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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
VIPONT RESEARCH LABORATORIES, INC.
AMENDED AND RESTATED AS OF DECEMBER 15, 1989
Pursuant to the provisions of Del. Code Ann. tit. 8, ss. 245 (1983),
the undersigned hereby adopts this Amended and Restated Certificate of
Incorporation (the "Certificate") of Vipont Research Laboratories, Inc. (the
"Corporation"). The certificate correctly sets forth (i) the provisions of the
Certificate of Incorporation, originally filed with the Secretary of State of
the State of Delaware on August 8, 1986; and (ii) the Certificate of Amendment
of Certificate of Incorporation Before Payment of Capital filed with the
Secretary of State of the State of Delaware on November 13, 1985, as amended.
The Certificate restates, amends and supercedes the provisions of any and all
such documents.
The Certificate has been duly adopted and approved by the directors and
stockholders of the Corporation on October 20, 1989 and November 30, 1989,
respectively.
FIRST: The name of the corporation in Atrix Laboratories, Inc.
SECOND: The registered office of said Corporation and place of business in the
State of Delaware is to be located at Corporation Trust Center, 1209 Orange
Street, City of Wilmington, County of New Castle. The name of its registered
agent at such address is The Corporation Trust Company.
THIRD: The nature of the business, and the objects and purposes proposed to be
transacted, promoted and carried on, are as follow:
(a) The Corporation shall have unlimited power to engage in
and to do any lawful act concerning any or all lawful businesses for
which corporations may be organized under the Delaware General
Corporation Law.
(b) The Corporation assumes to itself and shall and does
possess all general powers, rights, privileges and franchises granted
to or conferred upon corporations by the laws of the State of Delaware.
FOURTH: The aggregate number of shares which the Corporation shall have
authority to issue is thirty million (30,000,000) shares, divided into
twenty-five million (25,000,000) shares of common stock of the per value of
$.001 par share and five million (5,000,000) shares of preferred stock of the
par value of $.001 per share.
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The board of directors is authorized, subject to limitations prescribed by law,
to provide for the issuance of the shares of preferred stock in series, and by
filing a certificate pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and rights of the shares
of each such series and any qualifications, limitations or restrictions thereof.
The number of authorized shares of preferred stock may be increased or decreased
(but not below the number of shares thereof then outstanding) by the affirmative
vote of the holders of a majority of the outstanding shares of common stock,
without a vote of the holders of the preferred stock, or of any series thereof,
unless a vote of any such holders in required pursuant to the certificate or
certificates establishing any series of preferred stock.
No stockholder shall be entitled to preemptive rights in the issuance of
preferred or common stock or be entitled to cumulative voting rights.
FIFTH: Prevention of Self-Dealing. In addition to any action, including any vote
by stockholders required by law or this Certificate, the approval or
authorization of any Self-Dealing Transaction shall require either (a) the
approval of a majority of Disinterested Directors or (b) the affirmative vote of
the holders of at least a majority of the combined voting power of the Voting
Stock, voting together as a single class, excluding any votes cast with respect
to shares of Voting Stock beneficially owned by an Interested Stockholder which
is directly or indirectly a party, or an Affiliate or Associate of which is,
directly or indirectly, a party, to such Self-Dealing Transaction.
Certain Definitions. For the purpose of this Article Fifth:
(a) A "person" shall mean any individual, firm, corporation or other
entity.
(b) "Voting Stock" shall mean the outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of
Directors. In any vote required by or provided for in this Article
Fifth, each share of Voting Stock shall have the number of votes
granted to it generally in the election of Directors.
(c) "Interested Stockholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly, of more
than 5% of the outstanding Voting Stock; or
(ii) is 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 more than
5% of the outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any
Voting Stock of the Corporation which at any time within the
two-year period immediately prior to the date in question was
beneficially owned by any 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 of 1933.
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(d) A person shall be a "beneficial owner" of, or "beneficially own" or
have "beneficial ownership" of, any shares of Voting Stock:
(i) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates
has (a) 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 (b) the right to vote
pursuant to any agreement, arrangement or understanding; or
(iii) which is beneficially owned, directly or indirectly, by
any other person with which such person or any of its
Affiliates or Associates had any agreement, arrangement or
understanding for the purpose of acquiring holding, voting or
disposing of any Voting Stock.
