusted so that the
holder of each share of Series A Preferred Stock thereafter surrendered for
conversion shall be entitled to receive for each share of Series A
Preferred Stock the number of shares of Common Stock which such holder
would have owned or been entitled to receive after the happening of any of
the events described above if such holder's Series A Preferred Stock had
been converted immediately prior to the happening of such event, such
adjustment to become effective concurrently with the time at which such
subdivision or combination or reclassification, as the case may be, became
effective.
5. VOTING RIGHTS.
Except as otherwise set forth herein or required by law, in all matters
submitted to a vote of the shareholders of the Corporation, the holders of
shares of Series A Preferred Stock shall vote together with the holders of
shares of Common Stock of the Corporation as one class. The holders of
shares of Series A Preferred Stock shall vote as a separate class on any
matter as to which a
-7-
separate class vote is required by law or pursuant to Section 8 hereof. In
all such votes each such share of Series A Preferred Stock shall entitle
the holder thereof to such number of votes per share on each matter put
before the stockholders of the Corporation equal to the number of shares of
Common Stock into which each share of Series A Preferred Stock is
convertible on the record date for determining stockholders eligible to
vote on such matter or, if no such record date is established, the date
immediately preceding the date such vote is taken or any written consent of
stockholders is solicited.
6. REACQUIRED SHARES.
Any shares of Series A Preferred Stock purchased or otherwise acquired
by the Corporation 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 any class or series of Preferred
Stock of the Corporation in its Certificate of Incorporation, in any other
Certificate of Designations creating a series of Preferred stock or any
similar stock or as otherwise required by law.
7. COMMON STOCK RESERVED.
The Corporation shall at all times reserve and keep available out of
its authorized but unissued Common Stock the full number of shares of
Common Stock deliverable upon the conversion of all the then outstanding
shares of Series A Preferred Stock.
8. UNRESTRICTED CLASS VOTE MATTERS.
Unless there is given the approval (in writing or at a meeting duly
called for that purpose) of a majority of the outstanding shares of Series
A Preferred Stock voting as a class, the Corporation shall not: (a) amend
the Certificate of Incorporation of the Corporation if such amendment would
alter or change the powers, preferences, or special rights of the Series A
Preferred Stock so as to affect the holders thereof adversely; (b) amend
the provisions of this Section 8; or (c) reclassify the shares of Common
Stock or any other shares of capital stock junior to the Series A Preferred
Stock into shares of capital stock senior to or on a parity with the Series
A Preferred Stock as to voting rights, dividends or a distribution of
assets of the Corporation in liquidation; or (d) purchase or set aside any
sums for the purchase of, or pay any dividend or make any distribution on,
any shares of stock having dividend or liquidation priority junior to the
Series A Preferred Stock, except for dividends or together distributions
payable on the Common Stock solely in the form of additional shares of
Common Stock and
-8-
except for the purchase of shares of Common Stock issued to employees or
consultants of the Corporation if the purchase price does not exceed the
original issue price paid by such former employee or consultant to the
Corporation for such shares and such purchase is approved by the Board of
Directors of the Corporation. The holders of a majority of the aggregate
number of shares of Series A Preferred Stock outstanding may, by
affirmative vote or consent as aforesaid, agree to a change or alteration
by the Corporation in the preferences, special rights and powers of the
Series A Preferred Stock, or may waive the application thereof in any
particular instance.
7. The amendments of the Certificate of Incorporation herein certified have
been duly adopted in accordance with the provisions of Section 228 and 242 of
the General Corporation Law of the State of Delaware.
8. The effective time of the amendments herein certified, as so specified,
shall be upon its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by its President and Attested to by its Assistant
Secretary this 5th day of February, 1993.
