Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AMICUS THERAPEUTICS, INC.
Amicus Therapeutics, Inc., a corporation organized and existing under the
laws of the State of Delaware (the "COMPANY"), does hereby certify as follows:
ONE: The name of the corporation is "AMICUS THERAPEUTICS, INC." The date
of filing of the original Certificate of Incorporation of the Company with the
Secretary of State of the State of Delaware was February 4, 2002.
TWO: This Amended and Restated Certificate of Incorporation (this
"RESTATED CERTIFICATE") has been duly approved by the Board of Directors of the
Company.
THREE: This Restated Certificate has been duly adopted by the Board of
Directors and the stockholders of the Company in accordance with the provisions
of Sections 228, 242 and 245 of the General Corporation Law of the State of
Delaware.
FOUR: The text of the Certificate of Incorporation of the Company is
hereby amended and restated to read in its entirety as follows:
I.
The name of the corporation is AMICUS THERAPEUTICS, INC. (the "COMPANY").
II.
The address of the registered office of the Company in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New Castle,
Delaware 19801, and the name of the registered agent of the Company in the State
of Delaware at such address is The Corporation Trust Company.
III.
The purpose of the Company is to engage in any lawful act or activity for
which a corporation may be organized under the General Corporation Law of the
State of Delaware (the "DGCL").
IV.
This Company is authorized to issue two classes of stock to be designated,
respectively, "COMMON STOCK" and "PREFERRED Stock." The total number of shares
which the Company is authorized to issue is Two Hundred Eighty Million Nine
Hundred
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Eighty Seven Thousand Three Hundred Thirty Five (280,987,335) shares, One
Hundred Sixty Million (160,000,000) shares of which shall be Common Stock (the
"COMMON STOCK") and One Hundred Twenty Million Nine Hundred Eighty Seven
Thousand Three Hundred Thirty Five (120,987,335) shares of which shall be
Preferred Stock (the "PREFERRED STOCK"). The Common Stock shall have a par value
of $0.01 per share and the Preferred Stock shall have a par value of $0.01 per
share.
Three Million Three Hundred Thirty-Three Thousand Three Hundred
Thirty-Four (3,333,334) of the authorized shares of Preferred Stock are hereby
designated "SERIES A CONVERTIBLE PREFERRED STOCK" (the "SERIES A PREFERRED"),
Thirty Seven Million Twenty Five Thousand Five Hundred and Ninety Four
(37,025,594) shares of the authorized shares of Preferred Stock are hereby
designated "SERIES B CONVERTIBLE PREFERRED STOCK" (the "SERIES B PREFERRED"),
Forty Three Million Six Hundred Fifty Thousand Two Hundred Sixty Two
(43,650,262) shares of the authorized shares of Preferred Stock are hereby
designated "SERIES C CONVERTIBLE PREFERRED STOCK" (the "SERIES C PREFERRED") and
Thirty Six Million Nine Hundred Seventy Eight Thousand One Hundred Forty Five
(36,978,145) shares of the authorized shares of Preferred Stock are hereby
designated "SERIES D CONVERTIBLE PREFERRED Stock" (the "SERIES D PREFERRED").
The Series A Preferred, Series B Preferred, Series C Preferred and Series D
Preferred are collectively referred to herein as the "SERIES PREFERRED."
No share or shares of Preferred Stock acquired by the Company by reason of
redemption, purchase, conversion or otherwise shall be reissued, and all such
shares shall be cancelled, retired and eliminated from the shares which the
Company shall be authorized to issue.
The rights, preferences, privileges, restrictions and other matters
relating to the Company's capital stock are as follows:
1. DIVIDEND RIGHTS.
(A) PREFERENCE. The holders of Series Preferred shall not be
entitled to receive dividends except as from time to time may be declared by the
Board of Directors out of funds legally available therefor; provided, however,
subject to Section 2(b), if the Company declares and pays any dividend or other
distribution on any class of capital stock of the Company that is junior in
right to the Series Preferred (the "JUNIOR STOCK"), then, in that event, the
holders of shares of Series Preferred shall be entitled to share in such
dividend or distribution on a pro rata basis, as if all shares had been
converted into shares of Common Stock immediately prior to the record date for
determining the stockholders of the Company eligible to receive such dividend or
distribution.
(B) SERIES PREFERRED PARI PASSU. The Series A Preferred, Series B
Preferred, Series C Preferred and Series D Preferred shall rank pari passu with
respect to dividends and distributions. If the Company declares and pays any
dividend or distribution on the Series A Preferred, Series B Preferred, Series C
Preferred, or Series D Preferred or any other series of Preferred Stock that is
pari passu in right to the Series
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Preferred, the holders of all shares of Series Preferred shall be entitled to
share in such dividend or distribution on a pro rata basis, as if all such
shares had been converted into shares of Common Stock immediately prior to the
record date for determining the stockholders of the Company eligible to receive
such dividend or distribution.
2. VOTING RIGHTS.
(A) GENERAL RIGHTS. In addition to any other vote or consent
provided herein or as required by law, the Series Preferred shall be entitled to
vote on all matters upon which holders of Common Stock have the right to vote,
voting together as a single class with the Common Stock (and with other shares
entitled to vote thereon, if any), and with respect to such vote shall be
entitled to notice of any stockholders' meeting in accordance with the bylaws of
the Company upon the following basis: each holder of shares of Series Preferred
shall be entitled to such number of votes as shall be equal to the whole number
of shares of Common Stock into which such holder's aggregate number of shares of
Series Preferred are convertible (pursuant to Section 4 hereof) at the record
date for the determination of stockholders entitled to vote on such matters or,
if no such record date is established, at the date such vote is taken or any
written consent of stockholders is solicited.
(B) SEPARATE VOTE OF SERIES PREFERRED. In addition to any other vote
or consent required herein or by law, the Company shall not (by amendment,
merger, consolidation or otherwise) without first obtaining the approval (by
vote or written consent, as provided by law) of the holders of at least a
majority of the outstanding shares of the Series Preferred, voting together as a
single class and not as a separate series:
(I) Amend, alter, repeal or waive any provision of, or add any
provision to the certificate of incorporation or bylaws of the Company or the
governing documents of any subsidiary of the Company, whether by means of an
amendment to the certificate of incorporation or bylaws of the Company or the
governing documents of any such subsidiary or by merger, consolidation or
otherwise;
(II) Any action that authorizes, creates or issues, whether by
reclassification, reorganization, recapitalization or otherwise, any new class
or series of equity securities of the Company or any other securities
convertible into or exercisable for equity securities of the Company ranking on
a parity with or senior to, or having any rights superior to, the Series
Preferred in right of voting, dividends, redemption, liquidation preference or
otherwise, whether by means of an amendment to the certificate of incorporation
or bylaws of the Company or by merger, consolidation or otherwise;
(III) Any merger, consolidation, reclassification,
reorganization, recapitalization, liquidation, dissolution, winding-up,
Acquisition or Asset Transfer (as defined in Sections 3(c)(i) and 3(c)(ii)
respectively) or permit any subsidiary of the Company to effect any of the
foregoing;
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(IV) Any acquisition of assets or equity interests by the
Company or any subsidiary of the Company (whether by purchase, merger,
reorganization or otherwise) outside of the ordinary course of business;
(V) Enter into, amend, waive or otherwise alter any agreement
or contract with any affiliate of the Company or any affiliate of a subsidiary
of the Company, including, without limitation, any holder of any equity security
of the Company representing (or convertible or exercisable into) at least five
percent (5%) of the then outstanding shares of Common Stock (calculated on an as
converted to Common Stock basis) (other than in connection with (x) the sale of
securities on an arms-length, commercially reasonable basis and (y) reasonable
compensation (including bonuses) paid or to be paid to employees in the ordinary
course of business consistent with past practices, approved by the Board of
Directors or any committee thereof), or permit any subsidiary of the Company to
effect any of the foregoing;
(VI) Incur, assume, be or become liable for, refinance or
guarantee, directly or indirectly or contingently, any indebtedness (including,
without limitation, indebtedness under capital leases), or permit any subsidiary
to incur, assume, be or become liable for, refinance or guarantee, directly or
indirectly or contingently, any indebtedness (including, without limitation,
indebtedness under capital leases), in excess of $1,000,000 in the aggregate
(calculated on a consolidated basis);
(VII) Any entry by the Company or any subsidiary of the
Company into a line of business other than the research and development,
manufacture and/or commercialization of biotherapeutics and diagnostics, and
related intermediates;
(VIII) Any redemption or repurchase of, or declaration or
payment of any dividend or other distribution with respect to, any equity
securities of the Company (except as otherwise expressly provided in this
Restated Certificate, or for repurchases of shares of Common Stock by the
Company pursuant to agreements with its employees, consultants or advisors
providing for the original issuance of such shares which permit the Company to
repurchase such shares at cost upon termination of services by such employees,
consultants or advisors to the Company);
(IX) Any increase in the size of the Board of Directors of the
Company or any committee thereof;
(X) Any issuance of any security by a subsidiary of the
Company other than an issuance to the Company;
(XI) Any transfer or other disposition by the Company of any
security of a subsidiary of the Company;
(XII) Any creation of a lien or encumbrance on any of the
Company's assets or any of the assets of any of the Company's subsidiaries,
other than (i) landlords, carriers, warehousemen, mechanics, materialmen and
other liens not
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voluntarily granted for amounts not yet due or which are being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted;
(ii) those resulting from taxes which have not yet become delinquent or (iii)
minor liens and encumbrances which do not materially detract from the value of
the property subject thereto or materially impair the operations of the Company;
(XIII) Authorize, issue or grant any payment or other
consideration to any person or entity in connection with an Acquisition or Asset
Transfer other than (w) as required by applicable law, (x) in respect of any
outstanding capital stock of the Company in accordance with this Restated
Certificate, (y) in respect of any debt obligation of the Company or (z)
financial advisor and/or investment banker fees approved by the Board of
Directors; or
(XIV) Any grant or other provision to any other person or
entity of any of the rights granted to the holders of Series Preferred under
this Section 2(b).
