Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
DISCOVERY THERAPEUTICS, INC.
(Originally incorporated April 4, 1994)
Peter G. Savas and James V. Peck hereby certify that:
ONE: They are the duly elected and acting President and Secretary,
respectively, of Discovery Therapeutics, Inc., a Delaware corporation (the
"Corporation").
TWO: The Certificate of Incorporation of the Corporation is hereby
amended and restated to read as follows:
"I.
The name of this Corporation is Discovery Therapeutics, Inc.
II.
The address, including street, number, city, and county, of the
registered office of the Corporation in the State of Delaware is 2711
Centerville Road, in the City of Wilmington, 19808, County of New Castle, and
the name of the registered agent of the Corporation in the State of Delaware at
such address is The Prentice-Hall Corporation System, Inc.
III.
The purpose of this Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the Delaware General
Corporation Law
IV.
1. This Corporation is authorized to issue two classes of stock
to be designated "Common Stock" and "Preferred Stock", respectively. The total
number of shares which the Corporation is authorized to issue is Seventeen
Million (17,000,000) shares. Ten Million (10,000,000) shares shall be Common
Stock, each having a par value of One-Tenth of One Cent ($0.001). Seven Million
(7,000,000) shares shall be Preferred Stock, each having a par value of
One-Tenth of One Cent ($0.001).
2. The Preferred Stock may be issued from time to time in one of
more series. The Board of Directors is hereby authorized, by filing a
certificate pursuant to the Delaware General Corporation Law, to fix or alter
from time to time the designations, powers, preferences and rights of the shares
of each such series and the qualifications, limitations or restrictions thereof,
including without limitation the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions), redemption price or prices, and the liquidation preferences of any
wholly owned unissued series of Preferred Stock, and to establish from time to
time the number of shares constituting any such series and designation thereof,
of any of them (a "Preferred Stock Designation"); and to increase or decrease
the
number of shares of any series subsequent to the issuance of shares of that
series, but not below the number of shares of such series then outstanding. In
case the number of shares of any series shall be so decreased, the shares
constituting such decrease shall resume the status that they had prior to the
adoption of the resolution originally fixing the number of shares of such
series.
3. Designation of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock and Series D Preferred Stock. Six Hundred
Sixty-Six Thousand Six Hundred Sixty-Seven (666,667) shares of Preferred Stock
are designated Series A Preferred Stock ("Series A Preferred"), One Million Five
Hundred Thousand (1,500,000) shares of Preferred Stock are designated "Series B
Preferred Stock" ("Series B Preferred"), Five Hundred Thirty-Eight Thousand
Seven Hundred Seventy Six (538,776) shares of Preferred Stock are designated
"Series C Preferred Stock" ("Series C Preferred"), and Two Million Eight Hundred
Thousand (2,800,000) shares of Preferred Stock are designated "Series D
Preferred Stock" ("Series D Preferred"). The Series A Preferred, the Series B
Preferred, the Series C Preferred and the Series D Preferred (collectively
"Preferred") shall have the rights, preferences and privileges specified herein.
"Original Issuance Price" shall refer to $0.75 in the case of each share of
Series A Preferred, $6.00 in the case of each share of Series B Preferred,
$10.21 in the case of each share of Series C Preferred, and $11.00 in the case
of each share of Series D Preferred.
4. Dividend Rights of Preferred. The holders of outstanding
Preferred shall be entitled to receive in any fiscal year, when and as declared
by the Board of Directors, out of any assets at the time legally available
therefor, dividends in cash at an annual rate of $0.06 per share of Series A
Preferred, $0.48 per share of Series B Preferred, $0.82 per share of Series C
Preferred, and $0.88 per share of Series D Preferred. Such dividends may be
payable quarterly or otherwise as the Board of Directors may from time to time
determine. The right to such dividends shall not be cumulative and no right
shall accrue to holders of Preferred by reason of the fact that dividends on
such shares were not declared in any prior year, nor shall any undeclared or
unpaid dividends bear or accrue interest. No dividend shall be paid on or
declared and set apart for the shares of any series of Preferred for any
dividend period unless at the same time a like proportionate dividend for the
same dividend period, ratably in proportion to the respective annual dividend
rates fixed therefor, shall be paid on or declared and set apart for the shares
of all other such series of Preferred. Dividends other than dividends payable
solely in Common Stock may be declared or paid upon shares of Common Stock in
any fiscal year of the Corporation only if dividends at the annual rates set
forth above shall have been paid or declared and set apart for all shares of
Preferred for such fiscal year. No dividend shall be declared or paid with
respect to the Common Stock unless at the same time an equivalent dividend is
declared or paid with respect to the Preferred, assuming the conversion of each
series of the Preferred into Common Stock at the then applicable Conversion
Price for each series, as set forth in Section 6 below.
5. Liquidation Preference.
(a) In the event of any liquidation, dilution or winding
up of the Corporation and until all preferential amounts owed to them under this
subsection (a) have been paid, (i) the holders of the Series A Preferred, Series
B Preferred, and Series D Preferred shall be entitled to receive, prior and in
preference to any distribution of any asset or property of the Corporation to
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the holders of Common Stock or of Series C Preferred by reason of their
ownership thereof, the amount of $0.75 per share for each share of Series A
Preferred, $6.00 per share for each share of Series B Preferred, and $11.00 per
share for each share of Series D Preferred then held by them, plus an amount
equal to all declared but unpaid dividends on the Series A Preferred, Series B
Preferred, and Series D Preferred as of the liquidation date (each as adjusted
for stock splits, combinations and similar events with respect to the Series A
Preferred, Series B Preferred, and Series D Preferred): and (ii) after the
payment in full of the preferred amounts pursuant to the immediately preceding
clause (i), the holders of the Series C Preferred shall be entitled to receive,
prior and in preference to any distribution of any asset or property of the
Corporation to the holders of Common Stock by reason of their ownership thereof,
the amount of $10.21 per share for each share of Series C Preferred then held by
them, plus an amount equal to all the declared but unpaid dividends on the
Series C Preferred as of the liquidation date (each as adjusted for stock
splits, combinations and similar events with respect to the Series C Preferred).
If upon any liquidation, distribution, or winding up of the Corporation, the
assets of the Corporation shall be insufficient to make payment in full of such
amounts to all holders of the Series A Preferred, Series B Preferred, and Series
D Preferred due under clause (i), then such assets shall be distributed among
such holders ratably in proportion to the full amounts to which they would
otherwise be entitled. If upon any liquidation, distribution, or winding up of
the Corporation, the assets of the Corporation shall be insufficient to make
payment in full of such amounts to all holders of the Series C Preferred due
under clause (ii), then such assets shall be distributed among such holders
ratably in proportion to the full amounts to which they would otherwise be
entitled.
(b) After the payment of the full liquidation preference
of the Series A Preferred, Series B Preferred, Series C Preferred, and Series D
Preferred as set forth in Section 5(a) above, the remaining assets of the
Corporation, if any, shall be distributed ratably among the holders of Common
Stock and the Series A Preferred, Series B Preferred, and Series D Preferred in
proportion to the number of shares held by them, assuming the conversion of each
such share of Series A Preferred, Series B Preferred, and Series D Preferred
into Common Stock at the then applicable Conversion Price for each such series,
as set forth in Section 6 below.