(e) In determining whether a person is an Interested Stockholder
pursuant to paragraph (c) of this Article Fifth, any class of Voting
Stock outstanding shall be deemed to include any Voting Stock deemed
owned through application of paragraph (d) of this Article Fifth but
shall not include any other securities of such class which may be
issuable pursuant to any agreement, arrangement or understanding, or
upon exercise of conversion rights, warrants or options or otherwise.
(f) "Self-Dealing Transaction" means any of the following transactions:
(i) any merger or consolidation of the Corporation or any
Subsidiary with (a) any Interested Stockholder or (b) any
other corporation (whether or not itself an Interested
Stockholder) which is, or after such merger or consolidation
would be, an Affiliate of an interested Stockholder; or
(ii) 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 of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $3,000,000 or more or any loan, advance, guarantee or
other financial assistance, including any tax credit or other
tax advantages, to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder which involves a
financial obligation or benefit of $3,000,000 or more; or
(iii) 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
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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 of $3,000,000 or more; or
(iv) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by or on behalf of
an Interested Stockholder or any Affiliate of any Interested
Stockholder; or
(v) 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 any other transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which
has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
Voting Stock of the Corporation or any Subsidiary which is
directly or indirectly owned by any Interested Stockholder or
any Affiliate of any Interested Stockholder.
(g) "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, an in effect on
October 1, 1989.
(h) "Subsidiary" means any corporation of which a majority of any class
of shares of such corporation entitled to vote generally in the
election of directors is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the definition
of Interested Stockholder set forth in paragraph (c) of this section,
the term "Subsidiary" shall mean only a corporation of which a majority
of the combined voting power of all shares of such corporation entitled
to vote generally in the election of directors is owned, directly or
indirectly, by the Corporation.
(i) "Disinterested 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 of Directors prior to the time that the
Interested Stockholder became an Interested Stockholder, and any
successor of a Disinterested Director who is unaffiliated with the
Interested Stockholder and is recommended to succeed a Disinterested
Director by a majority of Disinterested Directors then on the Board of
Directors.
Powers of the Board of Directors. A majority of the Disinterested Directors, or,
if there are no Disinterested Directors, a majority of the members of the Board
of Directors then in office, shall have the power to determine, for the purposes
of this Article Fifth, on the basis of information known to them, (a) whether a
person in an Interested Stockholder, (b) the number of shares of Voting Stock
beneficially owned by any person, (c) whether a person in an Affiliate or
Associate of another, and (d) whether the assets or financial obligations or
benefits which are the subject of any Self-Dealing Transaction have, or the
consideration to be received for the issuance or transfer of securities by the
Corporation or any Subsidiary in any Self-Dealing Transaction has, an aggregate
fair market value of or involve $3,000,000 or more. A majority of the
Disinterested Directors, or, if there are no Disinterested Directors, a majority
of the members of the Board of Directors then in office, shall have the further
power to interpret all of the terms and provisions of this Article Fifth.
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Amendment, Repeal, etc. Notwithstanding anything contained in this Certificate
or the By-Laws of the Corporation to the contrary, the alteration, change,
amendment, repeal or adoption of any provisions inconsistent with this Article
Fifth shall require the affirmative vote of the holders of a majority of the
combined voting power of the outstanding Voting Stock, excluding any votes cast
with respect to shares of Voting Stock beneficially owned by any Interested
Stockholder, voting together as a single class, but in no event less than the
affirmative vote of 66.66% of combined voting power of the outstanding shares of
Voting Stock, including shares of Voting Stock beneficially owned by any
Interested Stockholder, voting together as a single class.
SIXTH: Board of Directors. The governing board of this Corporation shall be
known as directors and the number of directors may be from time to time
increased or decreased in such manner as shall be specified in the By-Laws of
this Corporation, provided that the number of directors shall not be reduced to
less than three (3) nor increased to more than eleven (11).