(C) SEPARATE VOTE OF SERIES A PREFERRED. So long as at least 25% of
the Series A Preferred originally issued remains outstanding, the Company shall
not (by amendment, merger, consolidation or otherwise) 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 Series A Preferred, take
any action or amend, alter, repeal or waive any provision of, or add any
provision to, this Restated Certificate or the Company's bylaws, in a manner
that changes the rights, preferences or privileges of the Series A Preferred or
that otherwise changes or adversely affects the rights of the holders of the
Series A Preferred without changing or adversely affecting the rights of any
other series of Preferred Stock in the same manner (it being understood that a
series of Preferred Stock shall not be affected differently because of the
proportional differences in the amounts of respective issue prices, liquidation
preferences and redemption prices that arise out of differences in the original
issue price of such series of Preferred Stock, as compared to the original issue
prices of other series of Preferred Stock).
(D) SEPARATE VOTE OF SERIES B PREFERRED. So long as at least 25% of
the Series B Preferred originally issued remains outstanding, the Company shall
not (by amendment, merger, consolidation or otherwise) 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 Series B Preferred, take
any action or amend, alter, repeal or waive any provision of, or add any
provision to, this Restated Certificate or the Company's bylaws, in a manner
that changes the rights, preferences or privileges of the Series B Preferred or
that otherwise changes or adversely affects the rights of the holders of the
Series B Preferred without changing or adversely affecting the rights of any
other series of Preferred Stock in the same manner (it being understood that a
series of Preferred Stock shall not be affected differently because of the
proportional differences in the amounts of respective issue prices, liquidation
preferences and redemption prices that arise out of differences in the original
issue price of such series of Preferred Stock, as compared to the original issue
prices of other series of Preferred Stock).
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(E) SEPARATE VOTE OF SERIES C PREFERRED. So long as at least 25% of
the Series C Preferred originally issued remains outstanding, the Company shall
not (by amendment, merger, consolidation or otherwise) 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 Series C Preferred, take
any action or amend, alter, repeal or waive any provision of, or add any
provision to, this Restated Certificate or the Company's bylaws, in a manner
that changes the rights, preferences or privileges of the Series C Preferred or
that otherwise changes or adversely affects the rights of the holders of the
Series C Preferred without changing or adversely affecting the rights of any
other series of Preferred Stock in the same manner (it being understood that a
series of Preferred Stock shall not be affected differently because of the
proportional differences in the amounts of respective issue prices, liquidation
preferences and redemption prices that arise out of differences in the original
issue price of such series of Preferred Stock, as compared to the original issue
prices of other series of Preferred Stock).
(F) SEPARATE VOTE OF SERIES D PREFERRED. So long as at least 25% of
the Series D Preferred originally issued remains outstanding, the Company shall
not (by amendment, merger, consolidation or otherwise) 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 Series D Preferred, take
any action or amend, alter, repeal or waive any provision of, or add any
provision to, this Restated Certificate or the Company's bylaws, in a manner
that changes the rights, preferences or privileges of the Series D Preferred or
that otherwise changes or adversely affects the rights of the holders of the
Series D Preferred without changing or adversely affecting the rights of any
other series of Preferred Stock in the same manner (it being understood that a
series of Preferred Stock shall not be affected differently because of the
proportional differences in the amounts of respective issue prices, liquidation
preferences and redemption prices that arise out of differences in the original
issue price of such series of Preferred Stock, as compared to the original issue
prices of other series of Preferred Stock).
(G) ELECTION OF THE BOARD OF DIRECTORS. For so long as any shares of
Series A Preferred, Series B Preferred, Series C Preferred, or Series D
Preferred are outstanding, the holders of a majority of the shares of Series A
Preferred, Series B Preferred, Series C Preferred and Series D Preferred then
outstanding (voting together as a single class) shall be entitled to elect seven
of the directors of the Company (the "PREFERRED DIRECTORS") and to remove, with
or without cause, any Preferred Director. At any meeting held for the purpose of
electing directors, the presence in person or by proxy of the holders of a
majority of the shares of each of the Series A Preferred, Series B Preferred,
Series C Preferred and Series D Preferred then outstanding shall constitute a
quorum for the purpose of electing the Preferred Directors. A vacancy in any
Preferred Director position shall be filled only by vote or written consent in
lieu of a meeting of the holders of a majority of the shares of each of the
Series A Preferred, Series B Preferred, Series C Preferred and Series D
Preferred (voting together as a single class) then outstanding, if any. If no
shares of Series A Preferred, Series B Preferred, Series C Preferred and Series
D Preferred remain outstanding, the Preferred Directors shall be
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elected by the holders of a majority of the issued and outstanding Common Stock
then outstanding.
3. LIQUIDATION RIGHTS.
(A) Upon any liquidation, dissolution or winding up of the Company,
(including those events considered to be a liquidation, dissolution or winding
up of the Company in accordance with Section 3(c) below) whether voluntary or
involuntary (including, without limitation, upon any bankruptcy), before any
distribution or payment or the declaration and setting apart for distribution or
payment of any amount shall be made in respect of the Common Stock or any other
series of Preferred Stock or other capital stock of the Company, the holders of
Series Preferred shall be entitled to be paid out of the assets of the Company
an amount per share of Series Preferred equal to (i) with respect to each share
of Series A Preferred, the Series A Original Issue Price plus an amount equal to
all declared and unpaid dividends on such share of Series A Preferred, (ii) with
respect to each share of Series B Preferred, the Series B Original Issue Price
plus an amount equal to all declared and unpaid dividends on such share of
Series B Preferred, (iii) with respect to each share of Series C Preferred, the
Series C Original Issue Price plus an amount equal to all declared and unpaid
dividends on such share of Series C Preferred, and (iv) with respect to each
share of Series D Preferred, the Series D Original Issue Price plus an amount
equal to all declared and unpaid dividends on such share of Series D Preferred.
If, upon any such liquidation, dissolution, or winding up of the Company, the
assets shall be insufficient to make payment in full of the liquidation
preference amounts set forth in this Section 3(a) in respect of each share of
Series Preferred then no amount shall be distributed to the holders of shares of
Common Stock or any other series of Preferred Stock or other capital stock of
the Company and the assets available for distribution shall be distributed
ratably among the holders of the Series Preferred in proportion to the full
liquidation preference dollar amounts each holder is otherwise entitled to
receive for the shares of Series Preferred held by each such holder as set forth
in this Section 3(a). The "SERIES A ORIGINAL ISSUE PRICE" shall be $0.75 (as
adjusted for any stock dividends, combinations, splits, recapitalizations and
the like with respect to the shares of Series A Preferred). The "SERIES B
ORIGINAL ISSUE PRICE" shall be $0.85 (as adjusted for any stock dividends,
combinations, splits, recapitalizations and the like with respect to the shares
of Series B Preferred). The "SERIES C ORIGINAL ISSUE PRICE" shall be $1.26 (as
adjusted for any stock dividends, combinations, splits, recapitalizations and
the like with respect to the shares of Series C Preferred). The "SERIES D
ORIGINAL ISSUE PRICE" shall be $1.62258 (as adjusted for any stock dividends,
combinations, splits, recapitalizations and the like with respect to the shares
of the Series D Preferred).