(c) A merger, share exchange, reorganization, acquisition
or sale of voting control (in each case in which the stockholders of the
Corporation do not own a majority of the outstanding shares of the surviving
corporation) or sale of all or substantially all of the assets of the
Corporation shall be considered a liquidation under this Section 5 (together
with any liquidation, dissolution or winding up of the Corporation, a
"Liquidation Event").
6. Conversion Rights. The holders of Preferred shall have
conversion rights as follows (the "Conversion Rights"):
(a) Each share of Series A Preferred shall be
convertible, without the payment of any additional consideration by the holder
thereof and at the option of the holder thereof, at any time after the date of
issuance of such share, at the office of the Corporation or any transfer agent
for the Series A Preferred, into such number of fully paid and nonassessable
shares of Common Stock as is determined by dividing $.75 by the Series A
Conversion Price, determined as hereinafter provided and in effect at the time
of the conversion. Each share of Series B
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Preferred shall be convertible, without the payment of any additional
consideration by the holder thereof and at the option of the holder thereof, at
any time after the date of the issuance of such share, at the office of the
Corporation or any transfer agent for the Series B Preferred, into such number
of fully paid and nonassessable shares of Common Stock as is determined by
dividing $6.00 by the Series B Conversion Price, determined as hereinafter
provided and in effect at the time of the conversion. Each share of Series C
Preferred shall be convertible, without the payment of any additional
consideration by the holder thereof and at the option of the holder thereof, at
any time after the date of the issuance of such share, at the office of the
Corporation or any transfer agent for the Series C Preferred, into such number
of fully paid and nonassessable shares of Common Stock as is determined by
dividing $10.21 by the Series C Conversion Price, determined as hereinafter
provided and in effect at the time of the conversion. Each share of Series D
Preferred shall be convertible, without the payment of any additional
consideration by the holder thereof and at the option of the holder thereof, at
any time after the date of the issuance of such share, at the office of the
Corporation or any transfer agent for the Series D Preferred, into such number
of fully paid and nonassessable shares of Common Stock as is determined by
dividing $11.00 by the Series D Conversion Price, determined as hereinafter
provided and in effect at the time of the conversion. The price at which shares
of Common Stock shall be deliverable upon conversion of the Series A Preferred
without payment of any additional consideration by the holder thereof (the
"Series A Conversion Price") shall initially be $.75 per share of Common Stock,
the price at which shares of Common Stock shall be deliverable upon conversion
of the Series B Preferred without the payment of any additional consideration by
the holder thereof (the "Series B Conversion Price") shall initially be $6.00
per share of Common Stock, the price at which shares of Common Stock shall be
deliverable upon conversion of the Series C Preferred without the payment of any
additional consideration by the holder thereof (the "Series C Conversion Price")
shall initially be $10.21 per share of Common Stock, and the price at which
shares of Common Stock shall be deliverable upon conversion of the Series D
Preferred without the payment of any additional consideration by the holder
thereof (the "Series D Conversion Price") shall initially be $11.00 per share of
Common Stock. The term Conversion Price as used herein shall, unless otherwise
specified, refer to the respective conversion price for each share of Series A
Preferred, Series B Preferred, Series C Preferred and Series D Preferred. Each
such initial Conversion Price shall be subject to adjustment, as hereinafter
provided, in order to adjust the number of shares of Common Stock into which
Preferred is convertible.
(b) Automatic Conversion. Each share of Preferred shall
automatically be converted into Shares of Common Stock at the then effective
Conversion Price in the event of either:
(i) Upon approval by holders of more than 50% of the then
outstanding shares of Preferred voting together as a single class; or
(ii) The closing (the "Closing") of a firm commitment
underwritten public offering pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), covering
the offer and sale of Common Stock for the account of the Corporation to the
public at a public offering price of at least Fifteen Dollars ($15.00) per
share, subject to adjustment for any subdivisions, combinations or
consolidations of the Common Stock from time to time, and having an aggregate
offering price greater than Twenty Five
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Million Dollars ($25,000,000). In the event of such an offering, the person(s)
entitled to receive Common Stock issuable upon such conversion of Preferred
shall not be deemed to have converted their Preferred until immediately prior to
the Closing.
(c) Mechanics of Conversion. No fractional shares of
Common Stock shall be issued upon conversion of Preferred. In lieu of any
fractional shares to which the holder would otherwise be entitled, the
Corporation shall pay cash equal to such fraction multiplied by the then
effective Conversion Price of the appropriate series of Preferred. Before any
holder of Preferred shall be entitled to convert the same into shares of Common
Stock pursuant to Section 6(a) hereof, he shall surrender the certificate or
certificates therefor, duly endorsed, at the office of the Corporation or of any
transfer agent for Preferred, and shall give written notice to the Corporation
at such office that he elects to convert the same and shall state therein his
name or the name or names of his nominees in which he wishes the certificate or
certificates for shares of Common Stock to be issued. The Corporation shall, as
soon as practicable thereafter, issue and deliver at such office to such holder
of Preferred, or to his nominee or nominees, a certificate or certificates for
the number of shares of Common Stock to which he shall be entitled as aforesaid,
together with cash in lieu of any fraction of a share. Such conversion shall be
deemed to have been made immediately prior to the close of business on the date
of such surrender of the shares of Preferred to be converted, and the person or
persons entitled to receive the shares of Common Stock issuable upon conversion
shall be treated for all purposes as the record holder or holders of such shares
of Common Stock on such date.
(d) Adjustments to Conversion Price for Dilutive Issues.
(i) Special Definitions. For purposes of this Section
6(d), the following definitions shall apply:
(1) "Option" shall mean rights, options or warrants to
subscribe for, purchase, or otherwise acquire either Common Stock or Convertible
Securities (as hereinafter defined).
(2) "Original Issue Date" shall mean the date that the
first share of Series B Preferred was issued.
(3) "Convertible Securities" shall mean any evidences of
indebtedness, shares (other than Common Stock and Preferred authorized herein)
or other securities convertible into or exchangeable for, directly or
indirectly, Common Stock.
(4) "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued (or, pursuant to Section 6(d)(iii), deemed to be
issued) by the Corporation after the Original Issue Date, other than:
(A) shares of Common Stock issued or issuable
upon conversion of shares of Preferred; or
(B) shares of Common Stock issued or issuable to
officers, directors and employees of, and consultants to, the Corporation
pursuant to stock purchase or option plans or arrangements or other officer,
director, employee or consultant stock
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incentive or benefit plans or arrangements (collectively, the "Plans") approved
by the Board of Directors covering an aggregate, at any time on or after the
Original Issue Date, of not more than 1,000,000 shares of Common Stock, net of
repurchases and option cancellations, subject to adjustment for any
subdivisions, combinations or consolidations of Common Stock from time to time;
or
(C) shares of Common Stock issued or issuable as
a dividend or distribution on Preferred; or
(D) shares of Common Stock issued or issuable by
way of dividend or other distribution on shares of Common Stock excluded from
the definition of Additional Shares of Common Stock by the foregoing clauses(s)
(A), (B), (C) or this clause (D); or
(E) shares of Common stock issued or issuable
upon cancellation of those certain promissory notes in the aggregate principal
amount of $3,000,000 issued by the Company on July 23, 1996, August 22, 1996,
November 14, 1996 and December 13, 1996.