Classification. The board of directors shall be divided into three classes, A, B
and C, as nearly equal in number as the total number of directors constituting
the whole board permits, with the term of office of one class expiring each
year. Directors of Class A shall hold office for an initial term expiring at the
annual stockholder meeting in 1990; directors of Class B shall hold office for
an initial term expiring at the annual stockholder meeting in 1991; and
directors of Class C shall hold office for an initial term expiring at the
annual stockholder meeting in 1992. Subject to the foregoing, at each annual
meeting of stockholders the successors to the class of directors whose term
shall then expire shall be elected to hold office for a term expiring at the
third succeeding annual meeting and each director so elected shall hold office
until his successor is elected and qualified, or until his earlier resignation
or removal. If the number of directors is changed, any increase or decrease in
the number of directors shall be apportioned among the three classes so as to
make all classes as nearly equal in number an possible.
Power to Make and Alter By-Laws. In furtherance of, and not in limitation of,
the powers conferred by statute, the Board of Directors is expressly authorized
and empowered to make and alter the By-Laws of the Corporation; provided,
however, that the By-Laws made by the Board of Directors under the powers hereby
conferred may be altered, changed, amended or repealed by the Board of Directors
or by the stockholders having voting power with respect thereto.
Newly Created Directorships and Vacancies. Except as otherwise provided for or
fixed by or pursuant to the provisions of Article Fourth of this Certificate
relating to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
Directors under specified circumstances, newly created directorships resulting
from any increase in the number of Directors and any vacancies on the Board of
Directors resulting from death, resignation, disqualification, removal or other
cause shall be filled only by the affirmative vote of a majority of the
remaining Directors then in office, even though less than a quorum of the Board
of Directors. Any Director elected in accordance with the preceding sentence
shall hold office for the remainder of the full term of the class of Directors
in which the new directorship was created or the vacancy occurred and until such
Director's successor shall have been elected and qualified. No decrease in the
number of Directors constituting the Board of Directors shall shorten the term
of an incumbent Director.
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Cumulative Voting in Certain Circumstances. Notwithstanding anything contained
in this Certificate to the contrary, in any election of Directors of the
Corporation on or after the date on which the Corporation becomes aware that any
stockholder has become a 30% Stockholder (as defined below), there shall be
cumulative voting for election of Directors so that any holder of shares of
Voting Stock may cumulate the voting power represented by his shares 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 such shares are entitled, or
distribute such votes on the same principle among as many candidates for
election as such holder of shares determines. For the purposes of this section,
a "30% Stockholder" shall mean any person (other than the Corporation and any
other corporation of which a majority of the voting power of the capital stock
entitled to vote generally in the election of directors is owned, directly or
indirectly, by the Corporation) who or which in the beneficial owner, directly
or indirectly, of 30% or more of the outstanding Voting Stock (as hereinafter
defined).
Amendment, Repeal or Alteration. Notwithstanding anything contained in this
Certificate to the contrary, the affirmative vote of the holders of at least
66.66% of the combined voting power of the outstanding shares of the Voting
Stock, voting together as a single class, shall be required to alter, change,
amend, repeal or adopt any provision inconsistent with, this Article Sixth.
Certain Definitions. For the purpose of this Article Sixth:
(a) A "person" shall mean any individual, firm, corporation or other
entity,
(b) "Voting Stock" shall mean the outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of
Directors. In any vote required by or provided for in this Article
Sixth, each share of Voting Stock shall have the number of votes
granted to it generally in the election of Directors.
(c) A person shall be a "beneficial owner" of any shares of Voting
Stock;
(i) which such person or any of its Affiliates or Associates
(as hereinafter defined) beneficially owns, directly or
indirectly; or
(ii) which such person or any of its Affiliates or Associates
has (a) 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 (b) the right to vote
pursuant to any agreement, arrangement or understanding; or
(iii) which is beneficially owned, directly or indirectly, by
any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
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disposing of any Voting Stock; provided, however, that no
person shall be deemed to be a "beneficial owner" of any
shares of Voting Stock solely by reason of such person's right
to vote or to acquire such Voting Stock pursuant to any
agreement or instrument approved by a majority of the Board of
Directors.
(d) In determining whether a person is a 30% Stockholder pursuant to
this Article Sixth, any class of Voting Stock outstanding shall be
deemed to include any Voting Stock deemed owned through application of
paragraph (c) of this section but shall not include any other
securities of such class 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 General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
October 1, 1989.