/S/ CHARLES L. DIMMLER, III
---------------------------
Charles L. Dimmler, III
President
Attest: /S/ KATHLEEN PICKERING
----------------------
Kathleen Pickering
Assistant Secretary
-9-
CERTIFICATE OF DESIGNATION
OF
INNOVIR LABORATORIES, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, Allan R. Goldberg and Kathleen E. Pickering, being respectively the
President and the Assistant Secretary of Innovir Laboratories, Inc., a
corporation organized and existing under the General Corporation Law of the
State of Delaware (the "Company"), DO HEREBY CERTIFY:
That, pursuant to authority expressly vested in the Board of Directors of
the Company by the provisions of its Certificate of Incorporation, as amended,
the Board of Directors, at a meeting held on March 30, 1995, adopted the
following resolutions:
FURTHER RESOLVED, that there is hereby established a class of
preferred stock, to be designated and referred to as "Class B Convertible
Preferred Stock" (the "Class B Preferred Stock"), which shall consist of
Two Million Five Hundred Thousand (2,500,000) shares, each having a par
value of Six Cents ($.06). Such number of shares may be increased or
decreased by vote of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Class B Preferred Stock to a number
less than the number of such 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 Class B Preferred Stock;
FURTHER RESOLVED, that the holders of Class B Preferred Stock have pro
rata rights to dividends, equal to the holders of the Common Stock (based
upon the number of shares of Common Stock into which the Class B Preferred
Stock is convertible on the dividend record date), from funds legally
available therefor, when, as and if declared by the Board of Directors of
the Company;
FURTHER RESOLVED, that in the event of the voluntary or involuntary
liquidation, dissolution or winding up of the Company (each such event
herein referred to as a "Liquidation"), the holders of Class B Preferred
Stock shall be entitled to have set apart for them, or to be paid out of
assets of the Company, before any distribution is made to or set apart for
the holders of Common Stock, an amount equal to five dollars ($5.00) per
share and an amount equal to the accrued and unpaid dividends, if any, (the
"Class B Liquidation Amount"), of Class B Preferred Stock (which amount
shall be subject to equitable adjustment whenever there shall occur a stock
dividend, stock split, combination, reorganization, recapitalization,
reclassification or other similar event involving a change in the capital
structure of the Company), provided, however, that if the Board of
Directors of the Company in good faith determines that, upon the occurrence
of a Liquidation, the holders of the Class B Preferred Stock would be
entitled to receive an amount, determined as of the date of such
Liquidation, greater than the Class B Liquidation Amount if all of the
outstanding shares of Class B Preferred Stock were converted into shares of
Common Stock as provided in these resolutions, then the holders of Class B
Preferred Stock will be treated as if such shares had been converted into
shares of Common Stock upon the occurrence of such Liquidation.
If, upon a Liquidation, the assets of the Company available for
distribution to stockholders shall be insufficient to set aside for or to
pay such amounts to the holders of Class B Preferred Stock, the total
amount of the Company's assets which is available to be paid to
stockholders of the Company shall be distributed pro rata among the holders
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of Class B Preferred Stock and any other stock with priority equivalent to
that of Class B Preferred Stock, and no distribution shall be made to or
set apart for the holders of Common Stock. If the assets of the Company
available for distribution to stockholders exceed such amounts, the balance
of such assets shall be paid to or set aside for payment ratably among the
holders of Common Stock;
FURTHER RESOLVED, that at any time after the issuance of the Class B
Preferred Stock, the holders of each share of Class B Preferred Stock shall
have the right, at their option and without the payment of any additional
consideration, to convert any such share of Class B Preferred Stock into
fully paid and non-assessable shares of Common Stock. The number of shares
or the fraction of a share of Common Stock into which each share of the
Class B Preferred Stock may be converted shall be determined by dividing
Five Dollars ($5.00) by sixty-five percent (65%) of the average of the
closing bid prices (or last sale prices) of the Common Stock (the "Five Day
Bid Price"), as reported by the Nasdaq SmallCap Market (or any other market
or exchange upon which the Common Stock may then be quoted or listed) for
the five days prior to conversion (or the last date on which such a quote
was available), provided, however, that the Five Day Bid Price shall not be
less than $5.00 per share of Common Stock.
Such option to convert shares of Class B Preferred Stock into shares
of Common Stock may be exercised as to all or any portion of such shares of
Class B Preferred Stock by, and only by, giving written notice to the
Company that the holder elects to convert a stated number of shares of
Class B Preferred Stock into Common Stock and by surrendering for such
purpose to the Company at its principal office the certificate representing
such shares of Class B Preferred Stock, duly endorsed or accompanied by
proper instruments of transfer. At the time of such surrender, the persons
exercising such option to convert shall be deemed to be the holders of the
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shares of Common Stock issuable upon such conversion, notwithstanding that
the stock transfer books of the Company may then be closed or that
certificates representing such shares of Common Stock shall not then be
actually delivered to such person.
Promptly after the receipt of the written notice referred to in the
preceding paragraph and surrender of the certificate or certificates for
the share or shares of Class B Preferred Stock to be converted, the Company
shall issue and deliver, or cause to be issued and delivered, to the
holder, registered in the holder's name, a certificate or certificates for
the number of whole shares of Common Stock issuable upon the conversion of
such share or shares of Class B Preferred Stock. In case the number of
shares of Class B Preferred Stock represented by the certificate or
certificates surrendered for conversion pursuant to this resolution exceeds
the number of shares converted, the Company shall, upon such conversion,
execute and deliver to the holder a new certificate or certificates for the
number of shares of Class B Preferred Stock represented by the certificate
or certificates surrendered which are not to be converted.
No fractional shares shall be issued, and no payment in lieu thereof
shall be issued or made upon conversion of any shares of Class B Preferred
Stock, it being agreed that upon conversion, the number of shares of Common
Stock issuable upon conversion of shares of Preferred Stock shall be
rounded to the nearest whole number.