(ii) No Adjustment of Conversion Price. No adjustment in
the number of shares of Common Stock into which the Series A Preferred, Series B
Preferred, Series C Preferred and Series D Preferred is convertible shall be
made pursuant to Section 6(d)(iv), by adjustment in the Conversion Price of such
Preferred in respect of the issuance of Additional Shares of Common Stock or
otherwise, unless the consideration per share for an Additional Share of Common
Stock issued by the Corporation is less than the applicable Series A Conversion
Price, Series B Conversion Price, Series C Conversion Price or Series D
Conversion Price in effect on the date of, and immediately prior to, the
issuance of such Additional Shares of Common Stock.
(iii) Issue of Securities Deemed Issued of Additional
Shares of Common Stock.
(1) Options and Convertible Securities. In the event the
Corporation at any time or from time to time after the Original Issue Date shall
issue any Options or Convertible Securities or shall fix a record date for the
determination of holders of any class of securities entitled to receive any such
Options or Convertible Securities, then the maximum number of shares (as set
forth in the instrument relating thereto without regard to any provisions
contained therein for a contingent subsequent adjustment of such number) of
Common Stock issuable upon the exercise of such Options or, in the case of
Convertible Securities and Options therefor, the conversion or exchange of such
Convertible Securities, shall be deemed to be Additional Shares of Common Stock
issued as of the time of the issuance of such Options or Convertible Securities
or, in the case such a record date shall have been fixed, as of the close of
business on such record date, provided that Additional Shares of Common Stock
shall not be deemed to have been issued unless the consideration per share
determined pursuant to Section 6(d)(v) hereof of such Additional Shares of
Common Stock would be less than the applicable Conversion Price in effect on the
date of and immediately prior to such issue, or such
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record date, as the case may be, and provided further that in any such case in
which Additional Shares of Common Stock are deemed to be issued:
(A) no further adjustment in the Conversion
Price shall be made upon the subsequent issue of Convertible Securities or
shares of Common Stock upon the exercise of such Options or conversion or
exchange of such Convertible Securities;
(B) if such Options or Convertible Securities by
their terms provide, with the passage of time or otherwise, for any increase in
the consideration payable to the Corporation, or decrease in the number of
shares of Common Stock upon the exercise, conversion or exchange thereof, the
Conversion Price computed upon the original issue thereof (or upon the
occurrence of a record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon any increase or decrease becoming
effective, be recomputed to reflect such increase or decrease insofar as it
affects such Options or the rights of conversion or exchange under such
Convertible Securities;
(C) upon the expiration of such Options or any
rights of conversion or exchange under such Convertible Securities which shall
not have been exercised, the Conversion Price computed upon the original issue
thereof (or upon the occurrence of a record date with respect thereto), and any
subsequent adjustments based thereon, shall, upon such expiration, be recomputed
as if:
(I) in the case of Convertible
Securities or Options for Common Stock, the only Additional Shares of Common
Stock issued were the shares of Common Stock, if any, actually issued upon the
exercise of such Options or the conversion or exchange of such Convertible
Securities and the consideration received therefor was the consideration
actually received by the Corporation for the issue of all such Options, whether
or not exercised, plus the consideration actually received by the Corporation
upon such exercise, or for the issue of all such Convertible Securities which
were actually converted or exchanged, plus the additional consideration, if any,
actually received by the Corporation upon such conversion or exchange, and
(II) in the case of Options for
Convertible Securities, only the Convertible Securities, if any, actually issued
upon the exercise thereof were issued at the time of issue of such Options and
the consideration received by the Corporation for the Additional Shares of
Common Stock deemed to have been then issued was the consideration actually
received by the Corporation for the issue of all such Options, whether or not
exercised, plus the consideration deemed to have been received by the
Corporation (determined pursuant to Section 6(d)(v)) upon the issue of the
Convertible Securities with respect to which such Options were actually
exercised;
(D) no readjustment pursuant to clause (B) or
(C) above shall have the effect of increasing the Conversion Price to an amount
which exceeds the lower of (i) the Conversion Price on the original adjustment
date, or (ii) the Conversion Price that would have resulted from any issuance of
Additional Shares of Common Stock between the original adjustment date and such
readjustment date;
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(E) in the case of any Options which expire by
their terms not more than thirty (30) days after the date of issue thereof, no
adjustment of the Conversion Price shall be made until the expiration or
exercise of all such Options, whereupon such adjustment shall be made in the
same manner provided in clause (C) above; and
(F) if such record date shall have been fixed
and such Options or Convertible Securities are not issued on the date fixed
thereof, the adjustment previously made in the Conversion Price which became
effective on such record date shall be canceled as of the close of business on
such record date, and thereafter the Conversion Price shall be adjusted pursuant
to this Section 6(d)(iii) as of the actual date of their issuance.
(2) Stock Dividends, Stock Distributions and
Subdivisions. In the event the Corporation at any time or from time to time
after the Original Issue Date shall declare or pay any dividend or make any
other distribution on Common Stock payable in Common Stock, or effect a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in Common Stock), then and in any such
event, Additional Shares of Common Stock shall be deemed to have been issued:
(A) in the case of any such dividend or
distribution, immediately after the close of business on the record date for the
determination of holders of any class of securities entitled to receive such
dividend or distribution; or
(B) in the case of any such subdivision, at the
close of business on the date immediately prior to the date upon which such
corporate action becomes effective.
If such record date shall have been fixed and such dividend shall not
have been fully paid on the date fixed therefor, the adjustment previously made
in the Conversion Price which became effective on such record date shall be
canceled as of the close of business on such record date, and thereafter the
Conversion Price shall be adjusted pursuant to this Section 6(d)(iii) as of the
time of actual payment of such dividend.
(iv) Adjustment of Conversion Price Upon Issuance of
Additional Shares of Common Stock. In the event the Corporation shall issue
Additional Shares of Common Stock (including Additional Shares of Common Stock
deemed to be issued pursuant to paragraph 6(d)(iii), but excluding Additional
Shares of Common Stock issued pursuant to paragraph 6(d)(iii)(2) which event is
dealt with in paragraph 6(d)(vi) hereof), and if such Additional Shares of
Common Stock are issued without consideration or for a consideration per share
less than the Series A Conversion Price, Series B Conversion Price, Series C
Conversion Price or Series D Conversion Price in effect on the date of and
immediately prior to such issue, then in such event, the Series A Conversion
Price, Series B Conversion Price, Series C Conversion Price and/or Series D
Conversion Price, as the case may be, shall be reduced, concurrently with such
issue, to a price, calculated to the nearest one-tenth of one cent, determined
by multiplying such Conversion Price by a fraction:
(1) the numerator of which shall be the number of shares
of Common Stock outstanding immediately prior to such issue plus the number of
shares of
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Common Stock which the aggregate consideration received by the Corporation for
the total number of Additional Shares of Common Stock so issued would purchase
at such Conversion Price; and
(2) the denominator of which shall be the number of
shares of Common Stock outstanding immediately prior to such issue plus the
number of such Additional Shares of Common Stock so issued;
provided, however, that, for the purpose of this paragraph 6(d)(iv) only, all
shares of Common Stock issuable upon conversion of outstanding Options and
Convertible Securities (including the Series A Preferred, Series B Preferred,
Series C Preferred and Series D Preferred) shall be deemed to be outstanding,
and, immediately after any Additional Shares of Common Stock are deemed issued
pursuant to paragraph 6(d)(iii), such Additional Shares of Common Stock shall be
deemed to be outstanding.