(B) In the event of any liquidation, dissolution or winding up of
the Corporation, either voluntary or involuntary (including, without limitation,
upon any bankruptcy), after, and only after, full payment has been made to the
holders of the Series Preferred required by Section 3(a), the holders of Common
Stock and Series Preferred shall be entitled to share ratably in all remaining
assets and funds, if any, based upon the number of shares of Common Stock then
held by such holders, with each share of Series
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Preferred treated as the number of shares of Common Stock into which such share
of Series Preferred is then convertible.
(C) A liquidation, dissolution or winding up of the Company shall be
deemed to be occasioned by, or to include (without in any way limiting the
meaning of liquidation, dissolution or winding up):
(I) any acquisition of the Company by another person or entity
(or group of persons or entities) by means of any transaction or series of
transactions (including without limitation, any reorganization, consolidation or
merger of the Company with or into any other entity but expressly excluding any
bona fide equity financing for cash) (x) in which the holders of the Company's
outstanding capital stock immediately before the first such transaction do not,
immediately after any other such transaction, retain stock or other equity
interests representing at least fifty percent (50%) of the voting power of the
surviving entity of such transaction or (y) after which any one person or entity
and its affiliates hold more than fifty percent (50%) of the voting power of the
Company's outstanding capital stock (an "ACQUISITION"); or
(II) a sale, lease or other disposition of all or
substantially all of the assets of the Company (an "ASSET TRANSFER").
Without limiting the foregoing, any transfer of shares of capital stock by
the stockholders that constitutes an "Acquisition" shall be treated as a
dissolution under the DGCL. Notwithstanding the foregoing, by vote or written
consent of the holders of at least a majority of the outstanding shares of
Series Preferred, voting together as a single class (the "REQUISITE HOLDERS"),
such holders may elect on behalf of all of the Company's stockholders to waive
the right to treat any Acquisition or Asset Transfer as a liquidation,
dissolution or winding up of the Company and, in lieu thereof, the holders of
Series Preferred shall receive the benefits of the provisions of Section 4(h).
(D) Unless otherwise agreed upon by the Requisite Holders, no
stockholder of the Company shall enter into any transaction or series of related
transactions resulting in a liquidation, dissolution or winding up of the
Company pursuant to the terms hereof unless the terms of such transaction or
transactions provide that the consideration to be paid to the stockholders of
the Company is to be allocated in accordance with the preferences and priorities
set forth in this Section 3.
(E) In any of the events described in Sections 3(c)(i) or 3(c)(ii),
if the consideration received is other than cash, its value will be deemed its
fair market value as determined in good faith by the Board of Directors and as
approved by the Requisite Holders.
(F) At least fifteen (15) days prior to the closing of any
Acquisition or Asset Transfer, the Company will provide written notice of same
(including a summary or description of the Acquisition or Asset Transaction and
the principal terms thereof as well as a copy of the principal transaction
documents) to all of the then holders of Series
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Preferred at the respective addresses of record of such persons in the stock
records of the Company, unless the holders of a majority of the then outstanding
shares of Series Preferred waive the obligation to provide such advance notice.
(G) To the extent that any dividends with respect to any Series
Preferred have been declared but remain unpaid in the event of any liquidation,
dissolution, winding up of the Company, upon the payment of all amounts required
to be paid under this Section 3 in respect of such liquidation, dissolution, or
winding up, the declared but unpaid dividends shall be forgiven and shall no
longer be payable by the Company to any holder of Series Preferred or Common
Stock; provided, however, such forgiveness shall not reduce or otherwise affect
the amount of declared but unpaid dividends for purposes of the calculations set
forth in this Section 3.
4. CONVERSION RIGHTS.
The holders of the Series Preferred shall have the following rights with
respect to the conversion of the Series Preferred into shares of Common Stock:
(A) OPTIONAL CONVERSION. Subject to and in compliance with the
provisions of this Section 4, any share of Series Preferred may, at the option
of the holder, be converted at any time into fully-paid and nonassessable shares
of Common Stock. The number of shares of Common Stock to which a holder of
Series A Preferred shall be entitled upon conversion shall be the product
obtained by multiplying the Series A Preferred Conversion Rate then in effect
(determined as provided in Section 4(b)) by the number of shares of Series A
Preferred being converted. The number of shares of Common Stock to which a
holder of Series B Preferred shall be entitled upon conversion shall be the
product obtained by multiplying the Series B Preferred Conversion Rate then in
effect (determined as provided in Section 4(b)) by the number of shares of
Series B Preferred being converted. The number of shares of Common Stock to
which a holder of Series C Preferred shall be entitled upon conversion shall be
the product obtained by multiplying the Series C Preferred Conversion Rate then
in effect (determined as provided in Section 4(b)) by the number of shares of
Series C Preferred being converted. The number of shares of Common Stock to
which a holder of Series D Preferred shall be entitled upon conversion shall be
the product obtained by multiplying the Series D Preferred Conversion Rate then
in effect (determined as provided in Section 4(b)) by the number of shares of
Series D Preferred being converted.
(B) SERIES PREFERRED CONVERSION RATE. The conversion rate in effect
at any time for conversion of the Series A Preferred (the "SERIES A PREFERRED
CONVERSION RATE") shall be the quotient obtained by dividing an amount equal to
(i) the Series A Original Issue Price by (ii) the Series A Preferred Conversion
Price, calculated as provided in Section 4(c). The conversion rate in effect at
any time for conversion of the Series B Preferred (the "SERIES B PREFERRED
CONVERSION RATE") shall be the quotient obtained by dividing an amount equal to
(i) the Series B Original Issue Price by (ii) the Series B Preferred Conversion
Price, calculated as provided in Section 4(c). The conversion rate in effect at
any time for conversion of the Series C Preferred (the "SERIES
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C PREFERRED CONVERSION RATE") shall be the quotient obtained by dividing an
amount equal to (i) the Series C Original Issue Price by (ii) the Series C
Preferred Conversion Price, calculated as provided in Section 4(c). The
conversion rate in effect at any time for conversion of the Series D Preferred
(the "SERIES D PREFERRED CONVERSION RATE") shall be the quotient obtained by
dividing (i) an amount equal to the Series D Original Issue Price by (ii) the
Series D Preferred Conversion Price, calculated as provided in Section 4(c).
(C) SERIES PREFERRED CONVERSION PRICE. The conversion price for the
Series A Preferred shall initially be the Series A Original Issue Price (the
"SERIES A PREFERRED CONVERSION PRICE"). Such initial Series A Preferred
Conversion Price shall be adjusted from time to time in accordance with this
Section 4. The conversion price for the Series B Preferred shall initially be
the Series B Original Issue Price (the "SERIES B PREFERRED CONVERSION PRICE").
Such initial Series B Preferred Conversion Price shall be adjusted from time to
time in accordance with this Section 4. The conversion price for the Series C
Preferred shall initially be the Series C Original Issue Price (the "SERIES C
PREFERRED CONVERSION PRICE"). Such initial Series C Preferred Conversion Price
shall be adjusted from time to time in accordance with this Section 4. The
conversion price for the Series D Preferred shall initially be the Series D
Original Issue Price (the "SERIES D PREFERRED CONVERSION Price"). Such initial
Series D Preferred Conversion Price shall be adjusted from time to time in
accordance with this Section 4. All references to the Series A Preferred
Conversion Price, Series B Preferred Conversion Price, Series C Preferred
Conversion Price, or Series D Preferred Conversion Price herein shall mean the
applicable conversion price as so adjusted.