The number of shares of Common Stock into which each share of Class B
Preferred Stock may be converted shall be subject to adjustment, if
required, if the Company shall after the date of issuance of the Class B
Preferred Stock split or divide the outstanding shares of Common Stock into
a greater number of shares of Common Stock or effect a reverse-split or
consolidation of the outstanding shares of Common Stock into a lesser
number of shares, or issue by way of a stock dividend on its Common Stock
or reclassification of its shares of Common Stock any shares of the
Company. The number of shares of Common Stock into which each share
-4-
of Class B Preferred Stock may be converted immediately prior thereto shall
be adjusted so that the holder of each share of Class B Preferred Stock
thereafter surrendered for conversion shall be entitled to receive for each
share of Class B Preferred Stock the number of shares of Common Stock which
such holder would have owned or been entitled to receive after the
happening of any of the events described above if such holder's Class B
Preferred Stock had been converted immediately prior to the happening of
such event, such adjustment to become effective concurrently with the time
at which such subdivision or combination or reclassification, as the case
may be, became effective;
FURTHER RESOLVED, that the Company shall at all times reserve and keep
available out of its authorized but unissued Common Stock the full number
of shares of Common Stock deliverable upon the conversion of all the then
outstanding shares of Class B Preferred Stock;
FURTHER RESOLVED, that except as required by law, in all matters
submitted to a vote of the stockholders of the Company, the holders of
shares of Class B Preferred Stock shall have no voting rights;
FURTHER RESOLVED, that any shares of Class B Preferred Stock purchased
or otherwise acquired by the Company in any manner whatsoever shall be
retired and canceled 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 any class
or series of preferred stock of the Company in its Certificate of
Incorporation, in any other Certificate of Designation creating a series of
preferred stock or any similar stock or as otherwise required by law;
FURTHER RESOLVED, that upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the registered holder will be
reasonably satisfactory) of the ownership and the loss, theft, destruction
or mutilation of any certificate or certificates representing one or more
shares of Class B Preferred Stock, and in the case of any such loss, theft
-5-
or destruction, upon receipt of indemnity reasonably satisfactory to the
Company (provided that if the holder is an institutional investor, its own
agreement will be satisfactory), or, in the case of any such mutilation
upon surrender of such certificate or certificates, the Company will, at
its expense, execute and deliver, in lieu of such certificate or
certificates, a new certificate or certificates of like kind representing
the number of shares represented by such lost, stolen, destroyed or
mutilated certificate or certificates and dated the date of such lost,
stolen, destroyed or mutilated certificate or certificates;
FURTHER RESOLVED, that the officers of the Company be, and hereby are,
authorized and directed to file this Certificate of Designation, pursuant
to the provisions of Section 151 of the General Corporation Law of the
State of Delaware, with respect to the Class B Preferred Stock provided for
by the foregoing resolutions.
IN WITNESS WHEREOF, the Company has caused this Certificate of Designation
to be signed by its President and attested to by its Assistant Secretary this
31 day of March, 1995.
/s/ ALLAN R. GOLDBERG
------------------------------
Allan R. Goldberg, President
ATTEST:
/s/ KATHLEEN E. PICKERING
- - ---------------------------------
Kathleen E. Pickering
-6-
CERTIFICATE OF DESIGNATION, NUMBER, POWERS,
PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL, AND OTHER SPECIAL RIGHTS AND THE
QUALIFICATIONS, LIMITATIONS, RESTRICTIONS,
AND OTHER DISTINGUISHING CHARACTERISTICS OF
CLASS C CONVERTIBLE PREFERRED STOCK
OF
INNOVIR LABORATORIES, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation")
is Innovir Laboratories, Inc. a Delaware corporation.
2. The articles of incorporation of the Corporation authorizes the
issuance of fifteen million (15,000,000) shares of Preferred Stock of a par
value of $.06 each, 2,500,000 of which have previously been designated as Class
B Convertible Preferred Stock, and expressly vests in the Board of Directors of
the Corporation the authority provided therein to issue any or all of the
remainder of said shares in one or more Classes and by resolution or resolutions
to establish the designation, number, full or limited voting powers, or the
denial of voting powers, preferences and relative, participating, optional, and
other special rights and the qualifications, limitations, restrictions, and
other distinguishing characteristics of each Class to be issued.
3. The Board of Directors of the Corporation, pursuant to the authority
expressly vested in it as aforesaid, has adopted the following resolutions
creating a Class C issue of Preferred Stock:
RESOLVED, that 600,000 of the fifteen Million (15,000,000)
authorized shares of Preferred Stock of the Corporation shall be
designated Class C Convertible Preferred Stock, $.06 par value per
share, and shall possess the rights and privileges set forth below:
Section 1. Designation and Amount. The shares of such Class shall be
designated as "Class C Convertible Preferred Stock" (the "Class C Preferred
Stock") and the number of shares constituting the Class C Preferred Stock shall
be 600,000. 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 Class C Preferred Stock to a number less than the number of shares
then outstanding plus the number shares reserved for issuance upon the exercise
of outstanding options, rights or warrants or upon the conversion of any
outstanding securities issued by the Corporation convertible into Class C
Preferred Stock.
Section 2. Rank. The Class C Preferred Stock shall rank: (i) prior to
all of the Corporation's Common Stock, par value $.013 per share ("Common
Stock"); (ii) prior to any class or Class of capital stock of the Corporation
hereafter created specifically ranking by its terms junior to any Class C
Convertible Preferred Stock of whatever subdivision (collectively, with the
Common Stock, "Junior Securities"); (iii) on parity with the Corporation's Class
B Convertible Preferred Stock and with any class or Class of capital stock of
the Corporation hereafter created specifically ranking by its terms on parity
with the Class C Convertible Preferred Stock ("Parity Securities") in each case
as to distributions of assets upon liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary (all such distributions being
referred to collectively as "Distributions").