(v) Determination of Consideration. For purposes of this
Section 6(d), the consideration received by the Corporation for the issue of any
Additional Shares of Common Stock shall be computed as follows:
(1) Cash and Property: Such consideration shall:
(A) insofar as it consists of cash, be
computed at the aggregate amount of cash received by the Corporation, excluding
amounts paid or payable for accrued interest or accrued dividends;
(B) insofar as it consists of property other
than cash, be computed at the fair market value thereof at the time of such
issue, as determined in good faith by the Board of Directors; and
(C) in the event Additional Shares of Common
Stock are issued together with other shares or securities or other assets of the
Corporation for consideration which covers both, be the proportion of such
consideration so received, computed as provided in clauses (A) and (B) above, as
determined in good faith by the Board of Directors.
(2) Options and Convertible Securities. The consideration
per share received by the Corporation for Additional Shares of Common Stock
deemed to have been issued pursuant to Section 6(d)(iii)(1), relating to Options
and Convertible Securities, shall be determined by dividing (x) the total
amount, if any, received or receivable by the Corporation as consideration for
the issue of such Options or Convertible Securities, plus the minimum aggregate
amount of additional consideration (as set forth in the instruments relating
thereto, without regard to any provision contained therein for a subsequent
adjustment of such consideration) payable to the Corporation upon the exercise
of such Options or the conversion or exchange of such Convertible Securities, or
in the case of Options for Convertible Securities, the exercise of such options
for Convertible Securities and the conversion or exchange of such Convertible
Securities, by (y) the maximum number of shares of Common Stock (as set forth in
the instruments relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such number) issuable upon the exercise
of such Options or the conversion or exchange of such Convertible Securities.
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(vi) Adjustments for Stock Dividends, Subdivisions,
Combinations or Consolidations of Common Stock. In the event the outstanding
shares of Common Stock shall be subdivided (by stock split or otherwise), into a
greater number of shares of Common Stock, or in the event the Corporation shall
issue Additional Shares of Common Stock in a stock dividend, the Conversion
Price for any series of Preferred then in effect shall, concurrently with the
effectiveness of such subdivision or stock dividend, be proportionately
decreased. In the event the outstanding shares of Common Stock shall be combined
or consolidated, by reclassification or otherwise, into a lesser number of
shares of Common Stock, the Conversion Price for any series of Preferred then in
effect shall, concurrently with the effectiveness of such combination or
consolidation, be proportionately increased.
(vii) Adjustments for Other Distributions. In the event the
Corporation at any time or from time to time makes or fixes a record date for
the determination of holders of Common Stock entitled to receive any
distribution payable in securities of the Corporation other than shares of
Common Stock, then and in each such event provision shall be made so that the
holders of Preferred shall receive upon conversion thereof, in addition to the
number of shares of Common Stock receivable thereupon, the amount of securities
of the Corporation which they would have received had their Preferred been
converted into Common Stock on the date of such event and had they thereafter,
during the period from the date of such event to and including the date of
conversion, retained such securities receivable by them as aforesaid during such
period, subject to all other adjustments called for during such period under
this Section 6 with respect to the rights of the holders of the Preferred.
(viii) Adjustment for Reclassification, Exchange and
Substitution. If the Common Stock issuable upon the conversion of the Preferred
is changed into the same or a different number of shares of any class or classes
of stock, whether by recapitalization, reclassification or otherwise (other than
a subdivision, combination or consolidation of shares or stock dividend or a
reorganization, merger, consolidation or sale of assets provided for elsewhere
in this Section 6 or in Section 5), in any such event each holder of Preferred
shall have the right thereafter to convert such stock into the kind and the
amount of stock and other securities and property receivable upon such
recapitalization, reclassification or other change by holders of the maximum
number of shares of Common Stock into which such shares of Preferred could have
been converted immediately prior to such recapitalization, reclassification or
change, all subject to further adjustment as provided herein or with respect to
such other securities or property by the terms thereof.
(ix) Reorganization, Mergers, Consolidations, Share
Exchanges or Sales of Assets. If there is a capital reorganization of the Common
Stock, merger, consolidation, share exchange or sale of assets of the Company
("Capital Reorganization") (other than a recapitalization, subdivision,
combination, reclassification, exchange or substitution of shares provided for
elsewhere in this Section 6 or in Section 5), as a part of such Capital
Reorganization, provision shall be made so that the holders of Preferred shall
thereafter be entitled to receive upon conversion of the Preferred the number of
shares of stock or other securities or property of the Corporation (including
cash) to which a holder of the number of shares of Common Stock deliverable upon
conversion would have been entitled on such Capital Reorganization, subject to
adjustment in respect of such stock or securities by the terms thereof. In any
such case, appropriate adjustment shall be made in the application of the
provisions of this
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Section 6 with respect to the rights of the holders of Preferred after the
Capital Reorganization to the end that the provisions of this Section 6
(including adjustment of the Conversion Price then in effect and the number of
shares issuable upon conversion of the Preferred) shall be applicable after that
event and be as nearly equivalent as practicable.
(e) No Impairment. The Corporation will not, by amendment
of this Amended and Restated Certificate of Incorporation or otherwise, 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 to good faith
assist in the carrying out of all the provisions of this Section 6 and in the
taking of all such action as may be necessary or appropriate in order to protect
the Conversion Rights of the holders of Preferred against impairment:
(f) Certificate as to Adjustments. Upon the occurrence of
each adjustment or readjustment of any Conversion Price pursuant to this Section
6, the Corporation, at its expense, shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
Preferred 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
Preferred, furnish or cause to be furnished to such holder a like certificate
setting forth (i) such adjustments and readjustments, (ii) the Conversion Price
for such series of Preferred at the time in effect and (iii) the number of
shares of Common Stock and the amount, if any, of other property which at the
time would be received upon the conversion of Preferred.