(D) MECHANICS OF CONVERSION. Each holder of Series Preferred who
desires to convert the same into shares of Common Stock pursuant to this Section
4 shall surrender the certificate or certificates therefor, duly endorsed, at
the office of the Company or any transfer agent for the Series Preferred, and
shall give written notice to the Company at such office that such holder elects
to convert the same. Such notice shall state the number of whole shares of
Series Preferred being converted. Thereupon, the Company shall promptly issue
and deliver at such office to such holder a certificate or certificates for the
number of shares of Common Stock to which such holder is entitled and shall
promptly pay in cash (at the Common Stock's fair market value determined in good
faith by the Board of Directors as of the date of conversion) the value of any
fractional share of Common Stock otherwise issuable to any holder of Series
Preferred. No fractional shares of Common Stock shall be issued upon conversion
of any shares of Series Preferred. Whether or not fractional shares will result
upon such conversion shall be determined on the basis of the total number of
shares of Series Preferred the holder is at the time converting into Common
Stock and the number of shares of Common Stock issuable upon such aggregate
conversion. Such conversion shall be deemed to have been made at the close of
business on the date of such surrender of the certificates representing the
shares of Series Preferred to be converted, and the person entitled to receive
the shares of Common Stock issuable upon such conversion shall be treated for
all purposes as the record holder of such shares of Common Stock on such date.
If the conversion is
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in connection with an underwritten offering of securities registered pursuant to
the Securities Act of 1933, as amended or any other transaction set forth in
Section 3(c), the conversion may, at the option of any holder tendering shares
of Series Preferred for conversion, be conditioned upon the closing with the
underwriters of the sale of securities pursuant to such offering or the closing
of such transaction, in which event the person or entity entitled to receive the
Common Stock upon conversion of the Series Preferred shall not be deemed to have
converted such Series Preferred until immediately prior to the closing of such
sale of securities or the closing of such transaction.
(E) ADJUSTMENT FOR STOCK SPLITS AND COMBINATIONS. If the Company
shall at any time or from time to time after the date that the first share of
Series D Preferred is issued (the "SERIES D ORIGINAL ISSUE DATE") effect a split
or subdivision of the outstanding Common Stock without a corresponding
subdivision of the Preferred Stock, the Series A Preferred Conversion Price,
Series B Preferred Conversion Price, Series C Preferred Conversion Price and
Series D Preferred Conversion Price in effect immediately before that split or
subdivision shall be proportionately decreased. Conversely, if the Company shall
at any time or from time to time after the Series D Original Issue Date combine
the outstanding shares of Common Stock into a smaller number of shares without a
corresponding combination of the Preferred Stock, the Series A Preferred
Conversion Price, the Series B Preferred Conversion Price, the Series C
Preferred Conversion Price and the Series D Preferred Conversion Price in effect
immediately before the combination shall be proportionately increased. Any
adjustment under this Section 4(e) shall become effective at the close of
business on the date the subdivision or combination becomes effective.
(F) ADJUSTMENT FOR COMMON STOCK DIVIDENDS AND DISTRIBUTIONS. If the
Company at any time or from time to time after the Series D Original Issue Date
makes, or fixes a record date for the determination of holders of Common Stock
entitled to receive, a dividend or other distribution payable in additional
shares of Common Stock, in each such event the Series A Preferred Conversion
Price, Series B Preferred Conversion Price, Series C Preferred Conversion Price
and Series D Preferred Conversion Price that is then in effect shall be
decreased as of the time of such issuance or, in the event such record date is
fixed, as of the close of business on such record date, by multiplying the
applicable conversion price then in effect by a fraction (i) the numerator of
which is the total number of shares of Common Stock issued and outstanding
immediately prior to the time of such issuance or the close of business on such
record date (as the case may be), and (ii) the denominator of which is the total
number of shares of Common Stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record date (as the case
may be) plus the number of shares of Common Stock issuable in payment of such
dividend or distribution; provided, however, that if such record date is fixed
and such dividend is not fully paid or if such distribution is not fully made on
the date fixed therefor, the Series A Preferred Conversion Price, Series B
Preferred Conversion Price, Series C Preferred Conversion Price and Series D
Preferred Conversion Price shall be recomputed accordingly as of the close of
business on such record date and thereafter the Series A Preferred Conversion
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Price, Series B Preferred Conversion Price, Series C Preferred Conversion Price
and Series D Preferred Conversion Price shall be adjusted pursuant to this
Section 4(f) to reflect the actual payment of such dividend or distribution.
(G) ADJUSTMENT FOR RECLASSIFICATION, EXCHANGE AND SUBSTITUTION. If
at any time or from time to time after the Series D Original Issue Date, the
Common Stock issuable upon the conversion of the Series Preferred is changed
into the same or a different number of shares of any class or classes of stock,
whether by reorganization, recapitalization, reclassification or otherwise
(other than an Acquisition or Asset Transfer as defined in Section 3(c) or a
subdivision or combination of shares or stock dividend or a reorganization,
merger, consolidation or sale of assets provided for elsewhere in this Section
4) then, in any such event each holder of Series Preferred shall have the right
thereafter to convert such stock into the kind and amount of stock and other
securities and property receivable upon such reorganization, recapitalization,
reclassification or other change by holders of the maximum number of shares of
Common Stock into which such shares of Series Preferred could have been
converted immediately prior to such reorganization, recapitalization,
reclassification or change, all subject to further adjustment as provided herein
or with respect to such other securities or property by the terms thereof.
(H) REORGANIZATIONS, MERGERS OR CONSOLIDATIONS. If at any time or
from time to time after the Series D Original Issue Date, there is a capital
reorganization of the Common Stock or the merger or consolidation of the Company
with or into another corporation or another entity or person (other than an
Acquisition or Asset Transfer that constitutes a deemed liquidation in
accordance with Section 3(c) or a recapitalization, subdivision, combination,
reclassification, exchange or substitution of shares provided for elsewhere in
this Section 4), as a part of such capital reorganization, merger or
consolidation, provision shall be made so that the holders of the Series
Preferred shall thereafter be entitled to receive upon conversion of the Series
Preferred the number of shares of stock or other securities or property of the
Company or of the successor entity resulting from such a reorganization, merger
or consolidation to which a holder of the number of shares of Common Stock
deliverable upon conversion would have been entitled on such capital
reorganization, merger or consolidation, subject to adjustment in respect of
such stock or securities by the terms thereof. In any such case, appropriate
adjustment shall be made in the application of the provisions of this Section 4
with respect to the rights of the holders of Series Preferred after the capital
reorganization, merger or consolidation to the end that the provisions of this
Section 4 (including adjustment of the Series A Preferred Conversion Price,
Series B Preferred Conversion Price, Series C Preferred Conversion Price and
Series D Preferred Conversion Price then in effect and the number of shares
issuable upon conversion of the Series A Preferred, the Series B Preferred, the
Series C Preferred and the Series D Preferred) shall be applicable after that
event and be as nearly equivalent as practicable. In the event of the occurrence
of a capital reorganization, merger or consolidation of the Company as such
events are more fully set forth in this Section 4(h) that constitutes a deemed
liquidation in accordance with Section 3(c), the Requisite Holders shall have
the
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option of electing, on behalf of all of the holders of Series Preferred,
treatment of all shares of Series Preferred under either this Section 4(h) or
Section 3 hereof, notice of which election shall be submitted in writing to the
Company at its principal office prior to the consummation of the event that
constitutes such deemed liquidation. Such election shall be binding upon all
holders of Series Preferred.
(I) SALE OF SHARES BELOW SERIES PREFERRED CONVERSION PRICE.
(I) If at any time or from time to time after the Series D
Original Issue Date, the Company issues or sells, or is deemed by the express
provisions of this subsection (i) to have issued or sold, Additional Shares of
Common Stock (as defined in subsection (i)(vi) below) for an Effective Price (as
defined in subsection (i)(vi) below) less than the then effective Series A
Preferred Conversion Price, then and in each such case the then existing Series
A Preferred Conversion Price shall be reduced, as of the opening of business on
the date of such issue or sale, to a price determined by multiplying the Series
A Preferred Conversion Price by a fraction (i) the numerator of which shall be
(A) the number of shares of Common Stock deemed outstanding (as defined below)
immediately prior to such issue or sale, plus (B) the number of shares of Common
Stock which the aggregate consideration received (as defined in subsection
(i)(ii) below) by the Company for the total number of Additional Shares of
Common Stock so issued would purchase at such then effective Series A Preferred
Conversion Price, and (ii) the denominator of which shall be (A) the number of
shares of Common Stock deemed outstanding (as defined below) immediately prior
to such issue or sale plus (B) the total number of Additional Shares of Common
Stock so issued. For the purposes of the preceding sentence, the number of
shares of Common Stock deemed to be outstanding as of a given date shall be the
sum of (A) the number of shares of Common Stock actually outstanding, (B) the
number of shares of Common Stock into which the then outstanding shares of
Series Preferred could be converted if fully converted on the day immediately
preceding the given date, and (C) the number of shares of Common Stock which
could be obtained through the exercise or conversion of all other rights,
options and convertible securities outstanding on the day immediately preceding
the given date. No adjustment shall be made to the Series A Preferred Conversion
Price in an amount less than one cent per share. Any adjustment otherwise
required by this Section 4(i) that is not required to be made due to the
preceding sentence shall be included in any subsequent adjustment to the Series
A Preferred Conversion Price.