Section 3. Dividends. The Class C Convertible Preferred Stock will bear
no dividends, and the holders of the Class C Preferred Stock ("Holders") shall
not be entitled to receive dividends on the Class C Preferred Stock.
Section 4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up
of the Corporation, either voluntary or involuntary, the Holders of shares of
Class C Convertible Preferred Stock shall be entitled to receive, immediately
after any distributions to senior securities required by the Corporation's
Certificate of Incorporation or any certificate of designation of preferences,
and prior and in preference to any distribution to Junior Securities but in
parity with any distribution of Parity Securities, an amount per share equal to
the sum of (i) $5 for each outstanding share of Class C Convertible Preferred
Stock (the "Original Class C Issue Price") and (ii) an amount equal to 10% of
the Original Class C Issue Price per annum for the period that has passed since
the date of issuance of any Class C Preferred Stock (such amount being referred
to herein as the "Premium"). If upon the occurrence of such event, the assets
and funds thus distributed among the Holders of the Class C Preferred Stock and
Parity Securities shall be insufficient to permit the payment to such Holders of
the full preferential amounts due to the Holders of the Class C Preferred Stock
and the Parity Securities, respectively, then the entire assets and funds of the
Corporation legally available for distribution shall be distributed among the
Holders of the Class C Preferred Stock and the Parity Securities, pro rata,
based on the respective liquidation amounts to which each such Class of stock is
entitled by the Corporation's Certificate of Incorporation and any certificate
of designation of preferences.
(b) Upon the completion of the distribution required by
subsection 4(a), if assets remain in this Corporation, they shall be distributed
to holders of Parity Securities (unless holders of Parity Securities have
received distributions pursuant to subsection (a) above) and Junior Securities
in accordance with the Corporation's Certificate of Incorporation including any
duly adopted certificate(s) of designation of preferences.
-2-
(c) A consolidation or merger of the Corporation with or into
any other corporation or corporations, or a sale, conveyance or disposition of
all or substantially all of the assets of the Corporation or the effectuation by
the Corporation of a transaction or Class of related transactions in which more
than 50% of the voting power of the Corporation is disposed of, shall not be
deemed to be a liquidation, dissolution or winding up within the meaning of this
Section 4, but shall instead be treated pursuant to Section 7 hereof.
Section 5. Conversion.
The record Holders of this Class C Convertible Preferred Stock shall have
conversion rights as follows (the "Conversion Rights"):
(a)(l) Right to Convert. The record Holder of this Class C
Convertible Preferred Stock shall be entitled, immediately following the date of
the last closing of a sale of such Class C Preferred Stock and at any time
thereafter, subject to the Company's right of redemption set forth in Section
7(a), at the option of the Holder, at the office of the Company or any transfer
agent for the Class C Convertible Preferred Stock, to convert shares of Class C
Convertible Preferred Stock held by such Holder (but only in multiples of
$50,000), into that number of restricted, fully-paid and non-assessable shares
of the $.013 par value common stock of the Company (the "Common Stock") at the
Fixed Conversion Price as set forth below. The record Holder of this Class C
Convertible Preferred Stock shall additionally be entitled to convert the shares
of Class C Convertible Preferred Stock held by such Holder at any time beginning
45 days following the date of the last closing of a sale of such Class C
Preferred Stock that occurs pursuant to the offering of the Class C Convertible
Preferred Stock by the Company (the "Last Closing"), subject to the Company's
right of redemption set forth in Section 7(a), at the option of the Holder, at
the office of the Company or any transfer agent for the Class C Preferred Stock,
into that number of unrestricted fully-paid and non-assessable shares of Common
Stock of the Company calculated in accordance with the following formula (the
"Conversion Rate") provided, however, that such record Holder remains in
compliance with Regulation S promulgated under the Securities Act of 1933, as
amended:
Number of shares issued upon conversion of one share of Class C Preferred Stock
= (.10)(N/365)(5.0) + 5.0
-----------------------
Conversion Price
where,
- N = the number of days between (exclusive of (i) below and inclusive
of (ii) below) (i) the date that, in connection with the consummation
of the initial purchase of this Class C Convertible Preferred Stock
from the Company, the escrow agent first had in its possession, prior
to 10:30 A.M., New York City time on such date (or after 10:30 A.M. on
such day, if the escrow agent is able to deposit such funds in an
-3-
interest bearing account in time for such funds to accrue interest for
that day), funds representing full payment for the shares of Class C
Convertible Preferred Stock for which conversion is being elected, and
(ii) the applicable date of conversion for the shares of Class C
Convertible Preferred Stock for which conversion is being elected, and
- Conversion Price = the lesser of (x) the average Closing Bid Price,
as that term is defined below, for the 5 trading days ending on
November 17, 1995 (the "Fixed Conversion Price"), or (y) 85% of the
average Closing Bid Price, as that term is defined below, of the
Company's Common Stock for the five (5) trading days immediately
preceding the Date of Conversion, as defined below. For purposes
hereof, the term "Closing Bid Price" shall mean the closing bid price
of the Company's Common Stock as reported by NASDAQ (or, if not
reported by NASDAQ as reported by such other exchange or market where
traded) or, if actual sales price information is not available on any
such day, the Closing Bid Price on the last reported date.