(g) Notices of Record Date. In the event that this
Corporation shall propose at any time:
(i) to declare any dividend or distribution upon its
Common Stock, whether in cash, property, stock or other securities, whether or
not a regular cash dividend and whether or not out of earnings or earned
surplus;
(ii) to offer for subscription pro rata to the holders of
any class or series of its stock any additional shares of stock of any class or
series or other rights;
(iii) to effect any reclassification or recapitalization of
its outstanding Common Stock involving a change in the Common Stock; or
(iv) to merge or consolidate with or into any other
corporation, or sell, lease or convey all or substantially all its property or
business, or to liquidate, dissolve or wind up; then, in connection with each
such event, this Corporation shall send to the holders of Preferred:
(1) at least 10 days' prior written notice of
the date on which a record shall be taken for such dividend, distribution or
subscription rights (and specifying the date an which the holders of Common
Stock shall be entitled thereto) or for determining rights to vote in respect of
the matters referred to in (iii) and (iv) above; and
(2) in the case of matters referred to in (iii)
and (iv) above, at least 10 days' prior written notice of the date when the same
shall take place (and specifying, if
11
practicable, or estimating the date on which the holders of Common Stock shall
be entitled to exchange their Common Stock for securities or other property
deliverable upon the occurrence of such event).
Each such written notice shall be given by first class mail, postage
prepaid, addressed to the holders of Preferred at the address for each such
holder as shown on the books of this Corporation.
(h) Common Stock Reserved. The Corporation shall at all
times reserve and keep available out of its authorized but unissued shares of
Common Stock, solely for the purposes of effecting the conversion of the shares
of Preferred, such number of shares of Common Stock as shall from time to time
be sufficient to effect the conversion of all outstanding shares of Preferred,
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 Preferred, the Corporation shall take such corporate action as may, is the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such
purpose.
7. Voting Rights.
(a) Except as otherwise provided herein or as required by
law, each share of Common Stock issued and outstanding shall have one vote, each
share of Preferred issued and outstanding shall have the number of votes equal
to the number of shares of Common Stock into which such share of Preferred is
convertible as adjusted from time to time pursuant to Section 6 hereof, and the
Common Stock and the Preferred shall vote together as a single class. Fractional
votes by the holders of Preferred shall not, however, be permitted, and any
fractional voting rights resulting from the above formula (after aggregating all
shares into which shares of Preferred held by each holder could be converted)
shall be rounded down.
(b) The holders of shares of Series A Preferred, voting
together as a separate class, shall be entitled to elect one director of the
Corporation and to exercise any right of removal or replacement of such
director, the holders of shares of Series B Preferred, voting together as a
separate class, shall be entitled to elect one director of the Corporation and
to exercise any right of removal or replacement of such director and the holders
of shares of Preferred and Common Stock, voting together in accordance with
Section 7(a) above, shall be entitled to elect any retraining directors and to
exercise any right of replacement or removal of such directors.
(c) In addition to the vote required by Section 7(a)
above, the affirmative vote of (i) a majority of the shares of Series A
Preferred, voting together as a separate class, (ii) a majority of the shares of
Series B Preferred, voting together as a separate class, (iii) a majority of the
shares of Common Stock and shares of Series C Preferred Stock (provided that
each share of Series C Preferred Stock shall have the number of votes equal to
the whole number of shares of Common Stock, into which such share of Series C
Preferred Stock is convertible as adjusted from time to time pursuant to Section
6 hereof ), voting together as a separate class, and (iv) a majority of the
shares of Series D Preferred, voting together as a separate class, shall be
required to approve any Liquidation Event.
12
(d) In addition to any requirements of law, so long as
any shares of Series C Preferred remain outstanding, the Corporation shall not,
without the approval (by vote or written consent) of the holders of at least 50%
of the Series C Preferred then outstanding: (I) amend, alter or otherwise modify
any of the rights, preferences, privileges, powers or other terms of the Series
C Preferred, as stated herein, or (II) impair or avoid or seek to avoid the
observance or performance of any of the terms of the Series C Preferred to be
observed or performed hereunder by the Corporation, or (III) amend or otherwise
modify this Section 7(d).
V.
For the management of the business and for the conduct of the affairs
of the Corporation, and in further definition, limitation and regulation of the
powers of the Corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
1. The management of the business and the conduct of the affairs
of the Corporation shall be vested in its Board of Directors. Except as
otherwise required by law, the number of directors which shall constitute the
whole Board of Directors shall be fixed by the Board of Directors in the manner
provided in the Bylaws.
2. 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 holders of a majority of the voting power of all of the then
outstanding shares of the capital stock of the Corporation (considered for this
purpose as one class); 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.
3. The directors of the Corporation need not be elected by
written ballot unless the Bylaws so provide.
4. Following the effectiveness of the registration of any class
of securities of the Corporation pursuant to the requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), no action shall be taken
by the stockholders of the Corporation except at an annual or special meeting of
stockholders called in accordance with the Bylaws and no action shall be taken
by the stockholders by written consent.
5. With respect only to directors elected by the holders of
Preferred and Common Stock voting together in accordance with Article IV,
Section 7(b) above, every stockholder entitled to vote in any election of
directors of this Corporation may cumulate such stockholder's votes and give one
candidate a number of votes equal to the number of directors to be elected
multiplied by the number of votes to which the stockholder's shares are
otherwise entitled, or distribute the stockholder's votes on the same principle
among as many candidates as such stockholder thinks fit. No stockholder,
however, may cumulate such stockholder's votes for one or more candidates unless
(i) the names of such candidates have been properly placed in nomination, in
accordance with the Bylaws of the Corporation, prior to the voting, (ii) the
stockholder has given advance notice to the Corporation of the intention to
cumulate votes
13
pursuant to the Bylaws, and (iii) the stockholder has given proper notice to the
other stockholders at the meeting, prior to voting, of such stockholder's
intention to cumulate such stockholder's votes. If any stockholder has given
proper notice, all stockholders may cumulate their votes for any candidates who
have been properly placed in nomination. The candidates receiving the highest
number of votes of the shares entitled to be voted for them up to the number of
directors to be elected by such shares will be declared elected.
6. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
Bylaws of the Corporation.
VI.
A director of the Corporation shall, to the full extent not prohibited
by the Delaware General Corporation Law, as the same exists or may hereafter be
amended, not be liable to the Corporation or its stockholders for monetary
damages for breach of his fiduciary duty as a director.
VII.
1. In addition to any affirmative vote required by law, by this
Amended and Restated Certificate of Incorporation or by any Preferred
Designation, and except as otherwise expressly provided in Section 3 of this
Article VII:
(a) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested Stockholder (as
hereinafter defined) or (ii) any other corporation (whether or not itself an
Interested Stockholder) which is, or after such merger or consolidation would
be, an Affiliate (as hereinafter defined) of an Interested Stockholder; or
(b) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of transactions) to or with
any Interested Stockholder or any Affiliate of any Interested Stockholder for
any assets of the Corporation or any Subsidiary having an aggregate Fair Market
Value (as hereinafter defined) equal to or greater than 10% of the Corporation's
assets as set forth on the Corporation's most recent audited consolidated
financial statements; or
(c) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any securities of
the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate
of any Interested Stockholder in exchange for cash, securities or other property
(or a combination thereof) having an aggregate Fair Market Value equal to or
greater than 10% of the Corporation's assets as set forth on the Corporation's
most recent audited consolidated financial statements; or
(d) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or on behalf of any
Interested Stockholder or any Affiliate of any Interested Stockholder; or
14
(e) any reclassification of securities (including any
reverse stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or arty other
transaction (whether or not with or into or otherwise involving any interested
Stockholder) which has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary which is
Beneficially Owned (as hereinafter defined) by any Interested Stockholder or any
Affiliate of any Interested Stockholder, shall require the affirmative vote of
the holders of at least 66 and 2/3 percent of voting power of all of the then
outstanding shares of the Series A Preferred, Series B Preferred, and Series D
Preferred of the Corporation entitled to vote generally in the election of
directors (the "Voting Stock"), each voting as a separate class. Such
affirmative vote shall be required notwithstanding any other provisions of this
Amended and Restated Certificate of Incorporation or any provision of law or of
any agreement with any national securities exchange or otherwise which might
otherwise permit a lesser vote or no vote.