(II) If at any time or from time to time after the Series D
Original Issue Date, the Company issues or sells, or is deemed by the express
provisions of this subsection (i) to have issued or sold, Additional Shares of
Common Stock (as defined in subsection (i)(vi) below) for an Effective Price (as
defined in subsection (i)(vi) below), less than the then effective Series B
Preferred Conversion Price, then and in each such case the then existing Series
B Preferred Conversion Price shall be reduced, as of the opening of business on
the date of such issue or sale, to a price determined by multiplying the Series
B Preferred Conversion Price by a fraction (i) the numerator of which shall be
(A) the number of shares of Common Stock deemed outstanding (as
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defined below) immediately prior to such issue or sale, plus (B) the number of
shares of Common Stock which the aggregate consideration received (as defined in
subsection (i)(iii) below) by the Company for the total number of Additional
Shares of Common Stock so issued would purchase at such then effective Series B
Preferred Conversion Price, and (ii) the denominator of which shall be (A) the
number of shares of Common Stock deemed outstanding (as defined below)
immediately prior to such issue or sale plus (B) the total number of Additional
Shares of Common Stock so issued. For the purposes of the preceding sentence,
the number of shares of Common Stock deemed to be outstanding as of a given date
shall be the sum of (A) the number of shares of Common Stock actually
outstanding, (B) the number of shares of Common Stock into which the then
outstanding shares of Series Preferred could be converted if fully converted on
the day immediately preceding the given date, and (C) the number of shares of
Common Stock which could be obtained through the exercise or conversion of all
other rights, options and convertible securities outstanding on the day
immediately preceding the given date. No adjustment shall be made to the Series
B Preferred Conversion Price in an amount less than one cent per share. Any
adjustment otherwise required by this Section 4(i) that is not required to be
made due to the preceding sentence shall be included in any subsequent
adjustment to the Series B Preferred Conversion Price.
(III) If at any time or from time to time after the Series D
Original Issue Date, the Company issues or sells, or is deemed by the express
provisions of this subsection (i) to have issued or sold, Additional Shares of
Common Stock (as defined in subsection (i)(vi) below) for an Effective Price (as
defined in subsection (i)(vi) below), less than the then effective Series C
Preferred Conversion Price, then and in each such case the then existing Series
C Preferred Conversion Price shall be reduced, as of the opening of business on
the date of such issue or sale, to a price determined by multiplying the Series
C Preferred Conversion Price by a fraction (i) the numerator of which shall be
(A) the number of shares of Common Stock deemed outstanding (as defined below)
immediately prior to such issue or sale, plus (B) the number of shares of Common
Stock which the aggregate consideration received (as defined in subsection
(i)(iii) below) by the Company for the total number of Additional Shares of
Common Stock so issued would purchase at such then effective Series C Preferred
Conversion Price, and (ii) the denominator of which shall be (A) the number of
shares of Common Stock deemed outstanding (as defined below) immediately prior
to such issue or sale plus (B) the total number of Additional Shares of Common
Stock so issued. For the purposes of the preceding sentence, the number of
shares of Common Stock deemed to be outstanding as of a given date shall be the
sum of (A) the number of shares of Common Stock actually outstanding, (B) the
number of shares of Common Stock into which the then outstanding shares of
Series Preferred could be converted if fully converted on the day immediately
preceding the given date, and (C) the number of shares of Common Stock which
could be obtained through the exercise or conversion of all other rights,
options and convertible securities outstanding on the day immediately preceding
the given date. No adjustment shall be made to the Series C Preferred Conversion
Price in an amount less than one cent per share. Any adjustment otherwise
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required by this Section 4(i) that is not required to be made due to the
preceding sentence shall be included in any subsequent adjustment to the Series
C Preferred Conversion Price.
(IV) If at any time or from time to time after the Series D
Original Issue Date, the Company issues or sells, or is deemed by the express
provisions of this subsection (i) to have issued or sold, Additional Shares of
Common Stock (as defined in subsection (i)(vi) below) for an Effective Price (as
defined in subsection (i)(vi) below), less than the then effective Series D
Preferred Conversion Price, then and in each such case the then existing Series
D Preferred Conversion Price shall be reduced, as of the opening of business on
the date of such issue or sale, to a price determined by multiplying the Series
D Preferred Conversion Price by a fraction (i) the numerator of which shall be
(A) the number of shares of Common Stock deemed outstanding (as defined below)
immediately prior to such issue or sale, plus (B) the number of shares of Common
Stock which the aggregate consideration received (as defined in subsection
(i)(iii) below) by the Company for the total number of Additional Shares of
Common Stock so issued would purchase at such then effective Series D Preferred
Conversion Price, and (ii) the denominator of which shall be (A) the number of
shares of Common Stock deemed outstanding (as defined below) immediately prior
to such issue or sale plus (B) the total number of Additional Shares of Common
Stock so issued. For the purposes of the preceding sentence, the number of
shares of Common Stock deemed to be outstanding as of a given date shall be the
sum of (A) the number of shares of Common Stock actually outstanding, (B) the
number of shares of Common Stock into which the then outstanding shares of
Series Preferred could be converted if fully converted on the day immediately
preceding the given date, and (C) the number of shares of Common Stock which
could be obtained through the exercise or conversion of all other rights,
options and convertible securities outstanding on the day immediately preceding
the given date. No adjustment shall be made to the Series D Preferred Conversion
Price in an amount less than one cent per share. Any adjustment otherwise
required by this Section 4(i) that is not required to be made due to the
preceding sentence shall be included in any subsequent adjustment to the Series
D Preferred Conversion Price.
(V) For the purpose of making any adjustment required under
this Section 4(i), the consideration received by the Company for any issue or
sale of securities shall (A) to the extent it consists of cash, be computed at
the amount of such cash received by the Company, (B) to the extent it consists
of property other than cash, be computed at the fair value of that property as
determined in good faith by the Board of Directors and as approved by the
Requisite Holders, and (C) if Additional Shares of Common Stock, Convertible
Securities (as defined in subsection (i)(v) below) or rights or options to
purchase either Additional Shares of Common Stock or Convertible Securities are
issued or sold together with other stock or securities or other assets of the
Company for a consideration which covers both, be computed as the portion of the
consideration so received that may be reasonably determined in good faith by the
Board
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of Directors and as approved by the Requisite Holders to be allocable to such
Additional Shares of Common Stock, Convertible Securities or rights or options.