(a)(2) Company's Right to Lower Fixed Conversion Price. Company shall
have the right to elect to lower the Fixed Conversion Price at any time, and as
often as it might choose. If Company is to make such an election, it shall
notify Subscriber by facsimile stating Company's decision to lower the Fixed
Conversion Price, the amount of the lower Fixed Conversion Price, and the
effective date the lower conversion price is to be effective (whether
retroactively or prospectively). Furthermore, on the same day Company transmits
via facsimile the notice to Holders it is lowering the Fixed Conversion Price,
the Company shall also send an original of said notice by over-night courier or
two day courier.
(b) Mechanics of Conversion. In order to convert Class C Convertible
Preferred Stock into full shares of Common Stock, the Holder shall (i) fax a
copy of the fully executed notice of conversion in the form attached hereto
("Notice of Conversion") to the Company at such office that he elects to convert
the same, which notice shall specify the number of shares of Class C Convertible
Preferred Stock to be converted and shall contain a calculation of the
Conversion Rate (together with a copy of the first page of each certificate to
be converted) to the Company or its designated transfer agent prior to Midnight,
New York City time (the "Conversion Notice Deadline") on the date of conversion
specified on the Notice of Conversion and (ii) surrender the original
certificate or certificates therefor, duly endorsed, and the original Notice of
Conversion by either overnight courier or 2-day courier, to the office of the
Company or of any transfer agent for the Class C Convertible Preferred Stock;
provided, however, that the Company shall not be obligated to issue certificates
evidencing the shares of Common Stock issuable upon such conversion unless
either the certificates evidencing such Class C Convertible Preferred Stock are
delivered to the Company or its transfer agent as provided above, or the Holder
notifies the Company or its transfer agent that such certificates have been
lost, stolen or destroyed. Upon receipt by the Company of evidence of the loss,
theft, destruction or mutilation of this a certificate of certificates ("Stock
Certificates") representing shares of Class C Convertible Preferred Stock, and
-4-
(in the case of loss, theft or destruction) of indemnity or security reasonably
satisfactory to the Company, and upon surrender and cancellation of the Stock
Certificate(s), if mutilated, the Company shall execute and deliver new Stock
Certificate(s) of like tenor and date. No fractional shares of Common Stock
shall be issued upon conversion of this Class C Convertible Preferred Stock. In
lieu of any fractional share to which the Holder would otherwise be entitled,
the Company shall pay cash to such Holder in an amount equal to such fraction
multiplied by the Conversion Price then in effect. In the case of a dispute as
to the calculation of the Conversion Rate, the Company's calculation shall be
deemed conclusive absent manifest error.
The Company shall use all reasonable efforts to issue and deliver within
three (3) business days after delivery to the Company of such certificates, or
after such agreement and indemnification, to such Holder of Class C Convertible
Preferred Stock at the address of the Holder on the books of the Company, a
certificate or certificates for the number of shares of Common Stock to which
the Holder shall be entitled as aforesaid. The date on which conversion occurs
(the "Date of Conversion") shall be deemed to be the date set forth in such
Notice of Conversion, provided (i) that the advance copy of the Notice of
Conversion is faxed to the Company before midnight, New York City time, on the
Date of Conversion, and (ii) that the original Stock Certificates representing
the shares of Class C Convertible Preferred Stock to be converted are received
by the transfer agent or the Company within five business days thereafter. 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. If the original Stock
Certificates representing the Class C Convertible Preferred Stock to be
converted are not received by the transfer agent or the Company within five
business days after the Date of Conversion or if the facsimile of the Notice of
Conversion is not received by the Company or its designated transfer agent prior
to the Conversion Notice Deadline, the Notice of Conversion, at the Company's
option, may be declared null and void.
Following conversion of shares of Class C Convertible Preferred Stock, such
shares of Class C Convertible Preferred Stock will no longer be outstanding.
(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, solely for the purpose of effecting the conversion of the Class C
Convertible Preferred Stock, such number of its shares of Common Stock as shall
from time to time be sufficient to effect the conversion of all then outstanding
Class C Convertible Preferred Stock; and 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 Class C Convertible Preferred
Stock, the Company will take such corporate action as may be necessary to
increase its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purpose.
(d) Automatic Conversion. Each share of Class C Preferred Stock outstanding
on November 17, 1997 automatically shall be converted into Common Stock on each
-5-
date at the Conversion Price then in effect (calculated in accordance with the
formula in Section 5(a) above) and November 17, 1997 shall be deemed the Date of
Conversion with respect to such Conversion.