SEVENTH: Except as otherwise provided by law, a director of this Corporation
shall not be disqualified by his office from dealing or contracting with the
Corporation as a vendor, purchaser, employee, agent or otherwise; nor shall any
transaction or contract or act of this Corporation be void or voidable, or in
any way affected or invalidated by reason of the fact that any director, or any
firm of which any director is a member, or any corporation of which any director
is a stockholder or director, in any way interested in such transaction or
contract or act, provided the fact that such director, or such firm, or such
corporation, is so interested and shall be disclosed, or shall be known to the
Board of Directors, or such members thereof as shall be present at any meeting
of the Board of Directors at which action upon any such contract or transaction
or act shall be taken; nor shall any director be accountable or responsible to
the Corporation, for or in respect to any such transaction or contract or act of
this Corporation or for any gains or profits realized by him, by reason of the
fact that he or any firm of which he is a member, or any corporation of which he
is a stockholder or director, is interested in such transaction or contract; and
any such director may be counted in determining the existence of a quorum at any
meeting of the Board of Directors of the Corporation which in authorized to take
action in respect to any such contract or transaction or act, and may vote to
authorize, ratify or approve any such contract or transaction or act, with like
force and effect as if he or any firm of which he is a member, or any
corporation of which he in a stockholder or director, are not interested in such
transaction or contract or act.
EIGHTH: Except an otherwise provided in this Certificate or by law, this
Certificate may be amended by a majority vote of all shares of the Corporation
issued and outstanding.
NINTH: Without limiting the powers of the Corporation as conferred by statute to
acquire its own shares, said corporation may, from time to time, when authorized
by its Board of Directors and to the extent of the surplus of its assets over
its liabilities, plus capital, purchase shares of any class of securities issued
by it.
TENTH: The Corporation is to have perpetual existence.
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ELEVENTH: Section 1. Elimination of Certain Liability of Directors.
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal
benefit.
Section 2. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "Proceeding"), by reason of the fact that
he or she or a person of whom he or she in the legal representative, is
or was a director or officer, of the Corporation or in or was serving
at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust
or other enterprise, including service with respect to employee benefit
planet whether the basis of such Proceeding is alleged action an
official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware General Corporation Law, as
the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against
all expense, liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in
connection therewith and such indemnification shall continue as to a
person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that, except as provided in
paragraph (b) hereof, the Corporation shall indemnify any such person
seeking indemnification in connection with a preceeding (or part
thereof) was authorized by the Board of Directors of the Corporation.
The right to indemnification conferred in this section shall be a
contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such Proceeding in
advance of its final disposition; provided, however, that, if the
Delaware General Corporation Law requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a director
or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the
final disposition of a Proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or
officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be
indemnified under this Section or otherwise. The Corporation may, by
action of its Board of Directors, provide indemnification to employees
and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
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(b) Right of Claimant to Bring Suit. If a claim under
paragraph (a) of this Section is not paid in full by the Corporation
within thirty days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be
paid also the expense of prosecuting such claim. It shall be a defense
to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any Proceeding in advance of its final
disposition where the required undertaking, if any is required has been
tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the claimant
for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including
its Board of Directors, independent legal counsel or its stockholders)
to have made a determination prior to the commencement of such action
and indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth
in the Delaware General Corporation Law, nor an actual determination by
the Corporation (including its Board of Directors, independent legal
counsel or its stockholders) that the claimant has not met such
applicable standard or conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable
standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification
and the payment of expenses incurred in defending a Proceeding in
advance of its final disposition conferred in this Section shall not be
exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of this Certificate, bylaw,
agreement, vote of stockholders or disinterested directors or
otherwise.
(d) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent
of the Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any such expense, liability or loss,
whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the Delaware
General Corporation Law.
Section 3. Amendment, Repeal or Alteration.
Notwithstanding anything contained in this Certificate to the contrary,
the affirmative vote of the holders of at least 66.66% of the combined
voting power of the outstanding shares of the Voting Stock, voting
together as a single class, shall be required to alter, change, amend,
repeal, or adopt any provision inconsistent with this Article Eleventh.