(VI) For the purpose of the adjustment required under this
Section 4(i), if the Company issues or sells (a) stock or other securities
convertible into Additional Shares of Common Stock (such convertible stock or
securities being herein referred to as "CONVERTIBLE SECURITIES") or (b) rights
or options for the purchase of Additional Shares of Common Stock or Convertible
Securities and if the Effective Price of such Additional Shares of Common Stock
or Convertible Securities is less than the Series A Preferred Conversion Price,
the Series B Preferred Conversion Price, the Series C Preferred Conversion Price
and/or the Series D Preferred Conversion Price, in each case the Company shall
be deemed to have issued at the time of the issuance of such rights or options
or Convertible Securities the maximum number of Additional Shares of Common
Stock issuable upon exercise or conversion thereof and to have received as
consideration for the issuance of such shares an amount equal to the total
amount of the consideration, if any, received by the Company for the issuance of
such rights or options or Convertible Securities, plus, in the case of such
rights or options, the minimum amounts of consideration, if any, payable to the
Company upon the exercise of such rights or options, plus, in the case of
Convertible Securities, the minimum amounts of consideration, if any, payable to
the Company (other than by cancellation of liabilities or obligations evidenced
by such Convertible Securities) upon the conversion thereof, provided that if in
the case of Convertible Securities the minimum amounts of such consideration
cannot be ascertained, but are a function of antidilution or similar protective
clauses, the Company shall be deemed to have received the minimum amounts of
consideration without reference to such clauses; provided that if the minimum
amount of consideration payable to the Company upon the exercise or conversion
of such rights, options or Convertible Securities is subsequently increased, the
Effective Price shall be again recalculated using the increased minimum amount
of consideration payable to the Company upon the exercise or conversion of such
rights, options or Convertible Securities. No further adjustment of the Series A
Preferred Conversion Price, the Series B Preferred Conversion Price, the Series
C Preferred Conversion Price, or the Series D Preferred Conversion Price, as
adjusted upon the issuance of such rights, options or Convertible Securities,
shall be made as a result of the actual issuance of Additional Shares of Common
Stock on the exercise of any such rights or options or the conversion of any
such Convertible Securities. If any such rights or options or the conversion
privilege represented by any such Convertible Securities shall expire without
having been exercised, the Series A Preferred Conversion Price, Series B
Preferred Conversion Price, the Series C Preferred Conversion Price and/or the
Series D Preferred Conversion Price as adjusted upon the issuance of such
rights, options or Convertible Securities shall be readjusted to the Series A
Preferred Conversion Price, Series B Preferred Conversion Price, the Series C
Preferred Conversion Price and/or the Series D Preferred Conversion Price, as
applicable, which would have been in effect had an adjustment been made on the
basis that the only Additional Shares of Common Stock so issued were the
Additional Shares of Common Stock, if any, actually issued or sold on the
exercise of such rights or options or rights of
-16-
conversion of such Convertible Securities, and such Additional Shares of Common
Stock, if any, were issued or sold for the consideration actually received by
the Company upon such exercise, plus the consideration, if any, actually
received by the Company for the granting of all such rights or options, whether
or not exercised, plus the consideration received for issuing or selling the
Convertible Securities actually converted, plus the consideration, if any,
actually received by the Company (other than by cancellation of liabilities or
obligations evidenced by such Convertible Securities) on the conversion of such
Convertible Securities, provided that such readjustment shall not apply to prior
conversions of Series Preferred. In the event of any change in the number of
shares of Common Stock deliverable or in the consideration payable to the
Company upon exercise or conversion of any right, option or Convertible Security
(including, without limitation, a change resulting from the anti-dilution
provisions thereof), the Series A Preferred Conversion Price, the Series B
Preferred Conversion Price, the Series C Preferred Conversion Price and/or the
Series D Preferred Conversion Price to the extent in any way affected by or
initially determined using such right, option or Convertible Security shall be
recomputed to reflect such change.
(VII) "ADDITIONAL SHARES OF COMMON STOCK" shall mean all
shares of Common Stock issued by the Company or deemed to be issued pursuant to
this Section 4(i) (including, without limitation, the shares issued pursuant to
Section 4(i)(v) and 4(i)(vi)), whether or not subsequently acquired or retired
by the Company, other than (A) shares of Common Stock issued upon conversion of
the Series Preferred or up to 464,412 shares of Common Stock or Series B
Preferred issued upon exercise of the warrant exercisable for shares of Series B
Preferred (as adjusted for any stock dividends, combinations, splits,
recapitalizations and the like) outstanding on the date hereof; (B) up to
20,500,000 shares of Common Stock (as adjusted for any stock dividends,
combinations, splits, recapitalizations and the like) issued or issuable
pursuant to any of the Company's stock option plans or restricted stock plans
which are approved by the Board of Directors; (C) up to 40,000 shares of Common
Stock (as adjusted for any stock dividends, combinations, splits,
recapitalizations and the like) and/or options, warrants or other rights issued
pursuant to any equipment loan or leasing arrangement, real property leasing
arrangement or debt financing from a bank or similar financial institution
approved by the Board of Directors; (D) shares of Common Stock issued in
connection with stock splits, stock divisions or dividend distributions for
which the holders of Series Preferred received an adjustment pursuant to Section
4(e) or 4(f); or (E) shares of Series D Preferred (or shares of Common Stock
issued upon conversion thereof) issued pursuant to that certain Series D
Preferred Stock Purchase Agreement by and among the Company and certain
investors dated on or about September 13, 2006. References to Common Stock in
the subsections of this subsection (vi) shall mean all shares of Common Stock
issued by the Company or deemed to be issued pursuant to this Section 4(i). The
"Effective Price" of Additional Shares of Common Stock shall mean the quotient
determined by dividing the total number of Additional Shares of Common Stock
issued or sold, or deemed to have been issued or sold by the Company under this
Section 4(i), into the aggregate consideration received, or deemed to have been
received by the Company for such Additional Shares of Common Stock under this
Section 4(i).
-17-
Any adjustment to the Series A Preferred Conversion Price, the Series B
Preferred Conversion Price, the Series C Preferred Conversion Price or the
Series D Preferred Conversion Price may be waived on behalf of all holders of
Series Preferred by the Requisite Holders.
(J) CERTIFICATE OF ADJUSTMENT. In each case of an adjustment or
readjustment of the Series A Preferred Conversion Price, Series B Preferred
Conversion Price, the Series C Preferred Conversion Price and/or the Series D
Preferred Conversion Price for the number of shares of Common Stock or other
securities issuable upon conversion of the Series Preferred, the Company, at its
expense, shall compute such adjustment or readjustment in accordance with the
provisions hereof and prepare a certificate showing such adjustment or
readjustment, and shall mail such certificate, by first class mail, postage
prepaid, to each registered holder of Series Preferred at the holder's address
as shown in the Company's books. The certificate shall set forth such adjustment
or readjustment, showing in detail the facts upon which such adjustment or
readjustment is based, including a statement of (i) the consideration received
or deemed to be received by the Company for any Additional Shares of Common
Stock issued or sold or deemed to have been issued or sold, (ii) the Series A
Preferred Conversion Price, Series B Preferred Conversion Price, the Series C
Preferred Conversion Price and/or the Series D Preferred Conversion Price, as
applicable, at the time in effect, (iii) the number of Additional Shares of
Common Stock and (iv) the type and amount, if any, of other property which at
the time would be received upon conversion of the applicable share of Series
Preferred.
(K) NOTICES OF RECORD DATE. Upon (i) any taking by the Company of a
record of the holders of any class of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend or other
distribution, or (ii) any Acquisition (as defined in Section 3(c)) or other
capital reorganization of the Company, any reclassification or recapitalization
of the capital stock of the Company, any merger or consolidation of the Company
with or into any other entity, or any Asset Transfer (as defined in Section
3(c)), or any voluntary or involuntary dissolution, liquidation or winding up of
the Company, the Company shall mail to each holder of Series Preferred at least
fifteen (15) days prior to the record date specified therein (or such shorter
period approved by the holders of at least a majority of the then outstanding
shares of Series Preferred) a notice specifying (A) the date on which any such
record is to be taken for the purpose of such dividend or distribution and a
description of such dividend or distribution, (B) the date on which any such
Acquisition, reorganization, reclassification, transfer, consolidation, merger,
Asset Transfer, dissolution, liquidation or winding up is expected to become
effective, and (C) the date, if any, that is to be fixed as to when the holders
of record of Common Stock (or other securities) shall be entitled to exchange
their shares of Common Stock (or other securities) for securities or other
property deliverable upon such Acquisition, reorganization, reclassification,
transfer, consolidation, merger, Asset Transfer, dissolution, liquidation or
winding up.
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(L) AUTOMATIC CONVERSION.
(I) Each share of Series Preferred shall automatically be
converted into shares of Common Stock, based on the then-effective Series A
Preferred Conversion Rate, Series B Preferred Conversion Rate, Series C
Preferred Conversion Rate and Series D Preferred Conversion Rate, as applicable,
immediately upon (A) receipt by the Company of a request from the holders of at
least a majority of the outstanding shares of the Series Preferred, voting
together as a single class and not as each separate series (a "CONVERSION
DEMAND"), or (B) the closing of a firmly underwritten public offering pursuant
to an effective registration statement under the Securities Act of 1933, as
amended, covering the offer and sale of Common Stock for the account of the
Company in which (i) the per share price is at least $1.62258 (as adjusted for
any stock dividends, combinations, splits, recapitalizations and the like) and
(ii) the net cash proceeds to the Company (after underwriting discounts,
commissions and fees) are at least $40,000,000 and after giving effect to which
the Common Stock is listed on a U.S. national securities exchange or admitted
for quotation on the NASDAQ National Market or a successor thereto.