(e) Adjustment to Fixed Conversion Price.
(i) If, prior to the conversion of all of the Class C Convertible Preferred
Stock, the number of outstanding shares of Common Stock is increased by a stock
split, stock dividend, or other similar event, the Fixed Conversion Price shall
be proportionately reduced, or if the number of outstanding shares of Common
Stock is decreased by a combination or reclassification of shares, or other
similar event, the Fixed Conversion Price shall be proportionately increased.
(ii) If, prior to the conversion of all Class C Convertible Preferred
Stock, there shall be any merger, consolidation, exchange of shares,
recapitalization, reorganization, or other similar event, as a result of which
shares of Common Stock of the Company shall be changed into the same or a
different number of shares of the same or another class or classes of stock or
securities of the Company or another entity, then the Holders of Class C
Convertible Preferred Stock shall thereafter have the right to purchase and
receive upon conversion of Class C Convertible Preferred Stock, upon the basis
and upon the terms and conditions specified herein and in lieu of the shares of
Common Stock immediately theretofore issuable upon conversion, such shares of
stock and/or securities as may be issued or payable with respect to or in
exchange for the number of shares of Common Stock immediately theretofore
purchasable and receivable upon the conversion of Class C Convertible Preferred
Stock held by such Holders had such merger, consolidation, exchange of shares,
recapitalization or reorganization not taken place, and in any such case
appropriate provisions shall be made with respect to the rights and interests of
the Holders of the Class C Convertible Preferred Stock to the end that the
provisions hereof (including, without limitation, provisions for adjustment of
the Fixed Conversion Price and of the number of shares issuable upon conversion
of the Class C Convertible Preferred Stock) shall thereafter be applicable, as
nearly as may be practicable in relation to any shares of stock or securities
thereafter deliverable upon the exercise hereof. The Company shall not effect
any transaction described in this subsection 5(e) unless the resulting successor
or acquiring entity (if not the Company) assumes by written instrument the
obligation to deliver to the Holders of the Class C Convertible Preferred Stock
such shares of stock and/or securities as, in accordance with the foregoing
provisions, the Holders of the Class C Convertible Preferred Stock may be
entitled to purchase.
(iii) If any adjustment under this Section 5(e) would create a fractional
share of Common Stock or a right to acquire a fractional share of Common Stock,
such fractional share shall be disregarded and the number of shares of Common
Stock issuable upon conversion shall be the next higher number of shares.
-6-
Section 6. Redemption.
(a) Subscriber's Right to Elect to Receive Notice of Cash Redemption by
Company. Subscriber shall have the right to require Company to provide advance
notice stating whether Company will elect to redeem Subscriber's shares of Class
C Convertible Preferred Stock in cash, pursuant to Company's redemption rights
discussed in Section 7.
(b) Mechanics of Subscriber's Election Notice. Subscriber shall send
notice to Company by facsimile ("Election Notice") stating Subscriber's
intention to require Company to disclose that if Subscriber were to exercise
his, her or its right of conversion (pursuant to section 5) whether Company
would elect to redeem Subscriber's convertible Security for cash in lieu of
issuing Common Stock. Company is required to disclose to Subscriber what action
Company would take over the subsequent five day period, including the date
Company receives such Election Notice.
(c) Company's Response. Company must respond within one business day of
receipt of Subscriber's Election Notice (1) via facsimile and (2) via overnight
courier. If Company does not respond to Subscriber within one business day via
facsimile and overnight courier, Company shall be required to issue to
Subscriber Common Stock upon Subscriber's conversion within the subsequent five
day period.
Section 7. Cash Redemption by Company.
(a) Company's Right to Redeem. Subject to the requirements of Section 6
above, the Company shall have the right, in its sole discretion, upon receipt of
a Notice of Conversion pursuant to Section 5, to redeem in whole or in part any
Class C Convertible Preferred Stock submitted for conversion, immediately prior
to conversion. If the Company elects to redeem some, but not all, of the Class C
Convertible Preferred Stock submitted for conversion, the Company shall redeem
from among the Class C Convertible Preferred Stock submitted by the various
shareholders for conversion on the applicable date, a pro-rata amount from each
shareholder so submitting Class C Convertible Preferred Stock for conversion.
(b) Mechanics of Redemption. The Company shall effect each such redemption
by giving notice ("Notice of Redemption") of its election to redeem, by
facsimile within 1 business day following receipt of a Notice of Conversion from
a Holder, with a copy by 2-day courier, to (A) the Holder of Class C Convertible
Preferred Stock selected for redemption, at the address and facsimile number of
such Holder appearing in the Company's register for the Class C Convertible
Preferred Stock and (B) the Company's Transfer Agent. Such redemption notice
shall indicate the number of shares of Holder's Preferred Stock that have been
selected for redemption and the applicable redemption price. If the Notice of
Redemption is not received within the times specified above or does not meet the
conditions specified above, the Notice of Redemption shall become null and void
(unless otherwise agreed in writing by the Holder). The Company shall not be
entitled to send any notice of redemption and begin the redemption procedure
-7-
unless it has (x) the full amount of the redemption price, in cash, available in
a demand or other immediately available account in a bank or similar financial
institution or (y) immediately available credit facilities, in the full amount
of the redemption price, with a bank or similar financial institution on the
date the redemption notice is sent to shareholders.