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Executed this 8th day of December, 1989.
By: /s/ G. Lee Southard
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G. Lee Southard, President
ATTEST:
/s/ Walter J. Daly
- -----------------------------
Walter J. Daly, Secretary
STATE OF COLORADO ]
CITY OF FORT COLLINS ] SS.
COUNTY OF LARIMER ]
I, Ann L. Davis, a notary Public, hereby certify that on this 8th day
of December, 1989, personally appeared before me G. Lee Southard, who, being by
me first duly sworn, declared that he is the person who signed the foregoing
document as President of Vipont Research Laboratories, Inc. and that the
statements contained therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 8th day
of December, 1989.
[SEAL]
/s/ Ann L. Davis
------------------------------
Notary Public
My Commission Expires:
6-21-90
- ------------------------------
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ATRIX LABORATORIES, INC.
CERTIFICATE OF DESIGNATION
OF THE
SERIES A PREFERRED STOCK
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Pursuant to Section 151 of the General Corporation Law of the State of Delaware
-------------------------------------
The undersigned officers of Atrix Laboratories, Inc., a corporation
organized and existing under the General Corporation Law of the State of
Delaware (the "Corporation"), in accordance with the provisions of Section 103
thereof, DO HEREBY CERTIFY:
That, pursuant to the authority conferred upon the Board of Directors
of the Corporation by its Amended and Restated Certificate of Incorporation (the
"Certificate"), the said Board of Directors, at a duly called meeting held on
August 2, 1998, at which a quorum was present and acted throughout, adopted the
following resolution, which resolution remains in full force and effect on the
date hereof creating a series of Series A shares of preferred stock having a par
value of $.001 per share, designated as Series A Preferred Stock (the "Series A
Preferred Stock") out of the class of 5,000,000 shares of preferred stock, par
value $.001 per share (the "Preferred Stock"):
RESOLVED, that pursuant to the authority vested in the Board of
Directors in accordance with the provisions of its Certificate, the Board of
Directors does hereby create, authorize and provide for the issuance of 200,000
shares of its authorized Preferred Stock to be designated and issued as the
Series A Preferred Stock, having the voting powers, designation, relative,
participating, optional and other special rights, preferences and
qualifications, limitations and restrictions that are set forth as follows:
1. Dividends and Distributions. (A) Subject to the prior and superior
rights of the holders of any shares of any other series of Preferred Stock or
any other shares of stock of the Corporation ranking prior and superior to the
shares of Series A Preferred Stock with respect to dividends, each holder of one
one-hundredth (1/100) of a share (a "Unit") of Series A Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for that purpose, (i) quarterly dividends payable in
cash on the first day of March, June, September and December in each year (each
such date being a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of such Unit of Series
A Preferred Stock, in an amount per Unit (rounded to the nearest cent) equal to
the greater of (a) $.01 or (b) subject to the provision for adjustment
hereinafter set forth, the aggregate per share amount of all cash dividends
declared on shares of the Common Stock since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of a Unit of Series A Preferred Stock, and (ii)
subject to the provision for adjustment hereinafter set forth, quarterly
distributions (payable in kind) on each Quarterly Dividend Payment Date in an
amount per Unit equal to the aggregate per share amount of all non-cash
dividends or other distributions (other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common Stock, by
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reclassification or otherwise) declared on shares of Common Stock since the
immediately preceding Quarterly Dividend Payment Date, or with respect to the
first Quarterly Dividend Payment Date, since the first issuance of a Unit of
Series A Preferred Stock. In the event that the Corporation shall at any time
after September 25, 1998 (the "Rights Declaration Date") (i) declare any
dividend on outstanding shares of Common Stock payable in shares of Common
Stock, (ii) subdivide outstanding shares of Common Stock or (iii) combine
outstanding shares of Common Stock into a smaller number of shares, then in each
such case the amount to which the holder of a Unit of Series A Preferred Stock
was entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which shall be the number of shares of Common Stock that are
outstanding immediately after such event and the denominator of which shall be
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(B) The Corporation shall declare a dividend or distribution on Units
of Series A Preferred Stock as provided in paragraph (A) above immediately after
it declares a dividend or distribution on the shares of Common Stock (other than
a dividend payable in shares of Common Stock); provided, however, that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $.01 per Unit on the
Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and shall be cumulative on each
outstanding Unit of Series A Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issuance of such Unit of Series A Preferred
Stock, unless the date of issuance of such Unit is prior to the record date for
the first Quarterly Dividend Payment Date, in which case, dividends on such Unit
shall begin to accrue from the date of issuance of such Unit, or unless the date
of issuance is a Quarterly Dividend Payment Date or is a date after the record
date for the determination of holders of Units of Series A Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin to accrue and
be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on Units of Series A Preferred
Stock in an amount less than the aggregate amount of all such dividends at the
time accrued and payable on such Units shall be allocated pro rata on a
unit-by-unit basis among all Units of Series A Preferred Stock at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of Units of Series A Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than 30 days prior to the date fixed for the payment thereof.