(II) Upon the receipt of a Conversion Demand or the occurrence
of the closing of a firmly underwritten public offering as specified in Section
4(l)(i)(B) above, the outstanding shares of Series Preferred shall be converted
automatically without any further action by the holders of such shares and
whether or not the certificates representing such shares are surrendered to the
Company or its transfer agent; provided, however, that the Company shall not be
obligated to issue certificates evidencing the shares of Common Stock issuable
upon such conversion unless the certificates evidencing such shares of Series
Preferred are either delivered to the Company or its transfer agent as provided
below, or the holder notifies (the "NOTICE") 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 (an "INDEMNITY"). Upon the
occurrence of such automatic conversion of the Series Preferred, the holders of
Series Preferred shall surrender the certificates representing such shares or a
Notice (accompanied by an Indemnity) at the office of the Company or any
transfer agent for the Series Preferred. Thereupon, there shall be issued and
delivered to such holder promptly at such office and in its name as shown on
such surrendered certificate or certificates, a certificate or certificates for
the number of shares of Common Stock into which the shares of Series Preferred
surrendered were convertible on the date on which such automatic conversion
occurred.
(M) 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 shares of the Series Preferred, such number of its shares of Common Stock as
shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Series Preferred. If at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to effect
the conversion of all then outstanding shares of the Series Preferred,
-19-
the Company will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stock to such numbers of shares as shall be sufficient for such purpose.
(N) NOTICES. Any notice required by the provisions of this Section 4
shall be in writing and shall be deemed effectively given: (i) upon personal
delivery to the party to be notified, (ii) when sent by confirmed electronic
mail or facsimile if sent during normal business hours of the recipient; if not,
then on the next business day, (iii) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid, or (iv)
one (1) day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with verification of receipt. All notices shall be
addressed to each holder of record at the address of such holder appearing on
the books of the Company.
(O) PAYMENT OF TAXES. The Company will pay all taxes (other than
taxes based upon income) and other governmental charges that may be imposed with
respect to the issue or delivery of shares of Common Stock upon conversion of
shares of Series Preferred, excluding any tax or other charge imposed in
connection with any transfer involved in the issue and delivery of shares of
Common Stock in a name other than that in which the shares of Series Preferred
so converted were registered.
(P) DEFINITION OF "COMMON STOCK". As used in this Section 4, the
term "Common Stock" shall mean and include the Company's authorized Common
Stock, par value $0.01 per share, as constituted on the Series D Original Issue
Date and shall also include any security of the Company thereafter authorized
which shall not be limited to a fixed sum or percentage in respect of the rights
of the holders thereof to participate in dividends or in the distribution of
assets upon a liquidation, dissolution or winding up of the Company; provided
that the shares of Common Stock receivable upon conversion of shares of Series
Preferred shall include only shares designated as Common Stock of the Company on
the date of filing of this instrument, or in case of any reorganization or
recapitalization of the outstanding shares thereof, the stock, securities or
assets provided for in Section 4(g) or Section 4(h).
5. REDEMPTION.
(A) The Company shall be obligated to redeem the Series Preferred as
follows:
(I) Notwithstanding Section 2(b)(viii) hereof, each issued and
outstanding share of Series Preferred shall, to the extent the Company may
lawfully do so, be redeemed by the Company at any time after the fourth
anniversary of the Series D Original Issue Date upon receipt by the Company of a
request from the holders of at least a majority of the then outstanding shares
of Series Preferred (the "MAJORITY HOLDERS") that the Series Preferred be
redeemed (a "REDEMPTION DEMAND"). The Company shall effect such redemption on
the Redemption Date by paying in cash in exchange for the shares of Series
Preferred to be redeemed a sum equal to the greater of (i) with respect to
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each share of Series A Preferred, the Series A Original Issue Price plus an
amount equal to all declared and unpaid dividends on such share of Series A
Preferred, with respect to each share of Series B Preferred, the Series B
Original Issue Price plus an amount equal to all declared and unpaid dividends
on such share of Series B Preferred, with respect to each share of Series C
Preferred, the Series C Original Issue Price plus an amount equal to all
declared and unpaid dividends on such share of Series C Preferred, and with
respect to each share of Series D Preferred, the Series D Original Issue Price
plus an amount equal to all declared and unpaid dividends on such share of
Series D Preferred and (ii) the fair market value of such share of Series
Preferred as determined in good faith by the Board of Directors, without
consideration of any minority ownership, liquidity or any other similar
discount. In the event that the Majority Holders disagree with the fair market
value established by the Board of Directors, the Company and the Majority
Holders shall mutually agree upon and select an independent nationally
recognized investment bank, accounting firm or other financial institution to
determine the fair market value (the "INDEPENDENT EVALUATOR"); provided that in
the event that the Company and the Majority Holders are unable to mutually agree
on an Independent Evaluator, the Company and the Majority Holders shall each
select an Independent Evaluator and the two Independent Evaluators shall
mutually agree upon a final Independent Evaluator to determine such fair market
value. The final Independent Evaluator's determination of the fair market value
shall be set forth in a written detailed report mutually addressed to the Board
of Directors and the holders of the Series Preferred and such determination
shall be final, conclusive and binding upon the Company and such holders. All
costs related to the appointment of and valuation by the Independent Evaluator
shall be borne by the Company if such fair market value as so determined is more
than the amount thereof as determined by the Company, otherwise, the expenses
shall be paid by the Holders, pro rata, in accordance with the number of shares
of Series Preferred held by them. The total amount to be paid for the Series
Preferred to be redeemed is hereinafter referred to as the "REDEMPTION PRICE."
(II) Upon receipt of the Redemption Demand specified in
Section 5(a)(i), the Company shall send a notice (a "REDEMPTION NOTICE") to all
holders of Series Preferred setting forth (A) the applicable Redemption Price
for the shares to be redeemed; (B) the place at which such holders may obtain
payment of the Redemption Price upon surrender of their share certificates and
(C) the date upon which such shares will be redeemed which date shall be no more
than sixty days after receipt of the Redemption Demand (the "REDEMPTION DATE").
If the Company does not have sufficient funds legally available to redeem all
shares to be redeemed at such Redemption Date, until all amounts owed to the
holders of Series D Preferred on account of the redemption of the Series D
Preferred are paid in full, the Company shall not, and shall not be obligated
to, make any payments to any Person in respect of a Series A Preferred, Series B
Preferred or Series C Preferred. At any time thereafter when additional funds of
the Company are legally available for the redemption of such shares of Series A
Preferred, Series B Preferred and Series C Preferred, such funds will be used at
the earliest permissible time to redeem the balance of such shares, or such
portion thereof for which funds are then legally available, in proportion to the
full
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Redemption Price each holder of Series Preferred would receive if there were
sufficient funds to redeem all shares of Series Preferred.
(B) On or after the Redemption Date, each holder of shares of Series
Preferred to be redeemed shall surrender such holder's certificates representing
such shares to the Company in the manner and at the place designated in the
Redemption Notice, and thereupon the Redemption Price of such shares shall be
payable to the order of the person whose name appears on such certificate or
certificates as the owner thereof and each surrendered certificate shall be
canceled. In the event less than all the shares represented by such certificates
are redeemed, a new certificate shall be issued representing the unredeemed
shares. From and after such Redemption Date, unless there shall have been a
default in payment of the Redemption Price or the Company is unable to pay the
Redemption Price due to not having sufficient legally available funds, all
rights of the holder of such shares as holder of Series Preferred (except the
right to receive the Redemption Price without interest upon surrender of their
certificates), shall cease and terminate with respect to such shares; provided
that in the event that shares of Series Preferred are not redeemed due to a
default in payment by the Company or because the Company does not have
sufficient legally available funds, such shares of Series Preferred shall remain
outstanding and shall be entitled to all of the rights and preferences provided
herein.