2. The term "Business Combination" as used in this Article VII
shall mean any transaction which is referred to in any one or more of
subparagraphs (a) through (e) of Section 1 of this Article VII.
3. The provisions of Section 1 of this Article VII shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only such affirmative vote as is required by law, any other
provision of this Amended and Restated Certificate of Incorporation and any
Preferred Designation, if, in the case of a Business Combination that does not
involve any cash or other consideration being received by the stockholders of
the Corporation, solely in their respective capacities as stockholders of the
Corporation, the condition specified in the following subsection (a) is met, or,
in the case of any other Business Combination, the conditions specified in
either of the following subsection (a) or subsection (b) are met:
(a) The Business Combination shall have been approved by
a majority of the Continuing Directors (as hereinafter defined); provided,
however, that this condition shall not be capable of satisfaction unless there
are at least two Continuing Directors.
(b) All of the following conditions shall have been met:
(i) The consideration to be received by holders of shares
of a particular class (or series) of outstanding capital stock of the
corporation ("Capital Stock") (including Common Stock and other than Excluded
Preferred Stock (as hereinafter defined)) shall be in cash or in the same form
as the Interested Stockholder or any of its Affiliates has previously paid for
shares of such class (or series) of Capital Stock. If the Interested Stockholder
or any of its Affiliates have paid for shares of any class (or series) of
Capital Stock with varying forms of consideration, the form of consideration to
be received per share by holders of shares of such class (or series) of Capital
Stock shall be either cash or the form used to acquire the largest number of
shares of such class (or series) of Capital Stock previously acquired by the
interested Stockholder.
15
(ii) The aggregate amount of (x) the cash and (y) the Fair
Market Value, as of the date of the consummation of the Business Combination
(the "Comsummation Date"), of the consideration other than cash to be received
per share by holders of Common Stock in such Business Combination shall be at
least equal to the higher of the following (in each case appropriately adjusted
in the event of any stock dividend, stock split, combination of shares or
similar event):
(1) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Stockholder or any of its Affiliates for any shares
of Common Stock acquired by them within the two-year period immediately prior to
the date of the first public announcement of the proposal of the Business
Combination (the "Announcement Date") or in any transaction in which the
Interested Stockholder became an Interested Stockholder, whichever is higher,
plus interest compounded annually from the first date on which the Interested
Stockholder became an Interested Stockholder (the "Determination Date") through
the Consummation Date at the publicly announced reference rate of interest of
Bank of America, N.T. & S.A. (or such other major bank headquartered in the
State of California as may be selected by the Continuing Directors) from time to
time in effect in the City of San Francisco less the aggregate amount of any
cash dividends paid, and the Fair Market Value of any dividends paid in other
than cash, on each, share of Common Stock from the Determination Date through
the Consummation Date in an amount up to but not exceeding the amount of
interest so payable per share of Common Stock; and
(2) the Fair Market Value per share of Common
Stock on the Announcement Date or the Determination Date, whichever is higher.
(iii) The aggregate amount of (x) the cash and (y) the Fair
Market Value, as of the Consummation Date, of the consideration other than cash
to be received per share by holders of shares of any class (or series), other
than Common Stock or Excluded Preferred Stock, of outstanding Voting Stock shall
be at least equal to the highest of the following (in each case appropriately
adjusted in the vent of any stock dividend, stock split, combination of shares
or similar event), it being intended that the requirements of this subsection
(b)(iii) shall be required to be met with respect to every such class (or
series) of outstanding Voting Stock whether or not the Interested Stockholder or
any of its Affiliates has previously acquired any shares of a particular class
(or series) of Voting Stock:
(1) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Stockholder or any of its Affiliates for any shares
of such class (or series) of Voting Stock acquired by them within the two-year
period immediately prior to the Announcement Date or in any transaction in which
it became an Interested Stockholder, whichever is higher, plus interest
compounded annually from the Determination Date through the Consummation Date at
the publicly announced reference rate of interest of Bank of America, N.T. &
S.A. (or any such other major bank headquartered in the State of California as
may be selected by the Continuing Directors) from time to time in effect in the
City of San Francisco less the aggregate amount of any cash dividends paid, and
the Fair Market Value of any dividends paid in other than cash, on each share of
such class (or series) of Voting Stock from the Determination Date through the
16
Consummation Date in an amount up to but not exceeding the amount of interest so
payable per share of such class (or series) of Voting Stock;
(2) the Fair Market Value per share of such
class (or series) of Voting Stock on the Announcement Date or on the
Determination Date, whichever is higher; and
(3) the highest preferential amount per share,
if any, to which the holders of shares of such class (or series) of Voting Stock
would be entitled in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation.
(iv) After such Interested Stockholder has become an
Interested Stockholder and prior to the consummation of such Business
Combination: (1) except as approved by a majority of the Continuing Directors,
there shall have been no failure to declare and pay at the regular date therefor
any full quarterly dividends (whether or not cumulative) on any outstanding
Preferred; (2) there shall have been (A) no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to reflect any
subdivision of the Common Stock), except as approved by a majority of the
Continuing Directors, and (B) an increase in such annual rate of dividends as
necessary to reflect any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which has the effect
of reducing the number of outstanding shares of the Common Stock, unless the
failure so to increase such annual rate is approved by a majority of the
Continuing Directors; and (3) neither such Interested Stockholder nor any of its
Affiliates shall have become the beneficial owner of any additional shares of
Voting Stock except as a part of the transaction which results in such
Interested Stockholder becoming an interested Stockholder; provided, however,
that no approval by Continuing Directors shall satisfy the requirements of this
subsection (b)(iv) unless at the time of such approval there are at least two
Continuing Directors.
(v) After such interested Stockholder has become an
interested Stockholder, such Interested Stockholder and any of its Affiliates
shall not have received the benefit, directly or indirectly (except
proportionately, solely in such Interested Stockholder's or Affiliate's capacity
as a stockholder of the Corporation), of any loans, advances, guarantees,
pledges or other financial assistance or any tax credits or other tax advantages
provided by the Corporation, whether in anticipation of or in connection with
such Business Combination or otherwise.
(vi) A proxy or information statement describing the
proposed Business Combination and complying with the requirements of the
Exchange Act shall be mailed to all stockholders of the Corporation at least 30
days prior to the consummation of such Business Combination (whether or not such
proxy or information statement is required to be mailed pursuant to the Exchange
Act).