2. Voting Rights. The holders of Units of Series A Preferred Stock
shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
Unit of Series A Preferred Stock shall entitle the holder thereof to one vote on
all matters submitted to a vote of the stockholders of the Corporation. In the
event the Corporation shall at any time after the Rights Declaration Date (i)
declare any dividend on outstanding shares of Common Stock payable in shares of
Common Stock, (ii) subdivide outstanding shares of Common Stock or (iii) combine
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the outstanding shares of Common Stock into a smaller number of shares, then in
each such case the number of votes per Unit to which holders of Units of Series
A Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction the numerator of which shall
be the number of shares of Common Stock outstanding immediately after such event
and the denominator of which shall be the number of shares of Common Stock that
were outstanding immediately prior to such event; and
(B) Except as otherwise provided herein, in the Certificate or the
Bylaws of the Corporation or as required by law, the holders of Units of Series
A Preferred Stock and the holders of shares of Common Stock shall vote together
as one class on all matters submitted to a vote of stockholders of the
Corporation, and such holders shall have no special voting rights and their
consents shall not be required for taking any corporate action.
3. Certain Restrictions. (A) Whenever quarterly dividends or other
dividends or distributions payable on Units of Series A Preferred Stock as
provided herein are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on outstanding Units of
Series A Preferred Stock shall have been paid in full, the Corporation shall not
(i) declare or pay dividends on, make any other distributions on, or redeem or
purchase or otherwise acquire for consideration any shares of junior stock; (ii)
declare or pay dividends on or make any other distributions on any shares of
parity stock, except dividends paid ratably on Units of Series A Preferred Stock
and shares of all such parity stock on which dividends are payable or in arrears
in proportion to the total amounts to which the holders of such Units and all
such shares are then entitled; (iii) redeem or purchase or otherwise acquire for
consideration shares of any parity stock, provided, however, that the
Corporation may at any time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any junior stock; (iv) purchase or
otherwise acquire for consideration any Units of Series A Preferred Stock,
except in accordance with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such Units.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 3,
purchase or otherwise acquire such shares at such time and in such manner.
4. Reacquired Shares. Any Units of Series A Preferred Stock purchased
or otherwise acquired by the Corporation in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof. All such Units
shall, upon their cancellation, become authorized but unissued shares (or
fractions of shares) of Preferred Stock and may be reissued as part of a new
series of Preferred Stock to be created by resolution or resolutions of the
Board of Directors, subject to the conditions and restrictions on issuance set
forth herein.
5. Liquidation, Dissolution or Winding Up. (A) Upon any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (i) to the holders of shares of junior stock unless
the holders of Units of Series A Preferred Stock shall have received, subject to
adjustment as hereinafter provided in paragraph (B), the greater of either (a)
$.01 per Unit plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not earned or declared, to the date of such
payment, or (b) the amount equal to the aggregate per share amount to be
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distributed to holders of shares of Common Stock, or (ii) to the holders of
shares of parity stock, unless simultaneously therewith distributions are made
ratably on Units of Series A Preferred Stock and all other shares of such parity
stock in proportion to the total amounts to which the holders of Units of Series
A Preferred Stock are entitled under clause (i)(a) of this sentence and to which
the holders of shares of such parity stock are entitled, in each case upon such
liquidation, dissolution or winding up.