(C) To the extent that any dividends with respect to any Preferred
Stock are declared and unpaid immediately prior to any redemption of the Series
Preferred as contemplated in this Section 5, upon such redemption, the declared
and unpaid dividends shall be forgiven and shall no longer be payable by the
Company to any holder of the Series Preferred; provided, however, such
forgiveness shall not reduce or otherwise effect the amount of declared and
unpaid dividends for purposes of calculating the Redemption Price.
6. COMMON STOCK
Each share of Common Stock shall have one vote on all matters to be
voted on by the holders of the Common Stock. No holder of Common Stock entitled
to vote at an election for directors may cumulate votes to which such holder is
entitled. Each holder of Common Stock shall be entitled to participate equally
in all dividends payable with respect to the Common Stock, subject to any
preferential dividend rights of any then outstanding shares of Preferred Stock
and any other classes or series of the Company's capital stock that may
hereafter be authorized and issued having preferred dividend rights senior to or
pari passu with the rights of holders of Common Stock. Each holder of Common
Stock shall share ratably, subject to the rights and preferences of any series
of Preferred Stock and any other series of capital stock of the Company that may
hereafter be issued and outstanding having rights upon the occurrence of a
liquidation, dissolution or winding up of the Company (including any Acquisition
or Asset Transfer) senior to or pari passu with the rights of holders of Common
Stock, in all assets of the Company in any such event. The number of authorized
shares of Common Stock may be increased or decreased (but not below the number
of shares of Common Stock then
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outstanding) by the affirmative vote of the holders of capital stock having a
majority of the voting power of the Company (voting together on an
as-if-converted basis), irrespective of the provision of Section 242(b)(2) of
the DGCL.
V.
No director shall be personally liable to the Company or its stockholders
for monetary damages for any breach of fiduciary duty by such director as a
director. Notwithstanding the foregoing sentence, a director shall be liable to
the extent provided by applicable law (a) for breach of the director's duty of
loyalty to the Company or its stockholders, (b) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (c) pursuant to Section 174 of the DGCL or (d) for any transaction from
which the director derived an improper personal benefit. All references in this
Article V to a director shall also be deemed to refer to any other person who,
pursuant to a provision of the certificate of incorporation in accordance with
subsection (a) of Section 141 of the DGCL, exercises or performs any of the
powers or duties otherwise conferred or imposed upon the Company's Board of
Directors by the DGCL. If the DGCL is amended, after approval by the
stockholders of this Article V, to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Company shall be eliminated or limited to the fullest
extent permitted by the DGCL as so amended. No amendment to or repeal of this
Article V shall apply adversely to or have any adverse effect on the liability
or alleged liability of any director of the Company for or with respect to any
acts or omissions of such director occurring prior to such amendment.
VI.
The Company shall, to the fullest extent provided by the DGCL (including,
without limitation, Section 145), indemnify its directors and shall provide for
advancement of the expenses (including, without limitation, attorneys' fees) of
such directors, from and against any and all of the expenses, liabilities and
other matters incurred in defending any civil, criminal, administrative or
investigative suit or proceedings. To the fullest extent permitted by applicable
law, the Company is authorized to provide indemnification of (and advancement of
expenses to) directors of the Company through bylaw provisions, agreements with
such directors, vote of stockholders or disinterested directors or otherwise, in
excess of the indemnification and advancement otherwise permitted by Section 145
of the DGCL, subject only to limits created by applicable Delaware law
(statutory or non-statutory). Any amendment, repeal or modification of the DGCL
or the foregoing provision of this Article VI shall not adversely affect any
right or protection of a director existing at the time of, or increase the
liability of any director of the Company with respect to, any acts or omissions
of such director occurring prior to, such amendment, repeal, modification or
adoption. The indemnification and advancement of expenses provided for herein
shall not be deemed exclusive of any other rights to which each such indemnified
director may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such indemnified
director's official capacity and as to action in
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another capacity while serving as a director of the Company, and shall continue
as to a person who has ceased to be a director of the Company and shall inure to
the benefit of the heirs, executors and administrators of such person.
VII.
For the management of the business and for the conduct of the affairs of
the Company, and in further definition, limitation and regulation of the powers
of the Company, of its directors and of its stockholders or any class thereof,
as the case may be, it is further provided that:
A. The management of the business and the conduct of the affairs of the
Company shall be vested in its Board of Directors. The number of directors which
shall constitute the whole Board of Directors shall be fixed from time to time
by the Board of Directors in the manner provided in the Bylaws, subject to any
restrictions which may be set forth in this Restated Certificate.
B. The Company shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss incurred by
such person in any such capacity or arising out of his status as such, whether
or not the Company would have the power to indemnify him against such liability
under the DGCL.
C. Subject to the indemnification provisions in the Company's bylaws and
subject to Section 2(b) hereof, the Board of Directors may from time to time
make, amend, supplement or repeal the bylaws; provided, however, that the
stockholders may change or repeal any bylaw adopted by the Board of Directors by
the affirmative vote of the percentage of holders of capital stock as provided
therein; and, provided further, that no amendment or supplement to the bylaws
adopted by the Board of Directors shall vary or conflict with any amendment or
supplement thus adopted by the stockholders.
D. The directors of the Company need not be elected by written ballot
unless the Bylaws so provide.
E. The private property or assets of the stockholders of the Company shall
not, to any extent whatsoever, be subject to the payment of the debts of the
Company.
VIII.
Pursuant to Section 122(17) of the DGCL, the Company hereby renounces any
interest or expectancy of the Company or any of its subsidiaries in, or in being
offered an opportunity to participate in, any and all business opportunities
that are presented to the holders of Series Preferred or their affiliates
(including, without limitation, any representative or affiliate of such holders
of Series Preferred serving on the Company's
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Board of Directors or the board of directors or other governing body of any
subsidiary of the Company (each a "BOARD OF Directors")) (collectively, the
"SERIES PARTIES"). Without limiting the foregoing renunciation, the Company on
behalf of itself and its subsidiaries (i) acknowledges that the Series Parties
are in the business of making investments in, and have or may have investments
in, other businesses similar to and that may compete with the businesses of the
Company and its subsidiaries ("COMPETING BUSINESSES") and (ii) agrees that the
Series Parties shall have the unfettered right to make investments in or have
relationships with other Competing Businesses independent of their investments
in the Company. By virtue of a Series Party holding capital stock of the Company
or by having persons designated by or affiliated with such Series Party serving
on or observing at meetings of any Board of Directors or otherwise, no Series
Party shall have any obligation to the Company, any of its subsidiaries or any
other holder of capital stock or securities of the Company to refrain from
competing with the Company and any of its subsidiaries, making investments in or
having relationships with Competing Businesses, or otherwise engaging in any
commercial activity and none of the Company, any of its subsidiaries or any
other holder of capital stock or securities of the Company shall have any right
with respect to any investment or activities undertaken by such Series Party.
Without limitation of the foregoing, each Series Party may engage in or possess
any interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Company or any of its subsidiaries, and none of the Company, any of its
subsidiaries or any other holder of capital stock or securities of the Company
shall have any rights or expectancy by virtue of such Series Parties'
relationships with the Company, or otherwise in and to such independent ventures
or the income or profits derived therefrom; and the pursuit of any such
ventures, even if such investment is in a Competing Business, shall not for any
purpose be deemed wrongful or improper. No Series Party shall be obligated to
present any particular investment opportunity to the Company or its subsidiaries
even if such opportunity is of a character that, if presented to the Company or
such subsidiary, could be taken by the Company or such subsidiary, and each
Series Party shall continue to have the right for its own respective account or
to recommend to others any such particular investment opportunity. The
provisions of this Article VIII in no way limit any applicable duties of the
Series Parties with respect to the protection of any proprietary information of
the Company and any of its subsidiaries, including any applicable duty to not
disclose or use such proprietary information improperly and except as expressly
set forth herein in no way limit any fiduciary or other duty of any Series
Party. Nothing contained in this Article VIII shall in any way expand any
fiduciary or other duty of any Series Party beyond such duties as may be imposed
under the DGCL.
* * *
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IN WITNESS WHEREOF, AMICUS THERAPEUTICS, INC. has caused this AMENDED AND
RESTATED CERTIFICATE OF INCORPORATION to be signed by its duly authorized
representative as of September 13, 2006.
AMICUS THERAPEUTICS, INC.
By: /s/ Donald J. Hayden, Jr.
--------------------------------
Name: Donald J. Hayden, Jr.
Title: Interim President & Chief Executive
Officer