(vii) Such Interested Stockholder shall have supplied the
Corporation with such information as shall have been requested pursuant to
Section 5 of this Article VII within the time period set forth therein.
4. For the purposes of this Article VII:
17
(a) A "person" means any individual, limited partnership,
general partnership, corporation or other firm or entity.
(b) "Interested Stockholder" means any person (other than
the Corporation or any Subsidiary) who or which:
(i) is the Beneficial Owner (as hereinafter defined),
directly or indirectly, of 10% or more of the voting power of the outstanding
Voting Stock; or
(ii) if an Affiliate of the Corporation and at any time
within the two-year period immediately prior to the
date in question was the beneficial owner, directly or indirectly, of 10 % or
more of the voting power of the then-outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any
shares of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by an Interested
Stockholder, if such assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a public offering
within the meaning of the Securities Act.
(c) A person shall be a "Beneficial Owner" of, or shall
"Beneficially Own," any Voting Stock:
(i) which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns, directly or indirectly
within the meaning of Rule 13d-3 under the Exchange Act; or
(ii) which such person or any of its Affiliates or
Associates has (1) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or (2) the right to vote pursuant to
any agreement, arrangement or understanding (but shall not be deemed to be the
beneficial owner of any shares of Voting Stock solely by reason of a revocable
proxy granted for a particular meeting of stockholders, pursuant to a public
solicitation of proxies for such meeting, and with respect to which shares
neither such person nor any such Affiliate or Associate is otherwise deemed the
beneficial owner); or
(iii) which is beneficially owned, directly or indirectly,
within the meaning of Rule 13d-3 under the exchange Act, by any other person
with which such person or any of its Affiliates of Associates has any agreement,
arrangement or understanding far the purpose of requiring, holding, voting
(other than solely by reason of a revocable proxy as described in subsection
(c)(ii)) or disposing of any shares of Voting Stock; provided, however, that in
case of any employee stock ownership or similar plan of the Corporation or of
any Subsidiary in which the beneficiaries thereof possess the right to vote any
shares of Voting Stock held by such plan, no such plan nor any trustee with
respect thereto (nor any Affiliate of such trustee), solely by reason of such
capacity of such trustee, shall be determined for any purposes hereof, to
beneficially own any shares of Voting Stock held under any such plan.
18
(d) For the purposes of determining whether a person is
an Interested Stockholder pursuant to subsection (b) of this Section 4, the
number of shares of Voting Stock deemed to be outstanding shall include shares
deemed owned through application of subsection (c) of this Section 4, but shall
not include any other unissued shares of Voting Stock which may be issuable
pursuant to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(e) "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the Exchange Act, as in effect
on the adoption date of this Amended and Restated Certificate of incorporation.
(f) "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly or indirectly, by
the Corporation; provided, however, that for the purposes of the definition of
Interested Stockholder set forth in subsection (b) of this Section 4, the term
"Subsidiary" shall mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the Corporation.
(g) "Continuing Director" means any member of the Board
of Directors of the Corporation who is unaffiliated with the Interested
Stockholder and was a member of the Board prior to the time that the Interested
Stockholder became an Interested Stockholder and any director who is thereafter
chosen to fill any vacancy on the Board of Directors or who is elected and who,
in either event, is unaffiliated with the Interested Stockholder and in
connection with his or her initial assumption of office is recommended for an
appointment or election by a majority of Continuing Directors then on the Board.
(h) "Fair Market Value" means: (i) in the case of stock,
the highest closing sale price during the 30-day period immediately preceding
the date in question of a share of such stock on the Composite Tape for New York
Stock Exchange-Listed Stocks (the "Composite Tape"), or, if such stock is not
quoted on the Composite Tape, on the New York Stock Exchange, or, if such stock
is not listed on the New York Stock Exchange, on the principal United States
securities exchange registered under the Exchange Act on which such stock is
listed, or, if such stock is not listed on any exchange, the highest closing
sale price quotation with respect to a share of such stock during the 30-day
period preceding the date in question on the National Association of Securities
Dealers, Inc., Automated Quotations System or any system then in use, or if no
such quotations are available, the fair market value on the date in question of
a share of such stock as determined by the Board to accordance with Section 5 of
this Article VII; and (ii) in the case of property other than cash or stock, the
fair market value of such property on the date in question as determined by the
Board in accordance with Section 5 of this Article VII.
(i) In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash to be received"
as used in subsections (b)(ii) and (b)(iii) of Section 3 of this Article VII
shall include the shares of Common Stock and/or the shares of any other class
(or series) of outstanding Voting Stock retained by the holders of such shares.
19
(j) "Whole Board" means the total number of directors
which this Corporation would have if there were no vacancies.
(k) "Excluded Preferred Stock" means any series of
Preferred with respect to which the Preferred Sock Designation creating such
series expressly provides that the provisions of this Article VII shall not
apply.
5. A majority of the Whole Board, but only if a majority of the
Whole Board shall then consist of Continuing Directors, or, if a majority of the
Whole Board shall not then consist of Continuing Directors, a majority of the
then Continuing Directors, shall have the power and duty to determine, on the
basis of information known to them after reasonable inquiry, all facts necessary
to determine compliance with this Article VII, including, without limitation,
(a) whether a person is an Interested Stockholder, (b) the number of shares of
Voting Stock beneficially owned by any person, (c) whether a person is an
Affiliate or Associate of another, (d) whether the applicable conditions set
forth in subsection (b) of Section 3 have been met with respect to any Business
Combination, (e) the Fair Market Value of stock or other property in accordance
with subsection (h) of Section 4, and (f) whether the assets which are the
subject of any Business Combination referred to in subsection (b) of Section 1
have, or the consideration to be received for the issuance or transfer of
securities by the Corporation or any Subsidiary in any Business Combination
referred to in subsection (c) of Section 1 has, an aggregate Fair Market Value
equal to or greater than 10% of the Corporation's assets as set forth on the
Corporation's most recent audited consolidated financial statements.
6. A majority of the Whole Board shall have the right to demand,
but only if a majority of the Whole Board shall then consist of Continuing
Directors, or, if a majority of the Whole Bard shall not then consist of
Continuing Directors, a majority of the then Continuing Directors shall have the
right to demand that any person who it is reasonably believed is an Interested
Stockholder (or holds of record shares of Voting Stock Beneficially Owned by any
Interested Stockholder) supply this Corporation with complete information as to
(a) the record owner(s) of all shares Beneficially Owned by such person who it
is reasonably believed is an Interested Stockholder, (b) the number of, and
class of series of, shares Beneficially Owned by such person who it is
reasonably believed is an Interested Stockholder and held of record by each such
record owner and the number(s) of the stock certificate(s) evidencing such
shares, and (c) any other factual matter relating to the applicability of effect
of this Article VII, as may be reasonably requested of such person, and such
person shall furnish such information within 10 days after receipt of such
demand.