(B) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide outstanding shares of Common
Stock, or (iii) combine outstanding shares of Common Stock into a smaller number
of shares, then in each such case the aggregate amount to which holders of Units
of Series A Preferred Stock were entitled immediately prior to such event
pursuant to clause (i)(b) of paragraph (A) of this Section 5 shall be adjusted
by multiplying such amount by a fraction the numerator of which shall be the
number of shares of Common Stock that are outstanding immediately after such
event and the denominator of which shall be the number of shares of Common Stock
that were outstanding immediately prior to such event.
6. Consolidation, Merger, etc. In case the Corporation shall enter into
any consolidation, merger, combination or other transaction in which the shares
of Common Stock are exchanged for or converted into other stock or securities,
cash and/or any other property, then in any such case Units of Series A
Preferred Stock shall at the same time be similarly exchanged for or converted
into an amount per Unit (subject to the provision for adjustment hereinafter set
forth) equal to the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which each
share of Common Stock is converted or exchanged. In the event the Corporation
shall at any time after the Rights Declaration Date (i) declare any dividend on
outstanding shares of Common Stock payable in shares of Common Stock, (ii)
subdivide outstanding shares of Common Stock, or (iii) combine outstanding
Common Stock into a smaller number of shares, then in each such case the amount
set forth in the immediately preceding sentence with respect to the exchange or
conversion of Units of Series A Preferred Stock shall be adjusted by multiplying
such amount by a fraction the numerator of which shall be the number of shares
of Common Stock that are outstanding immediately after such event and the
denominator of which shall be the number of shares of Common Stock that were
outstanding immediately prior to such event.
7. Redemption. The Units of Series A Preferred Stock and shares of
Series A Preferred Stock shall not be redeemable.
8. Ranking. The Units of Series A Preferred Stock and shares of Series
A Preferred Stock shall rank junior to all other series of the Preferred Stock
and to any other class of Preferred Stock that hereafter may be issued by the
Corporation as to the payment of dividends and the distribution of assets,
unless the terms of any such series or class shall provide otherwise.
9. Fractional Shares. The Series A Preferred Stock may be issued in
Units or other fractions of a share, which Units or fractions shall entitle the
holder, in proportion to such holder's units or fractional shares, to exercise
voting rights, receive dividends, participate in distributions and to have the
benefit of all other rights of holders of Series A Preferred Stock.
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10. Certain Definitions. As used in this resolution with respect to the
Series A Preferred Stock, the following terms shall have the following meanings:
(A) The term "Common Stock" shall mean the class of stock designated as
the common stock, par value $.001 per share, of the Corporation at the date
hereof or any other class of stock resulting from successive changes or
reclassification of the common stock.
(B) The term "junior stock" (i) as used in Section 3 shall mean the
Common Stock and any other class or series of capital stock of the Corporation
hereafter authorized or issued over which the Series A Preferred Stock has
preference or priority as to the payment of dividends and (ii) as used in
Section 5, shall mean the Common Stock and any other class or series of capital
stock of the Corporation over which the Series A Preferred Stock has preference
or priority in the distribution of assets on any liquidation, dissolution or
winding up of the Corporation.
(C) The term "parity stock" (i) as used in Section 3 shall mean any
class or series of stock of the Corporation hereafter authorized or issued
ranking pari passu with the Series A Preferred Stock as to dividends and (ii) as
used in Section 5, shall mean any class or series of capital stock ranking pari
passu with the Series A Preferred Stock in the distribution of assets on any
liquidation, dissolution or winding up.
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IN WITNESS WHEREOF, Atrix Laboratories, Inc. has caused this
Certificate to be signed by its Vice Chairman and Chief Executive Officer and
its Assistant Secretary and Chief Financial Officer this 24th day of September,
1998.
ATRIX LABORATORIES, INC.
By: /s/ John E. Urheim
------------------------------------------
Name: John E. Urheim
Title: Vice Chairman and Chief Executive Officer
By: /s/ Brian G. Richmond
------------------------------------------
Name: Brian G. Richmond
Title: Assistant Secretary and Chief Financial
Officer
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