The redemption price ("Redemption Price") per share of Class C Convertible
Preferred Stock shall be calculated in accordance with the following formula:
[(.10)(N/365) (5.0) + 5.0] x Closing Bid price on the Date of Conversion
Conversion Price
For the purposes of the above formula, "N", "Closing Bid Price" and
"Conversion Price" shall have the meanings set forth in Section 5(a).
The redemption price shall be paid to the Holder of Class C Convertible
Preferred Stock redeemed within 10 business days of the delivery of the notice
of such redemption to such Holder; provided, however, that the Company shall not
be obligated to deliver any portion of such redemption price unless either the
certificates evidencing the Class C Convertible Preferred Stock redeemed are
delivered to the Company or its transfer agent as provided in Section 5(b), 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.
Section 8. Corporate Change.
The Closing Bid Price used to determine the Conversion Price shall be
appropriately adjusted to reflect, as deemed equitable and appropriate by the
Corporation, any stock dividend, stock split or share combination of the Common
Stock. In the event of a merger, reorganization, recapitalization or similar
event of or with respect to the Company (a "Corporate Change") (other than a
Corporate Change in which or substantially all of the consideration received by
the holders of the Company's equity securities upon such Corporate Change
consists of cash or assets other than securities issued by the acquiring entity
or any affiliate thereof), this Class C Convertible Preferred Stock shall be
assumed by the acquiring entity and thereafter this Class C Convertible
Preferred Stock shall be convertible into such class and type of securities as
the Holder would have received had the Holder converted this Class C Convertible
Preferred Stock immediately prior to such Corporate Change.
Section 9. Voting Rights. Except as otherwise provided by the Delaware
Business Corporation Law, the holders of the Class C Convertible Preferred Stock
shall have no voting power whatsoever, and no holder of Class C Convertible
Preferred Stock shall vote or otherwise participate in any proceeding in which
actions shall be taken by the Corporation or the shareholders thereof or be
entitled to notification as to any meeting of the Board of Directors or the
shareholders.
-8-
To the extent that under Delaware law the vote of the holders of the Class
C Convertible Preferred Stock, voting separately as a class, is required to
authorize a given action of the Corporation, the affirmative vote or consent of
the holders of at least a majority of the outstanding shares of the Class C
Convertible Preferred Stock shall constitute the approval of such action by the
class. To the extent that under Delaware law the holders of the Class C
Convertible Preferred Stock are entitled to vote on a matter with holders of
Common Stock, voting together as one class, each share of Class C Convertible
Preferred Stock shall be entitled to a number of votes equal to the number of
shares of Common Stock into which it is then convertible using the record date
for the taking of such vote of stockholders as the date as of which the
Conversion Price is calculated. Holders of the Class C Convertible Preferred
Stock shall be entitled to notice of all shareholder meetings or written
consents with respect to which they would be entitled to vote, which notice
would be provided pursuant to the Corporation's by-laws and applicable statutes.
Section 10. Protective Provisions. So long as shares of Class C Convertible
Preferred Stock are outstanding, the Corporation shall not without first
obtaining the approval (by vote or written consent, as provided by law) of the
holders of at least a majority of the then outstanding shares of Class C
Convertible Preferred Stock:
(a) alter or change the rights, preferences or privileges of the shares
of Class C Convertible Preferred Stock so as to affect adversely the Class C
Convertible Preferred Stock;
(b) create any new class or Class of stock having a preference over the
Class C Convertible Preferred Stock with respect to Distributions (as defined in
Section 2 above); or
(c) do any act or thing not authorized or contemplated by this
Designation which would result in taxation of the holders of shares of the Class
C Convertible Preferred Stock under Section 305 of the Internal Revenue Code of
1986, as amended (or any comparable provision of the Internal Revenue Code as
hereafter from time to time amended).
Section 11. Status of Redeemed or Converted Stock. In the event any shares
of Class C Convertible Preferred Stock shall be redeemed or converted pursuant
to Section 5 or Section 6 hereof, the shares so converted or redeemed shall be
canceled, shall return to the status of authorized but unissued Preferred Stock
of no designated Class, and shall not be issuable by the Corporation as Class C
Convertible Preferred Stock.
Section 12. Preference Rights. Nothing contained herein shall be construed
to prevent the Board of Directors of the Corporation from issuing one or more
Class of preferred stock with dividend and/or liquidation preferences equal to
the dividend and liquidation preferences of the Class C Convertible Preferred
Stock.
-9-
FURTHER RESOLVED, that the statements contained in the foregoing
resolutions creating and designating the said Class C Convertible Preferred
Stock and fixing the number, powers, preferences and relative, optional,
participating, and other special rights and the qualifications, limitations,
restrictions, and other distinguishing characteristics thereof shall, upon the
effective date of said Class, be deemed to be included in and be a part of the
certificate of incorporation of the Corporation pursuant to the provisions of
the Delaware Business Corporation Law.