7. Nothing contained in this Article VII shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed by law.
8. Notwithstanding any other provisions of this Amended and
Restated Certificate of Incorporation or any provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any affirmative
vote of the holders of any particular class or series of the Voting Stock
required by law, this Amended and Restated Certificate of Incorporation or any
Preferred Designation, the affirmative vote of the holders of at least 66-2/3
percent of the voting power of all of the then outstanding shares of the Voting
Stock, voting together as a single class, shall be required to alter, amend or
repeal this Article VII.
20
VIII.
The Corporation is to have perpetual existence."
THREE: This Amended and Restated Certificate of Incorporation has been
duly approved by the Board of Directors of this Corporation.
FOUR: This Amended and Restated Certificate of Incorporation, herein
certified, has been duly adopted is accordance with the provisions of Sections
228, 242 and 245 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed by its President and its
Secretary in Richmond, Virginia this 30th day of January, 2001.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
21
DISCOVERY THERAPEUTICS, INC.
By: /s/ Peter G. Savas
------------------------------
Peter G. Savas, President
ATTEST:
By: /s/ James V. Peck
---------------------------
James V. Peck, Secretary
22
CERTIFICATE OF AMENDMENT
TO AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
DISCOVERY THERAPEUTICS, INC.
(Originally incorporated April 4, 1994)
Peter G. Savas and James V. Peck hereby certify that:
ONE: They are the duly elected and acting President and Secretary,
respectively, of Discovery Therapeutics, Inc., a Delaware corporation (the
"Corporation").
TWO: That the Board of Directors of the Corporation, at a meeting of
directors, adopted a resolution proposing and declaring advisable the following
amendments to the Amended and Restated Certificate of Incorporation of the
Corporation and recommending them for approval by the shareholders of the
Corporation:
A. Section 1 of Article IV of the Amended and Restated
Certificate of Incorporation of the Corporation, as currently
in effect and operative, is hereby deleted in its entirety and
replaced with the following:
"1. This Corporation is authorized to issue two classes of
stock to be designated "Common Stock" and "Preferred Stock,"
respectively. The total number of shares which the Corporation
is authorized to issue is Fifty Seven Million (57,000,000)
shares. Fifty Million (50,000,000) shares shall be Common
Stock, each having a par value of One-Tenth of One Cent
($0.001). Seven Million (7,000,000) shares shall be Preferred
Stock, each having a par value of One-Tenth of One Cent
($0.001)."
B. Section 3 of Article IV of the Amended and Restated
Certificate of Incorporation of the Corporation, as currently
in effect and operative, is hereby deleted in its entirety and
replaced with the following:
"3. Designation of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock. Six Hundred Sixty-Six Thousand Six Hundred
Sixty-Seven (666,667) shares of Preferred Stock are designated
Series A Preferred Stock (" Series A Preferred"), One Million
Five Hundred Thousand (1,500,000) shares of Preferred Stock
are designated "Series B Preferred Stock" (" Series B
Preferred"), Five Hundred Thirty-Eight Thousand Seven Hundred
Seventy-Six (538,776) shares of Preferred Stock are designated
"Series C Preferred Stock" ("Series C Preferred"), and Four
Million Ninety Thousand Nine Hundred Ten (4,090,910) shares of
Preferred Stock are designated "Series D Preferred Stock" ("
Series D Preferred"). The Series A Preferred, the Series B
Preferred, the Series C Preferred and the Series D Preferred
(collectively "Preferred") shall have the rights, preferences
and privileges specified herein. "Original Issuance Price"
shall refer to
$0.75 in the case of each share of Series A Preferred, $6.00
in the case of each share of Series B Preferred, $10.21 in the
case of each share of Series C Preferred, and $11.00 in the
case of each share of Series D Preferred."
C. Section 6(d)(i)(4)(B) of Article IV of the Amended and
Restated Certificate of Incorporation of the Corporation, as
currently in effect and operative, is hereby deleted in its
entirety and replaced with the following:
"(B) shares of Common Stock issued or issuable to officers,
directors and employees of, and consultants to, the
Corporation pursuant to stock purchase or option plans or
arrangements or other officer, director, employee or
consultant stock incentive or benefit plans or arrangements
(collectively, the "Plans") approved by the Board of Directors
covering an aggregate, at any time on or after the Original
Issue Date, of not more than 2,336,364 shares of Common Stock,
net of repurchases and option cancellations, subject to
adjustment for any subdivisions, combinations or
consolidations of Common Stock from time to time; or"
D. Section 2 of Article IV and Section 4(k) of Article VII of the
Amended and Restated Certificate of Incorporation of the
Corporation, as currently in effect and operative, is hereby
amended to delete the phrase "Preferred Stock Designation" and
to replace such language with the phrase "Preferred
Designation."
E. Section 3(b)(iii) of Article VII of the Amended and Restated
Certificate of Incorporation of the Corporation, as currently
in effect and operative, is hereby amended to delete the word
"vent" and to replace it with the word "event."
F. Section 3(b)(vii) of Article VII of the Amended and Restated
Certificate of Incorporation of the Corporation, as currently
in effect and operative, is hereby amended to delete the
phrase "Section 5" and to replace it with the phrase "Section
6."
THREE: That in lieu of a meeting and vote of stockholders, the
stockholders have given written consent to said amendment in accordance with the
provisions of Section 228 of the General Corporation Law of the State of
Delaware, and said written consent was filed with the Corporation.
FOUR: That the aforesaid amendment has been duly adopted in accordance
with the provisions of Sections 228 and 242 of the General Corporation Law of
the State of Delaware.
FIVE: That the capital of the Corporation will not be reduced under or
by reason of said amendment.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
2
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by its President and its Secretary in Richmond, Virginia
this 10th day of August, 2001.
DISCOVERY THERAPEUTICS, INC.
By: /s/ Peter G. Savas
-----------------------------
Peter G. Savas, President
ATTEST:
By: /s/ James V. Peck
--------------------------------
James V. Peck, Secretary
3
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
DISCOVERY THERAPEUTICS, INC.,
a Delaware corporation
Discovery Therapeutics, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Company"), DOES HEREBY CERTIFY:
1. That the Board of Directors of this Corporation, acting
pursuant to the authority of Section 141(f) of the General Corporation Law of
the State Delaware, adopted a resolution setting forth a proposed amendment of
the Amended of and Restated Certificate of Incorporation of this Corporation.
The resolution setting forth the proposed amendment is as follows:
NOW, THEREFORE, BE IT RESOLVED, that the Amended and Restated
Certificate of Incorporation of the Company be further amended by changing
Article I thereof so that, as amended, Article I shall read in its entirety as
follows:
"I.
The name of the corporation is Aderis Pharmaceuticals, Inc."
2. That in lieu of a meeting and vote of stockholders, the
stockholders of this Corporation entitled to vote have given written consent to
said amendment in accordance with the provisions of Section 228 of the General
Corporation Law of the State of Delaware.
3. That the above amendment was duly adopted in accordance with
the applicable provisions of Sections 228 and 242 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has caused this Certificate of
Amendment to be signed by Peter G. Savas, its President and Chief Executive
Officer, this 4th day of January, 2002.
DISCOVERY THERAPEUTICS, INC.,
a Delaware corporation
By: /s/ Peter G. Savas
------------------
Peter G. Savas
President and Chief Executive Officer