FURTHER RESOLVED, that the officers of the Company be, and hereby are,
authorized and directed to file this Certificate of Designation pursuant to the
provisions of Section 151 of the General Corporation Law of the State of
Delaware, with respect to the Class C Convertible Preferred Stock provided for
by the foregoing resolutions.
Signed on the 21st day of November, 1995.
/s/ ALLAN R. GOLDBERG
------------------------------------
President
Attest: /s/ KATHLEEN E. PICKERING
---------------------------
Assistant Secretary
-10-
NOTICE OF CONVERSION
(To be Executed by the Registered Holder
in order to Convert the Preferred Stock)
The undersigned hereby irrevocably elects to convert shares of Class _ Preferred
Stock, represented by stock certificate No(s). (the "Preferred Stock
Certificates") into shares of common stock ("Common Stock") of Innovir
Laboratories, Inc. (the "Company") according to the conditions of the
Certificate of Designation of Class _ Preferred Stock, as of the date written
below. If shares are to be issued in the name of a person other than
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto and is delivering herewith such certificates. No fee will be charged to
the Holder for any conversion, except for transfer taxes, if any.
The undersigned represents and warrants that all offers and sales by the
undersigned of the shares of Common Stock issuable to the undersigned upon
conversion of the Class _ Preferred Stock shall be made in compliance with
Regulation S, pursuant to registration of the Common Stock under the Act or
pursuant to an exemption from registration under the Act.
Conversion Calculations: ------------------------------------
Date of Conversion
------------------------------------
Applicable Conversion Price
------------------------------------
Signature
------------------------------------
Name
Address:
------------------------------------
------------------------------------
* No shares of common Stock will be issued until the original preferred Stock
Certificate(s) to be converted and the Notice of conversion are received by the
company's Attorney or Transfer Agent. The original Stock Certificates
representing the Class C Preferred Stock to be converted and the Notice of
Conversion must be received by the company's Attorney or Transfer Agent by the
fifth business day following the Date of conversion, or the Notice of
Conversion, at the Company's option, may be declared null and void.
Exhibit 11.1
INNOVIR LABORATORIES, INC.
STATEMENT OF COMPUTATION OF PER SHARE DATA
For the three months ended
March 31,
-----------------------------------------------------------
1996 1995
-----------------------------------------------------------
Fully Fully
Primary Diluted Primary Diluted
----------- ----------- ----------- ------------
Net loss ($2,066,044) ($2,066,044) ($1,113,019) ($1,113,019)
Reduction of net loss assuming a portion of the proceeds
from the exercise of options and warrants was used to repay
the Company's term note payable and related accrued
interest, and capital lease obligations and to invest in
short-term government securities, in accordance with the
treasury stock method 118,571 481,098
----------- ----------- ----------- ------------
Net loss ($2,066,044) ($1,947,473) ($1,113,019) ($631,921)
=========== =========== =========== ============
Weighted average number of common shares outstanding 4,783,152 4,783,152 3,460,558 3,460,558
Weighted average shares issuable upon
conversion of convertible equity securities 1,683,836
Shares issuable upon exercise of outstanding options and warrants 3,769,084 5,952,659
Shares assumed to be purchased under the treasury stock method (1,093,723) (711,752)
----------- ----------- ----------- ------------
Weighted average number of common shares used in computing per
share data 4,783,152 9,142,349 3,460,558 8,701,465
=========== =========== =========== ============
Net loss per share ($0.43) ($0.21) ($0.32) ($0.07)
=========== =========== =========== ============
Exhibit 11.2
INNOVIR LABORATORIES, INC.
STATEMENT OF COMPUTATION OF PER SHARE DATA
For the six months ended
March 31,
-----------------------------------------------------------
1996 1995
-----------------------------------------------------------
Fully Fully
Primary Diluted Primary Diluted
----------- ----------- ----------- ------------
Net loss ($3,750,776) ($3,750,776) ($2,262,785) ($2,262,785)
Reduction of net loss assuming a portion of the proceeds
from the exercise of options and warrants was used to repay
the Company's term note payable and related accrued
interest, and capital lease obligations and to invest in
short-term government securities, in accordance with the
treasury stock method 211,604 922,250
----------- ----------- ----------- ------------
Net loss ($3,750,776) ($3,539,172) ($2,262,785) ($1,340,535)
=========== =========== =========== ============
Weighted average number of common shares outstanding 4,494,224 4,494,224 3,340,963 3,340,963
Weighted average shares issuable upon conversion of convertible
equity securities 1,344,725
Shares issuable upon exercise of outstanding options and warrants 3,432,296 6,039,577
Shares assumed to be purchased under the treasury stock method (1,093,723) (711,752)
----------- ----------- ----------- ------------
Weighted average number of common shares used in computing
per share data 4,494,224 8,177,522 3,340,963 8,668,788
=========== =========== =========== ============
Net loss per share ($0.83) ($0.43) ($0.68) ($0.15)
=========== =========== =========== ============